Franklin David PASSMORE, Petitioner-Appellant, v. W. J. ESTELLE, Jr., Director, Texas Department of Corrections, Respondent-Appellee.
No. 78-1963.
United States Court of Appeals, Fifth Circuit.
Nov. 27, 1979.
607 F.2d 662
The judgment is REVERSED and the case is REMANDED for further proceedings not inconsistent with this opinion.
Robert Udashen, Dallas, Tex., (Court-appointed), for petitioner-appellant.
ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
(Opinion April 27, 1979, 5 Cir. 1979, 594 F.2d 115)
Before COLEMAN, GODBOLD and INGRAHAM, Circuit Judges.
PER CURIAM:
The petition for rehearing is granted. Our original opinion, 594 F.2d 115, is modified by withdrawing the language beginning with the last full paragraph on page 117 and continuing to the end of the opinion and substituting the following therefor.
It is obvious that the representation by petitioner‘s retained appellate counsel was incompetent.4 Constitutionally ineffective assistance of counsel in state court may be predicated upon either the due process clause of the
In the first situation, we say that constitutionally ineffective assistance of retained counsel occurs when the whole proceeding is fundamentally unfair. In other words, “the criminal justice system has so grossly malfunctioned that the state‘s subsequent imprisonment or fine of the defendant is a violation of due process. . . . Fourteenth Amendment state action is present, not because a state official knew or should have known the particulars of the unfairness but because the system has failed.” Cantrell v. Alabama, 546 F.2d 652, 653 (5th Cir. 1977) (citation omitted).
In the second situation, state action is present, not because the whole proceeding is “fundamentally unfair” but rather because a state official knew or should have known of the “particulars of the unfairness.” Id. The language of Fitzgerald v. Estelle, supra, quoted in Cantrell v. Alabama, supra, concerning the
To find state involvement in retained counsel‘s conduct which is adjudged to be less than reasonably effective, yet not so grossly deficient as to render the proceedings fundamentally unfair, it must be shown that some responsible state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a capacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained attorney‘s representation is so apparent that a reasonably attentive official of the state should have been aware of and could have corrected it then again the state action requirement is satisfied.
Fitzgerald, supra, 505 F.2d at 1337 (emphasis added).
It is abundantly clear that the Texas Court of Criminal Appeals had actual knowledge that petitioner was receiving incompetent representation and took no remedial action. The per curiam opinion not
In the instant case, the Texas Court of Criminal Appeals could have ordered petitioner‘s counsel to rebrief the case before disposition of the appeal, especially since counsel had attempted untimely to submit a “First Amended Brief,” which the Court refused to consider. As in Cantrell, the Constitution requires more than what was afforded petitioner.
The state trial court‘s ruling that defense counsel could not impeach a prosecution witness with evidence of his jail record comported with state law and did not violate the confrontation clause of the
AFFIRMED in part, REVERSED and REMANDED in part.
COLEMAN, Circuit Judge, concurring specially.
I was so appalled by the filing of a one-line brief by retained counsel in a criminal appeal that I concurred in the prior opinion in this case, reported at 594 F.2d 115. Upon it being brought to the attention of the panel that we were in conflict with the decision of another panel, Perez v. Wainwright, 594 F.2d 159 (5th Cir.), rendered almost simultaneously and which we did not know about, the above revised opinion is being issued, authored by Judge Ingraham and concurred in by Judge Godbold.
I concur in this opinion because it directs only that Passmore be given an out of time appeal. If his conviction was being subjected to outright invalidation I would most certainly dissent.
I wish, however, to make a record of some of my reservations about my concurrence. The solemn judgment of the Texas Court of Criminal Appeals, in which the retained lawyer filed the one-line brief, recites that the Court had made an independent evaluation of the record and had found no error. This means that the lawyer‘s dereliction hardly resulted in any prejudice to Passmore. The better course would be to apply the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The out of time appeal is probably going to be a waste of time and effort on the part of both counsel and the Texas appellate court. Therefore, if I were deciding this case individually I would apply the harmless error rule and affirm the District Court.
By my concurrence I do not intend to be lending support to the idea that state appellate courts must now review all briefs as to the competency and adequacy of the representation afforded by retained counsel in order to foreclose claims of incompetency of counsel or inadequacy of representation at the appellate level, especially where, for all we know, the filing may be simply for delay or for some other reason not really based on any real hope of reversal.
I have searched the federal constitutional precedents and I find almost nothing on incompetency of counsel or inadequate representation in state court appeals. The hundreds of precedents in this area deal with what happened at the original trial on the merits, where the focal issue of guilt or innocence was at stake.