Ernest James Lombard, Jr. v. James A. Lynaugh, Director, Texas Department of Corrections

Accordingly, appellees their we AFFIRM the contempt, it awarded district but filing injunc- court’s of sanctions as attorneys’ fees for award MODIFIED. entire motion tion motion and the sanctions

against If we take the affida- Cackowski. appellees’ attorneys delete

vits of charges to the unsuccess-

those attributed Contempt

ful Motion for and delete also the

attorneys’ expenses predate fees and filing Response injunction following

motion that violated Rule LOMBARD, Jr., Ernest James attorneys’ fees remain: Petitioner-Appellant, Attorney's Attorney’s fees for fees for Wise Cannan Expenses Robert Mark State Court LYNAUGH, Director, James A. Texas action injunction $ $ $ —0— -0- -0- Department Corrections, 650.00 275.90 : motion 3,173.40 $ $ sanctions Respondent-Appellee. 310.6' 762.50 motion 7,458.16 $ $ $ No. 86-2852. 7,1989. January Appellants' Letter Brief of charging Appeals, United States Court of The district court erred Cack- legal Fifth Circuit. owski for the costs incurred Arm- strong filing injunction for the ac- April 6, 1989. appellees tion. At the time that filed this reveals, pleading, the record so far as

Cackowski had taken no action adverse to

their in the state courts. interest To be

sure, he had not disavowed the intent to action,

prosecute apparently and he

stubbornly validity refused to concede the judicata

of the authorities on res de- Thus, ap-

fense him. counsel submitted to

pellees’ request injunction for an

predicated pursuit on actual of the state

court action Cackowski so much as their point begin

fear that he would at some along. appropriate

move it It

the court to sanction Cackowski for the filing preemptive pleading.3

cost of their they injunction,

After moved for an how-

ever, responded in a disin- Cackowski fashion,

genuous sanctions the amount appellees’ attorney’s fees were warrant- Appellees properly

ed. were also awarded legal

their costs incident to the sanctions compensable

motion itself. The total fee is

$12,630.62, according appellees’ affida- modify We therefore

vit.4 district judgment

court’s to reflect this amount. foreclosing possibility challenge 3. We are not that a 4. Cackowski did not in the district might party be sanctioned in the amount fees court the reasonableness or amount of attor- filing opponent incurred his a motion fees, ney’s legal availability. but their necessary discipline harassing dilatory during litigation. conduct and his plea guilty of not

bard entered At the by jury. for trial case was set court, dire, of voir the trial commencement trial, stated, calling apparently the case for panel, that presence jury of the “charged as ha- with assault Lombard was offender,” jurors after the were bitual and sworn, evidence but before selected and commenced, state record reflects jury read “the indictment was to the The indict- Attorney.” District Assistant also alleged primary ment offense and pur- prior felony convictions for the pose of enhancement. husband, trial,

During Kennedy, her one of her identified as maid Kennedy in three who individuals robbed Kennedy her home on October 1971. other stated Lombard and the two City her up men house drove Department Houston truck Water Depart- posed employees the Water entry into the Thomas gain ment to house. Houston, Tex., peti- Schaffer, for Randy Fram, employee of the Houston Water an tioner-appellant. morning Department, testified that on the Griffey, Atty. Asst. Margaret Portman other robbery, Lombard and two Gen., Tex., Austin, Mattox, Atty. Gen., Jim pointed gun him him to men and forced respondent-appellee. for Department truck surrender the Water driving.

that he was testify, did not nor did trial, After present evidence. guilty 1973. found him on November GARWOOD, GOLDBERG, Before Thereafter, January sen- the court JOLLY, Judges. Circuit sixty-five years’ tenced him to confinement GARWOOD, Judge: Department Circuit in the Texas of Corrections. Lom- Petitioner-appellant Ernest James sentenced, Lombard, day on the he was bard, prisoner, ap- (Lombard), Texas Jr. indigency request- filed an affidavit peti- peals the court’s denial district represent appointed ed that counsel be corpus tion for relief under 28 U.S. habeas Cahoon, (Cahoon), him appeal. John Sr. reasons set forth be- C. For the § represented pur- trial who had Lombard at low, denial we reverse the district court’s appointment, suant to court in- petition of Lombard’s and remand with January represent 1974 to him on grant relief. structions appeal.1 On Cahoon submitted a brief, two-page appellate filed which was Proceedings Below Facts and February court on with the trial Ap- Texas Court of Criminal in a charged Texas Lombard was robbery peals 1975. This con- 4,1971 by assault on October October title, sig- (apart caption, (Kennedy). entirely Lom- sists Kennedy of Iva juris- right directly courts were vested with 1. The mediate Appeals, having Texas appeals Court of Criminal in criminal cases. diction over been taken time that the Texas inter- before the service) require the Points of Error that would nature, and certificate Appellant’s reversal of conviction. following: JUDGE OF THE HONORABLE “TO

SAID COURT: “Conclusion LOM- comes ERNEST JAMES “Now respectfully Appellant “Counsel BARD, JR., Appellant in above- diligently he has reviewed submits that cause, re- entitled and numbered and in the record this cause and the law Honorable submits to this spectfully opinion is the applicable thereto and Court, TRIAL BRIEF DEFENDANT’S Appellant’s Appeal is that the APPEAL, through by and his attor- ON Further, Appellant has merit. CAHOON, SR., appointed E. ney, JOHN received all that he is entitled to receive respectfully and would the Court by way of Court counsel for following: the unto the Court show (Anders purposes Appeal, of the vs. State in Appellant stands one “The convicted California), that the Counsel is of the 179,796, (1) cause, entitled to-wit: No. opinion employed by that had he been the Ernest James Lon- of Texas vs. State paid usual custom- Defendant and and Jr., ], punishment assessed bard [sic ary fee for the services rendered or to be Court, of not plea in on a a trial good in rendered that he would all con- (65) years confine- guilty sixty-five was required Appellant to advise science be Department of Correc- ment in the Texas Judgment from the and that tions; this after the Defendant had was in is Sentence this cause without merit. guilty jury. in a trial to a been found “WHEREFORE, PREMISES CON- pursuant enhancement case This was an SIDERED, Appellant’s Attorney on also to Article V.A.P.C. The State prays that Honorable hearing, proved, punishment at the that accept this brief. Appellant had been convicted submitted,” “Respectfully prior felony criminal offenses. copyA of this served on Lom- brief was reply The state’s brief was filed bard. “II. August being the trial court Appellant represented “The was at tri- then served on Cahoon and E. by appointed al JOHN CA- the Court of Criminal personally, and with HOON, SR., following and that his con- This three- Appeals on October 1975.2 viction, CAHOON, SR., JOHN E. was conclusory page merely stated Appellant’s request Ap- appointed by Cahoon form that the brief submitted pellant’s Attorney on and correct and that the conviction was affirmed. The last sentence should be “HI. (as page Ca- of the brief advised diligent study of Tran- “After a not) apparently that he was enti- hoon had script in this and Statement Facts pro and that if tled to himself file a se brief cause, Appellant counsel for copy of the record he wished to do so a opinion Appellant’s that trial and subse- him. would be furnished quent pro- was conducted as conviction brief, filing After his above-referenced by the vided Constitutions Sover- further action apparently Cahoon took no eign of Texas and of the United State pro never filed a se the case. Lombard America, States of and that all of the brief. guaranteed rights privileges Appellant was filed with the Court of were invoked his behalf. record to, Appellant Counsel for is unable Criminal on October faith, unpub- good urge upon this Court on December it issued an February procured completed 2. The record was on October 1975. The state likewise procured 1974. Cahoon from the trial court from the trial court several extensions of time several extensions of time to file his brief until within which to file its brief. of counsel at affirming the con- denied effective assistance opinion per curiam lished because, among things, sentence, that ex- trial other Cahoon noting after viction (1) the trial court’s and Cahoon’s brief failed to to: of the record amination wholly panel friv- that Lombard “the comment it found that (2) merit,” offender; charged there as an habitual olous and without was “nothing in that should be ex- testimony record Lombard committed an unassigned error inter- robbery armed Houston reviewed traneous justice.” Department employee; est of Water jury charge of ele- from the omission Cahoon’s that while The court observed offense, namely, com- ment grounds any arguable brief did advance plainant property sto- owned professional error, “a eval- it did contain alleged that he Lombard also len. demonstrating why the record” uation of assistance of counsel effective grounds. The court such were Cahoon filed a deficient require- met thus found that the brief appeal” brief that failed to raise “frivolous California, 386 U.S. ments of Anders v. points the of error that would above (1967).3 18 L.Ed.2d him a of the conviction. entitled to reversal challenged the subsequently Lombard Lombard, According two-page to Cahoon’s separate state court habe- conviction to no appellate brief “was tantamount brief applications. applica- In these corpus as at all.” tions, alleged that he was denied Lombard Appeals The Court of Criminal denied trial because the process due and a fair applications both for habeas relief without jury panel the the trial court advised opinion.4 of the voir dire de- applications When the examina- were commencement court, by the filed the charged as an nied state tion habit- that Lombard was present petition that for federal habeas relief alleged ual He also he was offender. Appeals opinion "We have reviewed the record and counsel's 3. The Court of Criminal entire appeal wholly is as follows: and the is friv- brief find that Further, find appeal from a for the olous without merit. we "This is an conviction robbery by prior the nothing assault under offense of penal record should the be reviewed guilty by Appellant a code. was found unassigned justice. error in the interest of plea guilty. jury The trial court on his of not (13) Art. 40.09 V.A.C.C.P. punishment years at 65 in the Texas assessed error, being judg- “There no reversible the Corrections, failing Department of to find for is ment affirmed." allegations. the State on enhancement the "Appellant’s appointed counsel has court applications initially 4. Both state habeas were filed a brief he concludes that the in which court, in- considered the state trial in each appeal wholly frivolous and without merit. solely stance the basis of the state record and on copy Appellant has been served with a any hearing considering any other brief, however, ap- appointed court pellant’s counsel’s or affidavits or the like. In the first evidence indigent brief not does recite habeas, trial court made no recommen- state the right pro appellant to was of his file a advised to the Court of but dation Criminal se this brief. The State in order to insure that to found that on direct Cahoon "failed handled, appel- correctly the advised possible grounds relating raise of error right to brief of his file lant pro State's petitioner’s right to a denial constitutional copyA brief if to do so. se he desires trial, speedy of an the omission element appellant’s the State’s brief was served on the jury charge, offense comment upon appel- court visiting judge jury panel petitioner appellant pro The has filed se lant. criminal, on trial an was habitual brief. of an extraneous In the advance admission offense.” "The brief of counsel does not error, habeas, grounds arguable but does contain second state the trial court found "that professional of the record demon Applicant evaluation received effective assistance of coun- effect, strating why, arguable no case,” there are primary sel at trial and on did grounds of to be advanced. The brief error expressly address ineffective assistance of coun- requirements of v. meets the nia, Anders Califor on and recommended that the Court sel 18 L.Ed.2d Appeals deny relief. No issue of of Criminal State, (1967) 436 S.W.2d and Gainous state remedies failure exhaust has State, (Tex.Cr.App.1969). See Currie raised. (Tex.Cr.App.1974). 516 S.W.2d 684 appeal did not meet Cahoon filed on even petition, his sole court. this the district effective minimum standards for a “frivolous he claim was appeal. argu- His it appeal” did not discuss the of counsel brief assistance essentially evidence, record, point were or set forth ments on refer in his state habeas might advanced arguable grounds same as those of error that court referred the petitions. (nor The district explain why support did it magistrate, reviewed to a who error, arguable grounds of there were no concluded that Cahoon’s record and state case); (2) such was believed to be a total appeal” brief constituted “frivolous appeal points failed to raise on Cahoon magistrate there- counsel. The denial of would have entitled Lombard grant- that Lombard be fore recommended specific to a reversal of his conviction. appeal due to ineffective out-of-time ed an error that Lombard claims should points of of counsel on assistance (1) jury charge raised are: have been fundamentally defective it agreed that Cahoon’s The district court Ken- require failed to to find that did not amount two-page property; nedy owned the stolen assistance5 and that Cahoon competent judgment since ineffective assistance of professional no Lombard received “exercised failing connection, grounds strategic existed counsel at trial. In the latter appeal” at least object at trial to or raise effec- Lombard asserts that was denied that Lombard identified points some of the of counsel at trial because tive assistance Indeed, court petition. the district in his failed to to the comments Cahoon acknowledged that expressly charged the trial that Lombard claims that Cahoon clearly had meritorious prosecu- offender and to the as habitual Nonetheless, raise. it denied had failed to reading the indictment which re- tor’s ground petition on the that he convictions, previous flected Lombard’s prejudiced by his had not shown he was object improper that he failed to ap on counsel’s failure to raise the claims robbery armed admission of the extraneous McCotter, peal. Quoting v. 782 Lockhart employee alleg- Department of Water denied, (5th Cir.1986), cert. 479 F.2d 1275 prior to the edly committed 1030, 873, 107 U.S. S.Ct. alleged in robbery commission (1987), is the district court stated “[i]t Lombard also contends that indictment. petitioner that the show his not sufficient appeal, on raised these issues had Cahoon minimum stan counsel fell well below the been entitled to reversal of he would have competency; he must also show dard of notwithstanding Cahoon’s his conviction by counsel’s defi prejudiced that he was trial; argues thus, he failure to case, In dis performance.” cient this points failure to raise these that Cahoon’s given trict court found that the overwhelm clearly prejudicial. Lom- Lombard, ing guilt against evidence of however, where, contends, as he bard any way prejudiced by Cahoon’s was not here, petitioner the situation claims be appeal. Lom failure to raise the claims on of coun- a total denial of assistance suffers appeals the district court’s deci bard now required to appeal, sel on he should not be sion. in order to obtain habeas prejudice show relief. Discussion constitutionally An accused is enti

Lombard, represented by who has been counsel below, tled to the effective assistance of counsel here and claims that he was right. direct as of Evitts v. of counsel on on a effective assistance 387, 105 83 specifical- Lucey, 469 U.S. S.Ct. his direct state and more (1985). primary question ly two-page that: document that L.Ed.2d 821 (1967)." specifically S.Ct. 18 L.Ed.2d [87 493] 5. The district court noted that "the U.S. 738 brief filed in this case was no more be merit letter in Anders was held to The no peti- aid than the ‘no merit’ letter filed constitutionally inadequate. California, tioner’s in Anders v. 386 1480 analysis in this connec prejudice er framework for extent or to what here is whether Penson, distinguished the Court tion. In of such the denial must be shown types denial of effective between to obtain right for the accused order first, appellate counsel: those assistance of relief, although is to some ex- habeas deficiency consists failure in which the nature and extent tent intertwined (or argue) one or properly to raise brief of the denial. like; or the and sec specific more issues that, explained in conclude We ond, has an actu those in which there below, there were nonfrivolous more detail complete denial of or constructive al raised on have been should issues which 109 counsel. S.Ct. assistance re appeal and the direct case, type prejudice at 354. In the first assistance of counsel ineffective ceived shown, apparently required must be counsel filed a appeal because Washington, v. Strickland 466 U.S. said, ex in substance brief which 674 In 80 L.Ed.2d S.Ct. mer appeal was without planation, that the case, prejudice pre type.of is the second to or wholly to call attention it and failed sumed, prejudice test of and neither the in the potential issues any of discuss Strickland analysis nor the harmless California, Anders v. case. Under Chapman California, 1396, 1400, 18 L.Ed.2d 738, 87 S.Ct. (1967), appro Supreme (1967), as reiterated had priate. 109 S.Ct. at 354. We Ohio, in Penson v. recent decision Court’s Ham applied analysis mode of similar 102 L.Ed. McCotter, ilton v. 772 F.2d 181-82 (1988), 2d 300 even Pro Ricalday See also Cir.1985). (5th frivolous she determines cunier, (5th n. 6 736 F.2d Cir. alia, referring inter must, “a file Ricalday, Hamilton 1984). we held might arguably record that anything in the deficiency type, of the first recognize that in support appeal.” We grant relief and declined demanding many this can be a instances (we Strickland prejudice test not met nothing of that kind task: if there is Chapman). not consider did something, record, point to it is difficult to Here, clearly deficiencies come counsel’s something is explaining why not an fitting in or total deni- closer to the second arguable may in certain circumstanc issue category, than in the first al of counsel arguing for the perilously es come close category, committing one or that McCoy other side. But see v. Court of profes- lapses more discrete from minimum Wisconsin,

Appeals of level, sional standards. At the trial at 1895, 100 L.Ed.2d 440 How S.Ct. least, merely it is clear that because coun- ever, attempting are not now faced with we physically present throughout sel is does enigmas, for in to resolve such it is necessarily not mean that there has not if, are here, there one event clear that been a total denial of counsel. See United indisputably or more issues nonfrivolous Cronic, 648, 104 States more than sim for counsel must do (1984) (“if coun- L.Ed.2d ply wholly conclusory file a “no merit” entirely subject prosecu- the sel fails points nothing in brief which whatever meaningful adversarial test- tion’s case to Lom the record. Because this is what ing, then there has a denial of Sixth been appellate bard’s counsel did—and is all that rights Amendment that makes the adver- he did—it is clear that Lombard was process presumptively sary itself unrelia- appeal. of counsel on effective assistance nothing ble”). Here, did to at- Cahoon But, must Lombard demonstrate tempt appeal, beyond aid the Lombard’s appeal assistance perfecting denial of the effective initial itself. We him, prejudiced requiring of counsel at least the in not are hence comfortable sense that had his counsel not been thus Lombard to meet the Strickland standard least, likely showing, at the there is a deficient his conviction would have been reversed? probability his provides prop- reasonable conviction that, least, he had the us would have been reversed had reversal was reason- counsel. appellate probable assistance ably repre- effective had he been properly appeal.6 sented on note, however, that are some We between this case and Penson. differences words, case, In other Lombard’s Penson, on appellate court direct state has been unable to make Chapman withdraw, counsel to on the appeal allowed -type showing, harmless are for we wholly Anders-type let- deficient basis of a beyond unable to conclude a reasonable record, ter, it ever reviewed the before doubt that his conviction would not have request the accused’s that other it denied had he been reversed had assist- effective appointed; subsequent- it counsel be when appellate ance of counsel. We therefore do record, ly it determined that examined not decide differ- whether above-noted and, arguable “several claims” there were ences this case are between and Penson these, apparently on the basis of one sufficient authorize denial re- of habeas count al- reversed conviction on one lief had state been able to show that though affirming and sen- the convictions appellate Sixth Amendment violation the other S.Ct. at tences on counts. 109 beyond was harmless doubt. reasonable 356. Thus the accused was Lockhart, relies primarily The state wholly without counsel while his consideration; moreover, as did the it district below. In Lock- under hart, that the fact counsel raised was determined case did no issues present some actual error as to saying reversible filed an “affidavit of counsel” Here, withdrew, one count. Cahoon never appeal had no merit. 782 F.2d at formally and Lombard was never doubtful, however, & n. 15. It moreover, appeal; counsel on entirely Lockhart survives Penson. See did the case Criminal not decide id., 10, citing at 354 n. Lockhart determined, until it after review Moreover, apparent disapproval. record, “wholly friv- Lockhart, actually re- we considered and Further, noted, although olous.” below jected very merits on their claims of clearly there were nonfrivolous issues constitutional error at trial it was urged which could on Lombard’s asserted that counsel on direct we are unable to determine that raising, although defective not like- we conviction would not have been determined that those wise issues were reversed had he had effective assistance But, F.2d at 1283 frivolous. 782 & n. 15. we are unable to likewise here unable to Lom- we are conclude that However, determine converse. we con- rejected bard’s claims would have been these clude that considerations do suf- direct require fice to Lombard to show Strick- that Lombard claims should issues prejudice; Lombard, land-type in a func- certainly have been raised on are sense, appel- tional was afforded almost claims, of not frivolous and at the time whatever, representation late there appeal they may very well to a have led were nonfrivolous issues which we Perhaps of conviction. reversal say full cannot with confidence not would example regarding the best is the issue they have resulted reversal had charge. jury As cor- properly argued defective by competent raised and out, rectly points although appellate counsel. the indictment Lombard therefore need not, alleged Kennedy he would was in owner have to if fact the Strickland discharge taken, applied, convincing jury charge burden of of the items did in this 6. We note connection state- Penson's of either counsel's failure to file an Anders ment: appoint brief or the court's failure to new "Although petitioner represented par- has been It be omitted.] counsel. would [Citation Court, by in this we decline to sit in ticularly inappropriate for us to in a do so place of Ohio Court of the first raising questions both factual issues and petitioner instance to determine whether was of Ohio law.” at 353 n. 9. prejudiced any appellate by as to issue reason 1482 (Tex.Crim.App.1975); Bradley 111 ownership of these S.W.2d address manner admits, State, 650, (Tex.Crim. under former v. As the state 560 S.W.2d 652 items.7 1408, Code, the Texas State, article Texas Penal v. West App.1978); 567 S.W.2d charged robbery statute State, (Tex.Crim.App.1978); Cumbie v. 517 taken, ownership property violating, (Tex.Crim.App.1979). 578 S.W.2d 733 was, possession it merely in whose charge jury a defect in the could be Such the offense. Luce necessary element of notwithstanding “fundamental error” State, (Tex.Crim.App. 128 ro v. 502 S.W.2d alleged necessary all ele the indictment State, v. (first case); 156 Tex. Snow 1973) general charge contained a ments and See also 49, 238 966 S.W.2d Cr.R. alleged in the indict reference such as “as State, 520 S.W.2d (Tex. v.Ward 397 Bradley, 560 ment.” See at 652. S.W.2d State, Crim.App.1975); Reese v. 531 S.W.2d charge Moreover, jury if a defect Moreover, (Tex.Crim.App.1976).8 error,” the ab amounted to “fundamental was tried and when when Lombard objection normally at trial did not sence of affirmed, generally, it was conviction was requirement the conviction obviate the uniformly, held that though perhaps not See, State, e.g., Ross v. be reversed. charge court’s the omission from the (Tex.Crim.App.1972); Long v. S.W.2d 744 necessary of the of

jury element of State, (Tex.Crim.App. S.W.2d error” re fense constituted “fundamental State, 1977); Robinson 553 S.W.2d sulting in reversal of the convic automatic State, See, (Tex.Crim.App.1977).9 reflected e.g., 374-75 As Windham tion. indictment, setting prior the defendant out same to the use or benefit of after the two 7.The (one burglary felony deprive for and one the intent to the said IVA convictions and with house), same, keeping gambling alleges you the offense KENNEDY of the value will question robbery.” as follows: guilty the defendant find October, day or about the 4th A.D. "[0]n January al- 8. Effective after Lombard’s County of Harris and State of in said trial, offense, indictment, Texas, leged article 1408 judgment of conviction in and after the by judgment repealed replaced section 29.02 said cause No. 25392 and the in said cause No. 27162 had be- Penal Code. Under section conviction the current Texas 29.02, final, JAMES LOM- ownership property come BARD, JR., the said ERNEST ele- not an person so who is the same twice alleged offense which must be ment of the convicted, formerly upon Ken- did in and Iva Reese, the indictment. 531 S.W.2d at 640. assault, nedy and did then and make by putting violence and said assault and recognized Ricalday. this rule in See 736 9. We bodily Kennedy in fear of life and the said Iva Indeed, case we determined F.2d at 207. in that injury, fraudulently against the will of the charge that since the defect in the amounted to Kennedy person take from the said Iva error, courts would fundamental Texas (5) Kennedy, possession of the said Iva five Ricalday’s though conviction even reversed rifle, jewelry, money, pistols, the same one object charge failed to to the defective at trial. being corporeal personal then and there Ricalday held that was not Id. We nevertheless Kennedy property of the said Iva entitled to habeas relief because he was not deprive the said Iva intent then and there to Kennedy prejudiced by performance the deficient of his of the value of the same and Specifically, appellate counsel. we determined him, appropriate said it to the use guilt overwhelming that the evidence of was so LOMBARD, JAMES JR.” ERNEST probability that the fact there was no reasonable charge pertinent part: reads in finder would have had a reasonable doubt as to "Now, you evidence be- believe from the Ricalday's guilt proper under See instructions. yond a doubt that in Harris Coun- reasonable Ricalday id. at 209. We concluded that since October, Texas, ty, day on or about the 4th prejudiced was not counsel’s failure to defendant, ERNEST JAMES LOM- trial, prejudiced by he was not counsel’s fail- BARD, JR., unlawfully did then and there ure to raise the same issue on Id. person upon of IVA KEN- make an assault However, Ricalday, assault, in we were careful to by and there said NEDY and did then point KENNEDY, out that the case was not one in which or or violence to the said IVA effectively KENNEDY, at there was counsel all. by putting fear of the said IVA Ricalday See id. at 209 n. Because was not bodily injury, fraudulently take her life or case, found that such a we "the ultimate focus person possession IVA from the KENNEDY, or of the said consent, inquiry pro- be on personal of ceeding” must the fairness of the her indictment, wit, par- alleged and on whether the “result of the property five in the rifle, Money, proceeding pistols, Jewelry ticular is unreliable because of a one & process.” appropriate the breakdown in the adversarial Id. intent of the defendant alleged led to a reversal of the indictment have Lombard’s supra, in note convic noted, by Lombard were the tion. As Lombard contends that the items taken that he victim, Kennedy, but the denied effective assistance of property of the Cahoon, any require- counsel, trial jury charge did not contain as trial (1) jury object must failed to to: ment that order convict habitual offender Kennedy’s prop- by the trial prose find that such items were comments court and the belonged reading erty jury or were owned or to her. cutor’s to the of the indict authorities, Accordingly, allegations under the above it ment which contained several appear (see this omission in the prior would Lombard’s convictions note charge though apparently not ob- supra); improper admission of —even may jected to at well have amounted robbery. the extraneous armed In Here trial — error” State, to “fundamental which would (Tex.Crim. dia v. 508 S.W.2d 629 con- resulted the reversal Lombard’s App.1974), Ap the Texas Court Criminal viction had it been called to the attention of peals found that of a reversal conviction is Appeals when it con- the Court Criminal required permits where the trial court appeal. sidered the learn, jury to at the commencement of the guilt stage trial, or innocent recognize recently the Tex- We that more defendant has been one convicted of Appeals as Court of Criminal has made a prior felony alleged more offenses for en thorough reexamination of the “fundamen- hancement, provided timely the defendant applied tal error” doctrine 36.01, objects. See article subdivision it, charge, substantially narrowed Texas Code of Criminal Procedure.10 See largely eliminating concept of “auto- State, also 642 S.W.2d Frausto State, matic” reversal. Almanza (Tex.Crim.App.1982). 508-09 Heredia indi (Tex.Crim.App.1984). S.W.2d 172-74 cates, however, objection may such an However, change clarification—in —or appeal. not be raised for the first time on Almanza, represented by Texas law decid- Heredia, Thus, See 508 S.W.2d at 630. years ed nine after the affirmance of about failure to at trial Cahoon's conviction, change does not Lombard’s prior references to taken, convictions fact that when his may affirmed, costly well have been a error. Had when his conviction was the issue of trial counsel’s ineffectiveness charge clearly omission constituted a which, appeal, raised on been Texas Court of nonfrivolous basis for had it Appeals might Criminal have determined been called to the attention of the Court of time, might at that that such an error alone constituted inef Criminal well have resulted reversal of his conviction. fective assistance of trial counsel warrant Certainly say ing we are unable with assur- reversal conviction. ance conviction would then have reasonably cannot conclude that it is We

been affirmed even if the omission in the probable that the Texas Court of Criminal charge ground had been raised as a of Appeals, ap- when it acted on Lombard’s appeal. error on peal in re- December would have

Likewise, versed, affirmed, the claim ineffective assist- instead of his conviction argu- ance of trial counsel was not properly frivolous. As had Cahoon asserted these Lockhart, Moreover, we noted a claim of ineffec- ments on the had Al- then, tive assistance of trial counsel can be as- manza been on the books it is obvi- serted on direct in Texas. See 782 ous that the chances for reversal would token, F.2d at 1283 n. 14. If that claim had have been less. But the same we properly may beyond asserted on it too cannot conclude doubt reasonable Strickland, 2069). (quoting separate guilt 104 S.Ct. at But 10. Trial is bifurcated into or inno- present 37.07,

since the in substance a total denial of effective case is one in which there was punishment stages. cence See article Texas Code Criminal Procedure. Ricalday we do not think that the hold- ing reasoning should control or that its should necessarily apply. him, the state affords within a asserted on relief unless arguments been that had these Ap- time, appropriate of Criminal out-of-time appeal Texas Court reasonable have affirmed.11 peals appeal. Accordingly, nevertheless the district court’s would remains Assuming part some Lockhart denying relief is re- judgment habeas distinguishes viable after versed, and the cause is remanded to Lockhart, in essence did de- there we may judgment so that it enter district court petitioner’s con- all the habeas termine that granting corpus issue the writ habeas rejected they had have tentions would been the state affords Lombard an out-of- unless appeal. Accordingly, direct raised on appeal such reasonable time direct within does not suffice that Lockhart we conclude fix, may the district court and for time as relief in this of habeas justify denial proceedings not inconsistent here- further case. with. stated, present cir- the reasons For REMANDED. REVERSED AND sufficiently analogous to cumstances are prevent utilization of in as to those Penson GOLDBERG, Judge, specially Circuit Since prejudice test. we the Strickland concurring: were nonfrivo- determined that there have that can- appeal issues and we lous direct delight It is that I concur with ebullient beyond reasonable doubt not conclude majority’s result this case. How appeal would not that reversal on direct ever, Ohio, I find virtually total occurred but for the (1988),to 109 S.Ct. be counsel, by appellate Lombard default analogous case; I closely more than a be relief; accordingly therefore entitled to we constructively lieve Mr. Lombard was de do not determine whether need appellate nied the effective assistance of to such entitlement would be such, squarely and as his situation no nonfrivolous relief there had been protection of falls under the Penson and or, assuming arguendo that appellate issue 738, 744, California, 386 Anders v. U.S. differ, inquiries if we could and did that beyond determine reasonable doubt categories of denial Penson creates two affirmed on convictionwould have been assistance of counsel. effective fully direct had there been effective encompasses category The first criminal appellate counsel. actually

defendants who are or construc- tively denied the assistance of an advocate Conclusion right. as of In such for their first although We conclude situations, presumed prejudice is and the of counsel on his form had the assistance petitioners are entitled to relief un- habeas performance was direct counsel's permits less the state them defective, pervasively so in that he took appointment a new of an client’s virtually no action at all on his attorney. advocate as their The second despite presence of at least two behalf category cases in involves which the defen- issues, clearly nonfrivolous press particular dants’ fails to was denied ef- substance situations, argument appeal. such fective assistance of counsel whatever petitioners prove prejudice must as de- Moreover, his direct we are unable Washington, fined Strickland v. beyond to conclude reasonable doubt 80 L.Ed.2d had furnished effective as- Lombard been (1984), is, that “there is a reason- would sistance of counsel his conviction that, probability for the able but counsel’s affirmed. These nevertheless have been errors, unprofessional pro- Lombard to habeas the result of the circumstances entitle affirm, obviously point. cannot be decisive of this 11. The fact that it did but without these Pen- arguments having been made to it and without son. expressly addressing question, the matters

1485 category. petitioner A the first different.” Id.1 ceeding have been would showing a federal can obtain habeas relief without asks a petitioner aWhen habeas '[ajctual or category prejudice claim because “the con of decide which court appel of assistance of structive denial of the assistance counsel of denial of effective falls, altogether federal court under is to result in legally presumed the late counsel ” Penson, a In so duty prejudice.’ make such decision. 109 S.Ct. at 354 keep Strickland, doing, federal court should at (quoting the 466 U.S. 104 sharp 2067). Penson, indigent the substance situation eye on at In the S.Ct. by the being overly mesmerized guilty without petitioner was found of several seri matter so as to elevate form of the crimes. ous New counsel was Because I believe form substance. over him represent appeal. The new counsel constructively2 denied Lombard timely The attor filed notice of counsel, toto, appellate the assistance ney appellate then the state filed with prejudice I find or harm any discussion captioned court a document “Certification unnecessary.3 less error Appeal of Meritless and Motion” which attorney to the court that he certified indigent An criminal defendant has the record; carefully had he reviewed right to the effective assist constitutional reversal, requiring no found errors modifi for his or her ance of counsel first and/or cation vacation defendant’s Lucey, right. as of Evitts v. 469 U.S. See sentence; convictions or and that he would 830, 834-35, 387, 393-95, 105 83 L.Ed. S.Ct. not file a meritless the matter. permit (1985). must not a state 2d 821 We document, attorney same also upon this trespass court hallowed a motion as counsel made to withdraw ground. collateral review a federal The at 109 S.Ct. 348- the defendant. in, reviewing engages peti when 49. tioner’s claim of ineffective assistance of counsel, appellate raises an issue of wheth Appeals permitted The Ohio Court petitioner “prejudice” er a must show granted the attorney to de- withdraw Corpus. obtain a of Habeas Pen Writ See pro leave fendant to file a se —Ohio, U.S. -, 109 son v. S.Ct. The court also stated that it wished. state (1988) (prejudice pre “independently review the record would sumed); Washington, 466 Strickland any thoroughly to determine whether 674 L.Ed.2d requiring reversal or modification exist[ed] needed). (1984) (prejudice attorney Thus the sentence....” permitted to before the agree The I “was withdraw majority and that the Su- nothing record on more categories court reviewed the preme has created two Court by the conclusory ap- ‘a statement concerning appel- ineffective assistance than pointed attorney late case represents counsel. Penson v. Ohio Likewise, majority agree appears to with me at one 1. on direct a criminal defen 3.The constructively government’s argument point dant rebut the denied need not appellate appellate defendant’s counsel when the denial of counsel the assistance of Chapman majority under was harmless error Lombard in substance was states "that Califor nia, S.Ct. L.Ed.2d 705 of counsel effective assistance what- law, (1967), Majority Opinion, matter of appeal.” because "as a an [such ever on his direct However, majority never be considered harmless.” Sat point, error] can at another —Texas, impression terwhite v. gives is a that there distinction the Penson between Lombard's case and formally was never without "Lombard appeal[.]” Because 2. The "constructive” means that the court counsel on his term repre- "formally” never ma- concludes that in substance was no which, substance, jority engages level. The sentation at the attorneys form of an in discussion prejudice control the and harmless "brief’ will not determina- is a discussion of error. logic concerning tion had of whether the defendant It is the form over substance stage. filing piece with at the The Lombard's of a lack paper disagree, unnecessary caption, consequently which is as to I I find blank content, analysis. majority’s prejudice is not a brief even if and error so denoted. complained criminal file Barnes the defendant and that he no merit w[ould]

ha[d] ” court-appointed attorney did not at 349. that his brief.’ Id. defen- raise a nonfrivolous issue which the found that Ohio Supreme The requested attorney to raise. dant had erred in three re Appeals Court of argue arguably meritori- attorney did three regard to Anders v. spects with Califor points appellate ous in the defendant’s 1396, nia, 87 18 L.Ed.2d S.Ct. 386 U.S. Supreme The Court brief. First, (1967). held that the the Court 493 particular found that the failure to raise should have attorney’s motion to withdraw subject to the issue on Strickland not his motion did denied because prejudice rather than the Pen- standard of in the record that “anything point out Penson, presumed prejudice support appeal.” Sec son standard. arguably might ond, not have acted 354. court “should 109 S.Ct. at Ohio it made to withdraw before on the motion The difference between an Anders/Pen- the record to deter examination of its own is, case of son case and a Jones v. Barnes of the counsel’s evaluation mine whether course, degree a difference in between no Penson, 109 S.Ct. at sound.” advocacy, or constructive actual Third, Supreme and what the Court Anders/Penson, inadequate or incom- significant, the state considered most petent appellate advocacy, Barnes. Jones v. “appoint new coun erred when it failed resulting concerning the difference that the record sel after it had determined showing prejudice need for a of is a crucial ” arguable supported claims.’ Id. ‘several differing analytical consequence of the con- con issue which at 351. The troublesome categories tent of these of cases. concerning this Supreme cerned upon passed upon error that the Ohio court A federal court must decide which the defendant’s case without particular petitioner’s merits of side of this fence the brief, thus of an advocate’s benefit point my This of differ- case falls. is the depriving of the itself and the defendant opinion majority opinion. ence of adversary of examination “benefit an majority's I find that the brilliance presentation of the issues.” Penson opinion opening paragraphs is cloud- its arguable claims 351. Once the moment of by fog portions of ed the latter arrives, the state court is under a constitu language majority utilizes the of imperative appoint counsel so tional new prejudice and harmless error. Strickland an that the court has the benefit of “advo clearly I has shown believe deciding the merits.” cate’s brief before constructively that he was denied the as- (quoting McCoy Penson at 351 v. Court of altogether. counsel sistance — U.S. -, Wisconsin, permit We should not the form of the attor- 1895, 1904-05, 100 L.Ed.2d 440 S.Ct. ney’s prevail document to over sub- (1988)). Eighth inter Recently, the Circuit document, or to more stance of the be Ohio, preted require release Penson v. accurate, any the absence of substance on defendant when there is violation paper “Appellant’s entitled the sheets of Anders, any showing preju Brief” to substitute for an advocate’s brief. dice, “unless the state court reinstates court, case, The state in Lombard’s erred to brief all appoints requiring to file points arguable merit.” Evans v. satisfactory Anders brief. Clarke, (8th Cir.1989); 868 F.2d 267 Sand Clarke, 488, (8th Cir.1989), ers v. 867 F.2d perfectly No case is tried and the Consti- — Court, Supreme on remand require perfect justice. tution does not U.S. -, 109 S.Ct. 102 L.Ed.2d 964 However, imagine it is difficult to the case (1989). hopeless piece which is so that no of evi- case, prose- dence in a no comment category The second assist- ineffective cutor, ruling nor the trial court exemplified by ance of counsel is does Barnes, present Jones v. even the slimmest reed of an (1983). arguable all requires L.Ed.2d 987 Jones v. issue. This is Anders 745, 103 S.Ct. 77 L.Ed.2d 987 the U.S. attorney to draw to an (1983). prevailing Certainty of attention. court’s Naturally, this required. is not squarely within the Lombard falls neces pos- defendant every not mean that Ohio, does sary protections of Penson v. The Anders a meritorious sesses 109 S.Ct. indeed, very level low California, requires, Anders

threshold arguability. Thus, any flirting even discussion turn, case, in The Anders in our prejudice language of Strickland’s opportunity the state court analysis unnecessary. harmless error ap- Anders adequate review I 109 S.Ct. at 354.4 therefore con arguable counsel if it found point new sepa joyfully cur the result write Therefore, preju- any discussion claims. rately express my that this court belief inap- dice, error is possibilities, or harmless decisively decide on side of should which situation. plicable Lombard’s and Jones v. Barnes the Anders/Penson v. of Penson purview falls within I find fence Lombard’s case falls. Because presumed prejudice. Ohio’s standard constructively denied that Lombard was the assistance of counsel alto presence appel- of an physical formal The presumed prejudice I gether, believe the appellate counsel. attorney is not late standard of Penson applies thereby obviat which attorney filed a document Lombard’s ing any prejudice or harmless the need the mer- contained no arguments going to Clarke, v. error discussion. Accord Evans case. Under Anders its of Lombard’s v. (8th Cir.1989); Sanders 868 F.2d 267 criminal defendant is entitled Clarke, (8th Cir.1989), F.2d 488 attorney unless an advocate’s brief — Supreme remand U.S. from action, seeks to from the which withdraw (1989). -, 102 L.Ed.2d 964 attorney to file an An- requires itself ders brief. document attorney “Appellant’s filed as

Lombard’s essence, An-

Brief”, was, inadequate

ders brief without even the attendant mo- It is inade-

tion to withdraw as counsel. “arguable” quate it set forth no EQUAL EMPLOYMENT OPPORTUNI claims, allegation conclusory COMMISSION, TY Penson, 109 S.Ct. at 350-51. merit. See Plaintiff-Appellant, withdraw, addition, a motion to placed the undesirable sit- v. attorney arguing govern- uation of his COMPANY, PAPER BOX ATLAS filing ment’s case without Defendant-Appellee. motion to the motion withdraw. Without No. 87-5421. withdraw, the state Appeals, Court of United States appoint prompted to consider whether to Sixth Circuit. appellate counsel. This dif- Lombard new Lombard and the Penson ference between Argued March 1988. and Anders cases makes Lombard’s predic- Decided 1989. Feb. than egregious even more ament Rehearing April Denied 1989. cry and Anders. case is a far the “case in counsel fails to argument appeal.” press particular Barnes, citing,

Penson Jones — U.S. -, Texas, (1967), and Satterwhite inappropriate apply therefore either It is (1988). prejudice requirement of Strickland or the 108 S.Ct. 100 L.Ed.2d 284 Ohio, -, Chapman Penson v. analysis U.S. 109 S.Ct. harmless error v. Califor nia, 353-54,

Case Details

Case Name: Ernest James Lombard, Jr. v. James A. Lynaugh, Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 6, 1989

Citation: 868 F.2d 1475

Docket Number: 86-2852

Court Abbreviation: 5th Cir.