Zaehringer v. Brewer, 79-1812
| Decision Date | 24 December 1980 |
| Docket Number | No. 79-1812,79-1812 |
| Citation | 635 F.2d 734 |
| Parties | 6 Media L. Rep. 2339 LaVern L. ZAEHRINGER, Appellant, v. Lou V. BREWER, Warden, Iowa State Penitentiary, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Robert Bartels, College of Law, University of Iowa, Iowa City, Iowa, for appellant.
Thomas D. McGrane, Asst. Atty. Gen., argued, Thomas J. Miller, Atty. Gen. of Iowa, Des Moines, Iowa, on brief, for appellee.
Before LAY, Chief Judge, BRIGHT and HENLEY, Circuit Judges.
LaVern L. Zaehringer, an inmate of the Iowa State Penitentiary currently serving a sentence of life imprisonment, appeals from a decision by the United States District Court for the Southern District of Iowa 1 denying his petition for writ of habeas corpus. Petitioner attacks his 1958 convictions in Iowa state court for first degree murder and assault with intent to commit murder claiming that his guilty pleas to these charges were not knowing, intelligent and voluntary and were invalid. Petitioner also alleges that the use of television equipment at his sentencing hearing violated his fourteenth amendment right to due process. Although on constitutional grounds we have difficulty with the televising of petitioner's sentencing hearing, in the circumstances we affirm.
On July 16, 1958 petitioner was arrested in Davenport, Iowa and charged in Iowa District Court with murder for the fatal shooting of William Jurgens, a Davenport police officer. The shooting occurred after petitioner, in the presence of at least four witnesses, wrested a gun from another police officer and shot and killed officer Jurgens. On August 15, 1958 petitioner was arraigned on the murder charge and on August 22, 1958 he pleaded not guilty to that charge.
Because of the widespread and allegedly prejudicial media coverage of the murder, petitioner filed a motion for change of venue contending that the publicity had made a fair trial in Davenport impossible. To support his motion, petitioner filed thirty-five affidavits of county residents stating that petitioner could not receive a fair trial in Davenport. The State in response filed thirty-five affidavits in which thirty-five of the thirty-seven members of the previous petit jury panel urged that a fair trial would be possible. Finding the extensive publicity surrounding the murder would not impair petitioner's right to a fair trial, the trial judge denied the motion for change of venue.
After the motion was denied, petitioner's attorney, Mr. Delaney, advised him that if he went to trial in Davenport a jury would likely convict him and impose the death penalty. Delaney additionally informed petitioner that he could promise the trial judge would not impose the death penalty if the petitioner pleaded guilty. With the petitioner's approval Delaney, in an attempt to secure a plea bargain, began discussions with the assistant prosecuting attorney and the judge scheduled to preside at petitioner's trial. Delaney elected not to challenge the ruling on the motion for change of venue in the Iowa Supreme Court by petitioning for writ of certiorari.
According to the testimony of petitioner, Mr. Delaney never informed him of his right to appeal the change of venue motion. Furthermore, petitioner alleges that between the time of his arrest and the entry of his guilty pleas, Mr. Delaney met with him approximately six different times but never discussed possible defenses to nor elements of the murder charge.
On October 6, 1958 petitioner appeared in court, withdrew his previous plea of not guilty, and pleaded guilty to an open charge of murder. The plea was entered after the trial judge informed petitioner that he was charged with the murder of officer Jurgens and that the maximum penalty for the offense charged was a death sentence. The trial judge then asked the petitioner if he intended to plead guilty to the murder charge and the petitioner indicated that he did so intend. Mr. Delaney stated that he had discussed the plea with the petitioner.
Following the guilty plea the prosecuting attorney filed an additional charge of assault with intent to commit murder. Although petitioner alleges he was not apprised of the fact that there would be an unspecified additional charge until immediately before the plea hearing, it appears that Delaney learned of this charge shortly after the trial court ruling on the change of venue motion. When the assault charge was presented, Delaney waived time to plead and petitioner entered a plea of guilty to the additional charge.
After the plea hearing, a degree of guilt hearing was set for October 10, 1958. Prior to this hearing the presiding judge, the petitioner, the petitioner's attorney, and the prosecuting attorney met in the judge's chambers. At this meeting the judge asked the petitioner if he would consent to television coverage of his sentencing and informed petitioner that he had the option of barring the television equipment from the courtroom during sentencing. Petitioner, however, responded that he would leave the decision to his attorney. Mr. Delaney immediately indicated that television coverage of the sentencing would be acceptable and thus petitioner signed a consent form. Mr. Delaney never met privately with petitioner to inform him of potential adverse effects which might result from televising the sentencing hearing.
Although the trial judge ruled that he would not allow television coverage of the degree of guilt hearing which was scheduled to occur immediately prior to the sentencing hearing, a television camera and microphones were already in the courtroom prior to both the degree of guilt and sentencing hearings.
In the course of the degree of guilt hearing, the prosecutor called several witnesses including two eyewitnesses to the murder. Petitioner called one character witness. On the basis of this evidence, the trial judge found petitioner guilty of first degree murder and assault with intent to commit murder. Then, with the television equipment in operation, the trial judge pronounced the sentence. The judge sentenced petitioner to life imprisonment on the charge of first degree murder and thirty years imprisonment on the assault charge. When the assistant prosecuting attorney who was handling the case noted that petitioner's sentence might be commuted and the petitioner released, the trial judge responded that this could be avoided by ordering the two sentences to run consecutively.
Both the trial judge and prosecuting attorney were candidates for reelection less than one month after these hearings. Although the trial judge was unopposed, the prosecuting attorney had a challenger to his bid for reelection and cited petitioner's case in his campaign materials.
On December 13, 1972 petitioner filed an application for post-conviction relief in Iowa District Court in and for Scott County seeking to have his guilty pleas and sentences reversed. The state court, however, denied the application. The petitioner then appealed this decision to the Iowa Supreme Court, but the appeal was dismissed. Later, petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Iowa. The petition was referred to Ronald E. Longstaff, a United States Magistrate. The magistrate held an evidentiary hearing on February 27, 1978 and issued a report and recommendation which concluded that a new degree of guilt and sentencing hearing should be ordered because petitioner's due process rights had been violated at the original hearing due to the presence of television coverage. The magistrate, however, upheld the petitioner's guilty pleas.
While the district court affirmed the magistrate's findings as to the validity of petitioner's guilty pleas, the district court rejected the magistrate's determination that petitioner was denied due process because of the presence of the television cameras in the courtroom. The present appeal was taken from this judgment of the district court.
On appeal petitioner first argues that his guilty pleas were invalid because he was denied effective assistance of counsel. Petitioner cites two deficiencies in his legal representation: (1) his attorney failed to inform him of his right to attempt to obtain review of the change of venue ruling in the Iowa Supreme Court; and (2) his attorney failed to inform him of the elements of the crimes charged and effective defenses to those charges. Petitioner further complains that the trial judge did not explain the elements of the crimes charged, establish a factual basis for the guilty pleas and ascertain whether the pleas were voluntary. In light of these omissions, petitioner contends the guilty pleas were not knowing, intelligent and voluntary and thus should be vacated.
We do not agree. As to petitioner's allegations of ineffective assistance of counsel, we note that it is settled in this circuit that a criminal defendant is entitled to the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances. United States v. Easter, 539 F.2d 663 (8th Cir. 1976). To determine whether an attorney has provided such competent and diligent representation in a case where a defendant challenges post-trial the effectiveness of counsel, this court has required that the defendant at least show that there was a dereliction of duty by his counsel. United States v. Rhoads, 617 F.2d 1313 (8th Cir. 1980). In the present case, we find no persuasive evidence of such dereliction of duty.
Turning first to the allegation that Mr. Delaney was derelict in that he failed to inform petitioner of his right to attempt to seek review of the change of venue ruling, we observe that there is no evidence, other than the testimony of the petitioner, establishing that Mr. Delaney failed to discuss this option with his client. 2
But even assuming that Mr. Delaney did in fact fail to...
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Lufkins v. Solem, Civ. No. 81-3060.
...At a minimum, to prove ineffectiveness of counsel, petitioner must show that counsel was derelict in some duty. Zaehringer v. Brewer, 635 F.2d 734, 737 (8th Cir.1980). For a lawyer to fail to exercise his professional judgment on behalf of a client is a serious breach of his duty to that cl......
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