Dwight Smith v. Ross Maggio, Jr., Warden, Louisiana State Penitentiary, and Attorney General, State of Louisiana
696 F.2d 365
5th Cir.
1983
Check Treatment

*2 GARZA, Before REAVLEY and GAR- WOOD, Judges. Circuit REAVLEY, Judge: Circuit corpus Petitioner filed a writ of habeas pursuant argues to 28 2254. He § U.S.C. ineffective of counsel assistance and denial adequate right appellate his review.1 dismissal of appeals petition Smith and we affirm.

FACTS Smith was convicted of murder in Louisi- ana state February court in 1975. The presented state eyewitness testimony show- ing that Smith shot Robert Matthews while they in a engaged were discussion outside the house of mother. presented conflicting eyewitness testimony started, showing fight that a and Smith shot after Matthews Matthews at- tacked with knife. The jury reject- ed this appeal- self-defense ed, and Smith’s conviction affirmed. Smith, (La.1975). State 316 So.2d 739 Ineffective Assistance Counsel a number failings asserts Authemont, retained trial counsel consist- ing (1) pretrial motions, of: to file trial, (2) object (3) failure to failure to investigate insanity defense (4) hearing, prepare a Pate failure to appeal. bill of exceptions for argues jury argues appellant’s 1. Smith also selection The state failure to process magistrate’s report was unconstitutional. Since Smith did waived his any composi- right argument not submit evidence on the racial is foreclosed venire, jury Wainwright, tion of the fails. Nettles v. F.2d 404 1982) (en banc). Maggio, Fulford v. 359 No. 80- 3932 at 822 diffi- testimony, especially witness judging per The standards defend). complicated There were no cult to well-settled:2 of counsel are formance Counsel cross-examined hearsay problems. not error- to mean interpret counsel We bring- vigorously, witnesses prosecution judged inef counsel, and less ing out contradictions their counsel reason by hindsight, fective *3 at theory and advanced the self-defense rendering rea to render and likely ably opportunity. every effective assistance. sonably Ellis, 592, (5th 599 v. 280 F.2d MacKenna strongest his attack on Smith levels adopted on Cir.1960) (emphasis original), in selecting in not performance his counsel’s banc, (5th Cir.), 928 rehearing en 289 F.2d a asking and not in insanity defense 877, 121, denied, 82 7 368 S.Ct. cert. U.S. hearing at The rec competency Pate trial.3 (1961). performance 78 Counsel’s L.Ed.2d was committed civilly ord shows that Smith totality in of the cir must be viewed the 7, 1970, suffering schizophre from October Estelle, 691 730 Marks v. F.2d cumstances. He not re nia and hallucinations. was Cir.1982). these stan Judged against (5th 6, 1972. The murder oc leased until June dards, we think Smith’s counsel rendered 21, that July alleges 1972. Smith curred “reasonably effective assistance.” commitment, of his counsel was aware to file duty pre had no Counsel to further. Petitioner ar investigate failed motions, estab prosecutor because the trial investiga that to conduct an gues that made the open policy lished an file tion, obtain hospital obtain the records and or re discovery Brady motions filing of fall below standards opinion a medical the to sup a motion pointless. Filing quests Balk- Beavers v. of effective counsel. See weapon would regarding the murder press 114, 116 Cir.1981) (coun com, (5th 636 F.2d mother been frivolous since Smith’s have investigate, by subpoenaing sel’s failure to express per officers gave investigating the medical interviewing medical and records and the to enter the house told mission was the insanity only possi when personnel, the they where would find murder officers ineffective as might ble defense constitute Baldwin, v. 644 United weapon. See States sistance). (5th Cir.1981).

F.2d 381 Here, only was insanity not the however investigate did that counsel defense available. Counsel alleges also ob- While he did not insanity In some situations the defense. object failed to trial. records, he aware of was ineffective counsel. tain medical might indicate this commitment, it with Blackburn, and discussed See, v. 597 991 e.g., Nero F.2d Smith’s discussed (failure family. to Authemont also (5th Cir.1979) attorney of Smith’s Authe- with Smith. argument and a mis defense prejudicial was thought he assistance). mont stated that trial constituted ineffective best was and self-defense was the is not the here. This a well sane that decision presented type This is the tactical conducted trial. The subjected glare to the eyewitnesses. that should not be exclusively by was almost F.2d hindsight.4 Maggio, Daniels v. 669 Estelle, (5th v. F.2d 533 Rubio 689 See 1075, (where 1080 Cir.1982) eye- evidence consisted of however, allege recently, a in We note that Smith did not circuit the standards for

2. Until independent of claim. appointed Pate his counsel E.g. violation differed. retained counsel post-trial petition, memo- Estelle, (5th Cir.) Smith’s habeas Fitzgerald v. 505 F.2d 1334 magistrate’s opinion indi- all randum and the denied, 1011, banc), (en 95 cert. 422 U.S. S.Ct. separate alleging a cate that Smith was However, 2636, (1975). light 45 L.Ed.2d in 675 actually incompetent was claim that he Cuyler Supreme in mandate of the Court’s stand trial. 1708, Sullivan, 446 U.S. 100 S.Ct. 64 (1980), L.Ed.2d 333 the standards counsel that 4. The record demonstrates the self-defense merged. Wainwright, have Hardin v. theory might plausible, and have was indeed 1982). prosecution’s were witnesses succeeded. The say least, contradictory. a Each one had argues also coun Smith advances related requested failing Authemont should have a prepare sel ineffective hearing. competency past law, Besides Smith’s of exceptions. bill Under Louisiana illness, history of to his points mental inspec errors a mere “discoverable decision to the stand the ad- against take of the La. pleadings proceedings,” tion vice the trial'judge. of counsel and (West Supp. Code Crim.Proc.Ann. art. 920 newspaper motivation to correct a 1982), are without ex reviewable a bill of account that with a Matthews was shot ception assignment error as it is now pistol. determining rifle instead In called. La.Code Crim.Proc.Ann. art. requested whether should have (West Supp.1982). The short answer to this hearing, we have allegation sentencing hearing, is that at the

evaluated mentally whether counsel for *4 Authemont, court, with the consent of the suspect failing defendants erred in to in- withdrew from the case. He re was not vestigate or a pursue defense of for a bill sponsible preparing exceptions. of or by apprais- to stand trial incompetency However, problem a fundamental for more ing the facts known and or with available is our appellant holding that counsel was to minimum accessible defense diligence justified in not at objecting trial. Under determining and whether those (West art. 841 La.Code Crim.Proc.Ann. facts raise as to the reasonable doubt Supp.1982),no error can be asserted unless defendant’s mental condition. objected it was there were no to. Since Edwards, United v. 488 F.2d States trial, objections at there were no grounds Cir.1974) (5th (footnotes omitted). for bill of exception. a We think the facts here do not raise sufficient as to competency. doubt Smith’s Right Appellate Denial of Review weighs The in heavily fact that most alleges also that de Smith he was Smith’s favor is his recent release from his right appeal by nied to the trial court However, been commitment. he had rec- allowing Smith’s counsel to withdraw and ommended release long prior this. failing to appoint passage new counsel until Also, testified Authemont that Smith’s appeal period. of the we Preliminarily, problems mother told him that Smith’s prosecute that appeal note the failure to the mental, just were not got that Smith At mainly appellant’s rests on shoulders.

into trouble. Authemont’s indi- hearing 30,1973 on the sentencing April the cates that participated Smith discussed and permitted court Authemont withdraw. case, in provided the and even names of the court The advised Smith counsel would potential witnesses. While motiva- appointed if he would an sign be for him tion unusual, for testifying may have been indigency. Smith refused to affidavit rational, his testimony itself was coherent the record sign affidavit. The reflects supported and the self-defense We 22, 1973, signed May was until affidavit cannot no say forego that counsel’s decision three no gave a over weeks later. hearing constituted ineffec- competency delay. tive explanation assistance of counsel.5 for this partially important parts different of the the corroborated version incident. On other hand, witnesses, prosecution’s the defendant’s with the ex- the case. ception testimony, presented of the accused’s story started, relatively fight supported by psychiatric consistent that a conclusion is Our pulled and that it when the was Matthews prior hearing. The to the habeas examination pulled pistol. knife that Smith the Authemont doctor concluded that evidentiary hearing testified that he at the me, reported certainly From what Smith it thought win he would the case until took appears acutely the that he was aware of testimony, sup- while stand. The accused’s him, against charges ef- nature of the could theory, porting contradicted the self-defense fectively participate in defense and assist l}is parts of version of the events his witnesses’ attorney at the time... himself. More fundamental to me is appeal we defend purposes For the question will assume that the cause of this of whether counsel can waive a defendant, in which no with the state. In cases competency hearing espe- rested for a despite the defend appeal prosecuted, was cially under the facts of the case before us. granted has relief. request, ant’s this court incompetent If to stand trial or White, v. Joseph plead insane to where he could enough Beto, 1968); 418 F.2d 549 Cline defense, view, sanity my counsel could case, however, appeal In this forego this defense. Under the facts The petitioner’s on behalf. prosecuted known to defense counsel and the trial allowed an out- Supreme Louisiana Court judge, I find that it was error not to have reviewed the appeal. of-time The court given sanity hearing. him a pleadings. errors in the any record See today, Whatever his condition is we will This is all the review to supra. Art. never know what his condition was at the As the Loui appellant which was entitled. time of the because no competency murder noted, repre “Defendant was siana court sanity hearing was conducted. This fail- sented at trial retained counsel who re hearing ure to him such a looms provide exceptions during served no bills of larger when we look at record to deter- proceedings.” course of the 316 So.2d meaningful mine whether received a (which we 740. Counsel’s failure to invoked the state’s proper) have held to be *5 judge The trial allowed his retained coun- rules review of the procedural precluding at the sentencing hearing sel to withdraw petitioner’s merits of assertions on promised appoint new counsel for rules, showing absent a of cause and Such done, however, him. This was not until the prejudice Wainwright Sykes, are valid. (15) filing allowed for bills of days fifteen 53 L.Ed.2d 594 U.S. S.Ct. assignments of error had exception (1977). Appellant right was not denied his however, the passed. important, More time meaningful review. appellate trial had filing expired motion new is judgment The AFFIRMED. appointed. the time counsel was It was by ap- admitted at oral GARZA, Judge, dissenting: Circuit have, counsel could in a motion for pointed I respectfully dissent. I would reverse trial, urged incompetency new of Smith grant and order the of the Great Writ. developed a to stand trial and could have hearing. The record on the need for such a show, Dwight just As the facts had failure to counsel for him under institution, appoint been released from a mental circumstances, my opinion, prevent- these where he had been confined for over year. getting meaningful appeal. ed from thirty (30) days being Some after released into he society committed the murder that For the above stated reasons I would he judge was convicted of. The trial at his grant sought. reverse and the writ murder trial was the one that had commit- ted him to the mental institution and the

one that authorized his release. These facts

were known to his counsel. The failure of judge

the trial and of his counsel to order a hearing has been condoned on the majority grounds it was strategy go only

trial on a self-defense magistrate The below stated that and self-defense would have been I

contradictory defenses. fail to see where

these defenses would have been contradic- incompetent right Even an has a

tory.