Whiteside v. Scurr, 83-1015

• Decision Date: 24 December 1984
• Docket Number: No. 83-1015,83-1015
• Citation: 744 F.2d 1323
• Parties: Emmanuel Charles WHITESIDE, Appellant, v. David SCURR, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1323

744 F.2d 1323

Emmanuel Charles WHITESIDE, Appellant, v. David SCURR, Warden, Appellee.

No. 83-1015.

United States Court of Appeals,

Eighth Circuit.

Submitted May 14, 1984.

Decided Sept. 19, 1984.

Rehearing En Banc Denied Dec. 24, 1984.

Patrick R. Grady, Asst. Appellate Defender, State Appellate Defender Office, Des Moines, Iowa, for appellant.

Thomas J. Miller, Atty. Gen. of Iowa, Thomas D. McGrane, Asst. Atty. Gen., Des Moines, Iowa, for appellee.

Before McMILLIAN, Circuit Judge, BENNETT, ^* Circuit Judge, and ARNOLD, Circuit Judge.

McMILLIAN, Circuit Judge.

Emmanuel Charles Whiteside appeals from a final judgment entered in the District Court for the Southern District of Iowa denying his petition for writ of habeas corpus. For reversal appellant argues the district court erred in holding that counsel's threats to seek to withdraw, disclose confidential discussions and testify against him did not deny him due process and effective assistance of counsel. For the reasons discussed below, we reverse the judgment of the district court and remand for further proceedings consistent with this opinion.

A state court jury convicted appellant of second degree murder for the stabbing death of Calvin Love in 1977. Appellant was sentenced to forty years imprisonment. Appellant and two companions had gone to Love's apartment to get some marijuana. During an argument about the marijuana, appellant stabbed Love as Love was moving toward him. Appellant's theory of defense was self-defense. According to appellant, Love had been reaching for a gun beneath a pillow when appellant stabbed him. When questioned by defense counsel in preparation for trial, appellant stated that he had not actually seen the gun, but that he thought that he had seen a gun and was convinced that Love had one because Love had a reputation for carrying a gun. Counsel questioned appellant's two companions and Love's girlfriend about the gun. They denied actually seeing a gun, although appellant's companions believed that Love probably did have a gun. Counsel also learned that the police had found no gun during a quick search of the room where the stabbing occurred. Nor had the apartment manager found a gun. Counsel personally searched the room for the gun without success. During the course of his investigation, however, counsel discovered that several hours after the stabbing, Love's girlfriend and his family had forced the police padlock on the apartment and had removed everything from the apartment.

Appellant was anxious about the success of his theory of self-defense if the gun was not found. Counsel had earlier advised appellant that the gun itself was not essential to his theory of self-defense and that the defense would be successful if the jury was convinced that appellant reasonably believed that Love had had a gun. Shortly before trial, appellant told counsel that he had seen something "metallic" in Love's hand just before the stabbing. This discrepancy precipitated the disagreement between appellant and counsel that underlies this appeal. Counsel told appellant that if he insisted upon testifying that he saw a gun, then he (counsel) would move to withdraw, advise the state trial judge that the testimony was perjurious and testify against him.

At trial appellant testified only that he thought Love had a gun and that he had acted to protect himself from an assault by Love with the gun. Appellant was found guilty of second degree murder. On appeal to the state supreme court appellant argued that counsel's threats to withdraw, advise the state trial judge about his testimony and testify against him prevented him from presenting his defense and thus denied him a fair trial. The state supreme court rejected this argument, finding that "counsel was convinced with good cause to believe [appellant's] proposed testimony would [have been] deliberately untruthful" and that, consistent with the Iowa Code of Professional Responsibility for Lawyers, "[c]ounsel properly refused to be a partner in such a dishonest and deceitful scheme." State v. Whiteside, 272 N.W.2d 468, 471 (Iowa 1978). The state supreme court commended counsel for the "high ethical manner" in which the matter was handled. Id.

In 1981 appellant filed a petition for writ of habeas corpus alleging that counsel's threats to withdraw, advise the state trial judge and testify against him denied him the right to effective assistance of counsel, the right to present a defense and due process in violation of the fifth, sixth and fourteenth amendments. The district court found that the state courts' finding that appellant would have committed perjury was fairly supported by the record and that appellant had failed to establish by convincing evidence that this finding was erroneous. Whiteside v. Scurr, No. Civil-81-246-C, slip op. at 2 (S.D.Iowa Dec. 7, 1982). The district court noted the constitutional right to testify did not include perjury and concluded that appellant was not denied due process or effective assistance of counsel because counsel prevented him from testifying falsely. Id. The district court denied the petition and this appeal followed.

As a preliminary matter, we note that during oral argument the state questioned whether appellant had exhausted available state remedies. The district court concluded that appellant had exhausted his due process and right to present a defense claims but may not have fairly presented the substance of the ineffective assistance of counsel claim to the state supreme court. The district court concluded, however, that because the state supreme court had already determined that the state code of professional responsibility vindicated counsel's actions and had in fact commended counsel for the "high ethical manner" in which the matter had been handled, further state court proceedings would be futile and that appellant was not required to exhaust the ineffective assistance of counsel claim. Whiteside v. Scurr, No. Civil-81-246-C, slip op. at 3-4 (S.D.Iowa Feb. 24, 1982) (order).

We agree with the district court that further state court proceedings on the ineffective assistance of counsel claim would be futile. In addition, the ineffective assistance of counsel claim is so closely tied to the due process and right to present a defense claims, which have clearly been exhausted, that these claims should be considered together in this petition. See Batten v. Scurr, 649 F.2d 564, 569 (8th Cir.1981). In the present case appellant's due process, right to present a defense and ineffective assistance of counsel claims represent different legal arguments offered in support of essentially one ground for relief: that his defense counsel's actions prevented him from presenting his defense and denied him a fair trial. See Sanders v United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1077, 10 L.Ed.2d 148 (1963). This ground for relief, the underlying facts, and the due process and right to present a defense claims were expressly raised in appellant's state court briefs. Appellant in his state court brief also expressly raised the ineffective assistance of counsel claim in the essentially identical context of conflict of interest between counsel and the defendant and submitted an appendix which included portions of the hearing on the motion for new trial about counsel's threat to seek to withdraw, advise the state trial judge and testify against him. In these circumstances, the substance of appellant's federal habeas corpus ground for relief was fairly presented to the state courts. See Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed. 3 (1982) (per curiam), citing Picard v. Connor, 404 U.S. 270, 275, 277-78, 92 S.Ct. 509, 513-514, 30 L.Ed.2d 438 (1971).

The problem presented on the merits in this case is what kind of action defense counsel, representing a defendant in a criminal case, may constitutionally pursue when counsel believes that the client intends to testify falsely. This issue implicates both due process and effective assistance of counsel considerations and has been extensively debated, but by no means resolved, by several courts and many commentators. See United States v. Campbell, 616 F.2d 1151, 1152 (9th Cir.) (no breach of duty by defense attorney who substantially complied with ABA Proposed Defense Function Standard 4-7.7), cert. denied, 447 U.S. 910, 100 S.Ct. 2998, 64 L.Ed.2d 861 (1980); Lowery v. Cardwell, 575 F.2d 727, 730-31 (9th Cir.1978) (bench trial; due process analysis); id. at 732 (Hufstedler, J., specially concurring) (effective assistance of counsel analysis); United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120-22 (3d Cir.1977) (due process analysis and informative discussion of effective assistance of counsel); Butler v. United States, 414 A.2d 844, 849-50 (D.C.1980) (banc) (due process analysis); Johnson v. United States, 404 A.2d 162, 163-64 (D.C.1979) (veracity or falsity of defendant's testimony must not be conjectural); Thornton v. United States, 357 A.2d 429, 433-36 (D.C.) (following ABA Proposed Defense Function Standards), cert. denied, 429 U.S. 1024, 97 S.Ct. 644, 50 L.Ed.2d 626 (1976); Commonwealth v. Wolfe, 301 Pa.Super. 187, 447 A.2d 305, 309-10 & n. 7 (1982); In re Goodwin, 279 S.C. 274, 305 S.E.2d 578, 579-80 (1983) (following ABA Proposed Defense Function Standards). Compare ABA Project on Standards for Criminal Justice: The Prosecution Function and the Defense Function, Proposed Defense Function Standard 4-7.7 (2d ed. 1980) (ABA Proposed Defense Function Standard) (Appendix A), with ABA Model Rules of Professional Conduct 3.3 & comment (1983) (ABA Model Rules) (Appendix B). See generally M. Freedman, Lawyers' Ethics in an Adversary System (1975); Brazil, Unanticipated Client Perjury and the Collision of Rules of Ethics, Evidence, and Constitutional Law, 44 Mo.L.Rev. 601 (1979); Callan & David, Professional Responsibility and the Duty of Confidentiality: Disclosure of Client...