Lead Opinion
The government appeals from an order of the district court granting James Ewing’s petition for post-conviction relief, filed pursuant to 28 U.S.C. § 2255, and vacating Ewing’s conviction for conspiracy to import marijuana on the ground that he was denied effective assistance of counsel. Two separate but closely-related issues are presented: (1) whether the record supports the district court’s findings of fact and conclusions of law; and (2) whether the district court’s findings of fact and conclusions of law sufficiently support the relief granted in light of our recent decision in Cooper v. Fitzharris,
On February 3, 1966, Ewing was tried before a jury on two indictments, one charging him with conspiracy to smuggle and smuggling cocaine, the other charging him — in two counts — with conspiracy to smuggle heroin and cocaine and conspiracy to smuggle marijuana. February 3 was originally set as the trial date for only the cocaine indictment, but upon the urging of the government and in light of the eventual representation of Ewing’s counsel that he was prepared to prоceed on the two-count indictment as well, the trial court consolidated the two cases and the trial on both indictments began. Prior to his announcement that he was ready on the second case, Ewing’s counsel had notified the court that he had received the second indictment with its marijuana count only several days prior and could not answer “ready” to that case. However, counsel changed his mind and, with the assurance from the court that necessary continuances would be granted, еlected to proceed to trial immediately on both indictments.
After the court dismissed all counts except the marijuana charge, the case went to the jury, and after deliberation, a verdict of guilty was returned on the marijuana count. Ewing unsuccessfully pursued appellate relief and then jumped bail, remaining a fugitive at law until his apprehension in January of 1975. Some five months later, he filed a motion for § 2255 relief from his conviction for smuggling marijuana, maintaining that he had been denied effective assistance of counsel in violation of his Sixth Amendment rights. The district court conducted an evidentiary hearing on the claim and after hearing testimony and considering the documents and affidavits submitted on both sides, entered an order vacating Ewing’s conviction on the ground that he had been deprived of his right to effective assistance of counsel.
The court, in ruling on the § 2255 motion, found that Ewing’s trial counsel had proceeded to trial on the marijuana offense totally unprepared. The Court also found that the unpreparedness resulted in several serious omissions, including (1) failure to move for dismissal of arguably duplicitous counts; (2) failure to conduct a pretrial interview of the government’s key witness or to interview any potential defense witnesses; (3) failure to move to suppress an in-court identification; (4) failure to cross-examine the key prosecution witness with respect to possible bias; (5) failure to adequately oppose the government’s attempts to impeach its own witness after he testified favorably to Ewing; and (6) failure to present any witnesses on behalf of Ewing.
We are obliged to hold, and approvingly assert, that appellate courts should respect and defer to the findings of district judges regarding trial counsel’s lack of preparation and investigation. The court’s finding that Ewing’s counsel proceeded to trial totally unprepared is a finding of fact and cannot be upset on appеal unless “clearly erroneous.” Fed.R.Civ.P. 52(a). Upon reviewing the record, we cannot say that this finding is clearly erroneous. While testimony at the § 2255 eviden-
In granting the post conviction relief, the district court failed to identify the prejudice resulting to petitioner from trial counsel’s inadequacy. The court found instead that the trial counsel’s lack of investigation and preparation was so complete as to render impossible a determination of actual prejudice. In the district court’s words, “[t]he second determination is whether counsel’s failure to adequately investigate and prepare prejudiced petitioner. In that rеgard, this case is somewhat difficult, because counsel’s lack of investigation and preparation as to Count Two of No. 36097 was so complete as to pervade the entire proceedings.” The district court stated that
ineffective assistance of counsel may have had so pervasive an effect on the process of guilt determination that it is impossible to determine accurately the presence or absence of prejudice. .
In such instances a finding of depаrture from the standard of normal competence requires, without more, a new trial.
The district court cited McQueen v. Swen-son,
The absence of specific findings on the issue of prejudice raises a substantial question. Judicial review of a claim of ineffectivе assistance of counsel generally requires a two-step investigation consisting of a determination of whether counsel’s performance has fallen below an established standard of competence and, if so, “where . the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel’s errors prejudiced the defense.” Cooper v. Fitzharris (en banc), supra, at 1327. Here, the trial court determined that counsel’s performаnce did fall below the established standard of competence.
In Cooper v. Fitzharris,
This Court, sitting en banc, reversed the original appellate decision in Cooper. Cooper v. Fitzharris,
could have been reviewed on direct appeal only as plain error and, therefore, only on a showing of prejudice. Moreover, they could be relied upon as in themselves justifying collateral attack, rather than as supporting an allegation of ineffective assistance of counsel, only on a showing of both actual prejudice from the error and good cause for the procedural default. If such errors may bе successfully attacked where no prejudice appears simply by asserting them under the name of ineffective assistance of counsel, the requirement that prejudice be shown to challenge these errors on direct appeal or collateral attack would be empty form.
Id. at 1333 (footnotes omitted). We offered the cautionary comment that
[i]f counsel is charged with multiple errors at trial, absence of prejudice is not established by demonstrating that no single error considered alone significantly impaired the defense — prejudice may result from the cumulative impact of multiple deficiencies.
Id. Thus, the law in this Circuit is clear that where an allegation of ineffective assistance by counsel is premised on specific acts or omissions of counsel, the allegation must be buttressed by a showing of injury or prejudice to the defendant.
The district court found that it would be “anomalous” to require a showing of prejudice in light of counsel’s complete unpreparedness. However, as Cooper v. Fitzharris (en bane) pointed out, the mere fact that counsel’s performance fell below a certain standard does not mean that it is impossible to evaluate the impact of this failure with reasonable certainty, albeit on a cumulative basis. Second, the errors identified by the court below could have been reviewed on direct appeal. See Cooper v. Fitzharris (en banc), supra, at 1333.
Indeed, the decision to proceed in an unprepared state may itself have been the tactical decision of a trial attorney confronted with overwhelming evidence.
We recognize that some circuits allow a finding of ineffective assistance of counsel without a showing of prejudice in certain limited cases. In the instant case, the district court relied on McQueen v. Swenson,
To draw a distinction between “specific” errors and omissions, on the one hand, and “total” unpreparedness on the other, misses
In reversing and remanding, we are not by any means unmindful of the careful work of the district judge. The anomaly here presented is not uncommon in the judicial process. It is this: on appeal, a careful trial judge is often held to the impossible task of applying the law, not as it was at the time of his decision, but rather, as the conglomerate wisdom of an en banc appellate court may thereafter determine that law to be.
Here, for example, the learned district judge had no way of knowing that a finding of prejudice was required; arguably, it then was not required. Therefore, he made no inquiry on the prejudice issue, and specifically, whether the gross inattention of counsel to the marijuana charge was a calculated strategy. ' Perhaps, in counsel’s view, the best possible result for the defendant, in light of the government’s evidence was an acquittal on all charges but the marijuana count. The defendant was acquitted on the heroin and cocaine charges for which he was concurrently tried. What sort of prejudice arose when defense counsel achieved that result? On this record we don’t know, and the trial judge quite properly considered it irrelevant to his duty of inquiry as the law then stood.
But the law now requires his consideration of whether, on the entire record, there was prejudice resulting from the total performance of counsel. We take particular note of the careful work of the district judge. However, it was undertaken at a time when the law of this Circuit was unclear. The law is no longer uncertain. Although the district judge was careful, he was not clairvoyant or prescient. The en banc opinion in Cooper v. Fitzharris, handed down after the district judge entered his order, requires a further finding of prejudice if the defendant is to receive a new trial.
We are therefore compelled to reverse the order of the district court, and remand the case for further proceedings in light of this opinion and Cooper v. Fitzharris,
Notes
. Whether counsel prohibited Ewing from testifying on his own behalf or merely advised him against doing so was the subject of conflicting testimony at the evidentiary hearing, but it is uncontroverted that there were no defense witnesses at trial.
. The standard, as articulated in Cooper v. Fit-zharris,
. A complete denial of the assistance of counsel is so inherently prejudicial and inconsistent with the fundamental fairness that should attend criminal proceedings that the harmless error rule has no application in such cases. See Chapman v. California,
. This appeared to be the law prior to the panel opinion in Cooper v. Fitzharris. In United States v. Speer,
. See, e. g., United States v. Walker,
The dissenting opinion expresses some bewilderment as to the tactical considerations that might dictate defense counsel’s failure to investigate. To be sure, Ewing’s attorney had an ethical duty to investigаte the case thoroughly. The trial court found this was not done, and we do not dispute that finding. However, on this record it is impossible to determine whether counsel’s failure stemmed from tactical considerations, or sloth.
For instance, when this case went to trial, defense counsel had leave from the trial court to halt the proceedings at any time if the evidence on the marijuana charge required, in counsel’s view, further investigation [R. at 15]. The record also reveals that defense counsel was successful in оbtaining judgments of acquittal on the far more serious cocaine charge and heroin count without presenting any evidence or cross-examining any witnesses [R. at 174; Id. at 192]. Having obtained the acquittal at the close of the government’s case on the heroin and cocaine charges, counsel might have decided that the best defense for Ewing was to argue the weakness of the government’s proofs to the jury on the marijuana charge, instead of availing himself of the opportunity to investigate. This wаs, of course, improper.
But what is “unethical” may not always result in prejudice to a client. And on this record, we cannot say whether the defendant was prejudiced. That is for the district judge to determine, and it is to the district judge we remand this case for the purpose of making that determination.
. On remand in this case, the district judge would have grounds for reversing appellant’s conviction and ordering a new trial if he concludes that prejudice to Ewing’s defense resulted from the cumulative impact of the' multiple defalcations of his counsel.
. The dissent nowhere indicates how district or appellate courts might distinguish situations where counsel is “totally” unprepared from those instances where multiple, specific errors or omissions form the operative basis for a claim of ineffective representation. Presumably, the instant case, where there are six cited errors and omissions, (See Opinion at 393), in addition to defendant’s trial counsel’s grossly inadequate” statement to the Court at defendant’s sentencing, would qualify as an instance of “total” lack of preparation under the dissenting opinion’s analysis.
Dissenting Opinion
(dissenting):
I respectfully dissent. While I recorded my disagreement with the majority in Cooper v. Fitzharris by joining in my Sister
I agree with the majority that “[t]he touchstone here, as in all cases where ineffective assistance of counsel is alleged, is a fair trial.” Majority Opinion p. 396. From the record before us, I think it is absolutely clear that the District Court found that appellant was denied a fair trial because of counsel’s abysmal laсk of preparation and investigation and “his subsequent grossly inadequate assertion of petitioner’s rights.” These are the kinds of determinations by district judges to which we, at the appellate level, should accord some deference and respect. My Brothers gloss over the careful work of the district judge as if that work had never been done.
I am also perplexed, and even bewildered, by the majority’s statement that “the decision to proceed in an unprepared state may itself havе been the tactical decision of a trial attorney confronted with overwhelming evidence.” Majority Opinion p. 396. It is the solemn duty of an attorney, especially an attorney undertaking to defend an individual accused of crime, to prepare and investigate every aspect of a case before proceeding to trial.
*398 When no counsel is provided, or counsel is prevented from discharging his normal functions, the evil lies in what the attorney does not do, and is either not readily apparent on the record, or occurs at a time when no record is made. “Thus an inquiry into a claim of harmless error here would require, unlike most cases unguided speculation,” [Holloway v. Arkansas,435 U.S. 475 , 491,98 S.Ct. 1173 , 1182,55 L.Ed.2d 426 (1978)] and a rule requiring that the record reflect that the defendant was “prejudiced ... in some specific fashion would not be susceptible to intelligent, even handed application.” Id. at 490,98 S.Ct. at 1182 . This situation is to be distinguished from the usual one in which a harmless error rule is applied: “In the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error matеrially affected the deliberations of the jury.” Id. at 490,98 S.Ct. at 1182 .
. See Cooper v. Fitzharris, supra, at 1332:
. Because Cooper itself not only detailed, but also explicitly relied upon, the nature of this distinction, i. e., the varying ability to evaluate prejudice, I cannot understand why its reiteration and application here “would be”, as the majority writes, “to modify Cooper v. Fitzhar-ris less than four months after its en banc decision.” Indeed, it appears to me that my Brothers ignore this fundamental premise of Cooper and, in so doing, contradict the analytical underpinnings of that decision.
. The American Bar Association Project on Standards for Criminal Justice, in its “Stаndards Relating to the Prosecution Function and the Defense Function” (Approved Draft, 1971), enunciated this duty:
4.1 Duty to investigate.
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore ail avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.
A.B.A. Standards, supra, § 4.1.