*3
15,
tit.
278
Ala.Code
Absent a
§
COLEMAN,
and TJOF-
Before
RONEY
showing
prejudice,
of actual
this failure
LAT,
Judges.
Circuit
petitioner
precludes
raising matter
corpus
in a federal habeas
action. Francis
RONEY,
Judge:
Circuit
Henderson,
542,
536,
425
v.
U.S.
96 S.Ct.
Haggard
Henry
seeks a reversal of the
1708,
(1976), aff’g
udiee is not sufficient. Mallonee v. In this Haggard has failed to Furthermore, (5th 1966). F.2d 940 Cir. prejudice. 354 prove The evidence does not Haggard showing, has not made the essen- support allegation that his attorney re claim, process tial to his due that the state call fused to the Hannons because of an objection, him over his compelled actual position ethical conflict with his litigation in before the jury. wear handcuffs Estelle v. years two before. Tactical considerations Williams, 425 96 U.S. 48 may well have been paramount. The prop Estelle, 126 L.Ed.2d Willeford 538 osition that the Hannons would have testi F.2d 1194 fied fоr is entirely speculative. It contrary runs to their prior testimony under Hag- Effective Assistance of Counsel. Compare oath. United Lovano, States v. alleges attоrney’s that his gard conflict (2d Cir.), F.2d interests, subpoena failure to essential wit- nesses, L.Ed.2d and failure inform him of his *4 (1970), with Pine, United States v. right to denied him effective assist- 452 F.2d 507, (5th 1971). 509 Cir. counsel. As Even if Hag- anсe of his trial defense the Han testified, although contended that nons had their gard he was version of events co-defendants, have been present effectivеly impeached with two the Han- could by nons, robbery the place, when took he use of statements from prior did their trial. context, actively participatе. not this the theoretical conflict did not attorney’s render assistance unconstitu trial, At their 1966 present- the Hannons tionally ineffective. United States v. Fan the alibi that thеy ed were not at the scene non, 129, (5th Cir.), 491 F.2d 132 cert. de robbery. They were nevertheless nied, 1012, 332, 419 95 U.S. S.Ct. 42 L.Ed.2d convicted and sentenced to twenty-year (1974). 286 terms. transcript of Haggard’s stаte trial attorney The same who represented the positive reveals a identification the two represented Hannons also Haggard when Haggard victims of as an participant active tried, extradition, he was years after two robbery. in the The district court found Haggard alleges joint later. represen- the evidеnce at the state trial “overwhelm- deprived tation key testimony him of in his ingly guilt. established” his Haggard took was, His attorney allegedly behalf. for eth- against the stand the advice of counsel. reasons, put ical unable to the Hannons on judge The state trial was aware of the dual stand if because their evidence had been but, rеpresentation nevertheless, testified Haggard, favorable to it would per- have opinion that in his the attorney every- did jured testimony given at their own tri- thing he could fоr Haggard and that his al. representation good. was This Court interpreted has The evidence does not support Hag Amendment require Sixth to “not errorless gard’s contention that he counsel, was denied effec and not counsel judged ineffective tive assistance because his attorney by hindsight, but failed reasonably counsel likely subpoena witnesses, key to other in to render and addition rendering effec reasonably to the Hannons. Trial counsel Ellis, tive assistance.” MacKenna tеstified v. 280 592, he (5th any did not discover 1960), denied, F.2d 599 Cir. cert. witnesses in 877, preparation 121, his case that 368 U.S. 82 S.Ct. 7 would L.Ed.2d 78 aid in defense, and (1961) (emphasis original). Haggard in The mere never re attоrney quested subpoena fact that an him to represents multiple any witnesses. In defendants does not establish the state coram nobis hearing, ineffective as Hаggard prejudice sistance. Actual his changed must be shown. defense and said he was not Wayman, 1020, v. present United States 510 F.2d even but Chicago was in at the time Cir.), (5th 1025 cert. denied sub robbery. nom. United of the While defense, such a if Moore, 846,96 84, v. 423 trial, States 46 asserted before might have called for L.Ed.2d 67 witnesses, appropriate the use of Hag-
1023 justiсe pro- testified at the same or attorney shocking was gard’s to the conscience Haggard never ceeding previously of the reviewing court.”1 This test has in Chicago rejected been had circuit, to have in this claimed requires guilt. The counsel, admitted his district always “not errorless and not counsel clear error deciding judged not commit in did ineffective hindsight, court but counsel prove attorney did Haggard reasonably likely failed to render and rendering “necessary proper” witnessеs. reasonably call effective not assistance.” MacKen Ellis, 592, v. 280 (5th na F.2d 599 1960) Cir. Finally, on the facts of this (emphasis original), in 368 U.S. was not denied effective assist 877, 121, 7 Her attorney because his failed to inform ance Estelle, ring v. 491 F.2d (5th 127 Cir. right appeal. An indigent of his him Balcom, 1974); Mason 531 F.2d 722 right has a to be told of his oppor accused (5th 1976). case, then, n.8 Cir. This aр is Alabama, tunity appeal. Daniels v. propriate application for of the rule that (5th 1973); Lumpkin Smith, Cir. F.2d “[a]ny findings fact based on an erroneous 1971). Hag F.2d Cir. legal standard сannot be credited. Battle- error, not so informed. The gard was how stein Investment Co. v. United States, 5 ever, was harmless. Within the statutory Cir., 1971, 89; 442 F.2d Fulton National appeal, Haggаrd petitioned time Tate, Cir., 1966, Bank v. 363 F.2d of error coram nobis. His writ Tyler 566.” v. Insurance Co. of North hearing on given a full the merits with America, 1072, 1074(5th *5 court-appointed counsel. He raised er all Sain, See also Townsend v. 372 U.S. committed at trial which had not rors n.10, L.Ed.2d 770 peti waived. The trial court’s denial of the Richmond, Rogers tion was affirmed Alabama Court of 735, 5 I would was, Appeals. petition Criminal The in ef and remand reverse the case with directions fect, a statutory appeal. treated as the district court resolve this issue granted Haggard’s full ventilation coram under the correct legal standard. adequately petition distinguishes nobis this I respectfully dissent. Daniels, supra, case a decision on relies, in which no full hear ing given. on the merits was ever sum, facts of
In this case do not Haggard’s claim
support he failed to receive
“reasonably effective” assistance of counsel. judge The trial testified at the district court PRATT, Edward T. and Billie R. William hearing attorney’s representation Pratt, Crys- D. and Anita Jack E. and good. Many alleged errors were Pratt, Petitioners-Appellants, tal A. fаcts, supported by the either not or were strong proof in view of the harmless
guilt. COMMISSIONER OF INTERNAL
The district court’s denial of Haggard’s REVENUE, Respondent-Appellee. for writ of corрus habeas is No. 75-3531. AFFIRMED. Appeals, United States Court of Fifth Circuit. TJOFLAT, Judge, dissenting: Circuit April 1977. holding petitioner was not counsel, effective denied assistance of applied
court below test of whether “trial was a or a
petitioner’s mockery farce 1. This test was recited in the opinion. district court’s memorandum Record at 107.