Otis Ray Fitzgerald v. W. J. Estelle, Director Texas Department of Corrections
505 F.2d 1334
5th Cir.
1975
Check Treatment

*1 Ray FITZGERALD, Otis Petitioner- Appellant, ESTELLE, Depart

W. J. Director Texas Corrections, Respondent- ment of Appellee.

No. 72-2459. United Appeals, States Court of

Fifth Circuit. Dec. Rehearing 12, 1975. Denied Feb. *2 Houston, Jr., Jeffers, Tex. L.

John petitioner-appel- (Court-appointed), for- lant. Tex., Austin, Atty. Hill, Gen., John L. Atty. Gen., El Boling, Barton Asst.
W. Paso, Tex., respondent-appellee. BROWN, Judge, Before Chief BELL, WISDOM, GEWIN, RIVES, COLEMAN, THORNBERRY, GOLD- GODBOLD, AINSWORTH, BERG, CLARK, SIMPSON, MORGAN, DYER, Judges. GEE, RONEY and Circuit Judge: CLARK, Circuit panel A of this court overturned finding by appellate the Texas trial and corpus habeas courts and the federal petitioner district been denied the effective assistance counsel at his 1954 state court trial for robbery. agreed We to rehear cause en banc to resolve the constitutional govern adjudication standards which claims pri- of ineffective assistance of vately retained counsel. Those stand- ards are set out as Part I. After a re- original view of the records of the we reverse the action and affirm corpus denial of habeas relief for the reasons set out in Parts II and III.

I. authority Two distinct lines of

developed in the circuit as to the consti- adjudi- tutional standards which to cate claims of ineffective assistance of privately one, retained counsel. court rep- holds that the effectiveness of ap- resentation both retained and pointed gauged by counsel must be same measure. These cases do not rea- necessity son the for state involvement. States, See Porter v. United 298 F.2d (5 1962); 461 Cir. Alabama, Bell v. (5 F.2d 243, 1966), 247 Cir. and Holland Henderson, (5 460 F.2d Cir. 1972); Beto, see also Breedlove (5 1968) n. 1 F.2d Cir. U.S. 43 S.Ct. 67 L.Ed. 543 Alabama, (1923); Langford the conviction of an Rives dissent accused 1969). person legally incompetent: (5 The other while he is Cir. F.2d 760 Robinson, do not discuss Pate v. of authorities series 836, 838, (1966); legal gauge L.Ed.2d for minimum effectiveness. analysis stops predicated upon no-state-ae Their at a conviction evi *3 Thompson City attri tion These cases refuse to dence at level. all: v. of Louis per se, ville, 199, 624, to the state bute counsel’s action 362 L. U.S. 80 S.Ct. 4 require (1960). or constructive actual Ed.2d 654 Whenever a defend knowledge ineffectiveness, partici ant has been convicted as the result of by gross pation malfunction, trial or the such a the result is judge, justice system Fourteenth Amend to meet state’s criminal operated require deny process. state action has Req ment’s threshold due Beto, uisite ment. v. F.2d Fourteenth See Howard 375 Amendment state ac (5 1967); Smith, present, 441 Johnson v. tion Cir. is not because a state offi (5 (Rule 1971) 21); particulars 447 F.2d cial knew the 985 Cir. of the unfair Langford (5 Alabama, 422 F.2d ness or v. retained counsel is Wainwright, 1969), Cir. and McGriff v. official, deemed a state but because the (5 1970). system 431 F.2d 897 Cir. See also e. failed, has and the state’s conse g., King Wainwright, v. quent imprisonment F.2d or fine of the de (5 1966); Mayo, Cir. Burkett v. 173 F. fundamentally wrong.2 fendant is (5 1949). 2d 574 Cir. manner, lawyer’s the same whenever a ineffectiveness has rendered a trial fun Although attempt no at har damentally unfair, whether he re be monizing previously these lines has been appointed tained or and whether his ac made, necessarily are not at odds. tion or inaction was known or unknown impor Our reconciliation stresses officials, deprivation to state trial recognizing tance of the constitutional process Fourteenth Amendment due re upon particular framework sults from enforcement of the resultant claim of ineffective assistance of counsel judgment. in a state court is to be based. The Moving question first asked must Fourteenth be be Amendment incorporated alone to the whether the case involves the Four Sixth, our decisions process teenth Amendment establish that due clause standing reasonably standard alone, effective or the Amendment assist Sixth ance of recently incorporated most to counsel delineated Four Herring Estelle, (5 process.1 teenth 491 F.2d 125 Amendment due 1974), greater Cir. range covers a conviction of a trial after a counsel errors than fundamentally does unfair, is fundamen whatever tal fairness process standard of the due unfairness, the cause of such violates concept solely embodied process. within the Four Fourteenth Amendment due teenth e.g., Amendment. See the mob domination circumstances cases: in which the state will Mangum, be bound Frank v. re U.S. tained counsel’s (1915) (Holmes, J., failure meet L.Ed. 969 Sixth Amendment dissenting), Dempsey, standard of and Moore effective- proceeding. Wainwright, adverse witness another Gideon Hol- 83 S. Henderson, supra, land v. involved facts sim- Ct. L.Ed.2d 799 Alabama, ilar supra, to Porter. In Bell v. petitioner States, supra, averred that his in- Porter v. counsel United from the present example decisions, good duced him to no defense at all and first line of is only appear- type that his “trial” an re- consisted of case. There court, jury” represented ance in an “introduction tained the defendant conflict- pronouncement 25-year ing allegiance and the sen- interests. His to the defend- protect attempt tence. ant was divided ceiving representation resulting incompetent (when trial cannot ness unfair) action, fundamentally no action takes remedial characterized requirement strictly If direct- we satisfied. lest more must be assessed ly incompetency, participate it procedurally place intolerable Furthermore, if the in- even more so. impossible practically burden attorney’s competency rep- of a retained judges, over have control who apparent resentation is so ably reason- employed de- selection counsel judicial official of the state should attentive reasonable fendant. been aware and could have cor- questioning tactics checkrein— again strategy rected then state action re- quirement is throughout freight satisfied.3 a trial —would many alike and times bench and bar agree We Godbold counterproductive for the de- would be *4 that the ultimate contention cases interrogation of fendant. such Without such as the instant one is that lawyer, court the defendant’s the could his defendant’s counsel was ineffective inac- never whether actions or know his trial unfair and thus violative of forgetful, tions were deliberate or bril- Amendment standards. Fourteenth inept. liant or However, conclusion that the Four require Amendment state action teenth To find state involvement in every ineffective retained counsel’s conduct is ad ment satisfied is judged reasonably than effec be less counsel case “because ness of retained tive, yet grossly so deficient as to machinery adjudicatory the state proceedings fundamentally render inextricably con with the intertwined unfair, it must be shown that re some person’s retained at duct of an accused sponsible state official connected with making By torney” far too far. reaches proceeding the criminal who could have by every chosen of a counsel action duty remedied the conduct failed state, his reason of that defendant justice to accord to the accused. That defend ing of places the control under judge prosecutor the trial and the have attorney both, or selected or his ant capacity duty unquestiona such a by de proceedings power to abort Therefore, judge ble. if the trial or the Popeko neglect. Unit sign as as well actually can be shown to have 1961).4 (5th Cir. particular States, F.2d 168 known that a ed is re- showing that, de- trial, of without factual situation in most of the second part purpose counsel on the line of cases liberate set out above are not detailed obtaining a fair prevent opinions. defendants in the court’s To the extent that negligent grossly as to trial, so action such factual or situations could stand for thing, substantially same rationale that amount even retained counsel action themselves relieve cannot fundamentally which rendered the the defendants trial un- judgment of errors, or mis mistakes fair could not be reached absent some show- having aside. by set ing trial knowledge participation, state counsel their Amendment, its the Sixth those cases are read here To overruled. provision shall accused that Putting to one side the fact dis- defense, as counsel assistance trict had the to and did deter- to de- be would requiring view because, a different mine, denying trial, the motion for new relieving destroy it feat the defendants had not shown that responsibility errors defendants they any had material witnesses who hy counsel chosen their mistakes would have been of assistance to them and defeating and making occasion them they gave whose names their trial counsel premi- put avoiding be they them, and that had refused to call we incompetent inefficient um on relief, think it basic to the claim of since certainly more be could mistakes whose represented by defendants were their own reversal aid for upon as effective relied employed may trial competent advice sound than assign as mistakes or er- error counsel. efficient the most conduct rors of an unfair their counsel constituted sum, support whenever the actions of re- the factual determination of operate deprive tained counsel that court.6 trial of fundamental fairness then the Literally using the words our deci process Fourteenth Amendment due sion in Ellis, MacKenna v. 280 F.2d 592 notwithstanding any been violated kind (5th Cir.), denied, cert. specific particular involvement L.Ed.2d 78 If a official. retained counsel’s ac- Third District Court held sap proceedings’ tions do not funda- attorneys, Shown, Martin and fairness, challenged mental but are “reasonably likely were to render [and reasonably less than effective viola- did reasonably render him] effective as Amendment, tion of the Sixth state in- sistance” on the ques occasion of his through volvement actual or constructive appeal. tioned 1954 trial and When the judge, awareness of error underlying facts and circumstances of prosecutor, responsible or other official proceeding realistically are viewed it, corrected must who could have be we compelled, find this determination is case the testimo- shown. In the instant ny merely “fairly supported.” rather than he con- the district Fitzgerald employed lawyers these him inef- counsel to sidered complained repre self and never of their dictates that their conduct be fective years. pan sentation for seventeen Herring

tested the standards holding el’s so conducted their supra. Estelle, *5 representation deprive as to him of as

sistance of his defense re II. placing upon sults from undue reliance the recollections of a who judi parameters of federal now testifies he feels that a he con man corpus grant power relief habeas cial to twenty ago years victed received too Congres by prisoner fixed are to state a harsh a sentence. only is exhaustion Not edict. sional background required U.S.C. [28 § remedies While details set fairly sup duly panel’s opinion, 2254(b)], made out in the 479 F.2d in state incorrectly, ported determinations factual are not recited the fact de- presumed signif- cor velopment to be proceedings must be fails to include several full, pic- and ade fair a if icant matters. A look at the whole rect based 2254(d)]. prosecution quate U.S.C. § ture demonstrates that [28 County, open proof Anderson District Court and shut case on an held the District, Texas, occurred, Third Judicial and that what evidentiary hearing this cause. grand jury’s only only indict- purely defense to the question robbery by as to has been raised ment for legal assault7 was Since during adequacy keys jail taking fullness, fairness —that reverse, change escape must proceeding,5 we to did not the crime an fairly Fitzger- robbery. developed escape does record to the crime of find the witnesses were selects his own No other a defendant was introduced. When defendant, represents proof truly sought. was refused. No tendered the counsel his, made in mistake or error and no affirmed was This determination good honest an earnest faith and with Appeals based of Texas of Criminal Court client, purpose be made can to serve findings, without on said District Court error.. a reversible the basis of claim Application appellate court order. written (294 171) at F.2d 3443, September No. corpus hearing in Anderson 5. At the habeas County, Fitzgerald a con- form- and the without enhancement Texas both 7. Even potential Attorney viction, carried a for. testified. this crime er District period Shown, by imprisonment attorneys, punishment were Martin former years any original than less trial did not term of both dead. The preside. from life transcript the criminal five.

J339 fully attorneys developed opinion refusing rehearing, ade- aid’s the court single legal presented quately issue stated: to the Texas Court before and aggravated Robbery spe- is but an they principal point It trial. was the property cies of theft. If is taken for urged for reversal Court Crim- temporary use, a mere then it is not Appeals focus of inal and was the sole theft. There must be an intent permanently appropriate surprising opinion on the rendered property appeal by direct that court. deprive and to the owner thereof of its value. Ray On December Otis Fitzgerald An wife and his went object appellant What was County jail to make accident derson forcibly taking keys jail- from the report. Fitz the luckless Unbeknown to permanently appropri- it er? Was gerald, held a warrant the Sheriff then so, ate the If same? of what use custody parole vio return to for his except could himto liberate Deputy Accordingly, Sheriff lator. escape? himself and make his Did arrest, duty placed under he desire to release himself from con- He to make call. allow him but did purpose per- finement or manently Houston, telephoned Shown keys? appropriate by him Texas, had been who They any ex- were no value to one in connection November since jailer cept to the them who could use charge in prior unrelated criminal purpose purpose for the then Houston. for which made. Which were offi holding cell. When logical first floor natural and conclu- the most Fitzger him, returned transfer cers from the facts and sion to be drawn kept gun concealed using he had ald, rec- circumstances disclosed drop got jailing, of his enjoy time person’s at the A desire lib- ord? locking escape greater certainly and made erty on them than much *6 taking the cell cell and permanently appropriate in the Evans his desire legal next keys any him. put with keys door he not could the Jan Fitzgerald the when came except for himself shock to liberate other use acting be at grand jury, uary 1954 confinement. from Attorney, indicted District hest supra, at 600. Bailey State, 139 S.W.2d escape or threaten Fitzgerald —not testi- three other witnesses Evans gun, but a ing officers assault, the of the to the facts fied as jail keys. robbery of two jail both be- key-taking break and indictment time At January grand jury 1954 and fore the Fitzger- time of at the down and handed robbery on held trial was when the legal precedent indicat- trial, Texas ald’s abundance 1954. This March charge thinnest stood ed the proof details fresh, eyewitness as improper. ice, legal it was indeed if emphasize is related of what occurred State, Bailey Tex.Cr.R. modicum lacked no State re- (1940) the court 139 S.W.2d robbery oc- proof assault and howof in which robbery conviction versed a to- than less be considered If it curred. keys jailer, took prisoner assaulted of the persuasive, the words tally then testimony cot as Attorney, placed under them whose his cell and District hear- habeas petitioner’s witness on of its course In the cell. inside the neophyte de- following Fitzgerald criminal cogency, was no interests In the for rob- trial time of this At fendant. full context recitation of pleas repeats bery three proceedings had entered post-conviction he trial Denton, Tex- guilty offenses Waco included the matters some of Tucson, Arizona. as and opinion.

ing impetus panel’s provided the for the case would have to be continued for an factual should be going to be reversed and rendered. hundred dollar bill that the case was both the Court and sure of the law. where cases have to be tried and then that I found it in. Mr. courts; we went ahead and tried the what he was tation case with the law in the state of doubt (Emphasis supplied) correctly cide whether or not we tried the case bery by assault, it becomes the Criminal he was and—but der the law as it prosecution A I would have almost bet point: A No, [*] Q thought A Because, Q charge? doubts about his they’re Did Why assumptions question, guilty? [*] guilty poignantly you Appeals but I told the you that —I was not sure that did of Mr. down there [*] know of the offense of rob- properly as I have told tell the Court duty you proceed because of the which was involved existed at that sufficient to in Austin, you get -X- myself you of the Court of being incompeteney, for, in the trial weren’t sure [*] Court, to a were not guilty with the is to de- you, during you if aspor- [*] that’s point time, make you un- the proof client, legal, and, eliminating unnecessary probrium sider this action so malevolent. Even hindsight, ed to municated. At some mit this fact. eral district habeas forums tifying Fitzgerald.10 Certainly the state communication Martin and Shown decid- a fair the need for habeas court could have ness whose never communicated to Martin and closes that he nents of the most tor’s Shown his months before. Ray ness extra robbery delay-causing delay altogether Fitzgerald the Otis put testimony from plausible reading was the same day who appraisal permissible lawyer tenuous, might most regards personal appearance McLennan fair delay permit there six probable delay While- free from Ray Fitzgerald only apprised importantly, of these statements that panel, who had been who as to this incident dis- Although appraisal item who is was all that tactical doubts that the wit- the arrival of a wit- on the stand to ad- person it does not know difficulty the state defense as would necessitate point County provoked of years of the concluded expense ambiguity, interested in decision proof could did not con- as the who and nine convicted record is and fed- prosecu- then on in iden- regard purely to his knows prove oppo- com- Otis *7 the op- Fitzgerald injury, gospel To add insult to truth. . legally was not tried on the tenuous transcript thirty-eight page trial charge robbery by assault, of the but objections twenty were that reflects Attorney District had included en- during the by Martin and Shown made hancement count on rob- based development and of the case’s course

bery During course of conviction. the sustained were of these seventeen that Attorney the the District advised cross-examina- Such trial court.11 the Lawyers Martin and that the Shown County and McLennan from here testimony quoted which is After his the Fitzgerald Ray the put on Otis elected to 422-423, panel opinion, F.2d at this col- facts, testify rather those to and stand loquy appears : him the record with day spend Anderson another than Now, what sure I understood to be Q County? matter, ago you this about said moment get case the Yes, sir, to wanted A possible from McLennan witness this County, day. that over with correctly did I understand validity of objection the concerned Martin, attorneys, One you and the Shown told of County conviction go the McLennan an- to over case have the overruled. This in dates. get your a variance you day witness to other taking duly to, possible conducted. such formed the intent and tion as was keys”. prosecution’s at- did steal such close of the At the torneys moved the Martin Shown conviction, After his acquittal. a verdict to instruct court moved the court for a new trial and They nu- took was denied. This motion they gave when was overruled im- charge exceptions court’s merous appeal. mediate notice jury Most were denied. and all the appeal pauperis in forma was secured following exception to noteworthy is the rep- and Martin and continued Shown charge precise the failure to the court’s appellate resent in the forum. State, supra: Bailey v. rationale legal The ultimate shock came at the hands the Court of Texas Criminal in- nowhere Court the “Because upheld Appeals con- when that court the following Jury man- the structs Bailey distinguishing on the viction ner, to wit: grounds keys kept you from believe if should Now hiding him rather than them at the with did, by defendant evidence that showing jail, perpetrated that he thus life Floyd in fear putting Evans robbery appro- with the intention per- bodily injury, from take priating jail keys depriving Floyd Evans possession of son jailer Alternatively, of their value! you keys, should door two metal anyone court held that to the extent defendant believe further might consider in- this distinction to be purpose keys for the door took said adequate Bailey was overruled. keys to use said intent to and with Tex.Cr.R. S.W.2d jail escape from him to enable Following appellate misadventure, if purpose or temporary use for Fitzgerald served sentence without doubt a reasonable you should any attempt to evoke relief from im keys he said he took time that at prisonment. He remained in continuous permanently specific intent had the years. custody for thirteen He over Floyd deprive Evans said years spent then almost the next four acquit you keys will of such use parole, being custody before returned say by your verdict alleged parole for an violation. Several de- guilty even tho this too months of this incarceration had latest taking tempo- fendant, such for sought passed before first habeas re to use the intent rary use or with By this time both of lief. his former carry did temporarily, he them attorneys then, pro dead. Even were keys away him; for, the intent petition challenged se the actions of his keys, perma- is to steal attorneys only for an asserted failure nently appropriate them to his own advise him that the district must, him use, to constitute order ten-year offered to recommend a sen robbery guilty have existed exchange guilty.12 plea tence in for a very mind of the defendant at prosecutor’s aspersions taking keys and de- time of the meaning Evans, possession Floyd comments about his deceased even *8 colleagues,13 impressed pan- have, may which so tho attorney appeal en bane court decline to reach this On confessed State’s petition point. prepared by ruling An an error amended this constituted reversible that appointed competency 568, State, v. 146 Tex.Cr.R. counsel added to under Goodale allegations charge Fitzger- (1944), urged of counsel that the court but S.W.2d lawyers promised appel- him ald’s had that The to reverse Goodale as unsound. judge judgment point in its trial would direct of ac- late court did not mention quittal. urged Fitzgerald’s affirmance. rehearing was issue in a motion elderly man, “Judge seven- was an Martin opinion. denied without years ty eighty he had believe or old judge by acquired challenged reason Fitzgerald’s petition the title of also judge county of some lit- validity parole panel he had been a fact of his revocation. against el, by prior precedent either not credited were trial of this court proscribes appellate finding court or were considered beside the fact second-guess question incompetence. reappraisals mark on the of counsel holding possible actions. A We find either construction that fairly by supported incompetent Bailey counsel were the record.14 in their contrary diametrically defense would be Attorney the District had been If in substantive result to our reversal enough pressure staunch in face of Herring supra, Estelle, which ad- from embarrassed officers who had be- judged lawyer Herring’s incompetent be- prisoner, come their own victims apprise cause he failed to his client that Fitzgerald might never have been indict- temporary keys his use of in Texas robbery. Attorney ed for the District If jail break “could not be construed as had told Martin and Shown that his robbery” light Bailey. unsure, they identification witness was might have refused to have We affirm the district court’s deter- identity might admit and the witness mination retained pick Fitzgerald. have failed to out counsel were not ineffective. If enhanced, the sentence had not been jury might III. Fitzgerald’s pun- have fixed imprisonment. ishment at less than life Fitzger Our conclusion that granted the trial Martin If neces ald’s counsel were not ineffective requested charge, jury Shown's remaining deciding claim, not sitates his might acquitted Fitzgerald. If panel, the revocation reached appellate given Bailey court had not hearing parole violated of his without a interpretation such a narrow or alterna- right guaranteed process to due changed tively law, the conviction He admits Fourteenth Amendment. might But, have been reversed. none of hearing request he did not “might-have-beens” pass. these came to held, prerequisite the Texas under explains regulations,15 but issue statute sole cause was legal jury knowl always lack of never a that because of his issue. It awas question edge had a that he he unaware Texas law. The erred hearing. Fitzger request court when it shifted the blame for vagaries on ald’s this contention from the dismissed sentence of that below Loper unsupported speculation law to an decision of this circuit’s basis 1971), long Beto, (5th attorneys, two Cir. F.2d 934 who are 473, grounds, incompe er themselves, able to U.S. defend other vacated on tently defended him. In the con 31 L.Ed.2d face of 92 S.Ct. trary fairly support fact determinations Fitzgerald acknowledges that the Su adequate ed record this Morrisey preme decision Court’s congressional surmise not violated Brewer, 92 S.Ct. U.S. embodying mandate the standards of (1972), which established L.Ed.2d 484 hearing prior revoca-: holding of a Sain, Townsend v. 83 S.Ct. compelled mini- parole to be tion of L.Ed.2d 770 it went county seeing Texas.”; or tie Martin out West denied “Col. 14. The any fifty- James Shown . . . . alcohol. While . . drink Shown lawyers’ sixty years man, five on old and an obese alcohol he smelled testified “ jail they profusely ”; him in the sweated . . . talked with . when breath commenced, unkempt.”; very stat- he further were “Not well before the “ groomed ”; the odor . . later detect . . . . smelled did not ed he strong you drink; could detect alcoholic He testified courtroom. beverages gentlemen.”; handling in Oklahoma breath of both another had been *9 get night to City to all was, had traveled “. . . how recent I do not trial site. know,”; any “neither for- ever had mal, legal say training.”; “Honestly, I 22; would see 42.12 § art. Ann.O.C.P. Vernon’s impressed ability 254, Lewis,

I was not parte their S. with 339 Tex.Cr.R. Ex 170 (1960). 900 W.2d

1343 process, requirements due was to of benefit mal of the remedy statute. To only, alleged application prospective and this defect State authorities necessary supply required to would notify cannot serve have been to each pre-Morri- parolee subject violation to his constitutional to revocation of the right adopts hearing the ob- sey upon request, instead to a He claim.16 Loper of required that the State in have been servation to accord a hearing having provided every Texas, statute proceeding. in revocation hearing, prerevocation right to a Such a contrived attack stands the stat right regulations implementing ute benefits of must accord equally parolees circum- equivalent in similar their to all It has the head. effect suggests raising right prerevocation He F.2d at 941. to 440 a stances. denying hearing justification for to a State’s constitutional that the level. The request pre-Morrisey hearing contrary. a failure law is to him —his arbitrary exercise Finding ig one—constitutes claim to of the power rights in violation the state’s norance of his no raises federal He contends Equal Protection Clause. constitutional issue also defeats his argument. the burden had Clearly, that Texas therefore waiver if the under lying intentional right was an prove omission had been conferred right under relinquishment known Constitution, of a United States the Johnson v. in Johnson apply. announced Fay the standard v. Zerbst standard would 1019, S.Ct, 82 Zerbst, Noia, S.Ct. 58 304 U.S. 372 U.S. 9 L. (1963). Here, Since however, Ed.2d L.Ed. 1461 testimony request a right did not he involved, constitutional was know he hearing holding he did not purely that a state-created undisputed, con- right he right was do so has been waived no federal a raises finding im- of waiver ly cognizable question. ex cludes United States with- revocation Payton Rundle, (3d permissible, wherefore F.2d 36 rel. process. 1972). hearing him due denied Cir. out that the to afford We conclude failure protection nor due equal Neither Fitzgerald hearing prerevocation close arguments can withstand process request the absence of a arbi- equal pro deprivation of scrutiny. The trary a denial did not constitute Loper not ex did envisioned tection protection equal process, even if or due for a ask parolees did who tend hearing invoke this state-created he failed to right to afford hearing. “Failure ignorance. as a result request in circumstances legitimate on a require meet corpus facts relief is under of habeas denial stat Texas provisions ments Affirmed. ‘equal deprive parolee might ute protection’ Judge,, MORGAN, Circuit LEWIS R. law, a THORNBERRY, Circuit with whom provision appropriate guaranteed joins part (concuring Judge, and dis- F. Amendment.” of the Fourteenth senting part): added). (emphasis 2d at myself Part show I would associate no evidence adduced has differently opinion way treated I of the En Clark any Banc been has similarly situated. the constitutional parolees which would resolve other complaint adjudication must standards for the claims unarticulated His hear prerevocation privately re- providing a assistance ineffective arbi has request Texas tained ing counsel. classes parolees two into trarily divided did Because believe that right to of their are aware who —those coun- not receive effective assistance of not—and are who and those orig- sel, however, I would adhere class in one effectively those denied (6th Haskins, See Rose for a 20 L.Ed.2d review F.2d Cir.), denied, pre-Morrisey cert. authorities. *10 1344 ruling* granting process. ment inal due him habeas He considers that corpus relief. cases of the type latter greater cover a range of counsel errors than does the Judge GODBOLD, fundamental with Circuit whom fairness standard process BROWN, Judge, due RIVES, solely and Chief WIS- clause as embodied within GOLDBERG, Judges, DOM and Fourteenth Circuit Amendment, but in dissenting join, (concurring these part latter in willing and cases he is to find process applicable due part). the situa- tion in which responsible some state of- glad partial dissipa- I am to see even ficial connected with the pro- criminal anomaly tion different consti- ceeding who could have remedied the consequences tutional from ineffective- duty jus- conduct failed in his to accord counsel and ineffective- ness of retained tice This accused. distinction co- appointed in criminal counsel ness of remarkably incides with the rationale an- this distasteful Torn between eases. Supreme Brady, Court Betts v. concept hand and the one achronism on 1257, 455, 1252, 465, 316 U.S. 62 S.Ct. other, and with of state action on 1595, (1942): 86 L.Ed. authority competing lines of two Though, noted, circuit, majority as we the [sixth] stake out a new but lays go amendment down rule for the position. intermediate states, question way process conduct of the re- hold that due whole curs whether the constraint laid as- of the Fourteenth Amendment clause upon rep- amendment the national criminal defendant effective sures expresses rule so whether the attor- courts fundamental counsel resentation of so, ney to a fair appointed and essential retained. is court process law, is made due that process, Fourteenth Amendment due obligatory by the the states incorporation with without Amendment. Fourteenth disagree will None Clark’s forthrightly met That distinction was statements that fundamental unfairness Wainwright, repudiated in v. Gideon in the state trial of a criminal 795, 342, S.Ct. violates Fourteenth Amendment due (1963): L.Ed.2d process. In a case where the fundamen Brady’s assump- accept Betts We v. complained

tal unfairness ineffec of is tion, cas- it was our based as counsel, tiveness of conten ultimate provision es, of the Bill tion is that because the defendant lacks Rights and es- ‘fundamental which is his trial is the essential tools defense obliga- is made trial’ sential a fair lacking proc in the due unfair thus tory upon Four- the States guaranteed Fourteenth ess think Amendment. We teenth Right Craig, Amendment. See however, in wrong, Betts Court Adequate Representation in the Crimi concluding Amend- the Sixth Observations, 22 S. nal Process: Some one is not guarantee counsel ment’s by Judge quoted (1968), 260, 272 W.L.J. rights. these fundamental writing Wisdom, court West (5 Louisiana, es Supreme at 1033 478 F.2d 1026 Court in Gideon Thus 1973); Note, Assistance Effective Amendment’s Cir. the Sixth tablished Defendant, Indigent prosecu of Counsel for criminal guarantee “In all right enjoy tions, 78 Harv.L.Rev. shall the accused the Assistance Judge Clark, however, a dis- to have draws is fundamental defense” involve for his cases which tinction between Counsel Chapman “standing alone,” trial. fair to a process essential due clause 18, 23, note incorporation California, Sixth is, U.S. without 705, 710 824, 827, right L.Ed.2d cases Amendment right Gideon since Amendment indicates in which the Sixth incorporated Amend- into Fourteenth Amendment Sixth * (5 Beto, 1973). 479 F.2d Cir. *11 rights so “constitutional of those regulates one erates and an intricate and that their infraction fair trial to a basic government. pro- powerful It arm of error”. as harmless treated be can never judges, pay for sets their and vides Naughten, 141, 155, 414 U.S. Cupp v. Cf. 94 S.Ct. designates qualifications and their mode 368, 396, 404, L.Ed.2d selection, and, of if the method elec- is dissenting, J., joined Brennan, (1974), supervises toral, it. The state furnishes Wright, Marshall; Douglas by JJ. physical facilities and court func- Procedure, 855. § Federal Practice provides selection, tionaries may de- be cases in which the There summoning paying jurors. From fraudulently collude, counsel fendant release, arrest ultimate and even aft- purposely re- the defendant or in which probation parole, erwards or the ac- incompetent tains or inefficient counsel. degree is cused at least to some cases, exception of such which theWith system. lawyer, ap- hands of this rare, clear that must by it would seem pointed retained, part is a crucial of retaining counsel, the de- his own adjudicatory machinery; indeed, constitutional does not lose his fendant Wainwright, v. since Gideon 372 U.S. right assistance of have the effective (1963), 83 S.Ct. 9 L.Ed.2d 799 Indeed, in most for his defense. merely important he has been not attempting to im- is the defendant cases essential in more serious cases.1 Unless perhaps right. who, plement One knowledgeably waived, his aid is sacrifice, employs his at- own at some proceedings validly place cannot take having penalized torney should not be without him. applied measure his lower standard state does select re While of to the assistance constitutional lawyer appointed as does tained it requirement of some counsel or it selects and controls class to that in addition involvement state is It from which he drawn. admits him from enforcement results

which judgment. particular practice, courts can recognize lawyer’s spe him. bar We action State in an informal manner re cial status ferring him as of an “officer retained, Where counsel the necessi- is Frequently accept courts as ty court.” is state action satisfied representations, true his and at times machinery adjudicatory testimony, his even without the necessi inextricably the con- intertwined with taking ty of his the usual witness’ oath. person’s at- duct an accused court, and the within torney. compa- Thus view the bounds, presence and Kraemer, command his di Shelley rable 1, 334 U.S. by deciding his timetable when to rect L.Ed. go against Supreme forward with the case which the Court held that state plead client. The form and order of his supplied by action involvement ings closely prescribed by are adjudicatory machinery the state. of the state govern procedural ostensibly private State rules deci enforcement racial- ly sions such critical matters as ne restrictive also Hall covenants. See cessity giving 1970) (state advance notice cer Garson, (CA5, 430 F.2d 430 making tain certain private defenses found where individual action objections in them. traditionally order not waive performed per- function The fact as advocate and counsel formed sheriff order obligated lawyer the in to serve court). not make him terests his client does adjudication of state criminal cas- pervasive any less an actor in the state’s es is a vital function the state adjudicatory State action construct. performance structures, op- attorney’s partic comes from the overall today possi involving Argersinger 1. And Hamlin, all cases 92 S.Ct. bility liberty. the accused will lose 32 L.Ed.2d 530 they promised him the trial judicial and because machinery of the ipation in the acquittal. direct a verdict pow government divided branch of judge con- Thus, the state habeas while merely is known or from what ers, not *12 hearing evidentiary and ducted an found “responsible to some known should ineffective, he did not ad- counsel not the crimi connected official now under dress himself issue proceeding nal who could have remedied discussion. 2 the conduct.” The merits testimony prosecutor’s relating The to Fitzgerald’s taking identify panel opin the stand to the fulcrum of The factual prior the himself as offender was in action of law ion was the part quoted part paraphrased and agreement in in yers, pursuant to an with the panel opinion. the “filling I set it out in full: prosecutor, a hole” in the prosecution by putting problem A other was the [T]he pur acknowledge, to on the stand proving matter or and establish- [sic] enhancement, poses he the was ing identification; identity the of this person had convicted of same who been man that was on trial here and the county robbery in another assault County. in man over McLennan I years This testimo some earlier.3 seven say would as of the I date discharged ny the the defendant anybody found had not in McLennan necessary burden, to enhance state’s- County willing who was to come over proving beyond ment, reasonable testify here and this man the was prior he doubt was the offender. same and identical man that had been not, panel not, did and doI consider County. convicted McLennan I did that defense counsel were ineffective in have, I had talked to an assistant dis- State, relying upon Bailey v. 139 Tex. attorney, trict and I do not recall his Cr.R. S.W.2d as time, name this at was with who the charge robbing defense to the the attorney’s district office McLennan jailer keys. of two County, had talked I with him over testimony The matter of telephone willing the and he was to concerning give conviction was not come but he would me no assur- proceeding. raised the state necessary habeas he ance that could make Fitzgerald only identification, contended that his coun- he because said he had sel were ineffective independent failed recollection the fact bargain plea him to advise of a offer of identification I at that time. was concept failings right eminent had not him of a denied criminal ef- lawyer defendant’s fective assistance do and thus he constitute long pedigree. state action has a could not seek habeas. One im portant early Amendment, words of often-cited the Sixth lend ancestor Hudspeth McDonald, support (CA10, little F.2d to McDonald. Unlike 1941), theory begins “Congress whose First Amendment has found favor opinions: g., Beto, .,” some of our shall make no e. law . . Howard v. Sixth government 1967) ; Langford (CA5, 375 F.2d 441 Amendment does not forbid the v. Al abama, deny (CA5, 1969) ; 422 F.2d defendants assistance of counsel. It Johnson says Smith, (CA 5, [by 1971); 447 F.2d 985 that “the accused shall tradi- McG Wainwright, signalling enjoy riff (CA5, tion a word 431 F.2d mandatoriness] 1970). right In McDonald a ... federal criminal Assistance de lawyer light, incompetent. fendant claimed his Counsel.” was this the McDonald Construing lacking Amendment, the Sixth distinction between assistance Tenth being lacking Circuit drew a distinction denied assistance seems artificial. between viability, being right any, enjoyed assistance Such if McDonald denied the as to as Only sistance. was laid rest two decades later with Gide- denial —which the court im plied trumpet. Wainwright, on’s would occur Gideon v. unless the United providing ap States involved U.S. 9 L.Ed.2d itself pointed lawyer give a defendant —would challenge conviction via habeas prosecutor’s 3. The characterized corpus. had testimony concerning Since hired his his “most cru- lawyer, gov- testimony.” own the court found that cial bring evidentiary hearing from witness prepared but no further ed going relied to necessitate state court it was Waco finding. Although day specific going more claim over one arising Fitzgerald’s having Col. testi- I advised the Court and advised prosecution fied for the of that fact surfaced Martin Shown necessity bring- court, time in first the federal obviate they agreed ing (a) the federal here, found: that Fitz- over witness gerald making put same Mr. contentions that he stipulate had made before the and have him state ha- witness stand court; (b) beas that the merits of the and identical the same factual contentions Mc- raised in federal person was convicted been case over with that McLennan ty? put spend and what like torneys, and town. McLennan was concluded brought town. eral case would predicament was tried matter likes to correctly it stayed Lennan ed A [*] Q Now, to did, A [*] put you Otis testify District they matter, get windfalls. As for sentenced, matter Yes, sir, they you Well, another it such over fellow; say [*] bothered If [*] County. So, it Shown Ray Fitzgerald were anxious and get your County have to said moment to those County, over with and that the you I’m not court Attorney, I received sev- here, you way [*] [*] resulted proving of the day and Mr. stand to be sure it put possible so night me some. told go day. just in Anderson peers the next witness wanted facts, rather than did [*] they [*] trial was conduct- me Martin, that over another the the mistaken, after the Fitzgerald was seemed in a I identify I I understood witness instance, the on the but, try [*] could received, [*] understand get ago here from no elected sort the morning [sic] sentence the case I would identity get having lawyer out of to me Coun- [*] [*] stand about leave him- they day at- as told defense counsel that to make the witness procured the mitted the ald on witness Donald told defense counsel the issue. view prosecution. Thus has finding were not ineffective cannot be construed opinion on evidence establishes that Prosecutor Mc- have found if it had been this about what a through ant’s court conclusory finding from the record that as give effective assistance” to cation. The federal facts Fitzgerald’s attorneys “did not fail to state court’s raised *13 court had quately developed hearing; dispositive never generalized finding embarrassing taking presented recognized hearing; by Fitzgerald coming court. The prosecutor tipped (d) the erroneous record been addressed as the (d) that stand) been resolved in shaky identification. the stand to findings agreement just of the matter of defend- fact-finding touched merits the next crux of as central to the case (c) offense person there is above, Fitzgerald fact at majority dispose in his federal ambiguous, Judge the record judge adopted and added that all might the state court issue which the day presented that while the who had com- predicate, testify this (and thereby that counsel by any put Fitzger- court Recognizing speculating not he hand all issues were the state him. expected evidence separate material identify for the Clark’s might appli- fact- able ade- own the (a) the assigns it as self raised the first time before to what describes Clark judge.4 He reading” federal habeas conduct- plausible and con- most “the by-passed 4. No claim is made that was the state courts.

eludes that a trier of fact “could have ble state official knew or should have appraisal” deficiency. concluded from a fair (2) predi- known of the nothing delay than the majority’s approach more need for cate for is a theory was communicated to the defense attor- in some circumstances neys. No ease should turn on such rum- lack of effective counsel can be treated inations, by sitting deprivation this court en banc of a not fundamen- and three removed from the fact- tal levels theory essential to a fair finding Supreme rejected. court. Court has Final- ly, (3) disagree on the merits. Additionally, it seems to me that majority’s premise critical [a —that fact-finder could conclude the de- that]

fense counsel were never told the identi- might appear

fication witness shaky change would be —should if, result. Counsel were ineffective determining without whether gave prejudiced, away would be protection require- afforded him Quesada SALVADOR, Elias III, *14 beyond Appellant, ment that he be identified rea- person sonable doubt as the who commit- ted the earlier offense. There is no evi- UNITED America, STATES dence that the action of defense counsel Appellee. any way, benefited tac- tics-wise, money-wise, EINFELDT, Franklin Michael Appellant, otherwise. evidence of the reason for prosecutor’s counsel’s action is the testi- America, UNITED STATES of mony lawyers the defense were anx- Appellee. get ious to finish the out of 74-1309, Nos. 74-1310. town. Appeals, United States Court of uphold panel opinion.5 I would Eighth Circuit. But, upheld, if it is not to be then at the Sept. Submitted 1974. minimum the case should be remanded Decided Dec. 1974. evidentiary further —federal just or state —on the issue of what de- fense counsel knew when surren- dered possible defense against enhancement.6

Summarizing: (1) agree I inef- fectiveness of retained counsel is an er- ror of proportions, constitutional but I agree do principle is limit-

ed to responsi- the situation in which a Possibly testimony exposed might necessary

5. ward with his own to remand pursuant question determine, newly adopted actions felt that he injustice. principles participant prosecu- relating to ineffective position years. appropriate tor’s for 17 was not buried extent to which immediately sen- officials knew or should have known of prosecutor commenced, Additionally. tence wrote counsel’s ineffectiveness. appropriate that an in- Texas Pardon and Parole Board considered whether justice remedy resentencing the Board had been done. He wrote would be without en- again as hancement rather late than retrial. appropriate It seems to me to commend willing come who was for-