Tippins v. Walker

• Decision Date: 07 March 1996
• Docket Number: D,No. 735,735
• Citation: 77 F.3d 682
• Parties: Dale TIPPINS, Petitioner-Appellee, v. Hans WALKER, Superintendent, Auburn Correctional Facility, Respondent-Appellant. ocket 95-2406.
• Court: U.S. Court of Appeals — Second Circuit

Page 682

77 F.3d 682

Dale TIPPINS, Petitioner-Appellee, v. Hans WALKER, Superintendent, Auburn Correctional Facility Respondent-Appellant.

No. 735, Docket 95-2406.

United States Court of Appeals Second Circuit.

Argued Jan. 2, 1996.

Decided March 7, 1996.

Michael E. Bongiorno, District Attorney, Rockland County, NY (Lisa Cohen, Assistant District Attorney, Rockland County, NY, of counsel), for Respondent-Appellant.

Sally Wasserman, New York City, for Petitioner-Appellee.

Before: McLAUGHLIN, JACOBS, and CALABRESI, Circuit Judges.

JACOBS, Circuit Judge:

Dale Tippins petitioned for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, on the ground that his lawyer slept during Tippins' criminal trial. The United States District Court for the Southern District of New York (Keenan, J.) granted the petition, holding that counsel was ineffective per se because he was asleep for a "substantial" portion of the trial, and that Tippins' Sixth Amendment right to counsel was thereby denied. Respondent Hans Walker, Superintendent of Auburn Correctional Facility, appeals. For the reasons set forth below, we affirm.

BACKGROUND

Tippins was arrested in 1986 and charged with one count each of criminal sale of a controlled substance in the first degree and criminal possession of a controlled substance in the first degree, in violation of New York Penal Law §§ 220.43(a) and 220.21(1), respectively. These charges arose from a controlled buy of two pounds of cocaine by an undercover police officer named Timothy Duffy on March 19, 1986. The transaction was arranged by a confidential informant named John Mayone.

Tippins and his two co-defendants--Clifford Stokes and Joseph Blackman--went to trial in late 1986 before the Honorable William Nelson of the New York County Court of Rockland County. The trial, including the pretrial proceedings, were conducted over a period of six weeks. Tippins, represented by appointed counsel Louis Tirelli, mounted a defense of entrapment. On October 23, 1986, the jury found all defendants guilty. On December 9, 1986, Tippins was sentenced to eighteen years to life, a sentence which he is now serving.

Tippins moved the trial court for an order vacating the judgment under New York Criminal Procedure Law § 440.10, on the ground of ineffective assistance of counsel. In February 1989, the Honorable William Braatz, Acting Supreme Court Justice in Rockland County, conducted a hearing to ascertain the circumstances and determine whether Tirelli's conduct deprived his client of effective assistance during the trial. Testimony was given by Judge Nelson, the court reporter, the prosecutor, a juror, the co-defendants, Tippins' mother, and his girlfriend.

After hearing the testimony, Justice Braatz ruled from the bench that, although Tirelli clearly had slept during the trial, the court could not tell "how long he slept, or what portion of the testimony he missed, if any," and that the petitioner had failed to demonstrate that Tirelli had committed any errors at trial. Specifically, Judge Braatz concluded that Tippins failed to demonstrate that he suffered any prejudice by reason of Tirelli's sleeping:

This defendant has failed to show any trial error or trial errors which arose because of counsel's conduct. It seems to the Court that an examination of the trial transcript, in an attempt to determine if any trial errors occurred, and if there were errors, that they occurred as a result of counsel's sleeping, or at a time when counsel was sleeping, that they would have been most helpful to defendant's position at this hearing. Apparently defendant is or was unable to do this, although defendant attempted to question, somewhat speculatively, some of defense counsel's tactics.

In a decision dated May 6, 1991, the Appellate Division affirmed, declining to adopt a per se ineffective assistance rule and citing the vigorous aspects of the defense that Tirelli conducted on Tippins' behalf:

We find the defendant's contention regarding the ineffective assistance of counsel to be without merit. The record demonstrates that defense counsel vigorously cross-examined the People's witnesses, delivered opening and closing arguments which were consistent with his entrapment defense, raised appropriate objections, made appropriate motions and presented four defense witnesses, including the defendant. Thus, the defendant was provided with meaningful representation.

People v. Tippins, 173 A.D.2d 512, 513, 570 N.Y.S.2d 581, 582 (2d Dep't 1991) (citations omitted).

On September 23, 1991, the New York Court of Appeals denied leave to appeal. People v. Tippins, 78 N.Y.2d 1015, 575 N.Y.S.2d 823, 581 N.E.2d 1069 (1991). On January 21, 1992, the United States Supreme Court denied certiorari. Tippins v. New York, 502 U.S. 1064, 112 S.Ct. 952, 117 L.Ed.2d 120 (1992).

Tippins filed his petition for writ of habeas corpus in the Southern District of New York on February 17, 1993. In an opinion and order dated June 7, 1995, Judge Keenan ruled that the Second Circuit had adopted the rule in Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984), which held that counsel's sleeping during a "substantial" portion of a criminal trial was "inherently prejudicial," and that no separate showing of prejudice was necessary to demonstrate ineffective assistance of counsel. Citing ample evidence in the hearing record that Tirelli was asleep during a "substantial" portion of the trial, the district court held that petitioner's Sixth Amendment right to counsel had been violated, and granted the petition. Respondent appeals.

DISCUSSION

Only one court of appeals has concluded that a lawyer's sleeping during trial is a per se denial of effective assistance of counsel. In Javor v. United States, 724 F.2d 831, 833 (9th Cir.1984), the Ninth Circuit held that, "when an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary." In United States v. DiTommaso, 817 F.2d 201, 216 (2d Cir.1987), we cited Javor in dictum for the view that "sleeping counsel is tantamount to no counsel at all." However, the issue of whether the slumber of counsel during trial can be inherently prejudicial was not squarely presented in that case, because "the record [was] barren of any factual support for [the] allegation." Id. In contrast, the issue is squarely presented with an ample record here.

Under Javor, a finding of per se prejudice is compelled by a finding of sleeping during a "substantial" part of the trial. Tippins asks us to affirm on the ground that Judge Keenan correctly concluded that the sleeping in this case was "substantial," and that this Circuit deems a defendant to have suffered prejudice per se in that circumstance. The word "substantial," however, is unhelpful. It can refer to the length of time counsel slept, or the proportion of the proceedings missed, or the significance of those proceedings. The Javor court did not expound on the meaning of the word.

Nevertheless, we agree with Judge Keenan that the evidence in this case supports the grant of the writ. The evidence is not disputed; it demonstrates that counsel was unconscious for numerous extended periods of time during which the defendant's interests were at stake. These circumstances suggest "a breakdown in the adversarial process that our system counts on to produce just results," Strickland v. Washington, 466 U.S. 668, 696, 104 S.Ct. 2052, 2069, 80 L.Ed.2d 674 (1984), and from which we must presume prejudice to the defendant.

The respondent interposes layers of defenses to the writ, which we address in the following order: (A) that the district court impermissibly ignored the factfinding of the state court, and (B) that the petitioner failed to make a particularized showing of prejudice as required by Strickland and analogous cases in this Court.

A. Factfinding.

Justice Braatz found that "there is no doubt that Mr. Tirelli was sleeping during portions of the trial," but Justice Braatz was "unable ... to determine how long [Tirelli] slept, or what portions of the testimony he missed, if any." The respondent argues that "[t]he hearing court's findings on this issue should be presumed, by this Court, to be correct." In fact, however, Justice Braatz did not make specific findings on any issue other than Tippins' failure to show prejudice. What is significant is that Justice Braatz considered and relied on the testimony of all the witnesses who testified at the hearing, and discredited the testimony of none. Since the testimony of each witness paints a similar picture of what went on at trial, there is no dispute about the facts. Moreover, the district court received the hearing transcript into evidence without objection and without a request by either party for the opportunity to adduce additional evidence. The presumption of correctness afforded by 28 U.S.C. § 2254(d) therefore did not inhibit Judge Keenan's ability to make his own findings based on the transcript of the proceedings conducted by Justice Braatz.

B. Prejudice.

In general, a defendant claiming ineffective assistance of counsel must demonstrate that (1) counsel's conduct "fell below an objective standard of reasonableness," and (2) this incompetence caused prejudice to the defendant. Strickland, 466 U.S. at 687-88, 104 S.Ct. at 2064. An attorney is presumed to be competent, and "the burden rests on the accused to demonstrate a constitutional violation." United States v. Cronic, 466 U.S. 648 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984).

Strickland recognized, however, that there are some situations where prejudice will be presumed, because it will be "so likely that case-by-case inquiry into prejudice is not worth the cost," 466 U.S. at 692, 104 S.Ct. at 2067, because such errors are "easy to identify," and because such deprivations are "easy for the government to prevent." Id. Examples are cas...