Vance v. Lehman

• Decision Date: 13 February 1995
• Docket Number: No. 94-1766,94-1766
• Citation: 64 F.3d 119
• Parties: Russell L. VANCE v. Joseph LEHMAN, Commissioner, Department of Corrections; The Attorney General of The State of Pennsylvania; The District Attorney for Philadelphia County. Russell Vance, Appellant. . Submitted Pursuant to Third Circuit LAR 34.1(a)
• Court: U.S. Court of Appeals — Third Circuit

Page 119

64 F.3d 119

64 USLW 2223

Russell L. VANCE v. Joseph LEHMAN, Commissioner, Department of Corrections; The Attorney General of The State of Pennsylvania The District Attorney for Philadelphia County Russell Vance, Appellant.

No. 94-1766.

United States Court of Appeals Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a)

February 13, 1995.

Decided Aug. 23, 1995.

Daniel M. Preminger, Philadelphia, PA, for appellant.

Deborah Fleisher, Asst. Dist. Atty., Donna G. Zucker, Chief, Federal Litigation, Ronald Eisenberg, Deputy Dist. Atty., Arnold H. Gordon, First Asst. Dist. Atty., Lynne Abraham, Dist. Atty., Philadelphia, PA, for appellees.

Before: STAPLETON, GREENBERG and COWEN, Circuit Judges

OPINION OF THE COURT

STAPLETON, Circuit Judge:

Petitioner-appellant Vance was convicted of murder in the Philadelphia Court of Common Pleas. In this habeas corpus proceeding, he collaterally attacks the validity of his conviction on the ground that he did not receive the "Assistance of Counsel for his defence" as mandated by the Sixth Amendment. The license of Vance's lawyer to practice law in Pennsylvania was "revoked" shortly after the conclusion of his representation of Vance because he had made material misrepresentations of fact on his application for admission to the Pennsylvania Bar. The district court declined to grant relief, and for the reasons that follow, we will affirm.

I.

Russell Vance was charged with the murder and involuntary manslaughter of his landlord, as well as with robbery and possession of an instrument of crime. Vance engaged the services of Lewis Small, Esquire, to represent him in connection with these charges. Small turned the matter over to an associate in his office, Richard Potack, Esquire, who was ultimately appointed by the court to represent Vance on April 15, 1985.

After a two day suppression hearing and other pretrial proceedings, a jury was selected in early February of 1986. After opening arguments and the calling of the first witness, Vance decided to enter a plea of guilty to the murder charge. The court then conducted a three day degree of guilt hearing, found Vance guilty of murder in the first degree, and sentenced him to life imprisonment.

Several days later, Vance filed a pro se motion to withdraw his guilty plea, and subsequently, he submitted an amended motion alleging ineffective assistance of counsel. A new attorney was appointed to represent Vance, and the court held an evidentiary hearing. Ultimately, it vacated Vance's sentence and granted his motion to withdraw his plea. The Commonwealth appealed. The Pennsylvania Superior Court reversed and reinstated the judgment of sentence, Commonwealth v. Vance, 376 Pa.Super. 493, 546 A.2d 632 (1988). Vance filed a Petition for Allowance of Appeal to the Supreme Court which was denied. Commonwealth v. Vance, 521 Pa. 620, 557 A.2d 723 (1989). After an unsuccessful post-conviction relief proceeding in the state courts, Vance filed this federal habeas proceeding.

The record reveals a number of facts about Vance's counsel of which Vance and the trial judge were unaware at the time of trial. Potack graduated from Howard University School of Law in May of 1975 and passed the California Bar Examination that summer. He was admitted to the California Bar in December of 1975 and practiced law in that state for the next eight years. His practice included criminal defense representations.

Potack began using cocaine regularly in 1980. Between mid-1981 and the fall of 1983, former clients filed at least ten complaints against him with the California disciplinary authorities. In November of 1983, while these matters were under investigation, Potack voluntarily ceased practicing law in California, and in December, moved to Philadelphia.

Potack successfully took the Pennsylvania Bar examination in February of 1984 and was admitted to that bar in May. On his application for permission to take the bar examination, he falsely represented that no charges for professional misconduct were presently pending against him, that no such charges had been filed in the past, and that he had not undergone treatment for the use of drugs. In addition, he represented that he had not been arrested or prosecuted for any crime when he knew there were outstanding warrants for his arrest for passing worthless checks in California.

Two weeks after he began his representation of Vance, Potack entered a stipulation with the California disciplinary authorities regarding the professional misconduct complaints against him. He stipulated that while he was an attorney, he had (1) withdrawn from employment without refunding unearned fees paid in advance in four cases; (2) represented clients with conflicting interest without obtaining the consent of all concerned parties; (3) failed to use reasonable diligence and his best judgment for the purpose for which he was employed in four cases; and (4) failed to deposit funds received on behalf of a client in a separate, identifiable bank account. On June 21, 1985, the disciplinary authorities recommended to the California Supreme Court that Potack be suspended from the practice of law for three years, that the suspension be stayed, and that he be placed on probation on the conditions that he serve a one year suspension, make restitution, pass the professional responsibility examination, and participate in a drug rehabilitation program. The record does not disclose the date upon which Potack's suspension in California commenced.

On January 13, 1986, approximately three weeks before the jury was selected for Vance's trial, the Pennsylvania State Board of Law Examiners petitioned the Pennsylvania Supreme Court to revoke Potack's admission to the bar. The Board's petition alleged that if it had known of Potack's failure to truthfully answer questions inquiring into professional and criminal misconduct and narcotics abuse, it would not have given him permission to sit for the Pennsylvania Bar Exam and would have found that he did not meet the Board's character standards to practice law. The Supreme Court of Pennsylvania granted the Board's "Petition to Revoke Admission to the Bar" on April 16, 1986.

When Vance's trial judge vacated his sentence and permitted him to withdraw his guilty plea, she acted in part based on her view that the April 16, 1986 order of the Pennsylvania Supreme Court had the "effect of making [Potack's] membership in the Pennsylvania Bar void ab initio." App. 44D. Citing People v. Washington, 87 Misc.2d 103, 384 N.Y.S.2d 691 (N.Y.Sup.Ct.1976), for the proposition that the term "counsel" in the Sixth Amendment referred to "a duly licensed lawyer and nothing less," id., 384 N.Y.S.2d at 692, she held that Vance had not received the constitutionally required assistance of counsel for his defense. App. 44D, 52D.

The Superior Court took a different view of the predicate state law issue. It rejected the view that Potack's membership in the Pennsylvania Bar had been void ab initio. Commonwealth v. Vance, 546 A.2d at 636. Accordingly, it held that "[a]t the time Mr. Potack represented [Vance], he was a member of the Pennsylvania Bar" and authorized by Pennsylvania law to conduct Vance's defense. Id. at 635.

II.

Vance's federal habeas corpus petition does not seek relief on the ground that Potack did or failed to do something during his representation of Vance that breached his professional responsibilities in a way that prejudiced the defense of the case. Vance's brief before us tacitly recognizes that the record will not support a contention that he is entitled to a new trial under the standard announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); the record does not affirmatively show that counsel's performance was deficient and that this deficient performance prejudiced the defense. Rather, Vance presses the theory accepted by the Court of Common Pleas: the representation by Potack was a per se violation of the Sixth Amendment without regard to the quality of his performance.

We begin our analysis of Vance's contentions with the basic principles underlying right to counsel jurisprudence.

The right to the effective assistance of counsel is ... the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted--even if defense counsel may have made demonstrable errors--the kind of testing envisioned by the Sixth Amendment has occurred.

United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 2045, 80 L.Ed.2d 657 (1984) (footnote omitted). Accordingly, "[a]bsent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." Id. at 658, 104 S.Ct. at 2046. Nevertheless, as Vance stresses, there are "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id.

The circumstances in which prejudice has been found so likely as to be presumed are very rare. The Court in Cronic set forth a few examples that illustrate the degree of risk of prejudice that must be present before its demonstration is excused. If the defendant has no representation of any kind, his conviction is per se invalid. Id. at 659, 104 S.Ct. at 2047. The same is true if, for any reason, the defendant's counsel is prevented from assisting him during a critical stage of the proceeding. Id. "Similarly, if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing [by foregoing cross-examination of the prosecutor's witnesses], then there has been a denial of the Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Id. (citing Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)).

Another situation which would warrant the application of a per se...