*1 essence”); damages, of-pocket losses— GLOVER, Petitioner- Eric Domain Bechtel Contracting Corp. v.
Western Appellee, Cir.1989) (4th 1196, 1204 Corp., 885 F.2d essentially Maryland’s (stating that under pocket” of method recissionary “out MIRO, of Allendale Warden Geraldine must damages, plaintiff determining Institution; Charles Correctional value of the of the actual evidence produce Attorney Molony Condon, General rendered).5 services Carolina, Respon- the State of South
dents-Appellants.
V. No. 00-7663. adduced sufficient PEPCO Because Appeals, States Court United or injury to its of the fact business proof Fourth Circuit. summary judgment, property to survive grant of the district court’s we reverse May 2001. Argued on basis summary judgment to EMS Aug. Decided damages. We remand lack of proof mo- EMS’s court to consider the district lack summary judgment
tion for based bound Because we are proof of fraud. we are precedent, constrained circuit we hold up request that
not to EMS’s take essential injury” use is an “investment Final- civil of a RICO action.
prerequisite is not entitled to
ly, we hold that PEPCO
recission. PART,
AFFIRMED IN REVERSED PART, AND
IN REMANDED. assertion, and we believe Western suggested argument at oral PEPCO money recissionary used, Corp., 885 F.2d Contracting Corp. when the measure v. Bechtel Cir.1989), EMS to damages (4th is the burden shifts to provides a con prove value of services fair market trary rule for fraud cases. authority provides PEPCO no rendered.
prejudice under Washington, Strickland v. 466 U.S. 80 L.Ed.2d (1984). It granted nevertheless a writ corpus of habeas to Glover under per reasoning of United States v. prejudice se (1984). L.Ed.2d 657 Because Strickland v. Washington’s actual prejudice analysis ap case, plies to this and because can prove actual *4 Strickland test, we reverse the judgment of the district court and remand the case for proceedings further consistent with opinion. this Green, Tracey ARGUED: Colton Assis- I. Attorney General, tant Office of the Attor- On June a South jury General, ney Columbia, SC, Respon- for found Eric guilty Glover of numerous dents-Appellants. Thadeous Herbert resulting counts January 22, from the Westbrook, III, Nelson, Mullins, Riley & kidnapping robbery and of Wayne Cooper. L.L.P., Scarborough, Columbia, SC, for Based Cooper’s description of his as- Petitioner-Appellee. ON BRIEF: Charles leads, sailant as well as other police arrest- Condon, General, M. Attorney John W. ed Florida and returned him to McIntosh, Deputy General, Chief Attorney A grand jury South Carolina. indicted Zelenka, Donald J. Deputy Assistant At- him on five counts stemming from the torney General, Attorney Office of the January grand larceny, kid- General, Columbia, SC, incident — Respondents- napping, armed robbery, assault and bat- Wood, Jr., Appellants. Nelson, William C. tery kill, with the intent to possession and Mullins, Riley Scarborough, L.L.P., & Co- during of a firearm the commission of a lumbia, SC, for Petitioner-Appellee.
violent crime. WILKINSON, Before Judge, Chief Jenkinson, defender, Gordon the public MICHAEL, WIDENER and Circuit originally represented Glover. Jenkinson Judges. briefly met with Glover the March preliminary hearing. pro- by Reversed and published remanded innocence, claimed his and later wrote Jen- opinion. Judge Chief WILKINSON wrote kinson a letter potential with list of alibi opinion, Judge which WIDENER testify witnesses who would that Glover joined. Judge MICHAEL wrote a was in Florida on the date of the crime. dissenting opinion. Following however, meeting, Jenkin- resigned public son as defender and his OPINION reassigned. cases were WILKINSON, Judge: Chief ultimately The court assigned Glover’s This case addresses whether defendant case to Jerome Askins. Askins received Eric constitutionally Glover received inef- Glover’s file on June 1991. Glover’s fective assistance of. The district court trial was scheduled for the two week term found that Glover proven had not actual of court beginning June 17. In addition to 1980 white Thunder- his mother’s driving case, responsible also Askins was grocery in a store Cooper stopped criminal sixty” assigned other bird. “fifty or awith during up the term. he struck a conversation cases where stand, Cooper stranger. While on on June met with Glover Askins first person with whom as the identified Glover meeting, Glover denied During this first engaged he conversation. again He the crimes. having committed during the rob- in Florida claimed he was testimony, Glover According Cooper’s provided Askins with bery. Glover variety then chatted about Cooper ten individuals approximately names matters, Bowl. Glover Super like the other his alibi. establish he claimed would whom Florida, from Cooper that he told people, of these but contacted some Carolina. just had that he arrived provide would not they determined continued their conver- Cooper testimony. Askins said that any useful paying for the over drinks. While sation witnesses identi- not contact other did alcohol, Cooper Cooper opened his wallet. Jen- Askins also reviewed fied Glover. Cooper over carrying a little $500. investigat- to the notes and talked kinson’s opportunity had an that Glover testified ing officer. *5 Cooper’s wallet be- the cash in observe trial held on June was Cooper standing beside cause Glover was selected, jury the was but After purchase. Cooper Glover during the pres outside its it was sworn and before some female friends decided to visit then ence, He moved a continuance. Askins They to the women’s of Glover’s. drove unable court that he had been advised the Glover Cooper’s Thunderbird. house identify any who could establish witness the as his Cooper introduced women The on behalf of Glover. an alibi defense twenty minutes at the After friend. about motion, stating that trial court denied the house, Cooper wanted to leave. Cooper from Flor subpoena witnesses it could not grocery the agreed drop Glover off at assurance that and that it had no ida they store where met. trial if it were attend the witnesses would reality, South Carolina rescheduled. that Glo- Upon arriving, Cooper testified defendants to sub allow criminal law does that this gun Cooper and told pulled ver out-of-state witnesses. poena Cooper “stickup.” forced was a trial, repeatedly struck presented the the backseat and During the State into witness, At that gun. The Preston him in the face the five witnesses. first with Wilson, joined he owned a trailer people testified that two other Glover. point, January a tenant. he rented to On They Cooper which drove off and Glover he drive, he went to the trailer where During the still in the backseat. of the ten- conversed with an acquaintance grabbed Cooper’s wallet. Glover ant, On cross-examination Eric Glover. Cooper, preventing beat thus continued to Askins, person- he had no admitted Wilson being where he was Cooper seeing from com- knowledge about al whether accomplices finally taken. Glover and his any crime. mitted car They pulled a dirt the arrived at road. checked to see the side of the road next, was important, most witness assuring After Cooper if was still alive. victim, Wayne Cooper. Cooper identi- alive, they that he indeed themselves was kidnap- in his ringleader fied Glover as the trunk and continued Cooper stuffed According Cooper, robbery. ping and January he was to drive. 7:00 P.M. on around later, ion,
About five minutes car slightly walked bowlegged. Coo- stopped outside of a trailer. Glover and per did not trailer, know location of the the two moved others from Cooper except that it was down a dirt road. trunk to the trailer. As Glover and his Collins then told jury that soon after accomplices Thunderbird, searched the conversing with Cooper, she received a call Cooper escaped through the back door. from another officer who had found a Cooper nearby home, ran to a trailer and white Thunderbird at a trailer off a dirt eventually was taken to a hospital. road. Officer Collins went to the location Askins vigorously cross-examined Coo- and determined the car regis- was per, questioning him on the time of the tered to Cooper’s mother. Collins also crime, light outside when he observed determined that Preston Wilson owned the Glover, the ease with which Glover could trailer. Wilson told Collins that nobody have Cooper, killed what Cooper doing supposed to be in the trailer because area, why Cooper identify the man renting it from him had already the other two offenders though even left town. Collins then trailer, entered the them, saw and other inconsistencies in his where she found a note written to “Dear testimony. Grandmother” signed “Eric Glover.”
The State Coker, then called cross-examined Betty Lou Collins on a variety woman who issues. lived the other trailer home to which Cooper fled after he es- rested, After the State Askins asked the caped. Coker testified Cooper ar- judge for a directed verdict. Although the rived her mobile home around 8:30 P.M. motion, court denied the granted it Askins’ Coker, According to Cooper said that he motion to charge reduce the grand lar- *6 just had been up, beaten that his assailants ceny to use of a vehicle without the own- him, had tried to kill and they that had er’s consent. Askins also consulted with money. taken his During cross-examina- determined, his client and a lengthy after Askins, by tion Coker that admitted she discussion, that Glover did not want to had never seen Glover. Cooper’s father testify. The defense did not any call wit- also testified for the State. He confirmed During nesses. closing argument, his As- Cooper that driving was 1980 the white pointed kins out the inconsistencies in January Thunderbird on 22. Askins cross- Cooper’s testimony. He noted that also examined father Cooper’s variety on a of Cooper might out to be frame Glover. As- matters, including why Cooper was in town argued ians that the person who night that and whether the father had could say that actually Glover anything did personal knowledge about crime the itself. illegal Cooper was himself. Askins main- The finally State called Officer Debra Cooper tained that might have been intoxi- Collins. Collins testified that she first saw cated or impaired otherwise that night. Cooper in the hospital night the he was He also why asked Cooper could not re- Collins, assaulted. According to Cooper member name night Glover’s the of the guy told her that pulled gun “this a on him Askins, crime. According to things little and made get him in the against car his did not up, add and if things the little were will.” Cooper could give not the wrong, name of the “big things” could wrong as assailant, his provide did but a description verdict, well. Twice before the the State of him. He said that his attacker was plea. offered a Glover consulting After 5'6", between 5'5" and weighed Askins, between with reject decided Glover the to 140 pounds, and 150 had a complex- light plea offer. 22nd, none of whom the the all on guilty found Glover jury
The called Glover also hearing. at present that it found Glover although charges, Jordan, grandfather. Sylvester offense included the lesser committed examina- asked on direct was Mr. high aggravat- and Jordan battery of a assault Florida when if Glover was tion more serious opposed as nature ed responded Mr. Jordan place. took battery intent crime charge of assault when in Florida stating, “He was verdict, renewed kill. After know. I don’t they say. as ap- place took verdict for directed his motion say he they he did what don’t think And I leniency. Askins for judge to the pealed for by Glover’s asked at the did.” When only 18 was that Glover noted information, repeatedly Jordan Mr. criminal more crime, prior no that he had nothing.” “I know don’t replied, innocence his maintained history, that he trial, had even that he throughout the motion granted Glover’s court The state was because he agreement rejected plea assistance on ineffective new trial for a he anything guilty plead going Su A South Carolina divided grounds. Glover judge sentenced The did not do. reversed, holding Glover Court preme charge, ten kidnapping on the prison life in a valid alibi defense to establish failed robbery armed on the years consecutive failed thus hearing and post-conviction his sentences lesser concurrent charge, and v. under Strickland to show charges. other Car Glover South Washington. See (S.C. olina, S.C. S.E.2d Court After 1995). conviction, new with a Glover affirmed post-conviction for a motion
attorney filed a writ petition then filed court. Glover contended relief state mag- court. corpus federal habeas ineffective counsel that his trial judgment summary judge granted istrate At witnesses. his alibi failing to contact habeas of Glover’s State on three for the he stated hearing, to amend his claims, permitted Glover but crime. the time of Florida at ground for relief a fourth to add Petition consistently had told the court sentencing. State law regarding *7 on in Florida he had been maintained penal- sentencing the maximum set time of previous his 22, that he asked January life. thirty years, not at ty kidnapping Jenkinson, his alibi contact attorney, error, agreed The conceded state that Willie Palm- stated witnesses. 19, relief. On grant October the limited of in that he was Florida testify could er the writ on 2000, granted the district court iden- also January 22. Glover night the of assis- second claim—ineffective who eight at other tified least noted The district counsel. court of tance the during in him Florida place other petition’s the not address but did gave that he 22. He testified January of South Carolina for relief. grounds three attorneys. to his all names these appeals. appeared who only The alibi witnesses II. court, however, Jordan were Sandra Washington, 466 Jordan, In Strickland Glo- Sandra Sylvester Jordan. 2052, Supreme 668, at 104 in U.S. S.Ct. aunt, she saw Glover testified that ver’s deciding test for two-part a set forth Jan- Court 8:00 A.M. on approximately at Florida counsel claims. assistance other ineffective three 22. Ms. Jordan named uary that eoun- First, “must defendant show during allegedly saw people who
275
ing
deficient.”
performance
sel’s
Strick-
a criminal defendant
to make.”
land,
687,
French,
(4th
104
307,
466 U.S. at
S.Ct. 2052. To Brown v.
147 F.3d
313
Cir.1998).
prove deficiency, a
“must
defendant
show
representation
that counsel’s
fell
an
below
Absent these narrow circumstances
objective standard of reasonableness.” Id.
presumed
Cronic,
prejudice under
de
688,
Second,
at
Third, case, argues Court identified certain *8 although instances “when Supreme counsel is avail South Carolina Court’s decision trial, able to during assist the accused the was contrary clearly to established Feder- lawyer, likelihood that any fully even a al law applied preju- because it the actual one, competent provide effective dice as standard of Strickland instead of the sistance is so small that a presumption per-se prejudice analysis of of Cronic and prejudice Alabama, is appropriate inquiry 45, without Powell v. at 287 U.S. 53 S.Ct. alternative, into the actual of the In conduct trial.” Id. 55. Glover maintains Alabama, (citing 45, Powell v. 287 that Supreme U.S. 53 the South Carolina Court’s (1932)). 55, S.Ct. 77 L.Ed. A finding application decision was an unreasonable per-se prejudice clearly these established Federal law because errors, three prongs extremely high is “an show- absent counsel’s there is a reason- times, was counsel. represented not probability jury that would able pre- at the represented Glover guilty. a verdict of We Jenkinson have returned liminary hearing. represented Askins Glo- turn. argument each address days through trial at
ver from two
before
sentencing.
post-trial
least the
motions
III.
complete
for
finding
per-se prejudice
A
A.
aat minimum
requires
denial of counsel
at
present
a critical
that
that no
Preliminarily,
may assume
we
Roe v.
stage
proceedings.
of the
See
prong
the first
has satisfied
Glover
483,
470,
Flores-Ortega, 528
U.S.
“that
analysis by showing
coun
Strickland
(2000)
(citing
formance was He failed to contact certain even Second, was not construc though provided him with names of tively right denied the to counsel. Askins not potential witnesses. He did real alibi “entirely subject pros did not to fail[ ] ize that a Carolina statute allowed meaningful case to adversarial ecution’s compel criminal defendants attend “the testing” way in such as make necessary ance of out-of-state witnesses adversary process itself unreliable.” not Finally, for the defense. Askins did 466 U.S. at S.Ct. kidnap that the for even realize sentence every Askins acted as Glover’s advocate at had been amended ping South Carolina potential step. He some wit contacted in prison from a maximum sentence of life He asked a continuance. He nesses. thirty years. a maximum sentence He vigorously cross-examined witnesses. errors, these with the fact Given combined questioned highlighted motives. He testi does contest that As- State He monial inconsistencies. advised deficient, performance may kins’s we possible plea pointed client on deals. He prejudice. turn to the issue of out to the the flaws the State’s case jury. closing made a state vigorous He B. judge He asked directed ment. after verdict both the State’s case Glover contends the South Carolina after jury verdict. clearly misapplied Court estab- by employing law an actual lished Federal Furthermore, con- able to per-se prejudice test instead of a judge charge vince the to reduce one disagree. one. We against grand larceny pos- Glover from without owner’s session of vehicle And he consent. was able convince *9 jury battery come find a verdict assault The facts do not close to to of and nature of fitting high aggravated the first Cronic’s three of and instead within of to kill. per-se prejudice. battery criteria for Glover was assault with intent facts, say Given completely not denied counsel at critical these we cannot Glo- right ver to stage proceedings. constructively At all relevant denied the the
277 counsel. This case is not one where the 3. lawyer literally sleeps through the State’s The third reason for finding per might case or otherwise as well be absent se prejudice if is “the likelihood proceedings. from the Askins the tested lawyer, fully one, even a competent juncture. case at every State’s He was an provide effective assistance is so small that active advocate for Glover. ful a presumption of prejudice is appropriate filled his role as defense attorney by sub inquiry without into the actual conduct of
jecting the
against
State’s case
Glover to
Cronic,
the trial.”
659-60,
If we were to
the per-se preju-
broaden
Glover can point
case,
one
Poioell
Strickland,
dice exception to
Alabama,
we would v.
in which the Court has found
only add an
layer
litigiousness
extra
a presumption of ineffectiveness based on
ineffective
law.
designate
assistance
To
the circumstances surrounding the defen
categories
certain
of cases as Cronic “con-
Powell,
representation.
dant’s
See
structive denial”
45,
cases and
Powell,
others as
U.S.
S.Ct.
decided
Strickland
performance”
“deficient
cases
involved the infamous trial of several
promote
would
a new threshold area of African-American men who faced the
debate
complicate
handling
of this
death penalty for raping a white woman on
most common
area
contention on collat-
Powell,
a train in Alabama. See
eral review. For that reason
perhaps,
49-50,
days of counsel,” presence “continuous not had tion he that had stated appeared, “but in the matters in court on other or to counsel the ease prepare opportunity an and indictment between three-day period procedure.” local with himself familiarize defen [the with trial,” time to talk 2039. “limited Cronic, 466 U.S. pre the period between out-of- time dant] the the decided court thus The trial,” morning of liminary hearing the defen- and the represent lawyer would state on appointed inability the local bar of help “the counsel whatever “with dants constitu present trial to day Id. the before provide.” of evi suppression grounds tional recognized court The Powell knowledge no counsel had dence since not have in that case could defendants Griffin, case. of’ the defendant’s the facts given of counsel the assistance received Furthermore, the de 775 F.2d at “The de- the case. the circumstances had defender “between public fendant’s illiterate, sur- fendants, ignorant, young, at the pending 100 and 140” other cases sentiment, haled back by hostile rounded Nevertheless, at 1230. Id. same time. soldiers, charged guard and forth prej rejected per-se the claim of court this regarded with crime atrocious with an the circum review of “a udice because community where in the horror especial rep defendant’s] surrounding [the stances tried, put were thus they to be same us that reveals to resentation a moments within few of their lives peril unreasonable it was not circumstances charged first for the after counsel ren lawyer could competent expect that began to degree responsibility any with Id. at of counsel.” assistance der effective Powell, at 57- them.” represent 659-60, 104 U.S. (citing 2039). S.Ct. are no- of this case circumstances that counsel has also held And court this attempts to close to Powell. where and the indictment after appointed had he contact that rely on the limited finding of justify a does not day of trial Jenkinson, lim- attorney, his first Pray under Cronic. See prejudice per-se Glo- prepare that Askins had ited time (4th Martin, 179, 181-83 761 F.2d low v. potential investigate the and to ver’s ease Cir.1985). we Praylow, In stated sixty other witnesses, fifty or alibi justi fails to counsel” appointment “late was re- which Askins cases for criminal of ineffective assistance fy presumption “a crimes severity of the and the sponsible, Id. at 183. of counsel.” These indictment. in Glover’s alleged its the trial of all strip simply do not facts materially distin- to see failWe prejudice rule per-se that a integrity so facts case guishable between examina- resort an justified without is Here, Praylow and Griffin. circumstances the actual tion of trial, days until two before appointed case. on spend some time able to but was appointed Praylow, In counsel held that case.
Indeed, already this court has Here, As- day as trial. facts, finding same involving similar in a case other fifty sixty kins had between appropriate. was not per-se had cases, between Aiken, but counsel 1229- 775 F.2d See Griffin Griffin Griffin, coun- In Cir.1985). other 100 and 140 cases. (4th Griffin, the defen- on the case hardly any time spent sel justified argued that several factors dant continuously on other matters in- was in court These of ineffectiveness. presumption
279
three-day period
in the
between indict
ent. A reasonable probability
proba-
is a
case,
ment and trial.
Praylow bility
This
like
sufficient to undermine confidence in
Griffin,
outcome.”).
closely
more
resembles the
Glover maintains that the
facts of Cronic than it
testimony
does the
in
facts
Sandra Jordan
Sylvester
Powell Alabama.
Jordan
post-conviction
at the state
hearing
creates
probability
a “reasonable
that the
Indeed,
the Supreme Court
result of the proceeding would have been
long
has
emphasized that late appointment
different.” Id. Like the
court,
district
we
of counsel
ipso
does not
trigger
facto
disagree.
of per-se prejudice.
rule
See
begin with,
To
presented
State
661-62,
at
U.S.
Cham
strong evidence
as
guilt.
Glover’s
v. Maroney,
bers
Wayne
victim,
Cooper, the
testified how he
(1970),
Moreover, nothing cast has doubt on Glover, charged Cooper’s testimony. Eric was with kid- None of Glover’s wit- who instance, crimes, de- testify, they naping nesses and other serious was nied in the Cooper person with a different effective assistance of counsel saw they public 22nd. defender And could not establish summer of when system Williamsburg County, why Cooper fabricating reason would Carolina, completely. Noth- any part experience his unfortunate broke down short, ing done on until the night. post- evidence Glover’s case lawyers ap- hearing conviction to undermine con- third a succession failed him on pointed represent fidence in the of the trial. In- June outcome deed, tried granted days court two before trial. Glover was although the district per-se prison writ rule of and sentenced life on June on the lawyer before his new had an oppor- kinson nothing did to investigate Glover’s tunity potential to contact several alibi wit- alibi defense. nesses who lived out no state. Because Although Glover was given any never effectively could have represented event, notice of the resigned Jenkinson as circumstances, Glover in the I would af- public defender sometime between Glo- firm district court’s award of the writ *13 ver’s hearing on March 1 and May late dissent, corpus. I habeas therefore re- 1991. Around the first of June all of the spectfully.
public cases, defender’s numbering about I. assigned were to two Williamsburg County lawyers, Jerome Askins and Wil- Glover, who could not afford a lawyer, liam Pridgen. The case load was to be got in trapped the fallout public after the divided, with each lawyer taking fifty or defender in Williamsburg County, South sixty Many cases. Carolina, the cases would resigned be Glover was called for trial during 24, 1991, arrested Florida on two-week term January court pursuant begin set to to South on June Carolina warrant for 1991. In meantime, kidnaping his arrest on robbery public and armed defender’s resig- charges. immediately He waived extradi- nation had led huge to a backlog prelim- tion, 3, 1991, and on February inary he was hearings. result, As a Askins and jail transferred to the in Williamsburg Pridgen spent the first June, two weeks of County, Carolina, to await further morning from until evening day, each rep- proceedings. It was until not three and resenting indigent defendants in prelimi- later, weeks one-half at his preliminary nary hearings. Because the term of court 1, 1991, hearing on March that Glover met began as soon as preliminary hearings public defender, with the Gordon Jenkin- concluded, Askins Pridgen and had no son, for the first only time. Jenkinson time to investigate the cases of other de- spent a very short talking to time fendants, Glover, such as who had their his case. about Glover was convey able to preliminary hearings earlier. to Jenkinson his claim of innocence that As the defender’s cases were being di- based was on an alibi defense: Glover said vided, Glover’s case assigned was first to that he January 22,1991, was Florida on Pridgen. however, Pridgen, discovered when the crimes for which he charged was that he was already representing one of in South Carolina were committed. Glover co-defendants, Glover’s so he had to de- Jenkinson told about alibi one witness in representation cline the of Glover. It was particular, Palmer, Willie his brother-in- Monday, not until June the first law, says who Glover was with him in day term, of the that Glover’s case was during Florida of the hours South Car- finally assigned to Askins. day On that Glover, olina crimes. jail, who remained in brought to was the Williamsburg wrote Jenkinson several listing letters oth- Courthouse, County presumably er to potential alibi answer witnesses Jenkinson his indictment kidnaping, to armed interview. rob- responded Jenkinson never bery, and any letters, charges. to related of Glover’s At that he never Jenkinson, contacted Glover believed that Glover after preliminary public defender, hearing on March was still Apart from that showing up at preliminary Glover’s Jenkinson had subpoenaed necessary hear- ing, it appears that Jenkinson did not witnesses. do puzzled was therefore work on particular, his case. Jen- when a man he never seen had before investigate Glo- otherwise or room for witnesses
(Askins)
holding
into the
came
Askins did
In particular,
case.
name,
him ver’s
and told
called his
prisoners,
funds
or the
investigator
to an
have access
him. Glo-
representing
that
would
hire one.
Askins,
had
who
realized
quickly
ver
knew noth-
day,
his file
received
just
trial, Askins
before
June
On
Yet
trial
his case.
Glover’s
ing about
ten
of the
contact two
able
19, 1991.
days, on June
two
start
list,
father
Florida
persons on
however, were
They,
stepmother.
said
17 Glover
meeting on June
At their
Finally,
witnesses.
identified as alibi
never
prove
can
Askins,
got
“I
witnesses
able to
trial Askins was
morning of
on the
ten
identified
this.” Glover
I didn’t do
potential
alibi
talk to one
wit-
potential
in Florida who
persons
Brown,
could not
Florida,
who
Roy
from
Glover said
nesses,
of whom
several
*14
Thus,
trial be-
as
any assistance.
provide
The first witness Glover
alibi.
provide an
(indeed, he
contacted
had not
gan Askins
Palmer, who Glover
was Willie
identified
contact)
to
seven
never able
was
the
in
when
him
Florida
with
said was
he
notably,
Most
alibi witnesses.
Florida
in
occurred
and other crimes
kidnaping
Palmer,
main
the
not contact
did
Willie
Carolina.
South
by Glover.
witness identified
alibi
17, Askins
Monday,
on
June
Sometime
avail-
inability in
his
the
Because
wit-
potential
the
trying to contact
began
potential alibi
in
get
to
touch
able
Florida,
to
was not able
he
in
but
nesses
Florida, Askins
realized
witnesses
day. Askins’s lack
anyone that
reach
disadvan-
at a terrible
“would be
was
because he
understandable
success is
sched-
as
if the trial went forward
tage”
impediments.
under
several
operating
for a
Accordingly, Askins moved
uled.
court was under
First,
term of
the
because
that he
He advised the court
.continuance.
for about
responsible
was
way and Askins
talk with
opportunity
the
to
had not had
the court-
cases,
not leave
he could
sixty
who,
to
according
Florida residents
several
court-
to remain at the
had
house. Askins
(Glover),
testify that Glover
could
client
his
because,
did
part,
the most
he
house
in South
was “not
in Florida and
was
from hour to
day
to
or
“know from
not
alleged
times of these
during the
or in
called
[would]
case
be
hour which
motion,
the
denied
The court
offenses.”
Second,
have
did not
Askins
what order.”
continue
going
“not
that it
noting
most of
wit-
numbers for
telephone
on Florida witnesses
based
the case
which,
imped-
nesses,
acknowledged,
as he
jurisdiction
Apparent-
over.”
has no
court
try to locate some
“to
ed his efforts
was aware
nor
ly,
the court
Askins
neither
Third,
pay
no
there were
people.”
these
case
in a criminal
a defendant
telephone
convenient
or other
telephones
out-of-state
subpoena
Carolina could
Williamsburg
lawyers in
facilities for
Act to Se-
Uniform
result,
a
Askins
As
County Courthouse.
from
of Witnesses
cure the Attendance
wherever
telephone
a
had to borrow
Proceedings.
Criminal
a State in
Without
one,
in the
sometimes
clerk’s
find
19-9-70;
§
Fla. Stat.
See S.C.Code
Ann.
offices.
in other
sometimes
office and
§ 942.02.
Ann.
not
available
potential
witness
When
June 19.
to trial
was forced
call,
Askins was
able
his
to take
day, and Glover
that same
The trial ended
he could
handy
number where
provide
jury re-
After
no
Fourth,
defense.
presented
a callback.
reached for
p.m.,
6:36
guilty
verdict
turned
efforts to
contact
had no
assistance
283
proceeded
post-trial
judge
directly
mo-
counsel.” I would affirm
grant-
the order
(All
sentencing.
pro-
ing
tions and
of these
the writ for
following
reasons.
ceedings
reported
are
than
less
three
II.
pages
transcript.)
Askins moved for a
The Sixth
right
Amendment
ground
new trial on the
counsel
there had
“guarantees an accused ‘adequate legal as-
been insufficient time to contact witnesses
sistance.’”
United States v.
in Florida. The motion was denied. The
648, 655,
U.S.
104 S.Ct.
80 L.Ed.2d
judge then announced that the matter was
(1984)
(quoting
Sullivan,
Cuyler v.
“ready
sentencing.”
The judge asked
U.S.
64 L.Ed.2d
Glover four or five perfunctory questions,
(1980)).
“Unless the accused receives
very briefly
Askins,
heard
from
and then
counsel,
effective assistance of
‘a seri-
sentenced
prison
Glover to life in
plus ten
injustice
ous risk of
infects the trial it-
years.
years
Glover was nineteen
old
”
self.’
Id. at
(1970)).
when
of ten witnesses
a list
gave Askins
coun- Glover
expect that
unreasonable
“make it
located
(most
category)
in the alibi
trial,”
of them
prepare
adequately
sel could
provide
not able
in Florida. Glover
Id.
justified.
prejudice
is
presumption
numbers.
telephone
661-62,
Specifically,
circum-
when
may
presumed
enough
with,
is not
days
two
begin
To
avail-
the short
surrounding
stances
alibi
an
prepare
and
investigate
time to
preparation
and
investigation
able for
nev-
who have
witnesses
based on
defense
the defense.
inaccessible
make witnesses
are out
and who
contacted
been
er before
is this case.
id. That
See
away. As-
miles
state,
hundred
several
distant
of lack of time
problems
kins’s
claim
majority rejects Glover’s
The
condi-
by other
aggravated
witnesses
broad-brush
he seeks “some
saying that
way,
court
The term of
tions.
Ante at
prejudice.”
presumption
the courthouse
not leave
Askins could
is not done
paints
that Glover
picture
The
many cases
responsible for
he was
a set of because
portrays
It
brush.
broad
ac-
As Askins
Glover’s.
any law-
addition to
render
that would
circumstances
hour to
not know from
did
knowledged, he
incapable of
how
yer
matter
skilled—
—no
might
other cases
of his
hour when some
right
effective assistance.
providing
have the assis-
did not
in- be called. Askins
counsel
the effective assistance
try to
he had to
investigator, so
tance of an
lawyer ade-
one’s
right to have
cludes the
by telephone
the Florida
case.
contact
investigate
prepare
quately
there were
Because
45, 57-58,
Alabama,
from
court-house.
Powell v.
See
for law-
(1932)
facilities available
telephone
(noting no
55,
by the South
Court— Glover’s case is “nowhere close” to Powell
that “even if [Askins] had contacted the
Alabama,
v.
witnesses who could have helped,
they
(1932),
L.Ed. 158
where the Supreme
get
could not
here
time from Florida as
Court presumed ineffective assistance
the case was due to commence” immedi-
(2)
based on the circumstances and
Glover,
ately.
therefore, was denied ac-
there are no “materially distinguishable
cess to his witnesses.
factors” between Glover’s case and Griffin
Askins was
spend
not able to
all of the
Aiken,
(4th
v.
775 F.2d
Cir.1985),
days
two
appointment
between his
and Praylow Martin,
(4th
fin, at 1280-81. 775 F.2d America, of STATES UNITED representing lawyers two had defendant Plaintiff-Appellee, plea guilty a him, he entered after Although several times. talking them v. appointed was not lawyers one of until represent defendant ROBERTS, Antonio Lucien a/k/a had been the other guilty plea, Defendant-Appellant. Lou, case on a related him representing lawyers The two seven months. over America, United States and conduct- on the case together worked Plaintiff-Appellee, In these investigation. adequate ed an in- circumstances, presume we declined to v. 761 F.2d Praylow, See effectiveness. short, Praylow nor neither Griffin Jr., Defendant-Appellant. Santos, Pedro this case. writ in way in the stands America, that the South
I am convinced United States Court, grant of reversing the Plaintiff-Appellee, court, made by the state habeas the writ v. clearly contrary to ... that was “a decision law, as determined Federal established Kyle, Gumbs, Antonio Darrell a/k/a States.” United Supreme Court Defendant-Appellant. 2254(d)(1). rule Cronic § 28 U.S.C. giving circumstances straightforward: is America, United States are violation Amendment rise to Sixth Plaintiff-Appellee, avail is although counsel “when present trial, the during the accused to assist able fully any lawyer, even likelihood that as one, effective provide
competent Covington, A- Aaron Keith a/k/a presumption that a is small sistance so Man, Defendant-Appellant. inquiry appropriate is without 99-4926, 99-4925, 99-4919, 00-4306. Nos. Cron of the trial.” conduct into the actual 659-60, 104 2039. The ic, S.Ct. Appeals, Court of United States Askins from prevented here circumstances Circuit. Fourth investigation of Glo thorough conducting a case, defense. his alibi especially ver’s 3, 2000. Nov. Argued that no was so intolerable The situation Askins’s job. have done the lawyer could Aug. Decided no fault through was deficient performance *18 imped own, the circumstances
of his effective ability provide
ing his trigger presumption
representation court and state habeas
prejudice. therefore correct:
district court granted.
writ should be