U.S. ex rel. Rivera v. Franzen

• Decision Date: 02 July 1986
• Docket Number: No. 85-2170,85-2170
• Citation: 794 F.2d 314
• Parties: UNITED STATES of America ex rel. Gilbert RIVERA, Petitioner-Appellant, v. Gayle FRANZEN, Director, Department of Corrections, State of Illinois; Richard W. DeRobertis, Warden; and Neil Hartigan, Attorney General of the State of Illinois, Respondents-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 314

794 F.2d 314

UNITED STATES of America ex rel. Gilbert RIVERA, Petitioner-Appellant, v. Gayle FRANZEN, Director, Department of Corrections, State of

Illinois; Richard W. DeRobertis, Warden; and

Neil Hartigan, Attorney General of the

State of Illinois,

Respondents-Appellees.

No. 85-2170.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 27, 1986.

Decided July 2, 1986.

David A. Ellison, Law Student, Southern Illinois University, School of Law, Carbondale, Ill., for petitioner-appellant.

Mark L. Rotert, Asst. Atty. Gen., Chicago, Ill., for respondents-appellees.

Before WOOD, FLAUM and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Gilbert Rivera appeals from the district court's order denying his petition for a writ of habeas corpus. The district judge ruled that while Rivera had been denied effective assistance of counsel by his lawyer's failure to investigate into the petitioner's past mental problems, Rivera had failed to establish that he was prejudiced by the violation as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Petitioner argues that Strickland should not be applied retroactively and, in the alternative, that this case falls into an exception to the prejudice requirement established in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). We do not reach these issues because we are unable to accept the district court's legal characterization of the facts as constituting ineffective assistance of counsel. Thus, on the basis that Rivera was competently represented at his trial, we affirm.

I.

In February of 1974, petitioner Gilbert Rivera was found guilty of murder for the stabbing death of Francis Chuck Madsen in a Chicago tavern. For this crime he received a jail term of 20 to 60 years. During the early portion of his processing through the Illinois criminal justice system Rivera was represented by a public defender. However, in June of 1973 petitioner's father retained the services of Lionel Livingston, an attorney with an extensive background in criminal law. Rivera's father related the story of the crime to the attorney at Livingston's firm who conducted the "intake" interview. The district court, following an evidentiary hearing, concluded that Livingston had "no occasion to doubt that 'the notes of the interview' were other than a complete record" of what the father had said. These notes were found to contain nothing that would indicate that Rivera had a history of mental disorders or would suggest the possibility of an available insanity defense.

Within a few days after being retained, Livingston reviewed the public defender's file on the case and went to Cook County Jail to interview Rivera. At this interview Rivera handed Livingston a three-page description of his case. Livingston then conducted an extensive interview during which Rivera admitted to consuming some alcohol on the night of the murder. He did not, however, mention any past psychological problems or the use of any medications. At this meeting and all subsequent meetings, Rivera, according to the district court, appeared to be "controlled and lucid," never indicating any past psychological problems. From this the district court concluded that "[a]t no time during the petitioner's defense was Livingston aware of petitioner's psychiatric history" and that Rivera gave Livingston "no indication other than that he was and had always been free from psychological problems." The record indicates that Livingston reviewed the statements of witnesses and the police and medical reports, and competently conducted Rivera's defense based on a theory of self-defense. Following petitioner's conviction, Livingston reviewed the pre-sentence investigation report in which Rivera informed the probation officer that he had "no mental problems."

In reality Rivera suffered from depression with suicidal tendencies that are aggravated by the consumption of alcohol. He has attempted suicide three times and spent time in mental hospitals on three occasions. A discharge record at one of the hospitals described petitioner as follows:

Mr. Rivera is suffering from alcoholic psychosis. He is a very explosive personality. His anger is expressed in a very destructive way. He has had three suicide attempts. He is very violent under the influence of alcohol.

In order to control his alcoholic withdrawal Rivera was prescribed Thorazine. On the day of the murder Rivera had taken the medication as well as consuming approximately fifteen mixed drinks and "a couple of quarts of beer."

The district judge ruled that the failure to investigate into the possibility of an insanity defense and thus to discover Rivera's past history constituted ineffective assistance of counsel. He noted that, while neither Rivera nor his family ever attempted to inform Livingston of petitioner's mental disorders, the attorney made no attempt to inquire about Rivera's mental capacities. The district court held that in a case where the defendant admits to committing the act, thus making justification or lack of capacity the only defenses, the defense attorney has an obligation to investigate all available defenses. He cannot rely on his client to frame the parameters of the defense nor can he rely on his own impressions of the psychological makeup of the defendant. The court went on to deny the writ on the grounds that the petitioner had failed to establish prejudice within the meaning of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

II.

In order "[t]o establish that counsel's conduct was deficient, the defendant must show counsel's specific acts or omissions which, viewed from the perspective of counsel at the time of trial, fell below the standard of reasonable professional assistance." United States v. Payne, 741 F.2d 887, 891 (7th Cir.1984) (citing Strickland, 104 S.Ct. at 2065). See also United States v. Sherwood, 770 F.2d 650, 655 (7th Cir.1985) ("Deficient performance is to be judged according to an objective standard of reasonableness, giving a high degree of deference to counsel, and making every effort to evaluate the conduct from counsel's perspective at the time without the distorting effects of hindsight."); United States v. Weston, 708 F.2d 302, 306 (7th Cir.1983) (" 'grossly incompetent professional conduct' or 'representation which is in any aspect ... shockingly inferior to what may be expected of the prosecution's representation' ") (citing United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.1975), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1976)), cert. denied, 464 U.S. 962, 104 S.Ct. 397, 78 L.Ed.2d 340 (1984); United States ex rel. Feeley v. Ragen, 166 F.2d 976, 980-81 (7th Cir.1948). The question presented here is whether Mr. Livingston's failure to investigate his apparently sane client's history of mental disorders runs afoul of the Sixth Amendment standard of competency.

At the outset it must be stressed that the issue here is not whether it is advisable or "good practice" for a defense attorney to inquire as a matter of course into his...