Limmie West, III v. State of Louisiana

RIVES, Before WISDOM and RO- NEY, Judges. Circuit WISDOM, Judge: Circuit Limmie West was convicted of armed robbery jury after a the Crimi- nal District Court for the Parish of Or- leans, Louisiana. On June he forty-nine years was sentenced to six months hard labor. He did not appeal year his conviction. A after his petition conviction he filed a for habeas- corpus in the state trial court. West’s petition alleged lawyer, private-- that his ly retained, had conferred with him for only trial, five minutes before the had opportunity subpoena witnesses, no prepare time to an effective holding evidentiary defense. After peti- the state court denied the Supreme tion. The Court of Louisiana denied review. then filed West what he rehearing” “petition termed a for with court, alleging the trial in addition that appeal. had been denied his forty-five days elapsed After without sought court, action the trial West writ mandamus from Louisiana Supreme Court. This writ was denied comply proce- for failure West’s with requirements. dural passed After five and one-half months without action the state trial court petition rehearing, on his West sought relief from federal petition district court. His named the respondent. State Louisiana as While petition pending, this federal habeas finally petition the state court denied his rehearing, seven months after it was filed. The district court subse- quently granted holding hearing, a further and ordered retry to release or State within West dismissing a habeas appeals ficient thirty days. from this The State corpus petition.1 appear that the It does State order. presented contentions its respon Failure to name court, contest nor does district procedural juris than a dent is a rather holding that court’s West the district defect, dictional be corrected adequate representation denied petition.2 amendment Though the district we amend counsel. State, Ashley against to direct it order court’s 125; Developments in the Law—Federal against rather than immediate custodian Corpus, Harv.L.Rev. Habeas Louisiana, we affirm the State holding court in all other of the district respects. case It true apparently to cor- made no effort I. petition, rect and the district court West’s first contends that The State own initiative. did not amend it on its on the petition be dismissed must petition unamended since West’s ground proper he that failed name supplied in the information substance all corpus respondent. The federal habeas contain, petition must which a habeas application requires an that statute give petition un- an denial of his would corpus habeas reading reasonably to the habeas narrow concerning allege the corpus shall applicant’s the facts statute. detention, or commitment petition preparing In his West person has custo- the name of the who supplied the form utilized a standard dy of him and virtue what over Eastern District District Court for the authority, or if known. claim of of He entered “State Louisiana.3 inwas 2242 West 28 § U.S.C. respondent at head of as the Louisiana” custody the warden the immediate requires form Line 1 form. Penitentiary. His the Louisiana State place of deten petitioner to however, corpus petition, habeas entered “Louisiana State tion. West respon- as named the State of Louisiana Penitentiary, Angola, Louisiana” as dent, warden. rather than the . en place on this line. This of detention argues appeal the fail- on this try plain immediate it that his respondent makes proper suf- ure to name a g., quiring Authority, Olson immediate dismissal. E. 1. California Adult See Olson v. Authority, denied, 9 v. 1970, 1326, California Adult Cir. 9 423 cert. Cir. F.2d denied, 1970, 1326, 1970, 1717, 914, F.2d cert. 1970, 423 26 398 90 S.Ct. U.S. 1717, 914, California, 26 L.Ed.2d 78; 90 S.Ct. Mihailoviki v. L.Ed.2d California, 78, citing 9 1966, 808; King Morehead v. Cir. v. 9 fornia, 364 F.2d Cali Cir. 1964, seldom dis 1966, 950; 339 F.2d 170. Courts 9 356 F.2d Gaito Cir. however, alone, 787, for this Strauss, miss reason v. 3 Cir. 368 petition often reach the merits of the denied, 1967, cert. 386 U.S. purporting apply 139; strict even when v. 18 L.Ed.2d Dunbar Cra g., pleading. E. Morehead v. nor, rules 949. 202 F.2d Strauss, California, supra; 3 Gaito Though as the the State as well ward- Mihailoviki “custody” Cir. 368 F.2d may en be said to have over California, 364 prisoners, long have held courts Schnepp Oregon, warden, 333 F.2d corpus in habeas custodian, only prop- 288. as immediate Whitney, respondent. er Wales v. forms 3. For a standard discussion U.S. petitions, Applications see Bennett, L.Ed. Sanders Corpus and Post of Habeas Writs U.S.App.D.C. 19. Conviction Review Sentences Courts, 33 F.R.D. United States the ef- contain Occasional cases dicta 382-384, proper 391-408. fect failure to name respondent jurisdictional is a defect Angola peti fore not to no reason consider his warden of the was the custodian proper tion as he had named the penitentiary respondent. Wooley v. Consolidated 1970, adequately petition therefore City Jacksonville, F. 2242. The conforms with 28 U.S.C. § 2d 980. “allege requires statute person who of the name interpretation procedural Strict of the custody does not him.” It over has requirements of 2242 is sometimes § allegation specify be in must that his justified necessary protect as sug- it Nor does the title gest the case. entertaining courts from burden that, allegation contained petitions. Developments, su frivolous petition body or must be dis- pra, Precisely 83 Harv.L.Rev. regarded by the courts. opposite result occur were we would statutory require purposes petition for failure to dismiss equally whether respondent. ment are well served name a Dismissal respon named as preju immediate custodian is for this reason would without pe dent or is elsewhere identified dice to West’s to submit a respondent. naming See, it Some courts have held neces tition. the correct e. sary g., Welch, 1947, U.S.App.D. name the immediate custodian Burns respondent on the C. Thus would certify judicial who cause of detention up must once more labor See, respond ladder, e. judiciary to the court’s order. once would State, g., 1968, S.D.Fla., v. Johnson more to have consider his case. The re 494, 495-496; F.Supp. only delay granting Osborn Court sult would the be to Pleas, 1967, W.D.Pa., of 277 F. Common to relief which West is entitled. however, Supp. fact, In role the of litigation corpus in exemplifies the warden habeas This case well the performing perfunctory limited to giving the need for a liberal construction to producing prisoner corpus pleadings. duties the for a of habeas See Gibbs hearing releasing prisoner Burke, 1949, 773, or of the 1247, 337 U.S. 69 S.Ct. granted. petition Indeed, should the 93 L.Ed. Cisneros response petition the denied, 1970, to the is customar cert. ily prepared by attorney. the state’s 400 U.S. 91 S.Ct. 27 L.Ed.2d attorney’s Thus in this the district case Aiken v. respond office the Sokol, for Parish Orleans R. Habeas Federal corpus (2d 1969); ed to Corpus both West’s state habeas 99-102 rev. ed. De petition, velopments, in which he named supra, the warden Harv.L.Rev. respondent, as prepared petition and to the federal habeas 1174-75. West corpus petition, in which named without The West the assistance of counsel. respondent. the as only State The warden record shows that he had a limited proceeding had no interest inde education and had subnormal gence. intelli pendent By petition that of the State. His is meritorious and supplying detention, the prepared respect adequately every locus to in gether required designate proper with other information save respondent. the his failure peti the standard form for possible habeas It is this er tions, may West furnished sufficient infor ror have been induced the stand attorney mation represent to enable the state’s to ard form. The form is habeas designated the interests of the and for in State the use “Persons warden, Custody,” the enable the court to it State but nowhere does ex plain frame that, purposes a pleading, order. There is there- Sokol, Corpus 83; Identification tlie immediate custodi- De- Federal Habeas name, title, velopments an official rather than in tlie Law —Federal Habeas 25(d)(2) Corpus, is sufficient under Rule 83 Harv.L.Rev. Federal of Civil Procedure. Rules evidentiary holding regard out as in himself tois findings comity giving custody state’s.5 not warden’s contention courts. This the state disregard unwilling a areWe without merit. petitioner’s constitutional of a violation tripped a enunciat rights solely he has Under the standards because Supreme in involved in Townsend procedural the kind ed hurdle Texas, Chapman Sain, case. When, evidentiary hear S.D.Tex., F.Supp. L.Ed.2d a only pe ing required here, layman preparing his own a as fully supplies the infor not in substance all when factual issues are tition requires, fairly developed In level. at state mation which statute witness considered all the relevant petition and should be case extensively hear state on its merits.6 es testified findings ing. of fact court’s Though would the district court (1) appeal pertinent were treating justified have been thus pre adequate lawyer time West’s had named as trial; (2) pare conferred re rather than warden lawyer min than five with his for more spondent, nev order district court’s utes; ap (3) lawyer against was directed State. ertheless place pointed oth court should The order to release West attorney.7 court er district warden, as the state been directed granting reject find relief did not these carrying responsible out official Rather, ings court of fact. district subject affirmed, release. The order is adopted the court’s find effect amended the condition that ings with the state of fact and differed unless direct'the warden to release West only law: whether on matter of him within reason State retries facts of this case West’s view the thirty days. time, preferably able rights violated. constitutional had been II. Regardless thoroughness factfinding procedures, next consid The State contends that dis- of state obligate granting comity feder- relief with- do not trict erred erations 5. That the standard form for federal ha- minute consultation with his coun- five petitions may astray led beas sel. suggested by that the Court the fact that his state The also finds is Court place correctly appoint habeas named did not Mr. Masinter respondent. any attorney a substitute warden as other as in this case. for the defendant counsel argument peti 6. The that State’s Now, Paragraph Three of the issues by tion barred the doctrine sov alleges by asking involved, immunity merit, ereign is of since pe- question: following “Can regard petition, we like all other attempted guilty of armed tioner be actions, corpus having habeas as been attempting robbery take brought against against not the State but course, anything This of of value?” Teets, 9 warden. See v. Chessman question of fact determined 1956, 205, Sokol, Cir. supra, F.2d w,as by jury, and determined tlie Against Note, at Remedies jury. States, 827, the United 70 Harv.L.Rev. therefore, finds as a mat- The Court law, the ter of fact as a matter of findings deprived The state court’s not at defendant was hearing rights; conse- were as his constitutional follows: quently, petitioner’s application The that finds the defendant denies process corpus orders was not denied due law. for a writ of habeas transported That counsel the defendant defendant adequate prepare State Pen- time within which to forthwith to the Louisiana original itentiary Angola this ease for finds under trial. The Court herein. had more than a commitment defendant adequate opportunity tense, al courts in habeas cases defer or without preparation”. But on matters of for conference and state determinations Judge obligation Bell Chief Tuttle said in fed then law. 243, judge apply Alabama, 1966, v. F.2d opposite: eral 5 Cir. is the 247: federal constitutional standards underlying facts, although based quot- clear [after “It is test from the facts conclusions drawn Beto, ing F.2d from v. Williams court’s conclu differ from the state applies to in which cases 704] Sain, supra, 372 sions. Townsend v. U. ac- counsel is or an retained Allen, S. at Brown cused as well as which 443, 506-507, U.S. represent appointed an counsel J.). (Frankfurter, 97 L.Ed. 469 indigent defendant. Scott United 1964).” States, factfinding procedures 334 F.2d Where state comity judicial adequate, are econo- Judge Earlier, Brown had written my dictate that the federal courts should Brown,.Wisdom, panel and Bell evidentiary hearings. separate not hold Porter 5 Cir. To hold a federal is to call state 461, 463, F.2d “The Constitution assures factfinding procedures question. into representation a defendant effective comity govern applica- not does attorney whether is one counsel independ- federal courts their choosing court-appointed.” or judgment ent toas federal law. That is Henderson, also Holland v. 5 Cir. obligation obliga- cases, their in all Pinc, United States prop- tion the district court this case long 5 Cir. 452 F.2d foot erly discharged. note written as dictum in Breedlove 5 Cir.

III. Judge Langford v. and Alabama, Rives’s dissent in The State contends that if even 764-768. finding district court was correct lawyer inadequate rep- furnished E.D.La.1970, Henderson, In Holland v. finding irrelevant, resentation this 442, aff’d, F.Supp. 438, 317 978, 981, Judge way responsi- since the State was in no carefully Cassibry con- inadequate representation. ble for this question. sidered the He wrote: represented by appointed West was privately counsel but has been denied a defendant retained at- “Where torney. does privately actions of a effective assistance of counsel attorney, matter, tained of contends, the in a knowl- State not edgeable waiver, the absence can- action, not his constitute state whether counsel and conse- quently complain privately em- court-appointed West cannot was or that he prejudice ployed. was denied to a defendant effective of ‘The assistance coun- sel the violation the failure to have effective of his from Fourteenth rights. process Amendment due of results whether assistance counsel appointed or selected counsel is court In Williams v. Craig by v. United the accused.’ repeated the Court (6th general “the rule that relief from a final ; 1954) Larry Buffalo Chief Cf. incompetent conviction on the of Dakota, of State South granted or ineffective counsel will be 1970).” only farce, when the trial a was or a analysis mockery agree perceptive justice, shocking the or We with was to Craig reviewing court, the his arti- conscience of the or Professor James purported cle, Right Adequate Representa- representation only the to The was perfunctory, faith, sham, pre- the bad tion in Criminal Process: Some Gideon, Massiah, Observations, before discarded 22 S.W.L.J. Escobedo, (1968):8 it would to seem now be ef- fectively [Referencing foreclosed. ba- Early decisions on ef- lower court compe- sis of that a not Gideon man is dis- often drew fectiveness counsel represent tent to himself at trial and ap- retained and tinctions between incompe- therefore would seem be counsel, pointed the work of with lawyer’s tent to evaluate actions]. being virtually immune tained counsel Twilight Williams, See also now, at review. That seems from Action, 41 Tex.L.Rev. 347 thing doctrinally, the to be a least (1963).” supported, past. was The distinction grounds. explained, discrete Court’s decision in Bell v. Ala- or on two This applies that the bama to retained the low latter time was state counsel energize required by required four- the standard effectiveness action prohibitions was v. Beto do no amendment Williams which would teenth prevent more the review the work than trial from becom- not where sought. ing farce, mockery justice.” was That or a of retained counsel “a subject concept applicable was obvious We hold the standard being really was should be that stated in criticism that what MacKenna El- lis, claimed 599: unfair, al- of the state was hands interpret right counsel “We something over caused right to effective We counsel. ostensibly di- had no which state interpret error- counsel mean not analogy rect control. A useful existed judged counsel, less and not counsel cases, where the influence mob by hindsight, ineffective but counsel requisite state action existence likely reasonably and ren- render [Citing questioned. Moore v. dering reasonably assist- effective Dempsey, [43 Court.) (Emphasis ance.” (1923)]. Further, L.Ed. 543] justice To “administer theory action was attacked respect equal persons, and do argument necessary ap poor to the rich” must we fact that action could be found ply standard, counsel the same whether attorneys the state. were licensed privately court-appointed retained. or concept old, no state action plain From facts of this case vitality, past what has little matter its lawyer fell short far Shelley today. [Referencing influence might just standard. as well progeny]. Per- v. Kraemer its lawyer. By had no own admission haps explanation of viable more attorney conferred with West the earlier one distinction was trial, prior no hour more than an principal-agent that referred to a rela- perhaps min for little more than five tionship de- between defendant and investigation. utes. He conducted explanation fender. That was force- At called the trial he no witnesses simply fully attacked as unrealistic prosecution After defense. presented in most the ra- ease, fact cases. Whatever moved its defense de~ tionale, verdict. When court had directed if distinction not been Pennington Beto, quota- 9. See 5 8. also v. Cir. for reference to and Credit 1281, 1285-1286; 1971, Craig’s F.2d Cara from Professor 437 article 636, way Beto, 1970, go 5 421 F.2d should brief v. Cir. the excellent filed 637; Beto, 1967, Jeffers, Jr., Esq., court-appoint- v. 5 377 John L. Brown Cir. 957-958; 950, appellant cf. Williams v. Unit ed counsel for in case No. F.2d 1151; 1971, ed 5 443 F.2d on of this 72-2459 Fitzgerald the docket Court. 1970, Rubin, Director, Beto, argued 433 United v. 5 Cir. States 442, 13, F.2d 444-445. submitted on March 1973. § 10. 28 U.S.C.

1034 736; Martin, 1969, motion, immediate- 410 F.2d Beto v. 5 nied the defense cases, 1968, district Cir. F.2d In some ly 396 hold rested. We finding therefore, prompt the need to assure that West’s court legal correct in was representation rights may inadequate protection for su- federal was so rights. persede policy in favor of deference deny as to his constitutional processes judicial that a fed- to state so proceed eral to the merits of court IV. peti- petition a habeas even argues Finally, that West’s the State tioner has not exhausted state remedies. for petition denied should have been Developments, supra, Harv.L.Rev. See West to exhaust state remedies. failure at 1094-1103. reme- unquestionably did exhaust state respect to of ineffec- his claim dies with Two considerations He raised counsel. tive assistance policy case undercut the usual original petition ha- for in his this claim requiring First, exhaustion. corpus; trial denied beas delay. proceedings were marked appealed unsuccessfully court principle should de that federal courts Supreme of Louisiana. Court fer to state courts in the interests rehearing comity will con- courts petition assumes the state for West’s give entirely prompt al- consideration claims claim. He tained an new rights. lawyer erroneously leged in- of federal Bartone violation his 52, States, 1963, mo- v. his 375 U.S. him that denial of United formed 11; right 21, v. Tex trial 11 L.Ed.2d Parker tion for a new his S.Ct. exhausted 1972, 572, 573; as, petition appeal. argued 5 Cir. St. in his Beto, 1972, rehearing misleading 462 F.2d Jules v. 5 Cir. that this state- for 1365; Florida, 1968, lawyer Dixon v. 5 Cir. denial ment constituted a 426; supra, 424, Sokol, at 173. appellate of his review. months waited five and one-half petition re- West court denied for peti hearing, between time submitted appealed this but West never rehearing he filed Supreme tion for and the time of Louisi- denial petition. highest The state Consequently, his federal habeas ana. petition pass court took no action on opportunity has not had an court rehearing until of seven a total right-to-appeal claim. elapsed, it denied the months had when Ordinarily prisoner a state during petition reasons without written seeking ex federal must pendency federal habeas of West’s re haust available state remedies with proceed Lengthy delay action. in state peti spect to each claim in his habeas ings, unjustified, may if itself be suffi tion, or his denied will be waiving the exhaustion cient reason requirement. Burroughs federal courts. v. Wain Florida, See Dixon v. 1165; wright, 5 Cir. 454 F.2d 424; Kan 388 F.2d Smith Texas, Garrett de sas, cert. 10 Cir. Wheeler nied, 1967, 389 U.S. 88 S.Ct. requirement peti F.2d 816. The L.Ed.2d exhaust tioner state remedies before is, however, seeking only delay not a relief If were the consider jurisdictional prerequisite. ation, found It is to re course would comity. ed on flexible for a considerations mand the case the district Fay Noia, 1963, delay jus U.S. as to whether the Burford, 9 L.Ed.2d Darr v. tified. But there is another reason L. waiving requirement the exhaustion Gockley Ed. ex rel. not contend States this case. The State did (en Myers, 3 Cir. 411 F.2d 216 failed court that the district banc); Wainwright, 5 Cir. Failure Waddell to his state exhaust remedies. fully properly exhaus- ifications were not the contention of lack of to raise considered before the issuance of the court level is ordinar- tion at the district corpus. Perhaps appeal. writ of ily before on a consideration bar its by majority Fitzberger, the result reached be- Jenkins v. binding precedent 2; comes the in this & n. Brown 440 F.2d Fogel, Court, 692; it would be well to consider some Wade 4 Cir. thoughtful suggestions Peyton, made Judge Henry Friendly (dictum); Tolg Grimes, Innocence J. Is cf. Allgood, Irrelevant? on Collateral Attack Crim- Goins v. failing Judgments, By inal 38 U.Chi.L.Rev. 391 F.2d 692. implic- press below, this issue the State acknowledged itly insubstantiality attempted The crime of armed rob- adjudicating its interest further bery April 25, on committed was Against minimal claim. petitioner charged in was a bill of infor- interest, in- there is a substantial April mation on he was ar- part terest on the of both defendant raigned May on at which time promptly re- and the federal courts counsel; represented was he retained solving constitutional this case. West’s May lineup he stood in a represented on rights plainly the com- were violated counsel; by his retained representation plete inadequacy of the 12, 1969, rep- and he was tried on June him his state We see accorded trial. resented the same retained counsel. longer vindicating delay reason represented pe- The retained counsel had rights. these prior titioner Peti- criminal cases. guilty tioner found court was and was sen- order of district July later, 2,' year tenced 1969. A amended to direct the warden applied ground Penitentiary first on the State to release release Louisiana deprived that he was constitution- West if not retried he is time, preferably al granted The District Court counsel. within a reasonable writ, record, respects days. on the state within 30 In all other hearing. evidentiary judgment further is affirmed. record, court had On same the state against peti- resolved the factual issues Judge RONEY, (dissenting): Circuit tioner. resolved The District Court petitioner. them favor of respectfully I There are two dissent. important first, the issues in this case: I. showing required of a raise denial requested continuance to denial of con- Petitioner’s a con- counsel second, process, stitutional due tinuance of the state trial on the prepara- opportunity extent the amount of which that he had no to confer by privately petitioner coun- pre- for trial retained with the pared and was not sel go be deemed state action within to trial. The continuance meaning of the Fourteenth Amend- denied. The state court felt that ment. I would for a attempting remand this case to evade development full facts because trial: critical matters that all involves systems After the court motion denied the facing, cannot are which continuance, for a Masinter Mr.

properly 33-page on the slim resolved attorney] conferred with [West’s rela- transcript of the state habeas [West], up tor and then came hearing. Bench and informed the dissent is not written for This his client had advised him that purpose complex prob- resolving mother had retained the services case, George Sladovich, attorney, involved in but rather for another lems recognizing purpose attorney Esq., the ram- who associated [the may help trial Mr. Masinter in the the If this ease]. The defendant. delay accomplished by Mr. Masinter that the ease can advised be lack going preparation, preparation to trial because the Court then lack ploy may exactly a on the that felt this was what the defendant part of the to defendant evade trial. wants. discloses Mr. The evidence also great being pressures brought are representing Masinter had been rela- dispose promptly on each trial to years, repre- tor and had for several therefore, it, the before business and prior him in to sented several deny Yet, to motions for continuance. one this in the Criminal District say, rights needless to constitutional Court. cannot be foreclosed speed the interest Since, the of a is continuance denial current, up-to-date dockets. clearly the Four action under brings This us the face face with Amendment, teenth it is the crux of question: critical given what latitude will be case, majority problem in judges actually to trial control- slight pays the neither nor mentions judicial system— ling this area standing long heed to rule in this est importantly, and more the federal- states, Circuit, and in most tightly context, how the Con- does grant continuance with or denial of a judge’s stitution the state trial control in judge. See, the trial the sound discretion decision a as to whether trial should be g., Ab e. United States postponed request at the of defendant 1972); shire, 471 F.2d 116 and his counsel? retained There seems (1964); Am.Jur.2d Continuance § as; following point little a broad rule C.J.S. Continuances 5§ judges of trial the discretion on At the admonition of Judicial Con- if cases we are to follow continuance of States, every dis- ference the United in the a narrow rule effective counsel- recently has trict court adopted this Circuit preparation dichotomy. trial plan expediting a criminal pursuing Many are trials. state courts question, To facts are resolve justice criminal similar measures. The protestation needed. counsel’s Was the system firmly committed now seems pre- pressing to other as matters public great

the doctrine that the has as factually preparation vented based? expeditious do interest as an trials court’s determination Was state trial any defendants. requested that ploy continuance was judge experience Every part trial has of defendant to evade probably At the heard most of excuses that trial erroneous? heart of given delaying the extent will can be matter: To the crimi- what justice system public person re- A nal criminal defendants. who allow guilty expedite quirement rec- the trial of cases knows himself to be who ognizes or no little chance to be retained counsel’s fail- there is thwarted escaping long prepare over- ure to for trial? As an term confinement has problem, Often, lay speedy little interest in a trial. we should whole right greatest pre- thing counsel do member that the most effective can long possi- postpone citizen the Con- served to accused the trial as lost, may stitution retain his own ble. Evidence witnesses counsel, including busy may counsel who become or their memo- unavailable may pass responsibilities in fade, other representation addition to into ries the case prosecutors, defendant the hands of less zealous things might require case at I an eviden- number of other bar. would tiary con- happen the facts to determine that would make time work cerning advantage Any requested continuance and of the defendant. used of his the state court’s denial thereof. means for a continuance

1037 Regardless analysis may II. of what be Court, made of the various eases in our ques- has not This Court resolved the say it is safe that we have indicated trial as to what conduct of retained contrary dispositions problem. responsible counsel the der the though un- state is by affirming the District Court’s Al- Fourteenth Amendment. grant of the writ of Wainwright, F.2d McGriff v. prisoner case, majority state in this this (5th 1970), flatly Cir. stated clearly apparent holds that the failure by privately “misfeasance sel retained coun- prepare retained properly counsel to not is state action and therefore does trial constitutes state action which deprivation proc- not constitute a of due proportions. reaches constitutional On equal protection,” ess or 431 F.2d at us, unwilling the record before I am apparently enjoyed it has little rec- charge the responsibility. state with this ognition opinions in Court. Although transcript has trial state Neither Robertson, has Andrews v. in Federal not been made available (5th F.2d 1944), Cir. which held Court, appears that the effectiveness or ineffectiveness lineup trial at and identified by of retained in counsel state criminal eyewitnesses. Fifteen wit- several beyond trials purview is fed- prosecu- subpoenaed nesses were tion. There is fore eral courts. nothing in the record be- (5th Alabama, In Bell v. prepared to indicate what coun- us 1966), is there said that Cir. might Although sel con- have done. appointed re difference between sideration irrelevant Gideon counsel, there tained merely but the Court complete context there ab- where is a evidentiary for an remanded counsel, highly sence of it should become hearing. a definitive The ease is not important judging responsibility holding applied. as to the standard unpreparedness of retained counsel. panels In of this Court several cases system purpose The in expense will serve no useful ap said that counsel have retained requiring up retained run counsel to pointed subject same counsel are to the preparation that will obvious- effectiveness, they standard of but then ly be of no use to his What client. met held that counsel in those have investigation would an have uncovered? standard, question not did so What witnesses could have been called? dispose have to be decided to of those petitioner’s preju- How was defense g., Henderson, E. cases. Holland v. never, diced ? Petitioner has (5th 1972). course, F.2d 978 the Court was at one time concerned Cir. Of court, shown how defense have would by delay prepara- benefited tion for further appointed with whether counsel his trial counsel. record in- meet the same standard as retained contemplated dicates that he an alibi de- counsel, deciding but it had little- trouble very least, fense. At the should re- we state-appoint that the ed ineffectiveness quire showing of what that defense responsibility. counsel is a state See might been, identity including Pinc, (5th United States v. 452 F.2d 507 corroborating witnesses—some show- 1971); Cir. Dutton, Worts v. ing that the defense could be asserted (5th 1968); Williams v. good faith. (5th 1965). 354 F.2d 698 least, very record At involving Although retained counsel judg- should studied before the prosecution, of Porter a federal the case pe- ment titioner was set aside on the adequately represented not point at the trial. 1962), be- decisive evi- remanded for an cause dentiary hearing case was REHEARING PETITION FOR ON charge that, un- on REHEAR- AND PETITION FOR defendant, at- the retained known BANC EN ING torney duplicitous position in such a key witness, the that he refused to call a BROWN, Chief Before JOHN officer, repre- also GEWIN, narcotics whom he Judge, WISDOM, THORN- GOLDBERG, COLEMAN, BERRY, sented. GODGOLD, DYER, AINSWORTH, CLARK, SIMPSON, MORGAN, RONEY Judges. GEE, Circuit THE

BY COURT: Court in serv- active A member appli- having poll requested on the a en bane and a ice rehearing ma-

cation judges jority ing service hav- in active granting a rehear- voted in favor ing en banc. cause shall be It is ordered that the oral en banc reheard Court with argument on a hereafter to fixed. date briefing specify sched- will Clerk filing supplemental

ule for the briefs.

UNITED America STATES of and Wal- Oshiro, Special Agent, lace S. Internal Service, Petitioners-Appellees, Revenue BROWN,

Earl as Partner of An- Arthur Company, Respondent-Appel- dersen & lant, Coleman, and Delbert W. Inter- venor-Appellant. 72-1865,

Nos. 72-1946. Appeals,

United States Seventh Circuit.

Argued Feb. May 9,

Decided

Rehearing Denied June Greenfield, Mill- H. Charles Daniel S. Boand, City,

er, Charles W. York New Bar- George Thompson, A. William W. III., respondent-appel- nett, Chicago, lant. Atty., Thompson, Wil- U. S. James R. Atty., Huyck, Chi- Asst. S.

liam T. U. Atty. cago, 111., Crampton, Asst. Scott P. Div., Farber, Atty., Gen., Tax Richard C.,_for Justice, Washington, D. Dept, of petitioners-appellees.

Case Details

Case Name: Limmie West, III v. State of Louisiana

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Sep 5, 1973

Citation: 478 F.2d 1026

Docket Number: 72-1338

Court Abbreviation: 5th Cir.