Jimmy Ray Bonds v. Louis L. Wainwright, Director, Division of Corrections

31,1977 if operation on December Sumter either to meet tion of its the competing pro- Gray Line and the between negotiations posal or to lose preferential its negotiating present their course. If Secretary continue rights ran afoul of the statute. Fort operations, to discontinue

required Since the district court both followed and impossible it to resume might find Sumter correctly applied Blackwelder, it follows even- legal rights even if its operations granting its order preliminary in- We note also that Fort tually vindicated. junction is existing even if the agreed, Sumter AFFIRMED. to con- expires during period, this contract transportation tourist until provide tinue a new contract litigation has ended and

this executed, it be said so that cannot

has been grant injunctive relief interim interest. public

will harm we do not decide the repeat We Jimmy BONDS, Ray Petitioner-Appellant, litigation presents, issues that ultimate serious have no doubt that raises but we whether Fort stat- as to Sumter’s

questions WAINWRIGHT, Director, L. Louis was observed. It seems utory preference Corrections, Division of negotiat- preferential that for elementary Respondent-Appellee. illusory, real rather than ing rights to be No. 75-3914. bidder should be of an outside proposal specifications and responsive to bid both Appeals, United States Court of existing conces- final that sufficiently Fifth Circuit. what he is called fairly apprised of sioner is Dec. wheth- question We see a equal. upon may judged respon- be Gray Line’s bid er Rehearing En Banc Granted neither an offer to it contained sive when 13, 1978. Feb. furnishing of the new to the contribute Service, nor to be constructed terminal docksite within designation specific of a oper- from which to City of Charleston

ate.8 responsive, we Gray Line’s bid is

Even question as to whether a substantial

see statutory afforded Fort Sumter

Service simply when Fort

preference Sumter Gray Line’s of those items from

advised superi- deemed which Service

proposal to see the bid

or, opportunity but denied deficien- possible itself with acquaint

and to what it considered protest

cies in order Additionally, the dis- bid. unqualified whether, after must consider

trict court

nondisclosure, direction to Fort Service’s latter, Moreover, specifications customary regard ient tourist traffic.

8. With inadequate, designation may with the in the deemed to be docksite custom- also be begin ary bidding process tourist area should have economic conse- result quences anew, they require bidders to have such as increased costs which would since Charleston, regard City bid with rates and affect an outsider’s within docksite potential quality sites within of service. there are numerous City which would be inconven- of Charleston likely to reveal whether Bonds’ coun- adequately

sel did or did not advise and possibility consult with about court, however, conduct- appeal. The lower evidentiary hearing, ed an at which Bonds Murray Klein attorneys, and and Harry Durant, findings testified. The bespeak the lower court its effort to identi- readily case which did not fy the facts of a categories common of effec- fit within more assistance. We therefore tive or ineffective findings out the relevant at some will set length. found that Bonds The lower court “did Fla., Gribbin, Miami, peti- for A. forego

Thomas affirmatively ap- consent to tioner-appellant. appeal.” for an Rath- peal, press nor did he Bonds, er, years age, then sixteen “left Shevin, Gen., J. Robert Atty. L. Robert Klein;” “reposed decision to he his Gen., Miami, Fla., for Atty. Olian, Asst. lawyer in his to make the confidence respondent-appellee. “Klein, decision.” in consultation with Du- rant, judgment exercised that for” him. Though express- does not opinion below find, that Bonds ly so its conclusion relied BROWN, Judge, TUTTLE Chief Before may imply well lawyer on his Bonds TJOFLAT, Judges. Circuit and at least aware that some sort of option point, existed. At one the court TUTTLE, Judge: Circuit “[tjhere strong sugges- is a indicated that court 1953, Florida state jury In motivating . . factor tion rape. Ray guilty Bonds Jimmy found an appeal which caused Bonds not to take thirty years imprison- was sentenced He fact that Bonds had received a was the In ment, which he did case where thirty year capital sentence in however, challenged his conviction Bonds By the facts were harsh facts indeed.” first, corpus, a writ of habeas by seeking meant that Bonds’ re- the court have Florida, and then in unsuccessfully from lawyers accompa- seemed to be liance his The court denied courts.1 district federal from, by, or to stem his awareness of nied challenges appeal, In his Bonds relief. jeopardy. But the court did not find respect: only decision in one court’s lower (It possible this as a fact. is also his trial counsel failed he asserts only court meant that Bonds’ took assist- constitutionally effective render appealed, the risks he ran if he into account wheth- with ance in connection did.) that Bonds himself rather than a direct pursue er or not least, did respects, at the court believe some conviction. plight understanding of his that Bonds’ that Bonds pro- limited for it twice commented was unable to of Florida The State appellate rights.” with his sen- “was not familiar Bonds’ trial or transcript of any vide that he case, would Bonds had testified transcript any “rememberfed] tencing. grounds on Anders v. Cali to Bonds’ reliance recognized, in a memorandum 1. The state fornia, below, peti- 18 L.Ed.2d 87 S.Ct. habeas that Bonds’ state filed law (1967), grounds cite the case in the substantially but Bonds did the same raised tion substantially court, petition, the same petition. state and In this simi- federal court point. issues have been urges Other exhaustion larly, that exhaustion no time the state at entire raised the state. remand of the mandate a considerations object on exhaustion The state does case. shortly say- any conviction Mr. Klein claimed to have memory after the distinct thought to the effect he ing something question. events in He testified that would warrant a were errors which there appellate rights, was never advised of his talking I think he was even new nothing taking understood about the than me . . .” Durant other to Mr. an appeal, [sic] felt his would that Bonds’ concluded pursued have if the lawyer had had, given some considera- presence, in his Moreover, felt it help. would the thrust of to the also possibility contradicted both to his lack of familiari- specifically referred lawyers. They testified that as a time. rights at that The court ty with they matter of custom would discussed “there was at least some observed that also the appeal client, decision with their though possibility relating ap- discussion neither had any memory distinct of whether peal.” they or not done had so. The state also mounted direct attack on Bonds’ Before we can evaluate merits of credibili- ty. we position, Emphasizing long Bonds’ must consider whether Bonds’ delay before relief, of the seeking lower court’s view facts is cor- suggested the state that the Although party appeal impulse rect. neither to this present for his effort was new not below, findings explicitly attacks knowledge legal rights, hope seemingly different state’s brief outlines transcript of his trial disap- would have It picture argues of the events of case. peared it had —and that relief would —as appellant failed to sustain his burden be likely. therefore While the state’s proof, strongly and that “the evidence of portrayal implausible, of Bonds it is . . supports . conclusions entirely Eaton, also not compelling. Judge (1) appellant apprised of course, of testimony, heard Bonds’ as we did (2) that appellant and Perhaps guided by not. own knowledge forego of agreed in view the procedure, of 1950s Florida criminal sure, involved.” To be risks state does which he briefly hearing.2 referred at the lawyers acquainted not assert that Bonds’ the lower court did not have to believe requisites pros- with the for procedural Bonds’ somewhat inconsistent testimony en- ecuting appeal; sense, an in this the state tirely (or all) at it could reasonably —but depart does not from the court’s view that accepted have that at point least central appellate Bonds “was not familiar with his was true —that Bonds had not actually tak- rights.” argues But the state that Bonds en in part the decision on whether or not to agreed the risks and as a result evaluated appeal. take an pursue appeal. not to an The court cognizant believed that have Taking established, these as facts risks, and that he was aware some we they must now decide whether show a possibility appeal. Even sense if violation to counsel. Our Bonds took these factors into account starting point is the observation that no rely choosing lawyers’ judgment, on his such violation can occurred unless clearly the court found that Bonds “did not Bonds had a to effective assistance of appeal” affirmatively forego consent to 1958, counsel on when these lawyers, but rather relied who “exer- transpired. events It is established that the judgment (Emphasis for him.” cised indigent defendant’s to appointed ours.) counsel on appeal is retroac See, We, course, tive, Denno, e.g., bound the lower Stovall 388 U.S. 293, 297-98, findings 1967, court’s of fact unless these are 87 S.Ct. 18 L.Ed.2d 1199 clearly Only (1967); Crouse, 584, erroneous. These are not. Smith v. 378 U.S. 84 decide 2. He commented then “This idea of ex- less to whether or not he wanted to take plaining rights appellate go at the . . time sentenc- . and so courts did ing long seeing somebody appellate has come into the law after this situa- around had all his 54-55). just rights.” (R. The more or ..

1129 (1964) 1929, (per enjoyed cu rable to that 12 L.Ed.2d 1039 the more wealthy, much, might one still riam). Conceding as proscribed therefore the flat denial of a elements which particular argue that free transcript if that denial stymied an has come view essential Circuit indigent’s Illinois had thereupon should not assistance effective provided by indigent rule that defendants, Instead, once force. carry retroactive convicted both before and Griffin, after a defendant had had court ascertained could receive a free transcript, trial unless evalu present, would physically the transcript longer produced. no according to the effectiveness ate counsel’s case, transcript Norvell’s no of his 1941 prevailing at the representation norms of existed, an attempt to reconstruct United actions. Cf. States time of counsel’s through the record the persons Pennsylvania, 378 ex rel. Williams who attended the trial was largely unavail- 1295, (E.D.Pa.1974). gen F.Supp. See ing. The Illinois courts declined to afford 24, Caldwell, 506 F.2d erally Burston v. him a new trial. 421 U.S. 95 S.Ct. (5th Cir.), cert. denied Supreme Court affirmed. Writing (1975). We need not L.Ed.2d Court, for Douglas Justice emphasized decide, however, whether our modern de represented that Norvell was by counsel at of effective assist scriptions of the nature presumably trial and had his continuing from those which diverge significantly ance for purposes appeal, yet services failed to panel this Court governed pursue face of the impos- already in broad terms that declared errors, sibility ascertaining of what if any, for assistance present criteria effective the were made at Norvell’s the Court de- Ault, retroactively, Bailey v. 490 apply do a presumption cided sanction 1974) (per curiam); 71, (5th 72-73 Cir. F.2d lawyer protected rights could have on Smith, 363, n. v. 407 F.2d 365 2 Byrd see (the (and implied) legal court 1969). Compare Virgin v. (5th Shiflett Cir. tactical) reasons for an had existed. 1971) (4th (en banc), ia, F.2d 50 Cir. 447 1267, 994, U.S. 92 S.Ct. 31 cert. denied 405 The lower court that the felt rationale of (1972)(rejecting ap retroactive L.Ed.2d 462 applicable Norvell was case. Bonds’ In attorneys to advise de duty of of plication deed, the posi court indicated Bonds’ rights). appellate fendants of their compelling was less than Norvell’s. Supreme rely Court had had to on a a of law has retro Even when rule presumption that Norvell had available the however, effect, application may its active lawyer services of No a for such capacity to The court’s not be automatic. stated, presumption, the court was needed present terms of past conduct in evaluate Bonds, as know the for from testi “[w]e when, as stretched to the utmost rules is lawyer mony that Bonds had a and that the here, original events can transcript of the lawyer represent did not refuse to Bonds on participants’ longer provided no appeal.” The force of this distinction is of also faded. one have memories If, indeed, questionable. Bonds was denied the retroactive im to cushion first efforts ap the effective assistance of counsel on pro newly-declared constitutional pact of ability peal, appel then his to exercise tections, put considera Supreme Court rights jeopardized. late could have been It unavailability through emphasis ble — is true that the Norvell court itself identi transcript. a trial fault of the state —of no only fied a refusal trial counsel to take Illinois, 373 was Norvell v. U.S. The case indigent’s posing appeal as a “different 1366, (1963). 420, 10 456 L.Ed.2d 83 S.Ct. 422-23, 373 at case.” U.S. 83 S.Ct. 1366. response of the arose out The issue But the presumption availability of of Supreme Court’s to the of Illinois State Illinois, 12, effectively seems counsel’s services under v. 351 U.S. 76 in Griffin (albeit by constitutionally inadequate 585, (1956) which rea mined 100 L.Ed. 891 S.Ct. available) as well. Cf. provide to an service Stokes state must soned 131, 135-36 (4th compa- Peyton, 1970). 437 Cir. indigent of F.2d defendant 1130 objection to more fundamental

A were originally appointed by to the case is present of Norvell state. We measure their application conduct as if they were court-appointed, hoc represents approach ad Norvell however, they because after sought, retroactivity, which the Su problems of received, appointment pay ordinarily has not utilized preme Court ment from the state. See Goforth Dut effect, Norvell decides Grif since. ton, 651, (5th 409 1969). F.2d 653 Cir. We if the is not retroactive state fin v. Illinois turn, therefore, cases several in this fault, is, provide unable to a tran without Circuit which have proposition followed the This, loosely, trial. is an ex script of the court-appointed must inform retroactivity would ample complete where his client of his appellate rights. See Dan impact adminis burdensome Alabama, (5th 1973), iels v. 487 F.2d 887 Cir. burdensome justice. impact Such tration (per curiam); Smith, Lumpkin v. 439 F.2d and, concern in subse obviously cause for (5th 1971). Beto, 1084 Cir. Cf. Thomas v. cases, retroactivity Supreme quent (5th 1970) curiam). 423 F.2d 642 (per Cir. danger as one has viewed this Court Estelle, 929, But cf. Collier v. 932 Adams v. factors decision. See critical 1974) (testing waiver Illinois, 278, 284, 916, 92 S.Ct. 31 405 U.S. counsel, standards for waiver the court Denno, (1972); Stovall v. L.Ed.2d 202 noted the absence of indication that L.Ed.2d 1199 “suggested, in, defendant acquiesced or con generally these cases evaluate (1967). But curred with decision to appeal.”) dismiss justice, impact on the administration Beto, See also Giles v. F.2d 192 factors, they will be felt as well as other 1971) (per curiam) (guilty plea). Perhaps range potential litigation. over full apposite the most precedent earlier rule decision holds a retroac The resultant case, Wainwright 360 F.2d 307 prospective, tive or “both differ 1966). There the defendant’s law Moreover, major theme of ent times.” yer, perhaps because of the threat of a given decisions which have rules retro retrial, penalty death failed to pros both impact active effect has been ecute an appeal and to advise his client integrity question rule on grounds for appeal and the relevant process. See factfinding Williams v. Unit procedural time The limits. court conclud States, 646, 653, 1148, ed 401 U.S. 91 S.Ct. that, ed motive, however laudable his coun (1971). 28 L.Ed.2d 388 The Williams court sel had no to deliberately forego his impact that a “severe comments on post-trial client’s remedies without consult justice administration of sufficed with ing obtaining [not] him or his consent. require prospective application” in such recognized, The court below though it did Though directly Id. less instances. related out, entirely spell not the relevance of accuracy assurance of than the pres v. Wainwright Simpson claim, to Bonds’ lawyer ence the assistance of implied and indeed were it not distin- implicat counsel on has been seen as (on guishable grounds we shall consider in- ing the same concerns. See Stovall v. Den ), Simpson fra dispositive. would be Bonds’ no, supra, 297-98, 87 388 U.S. at S.Ct. 1967. counsel, Simpson’s like ap- decided not to Hence we conclude that the absence of peal without obtaining client’s consent. transcript of prevent Bonds’ does not The lower court did not make a finding that addressing us from his claims. We con Bonds’ counsel had consulted with ei- past firmed this conclusion cases (though ther the court well have felt have, admittedly addressing which without that Bonds had some awareness of the na- Norvell, petitions for entertained relief de faced). ture of the choice he on One basis unavailability spite transcript. of a See which the distinguished Simp- lower court Edge v. 347 Wainwright, F.2d 190 Cir. was finding son that “there evidence 1965); 929, Estelle, Collier cf. v. 488 F.2d . that some consultation was had 1974). 933 Cir. regarding appeal presence in the of Bonds.”

1131 state, but we What is perhaps does not debatable is the le The court significance this consultation gal that of this may speculate, finding. Wain ears or part all, Bonds’ v. wright directed after ap have been refused to Wainwright v. participation. prove an attorney’s unilateral open decision that degree what not define does not in his Simpson client’s best inter must client counsel with his The consultation ests. thrust of this ought decision mini- in, recognize that some but we engage equally to reach unilateral decisions that no must be afford- ground of consultation mum level meritorious exists. See California, generally 738, ed. Anders v. 386 U.S. 1396, 18 (1967). 87 L.Ed.2d 493 S.Ct. More Here, court concluded the district over, this Court has declined require that appel familiar with his Bonds prisoner, seeking a state corpus habeas re the appeal and had left rights, late counsel, lief because of a denial of effective con Klein, reposing in whom he showing make a of some chance of success The described the decision fidence. Smith, appeal. Lumpkin 439 F.2d “Klein, in consultation being made as 1084, 1085, (5th 1971). Rodriquez Cf. Bonds “did affirmative Durant.” with States, 327, 329-30, United 395 U.S. 89 S.Ct. nor did he forego ly consent 1715, (1969); 23 L.Ed.2d 340 Pey Nelson v. implica We take the appeal.” press for ton, 1154, 1159(4th 1969), cert. little, if findings to be that of these denied, 1235, 397 90 25 U.S. S.Ct. place took any, genuine consultation cf., (1970). L.Ed.2d 420 e.g., But Hooks v. Moreover, lack of fa case. Bonds’ Bonds’ Roberts, 480 1973), F.2d 1196 cert. miliarity appellate rights though with his — denied, out extent of spell does not the court (1974) (claim L.Ed.2d of failure of coun a violation well reflect ignorance may — to raise points sel various denied Daniels, supra, rule of such cases points since without sufficient merit must Lumpkin, supra, pressing). Though analytically warrant dis rights. there his client of these We inform tinct, requirement petitioners show did not receive hold fore thought that their counsel meri there were of counsel. assistance effective grounds torious would reflect less solicitude sought distinguish also lower court Lumpkin for such claims than the result in Simpson ground Wainwright manifests. believed meritorious Simpson’s counsel court, however, were present. for an The lower felt grounds case, declared, no show- another difference between Bonds’ “[t]here Simpson’s court-appointed important. . . that Bonds’ case and was the ing most grounds emphasized considered that meritorious The court that Bonds had “left counsel testify that one decision Bonds did of whether or not to to present.” were “something lawyer to the . .” lawyers had said That Bonds relied of his lawyer were which might there errors on his mean that he waived thought he effect right trial.” himself to advice and warrant a new consultation would introduction, objec- ample over than It is clear what received. remembered right counsel tion, unsigned confessions. One that to can be waived altogether. Presumably right he felt it to effec- attorneys remembered that Bonds’ ordinarily can was convicted while tive assistance of counsel also that Bonds unfair might codefend- we to in mistrial for a be waived. While hesitate trial ended same to to to appear give purported accord some effect a waiver that The court did ant. defense, memory attorney’s permit prepare counsel to fail to weight to Bonds’ Nevertheless, the court was not waiver of effective assistance on is comment. estab- at- that Bonds had far less drastic. Bonds’ reliance on his to conclude bound did them torneys duty belief that there were not free of the attorneys’ lished him, protect diligently only but increased grounds meritorious It reasonable to The court made findings seems no responsibility. concerning their that he would decide a defendant permit the extent to which Bonds or had had not in a whether role decision no fruitful play carefully been so advised of right Mississippi, Bennett not to Cf. or effective assistance validly could 1975) (implicitly 523 F.2d himself, however, waive it. Bonds testified right of waiver of recognizing possibility that he “didn’t know anything about an Garcia, appeal); United States v. appeal,” that his “didn’t mention 1975) (waiver of F.2d 272 anything an appeal about at any time.” If permitted). representation conflict-free credible, testimony then it would be should be no more such waiver But difficult indeed find a valid waiver.3 We any than by the courts other readily found understand the district court to have con- counsel. Hence waiver cluded Bonds’ testimony contained intelligent, under waiver must be least some truth. We also understand its voluntary decision. standing, and A valid sense of the events surrounding the appeal effective assistance waiver of decision as attorneys this: Bonds’ were pre would have of counsel therefore undoubtedly interests, solicitous Bonds’ by explanation to the client of ceded acting but were relatively independently. waiving. explanation This what he well, We recall as the court’s intimation signifi make clear client the should lawyers day of that tended to make waiving cance of what he is the risks he the appeal decision unilaterally. We con- generally See United States Gar runs. clude that the likelihood that in 1953 even cia, 1975) 277-78 these attorneys, youthful, solicitous of their (directing “carefully trial court to evaluate” no distraught, doubt interests, client’s did representa to conflict-free waiver not counsel him in way that can now tion, by using procedure pro akin to that support a finding knowing of a waiver. guilty plea proceedings vided in F.R. 11.) Cr.P. Our this case has closely been Although spoke the district court of re- guided by the district court’s delicate evalu- waiver, rather than liance evaluation ation of long-forgotten these facts. Never- light claims throws considerable Bonds’ theless, we do differ with the district court question as the waiver we have formulated law, and conclude that Bonds has it. demonstrated that he received constitution- they they remember how had ally ineffective assistance of counsel. He is Bonds’ case but custom handled release, therefore entitled to unless the they put would have decision to state chooses to retry him within a time Only him. Bonds’ testimony supplement- — certain. ed, Judge perhaps, by Eaton’s aware- own REVERSED. practices ness of standard of that day sup-— ported his claim of ineffective assistance. response may Thus the court’s well reflect TJOFLAT, Judge Circuit (dissenting): veracity. an evaluation of Bonds’ That re- the majority’s opinion From I distill this nob sponse go did as far as to find viola- bottom-line result: in every state criminal Wainwright many prosecution in the Fifth Circuit in which findings pointed court’s in that di- the is represented defendant by court-ap- rection. Even the court’s that conclusion pointed counsel, must, the upon state judg- on Bonds had relied his not did conviction,

require Bonds, ment of total of at an appeal disbelief for one cause to be stand, point on the said had as much. taken unless the defendant waives right his evidentiary hearing bring accept 3. The did not out be hesitant to the effectiveness of such a might point general waiver, forswearing at whether some have told a role in a decision attorneys parameters yet in his broad terms that he not could whose as were invisible. See any meaningful legal Mississippi, (5th take role in the decisions Bennett v. 523 F.2d 804 did, however, 1975). to be made. Even if he we would Cir.

1133 appeal unless “intelligent, retroac- he makes an Today’s decision is appeal. an to Thus, corpus pathway is habeas tive. the understanding voluntary” and waiver of (for custody in state open anyone to now right the is one which logically not stems counsel) to provided whom the state right from the sixth amendment custody1 from on a release permanent seek Rather, effective assistance of counsel. the never made an ground that he has the a notion that convicted defendant cannot be voluntary” understanding and “intelligent, relinquished to have his to right deemed an from appeal his to direct right waiver of appeal absent such a waiver seems to be Moreover, majori- the since his conviction. in fifth and fourteenth rooted amendment holding its on ostensibly grounded ty has process due considerations. It to satisfy is to effective right the the sixth amendment process, example, due that we have or- counsel,2 our decision necessar- assistance of practice advising the of dained the retroactively, prosecu- to federal defend- ily applies, provided the court- tions where accused sentencing appeal ant at the time of appointed counsel. that, rights, we advised, have held once of preserving right appeal the burden the to view, one can- proposition the that my foregone right to the to shifts to the defendant.3 This practice be held not of course, every petitioner indigent advised, an not habeas who defendant is not so 1. Of his right request appeal to have waived his to failure to theory is cannot be shown excused on the state, outright through appointed appeal the release. In cases will obtain counsel, constructively proceedings original trial denied the a record of the defendant where Smith, appeal. g., Lumpkin available, his appropriate E. relief would be 439 is the F.2d still (5th 1971); Peyton, grant 1084 Cir. Nelson v. no 415 an out-of-time Where ade- to (4th 1969), denied, available, appro- F.2d 1154 appeal Cir. cert. quate is the record for (1970). grant 25 L.Ed.2d 420 priate of new relief would be the trial. See, g., Horsley 32(a)(2), Fed.R.Crim.P., 400 F.2d 708 Rule e. Under a federal Martin, 1968); sentencing (5th judge F.2d 432 must Beto advise a Cir. defendant of one, 1968). and, cases, right appeal indigent his to as old as this in But cases right pauperis. prosecution to not an ef- his do so forma the mount rule where retrial, provides as follows: the de facto result is fective attack on imposing outright petitioner. After in a sentence case which of the the release gone plea guilty, has trial on a of not the expressly any majority right allude 2. The does court shall advise the defendant his underpin- provision particular appeal person as constitutional the and of of a who is Rather, analy- ning pay appeal apply it centers its its rationale. unable to the cost of an right” appeal pauperis. sis a defendant’s “constitutional for leave to in forma on There proceedings. Obviously, duty be no on counsel criminal shall the to advise the underlying provision any right appeal federal constitutional defendant after sen- imposed plea following guilty sixth is is amendment. The amendment tence or the sixth pros- pertinent part, If provides nolo contendere. quests, so “In all criminal defendant re- ecutions, enjoy prepare clerk the court shall shall accused file forthwith notice on be- the Assistance of Counsel for de- to have course, half defendant. amend. VI. Of fense.” U.S.Const. right provision propo- This does not even hint assistance of counsel exists in to effective anything application sition the court need do proceedings through the state simply than right advise defendant that he has a amendment. fourteenth possibly to an Rule 32 cannot be proceedings suggest is it well settled In state court taken to gone that an cannot fore- convicted, indigent type majority must defendant ini- absent of waiver the Often, say appeal process. is to That as advances. appellate defendant does not have tiate the long (In fact, appointed sentencing. or the court advises counsel at history appeal and to do in forma of the rule indicates him of his so promulgated responsi- originally pauperis, the must direct a for the benefit of coun- defendant appointed only.) Consequently, (such coun- sel-less defendants ble official as his there state See, many sel) g. begin appellate process. e. situations where the defendant can- Estelle, 1974); adequately 488 F.2d 929 be informed of chances for Collier v. Dutton, 1968). acquittal reversal Yet, Worts v. retrial. obligation to initi- once a federal it is the defendant’s defendant advised Because requires days has a and that he ten ate fairness defend- so, represented state-appointed long to do As ant counsel be failure fatal. duty right request appeal. requesting to an If as a defendant bears the an informed his to timely perfect notice of his giving appeal. the defendant an petitioner Had stood submit, designed, mute, would, I to the right protect is my opinion, in have fore- statutory appeal gone right to right appeal defendant’s his to an once the time process. I satisfies due do think for commencing thus it had lapsed. I suggest the requires fairness only way that fundamental the he could have avoided the pro- consequences having a defendant additional request state accord failed to an majori- appeal safeguard by fashioned would have cedural been to demonstrate permitted he is to maintain the that his ty, whereby failure was caused the ineffec- indefinitely counsel, unless he waives it tive appeal right e., assistance of his i. that his counsel was in fact incompetent. statutory commencing time for within me, To that a defend- appeal. an idea steps Petitioner did not take to initiate an manipulate to his release might ant be able appeal by deferring the decision whether to withholding appeal to his claim an until appeal to lawyers; his it was as if he had longer possible is no is appeal an or retrial stood mute. Consequently, only way jus- repugnant to common sense notions of that he could avoid binding effect of his tice.4 conviction was challenge the competency to us, petitioner was case before his performance, counsel’s pre- which is advised at the time he was sentenced of his cisely what he did. As the majority ac- right appeal knowledges, to a direct from his perfect that, the district court found decisions, prior conviction. Under our under the circumstances and especially with which have heretofore remained undis- the threat of a death sentence on retrial turbed,5 (the responsibility, was petitioner’s rape for which he charged was an having appeal, aggravated one), been informed of his petitioner’s fully counsel process by appellate request- up performance to initiate the measured expected counsel, prosecutor, ing his or the court criminal of the day.6 I submit majority, adequate- 5. ap- I to an distinguishing feel rather than ly safeguarded by requirement posite cases, g., that he be Dutton, e. Worts v. right. made aware (5th 1968), simply Cir. relies on Wain- wright (5th 1966); 360 F.2d 307 Cir. strategem may possibility 4. The that such Beto, Thomas 1970); 423 F.2d 642 entertained is not ing At remote. the habeas hear- Smith, Lumpkin below, 439 F.2d 1084 the state introduced as an exhibit a 1971); Alabama, petitioner appar- Daniels v. letter from ently counsel 487 F.2d 887 years twenty 1973), unjustifiably written some after his con- stretches letter, them, submit, viction. In that suggest advised counsel I that counsel must successfully subsequent always he had overturned a exact a full waiver from a defendant imposed following escape sentence on him pre-condition forego- conviction. He in that added letter that ing cases, however, These do not prison he learned that suggesting even expan- come close to such an inmates here who were convicted in Dade protection sive They do 50’s Co. and discovered that almost requirement no more than reiterate the every “lately” case been contested advise client of the fact that an pro- there were no “minutes” of the court be taken. ceedings They available. all seem to have disappeared gotten during or lost the transfer discussing practice of counsel in advis- old from the courthouse the new. ing appellate rights, a defendant of his import The clear of this letter to counsel is that petition- district court found at the time of petitioner, having already great- served the conviction, er’s part having parole er of his sentence and lost [tjhis explaining appellate rights idea of at misconduct, options looking due further sentencing the time of has come into the law easy way for an out. There no criticism long after this situation. . the letter of counsel’s decision just . . . The more or less original the only conviction. I refer to this letter to decide whether or not he wanted to take thought for the that it is not inconceivable , . go and so adopt strategy courts did not defendant which sub- seeing somebody appel- around had all his sumes the loss of state records. Such strate- rights. (R. when, 54-55.) gy majority suggests, late is rewarded as the proof hearing the state bears the burden of in claims Counsel’s at the below dem- practice, such as the instant one. onstrated that their to discuss the law, the peti- might appear case the While waiver device to that, present under the safeguard salutary be a further to a petitioner dismissed as properly was right I appeal, defendant’s to submit that the es- burden of clearly failed to sustain unnecessary. out, pointed is As I have the assistance of counsel. tablishing ineffective already requires that a law defendant be majority’s the conclu- It seems me timely right appeal and, of his advised is not “incompetent” that counsel sion requests he an the state afford appellate speculative of only display a rank competent counsel. In the event he submit, fact-finding (as, I is self-evident these, not receive either of does he is enti- nothing but also is majority opinion), from in tled to relief the form of a appeal belated mask designed a legal than fiction or, transcript unavailable, if a trial a the avowed process due device for a new me, retrial or release. To this is the all appeal.7 right of protection a defendant’s constitution demands. Because I cannot a ensure that “waiver” device The majority’s expansive subscribe to the con- lose his to an not does defendant of the struction sixth amendment and “intelligent, an he makes appeal unless would affirm the district court’s dismissal relinquish- voluntary” and understanding, petition, respectfully I dissent. corollary is such it. A absent ment ON PETITION FOR REHEARING waiver, must initiate the defend- the state a REHEAR- AND FOR PETITION cases where the state all appeal ant’s BANC ING EN an I suggest counsel. provides every lodged to be have would appeal BROWN, Judge, THORN- Chief Before case,8 impracticable would be since it GOLDBERG, such COLEMAN, BERRY, know whether the defend- the state to AINSWORTH, GODBOLD, MORGAN, a waiver with- TJOFLAT, HILL, counsel had taken valid GEE, RONEY, ant’s CLARK, invading YANCE, confidential relation- RUBIN, counsel’s Circuit FAY, out ship with the defendant. Judges. client, In the case before us there appeal with their exceeded were obvious decision strategic day. reasons that could have formed the standards competent petitioner basis fact, a decision not to In that he could That advised judge petitioner the district appeal found that had he one is had taken wanted have an appeal obtaining petitioner’s succeeded a new evidenced further time, a attorneys appellate options and had been convicted second his discussed rape sum, been sentenced to death as presence. lower found that capital a was then offense. The court also petitioner an aware of attending noted circumstances appeal to his whether to and left rape in this “harsh case were indeed.” The counsel. “strong suggestion” a court found that the risk rationale, question majority’s

7. Under punishment capital into entered the decision has waived his whether defendant Thus, quite forego possible it is necessarily depend com- does petitioner’s competent, yet counsel were performance. petency For ex- of his counsel’s they allegedly because did not obtain a “waiv- reasonably ample, it be that effec- could well client, they their er” from incompetent. Surely, now labeled as in a was rendered tive assistance of counsel competence their is of no case, given the defendant himself did but that competency language moment. used Zerbst, not make Johnson is, submit, majority I but a vehicle for the (1938), 82 L.Ed. 1461 waiver development process concept. of a new due rights. analogy appellate An be drawn to can particular jurisdiction per- In cases where a fully interrogator where the Miranda situation mits an following to be taken from a conviction rights where advises the interviewee of plea contendere, guilty or nolo the interviewee makes a confession without holding majority require would knowing, intelligent voluntary waiver independent waiver of in such cases as silent or to have counsel remain folly separate requiring a well. The waiver rights present. Though advisement of guilty plea in nolo or cases of readily apparent. should be probative place, it is well that a waiver took event, any majority’s dispositive the critical issue turns since waiver standard is not limited to new contested the interviewee’s state of mind. convictions. COURT: BY THE ser- Court in active

A member appli- poll having requested

vice and a rehearing en banc

cation service in active

majority judges rehear- granting voted in favor

having

ing en banc. shall the cause

IT ORDERED IS with the Court en banc

be reheard to be on a date hereafter argument

oral briefing specify The Clerk will

fixed. schedule, filing supplemental for the

briefs. H.

Lawrence “Dude” HENNESSEY and Hudson, Plaintiffs-Appellants,

Wendell

Cross-Appellees,

NATIONAL COLLEGIATE ATHLETIC

ASSOCIATION, Unincorporated As-

sociation, Defendant-Appellee, Cross-

Appellant.

No. 76-3798. Appeals,

United Court of States

Fifth Circuit.

Dec.

Case Details

Case Name: Jimmy Ray Bonds v. Louis L. Wainwright, Director, Division of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 13, 1978

Citation: 564 F.2d 1125

Docket Number: 75-3914

Court Abbreviation: 5th Cir.