Troy Cooper v. C. J. Fitzharris
551 F.2d 1162
9th Cir.
1977
Check Treatment

*2 HUFSTEDLER, and Before DUNIWAY Court, District following two evidentiary EAST, Judges, Judge.* and District hearings, entered a memorandum and order denying, the writ.1 EAST, Judge: District Cooper, prisoner, from appeals State ISSUE Court’s denial of his the District 28 U.S.C. The controlling issue on review is: petition. We jurisdic- 2254 habeas note § Did the District Court err by concluding, tion 28 U.S.C. and reverse § after a de novo review based the state and remand. trial record and additional evidentiary hear- Cooper 1964 by was indicted in of State alleged ings, instances of ineffective California, grand Francisco County San legal on representation constitutional issues the jury, charging him with of crimes bur- at trial were harmless error?2 assault, rape A robbery. and glary, jury guilty counts, Cooper found on all and the DISCUSSION judgment of conviction and

court’s sentence custody followed in due course. No ap- to Cooper’s complaint main of ineffective to peal appellate the courts of California trial counsel lies in counsel’s failure to chal- taken. was lenge the introduction in evidence of arti- cles from

Cooper person state seized has exhausted court habeas and residence the of a remedies without relief. course warrantless arrest and search, together with his after-arrest incul- May, Cooper per. filed pro In pating statements made the to officers. petition in habeas the District Court sub- Secondarily, Cooper claims numerous items alia, stantially alleging, inter that he was of inadequate preparation and conduct reasonably the denied effective assistance on of part the his trial counsel. of trial counsel violation of his Sixth right. The ap- Amendment District Court District entertained doubt over counsel for and pointed legality ordered the the of the search and seizure of the by augmented copy report- record articles received in evidence. Nevertheless of transcript Cooper’s novo, er’s state trial. it concluded de based upon the state * East, Honorable William G. Senior United preparation time for the of each case. Since Oregon, District for the District of counsel did not have sufficient time to devote designation. sitting by strategy planning petitioner’s to the strategic there could have been no decision Following evidentiary hearing, the first the the forego these Fourth Amendment claims.” granting issued an order District Court writ. been the warrantless search and seizure incident thereto were unlawful evidentiary hearing, At the trial counsel testi- Avoiding petitioner’s claim that he had although fied that she was aware of several denied the effective assistance petitioner’s regarding admissibility court and issues physical the held arrest of certain evidence, and testimonial she conduct- consequently petitioner and that legal objection ed no research and made no on the basis had convicted of evidence its introduction. She further testified that had been obtained in which violation petitioner’s few after within a tion, months convic- rights. Rejecting Fourth Amendment court, collapsed she her health “seri- petitioner’s contention that State’s failure to ously approxi- threatened” caseload of admissibility contest the evidence was a 2,000 year. mately per resigned cases then She claims, bypass of his constitutional deliberate Office, having from the Public Defenders come court found as follows: “actually doing that she the conclusion apparent “It was to this Court from counsel’s by just presenting harm the defendants more testimony evidentiary hearing] [at they body representation than if had no live challenge admissibility failure to all.” evidence seized at the time of product strategic his arrest was not the of a oblique part 2. The of a on issues decision, petitioner contemplated from which trial counsel appeal advise of his Rather, deriving benefit. it was the some to in first and instance admit before overwhelmingly heavy product case- Cooper’s jury prior felony conviction are by Deputy Public load carried Defenders at under the state of meritless the record. time, allowed counsel little evidentiary additional Both before and Chapman,

Gourt record after evidence, even if hearings that the seized the court made that the to other over- tainted, cumulative is the right to effective counsel. guilt evidence of whelming relevant Alabama, 45, 53, of the evidence was introduction 77 L.Ed. 158 Avery *3 this, the District From error. harmless 444, 446, 321, 308 U.S. 60 S.Ct. 84 L.Ed. 377 petitioner had failed Court concluded (1940); Glasser 315 U.S. assistance be- in his claim of 60, 76, 457, 62 S.Ct. (1942); L.Ed. 680 to him due to prejudice no resulted cause Richardson, 759, McMann v. 397 U.S. 771 n. suppress to move to trial counsel’s 14, 1441, 25 Further, the Dis- disputed evidence. Henderson, 258, Tollett v. legal eroded applied an trict Court 36 L.Ed.2d 235 neglects claimed concluding that the agree We cannot with the conclusion of of trial counsel did not part on the failures , Eighth McQueen Swenson, Circuit in making the trial a the level of sham rise to Cir. 1974), that there neglect nor did such justice or significant (cid:127)is a difference between a case in to assert a a failure crucial de- constitute which, which counsel was absent and one in fense. although counsel present, perform- the District We are satisfied that Court has been ance found to have fallen below on both scores. erred which was constitutionally required. Craven, at 480 Sanders all, purpose After Gideon was not that: district (9th Cir. teaches “[t]he merely supply criminal defendants with the challenge not circumvent judge may bodies, warm but rather to guarantee rea- effect, by, counsel denial of effective sonably representation. competent That be holding any error would harmless guarantee Sixth Amendment’s basis, and, fail to determine wheth- on that assistance is grounded of counsel in the impermissible depriva- er there has been an competent need for reasonably legal assist- rights.” tion of Sixth Amendment by is ance made clear the following lan- guage agree Appeals supra, We also with Court 68-69, 64; quoted once ineffective U.S. at at Sixth S.Ct. established, of counsel has been approval Wainwright, assistance Gideon supra, apply. Beasley 344-45, error tests do not harmless at U.S. S.Ct. and in Hamlin, v. United Cir. Argersinger supra, at U.S. Supreme While the Court did estab- 2006: S.Ct. lish a harmless-constitutional-error rule in right be, “The to be heard would in many California, Chapman U.S. S.Ct. cases, of little avail if it compre- did not (1967), it 17 L.Ed.2d 705 indicated that right be hend heard counsel. among the “ to counsel those intelligent Even the layman educated rights . . so basic to . constitutional has small and sometimes no skill in the infraction a fair trial that their can never charged crime, science of law. If he error . . be treated as harmless .Id. incapable, generally, of determining for at at 23 & n. S.Ct. himself whether the indictment is good or bad. He is unfamiliar with the rules of least, a conviction

At evidence. Left without the aid of stand, regardless may not be allowed may put he on without proper when a prejudice, the existence of criminal charge, upon incompetent and convicted presence defendant denied the evidence, or imposed evidence irrelevant penalty at trial and the includes issue or otherwise period Gideon v. inadmissible. He lacks any of incarceration. knowledge both the skill and Wainwright, adequately defense, Hamlin, (1963); Argersinger prepare even though L.Ed.2d requires 32 L.Ed.2d 530 He perfect one.

H65 in Glasser every at supra, step hand of counsel guiding it, him. Without proceedings against that: S.Ct. at though guilty, he be not he faces the “The to have the assistance óf coun- he does danger of conviction because sel is too fundamental and absolute to his innocence.”3 how to establish know indulge allow courts to in nice calcula- tions as to the prejudice amount of

We hold that once aris- ing from its establishing ineffec denial.” his burden of carried conviction must be tiveness this Since case must be remanded to regard presence without to the reversed the District Court factual determina prejudice. This conclusion is tion as to whether there has depriva been a Supreme by two recent buttressed petitioner’s tion of reversing criminal convictions re decisions rights, some discussion to the appropriate *4 showing prejudice of a when the gardless standard is in It has order. been noted that petitioners that had been de found court judging the standard the effectiveness despite the assistance of counsel coun nied circuit of counsel in this is ambiguous. throughout presence active the trial. sel’s Decoster, United States v. No. 72-1283 York, Herring v. New U.S. In (D.C.Cir., 19, 1976), Slip Oct. Op. at 10 n.17. (1975), 45 L.Ed.2d 593 the court S.Ct. Numerous decisions of this pur circuit have that opportunity denial of the held ported to the farce or apply mockery test.4 conclusion of a summation at the make However, cases, in almost all such the court nonjury criminal trial violates a jury actually performance concluded that the right to the defendant’s fully adequate counsel was and/or that there of the regardless assistance counsel sim- a choice trial had been between tactics which strength of the ease or the plicity appeared only most at unwise the bene In Geders v. United evidence. prosecution’s g., United v. E. States hindsight. fit of States, 96 S.Ct. U.S. Stern, cert. de (9th 1975), 519 F.2d 521 Cir. (1976), defendant L.Ed.2d criminal nied, L.Ed.2d consulting prohibited with coun- Ortiz, v. United States (1975); 488 F.2d during overnight recess after sel Mengarelli v. U. Mar (9th S. 1973); Cir. of direct prior conclusion the com- v. 1973); Parker shal, Cir. (9th 476 F.2d 617 mencement cross-examination. States, (9th 1973); United 474 F.2d 697 Cir. affirmed, holding Circuit that peti- Fifth Steed, United States v. (9th F.2d 1310 any prejudice failure to claim tioner’s re- Cir.), denied, cert. sulting from his to consult inability United (1972); 34 L.Ed.2d 667 States during the recess fatal. Not- Vivero, denied, (9th Cir.), 465 F.2d 141 cert. withstanding the of a claim prej- 34 L.Ed.2d 304 udice, a unanimous court reversed holding Garrett, (1972); States 457 F.2d permit refusal to defendant Craven, 1972); Wright (9th Cir. with his attorney consult violated his Sixth Borchert v. United (9th 1969); F.2d 915 Cir. right to the Amendment assistance of coun- cert. (9th 1968), 405 F.2d 735 Cir. sel. denied, Bouchard v. United Supreme pro- Court’s adherence to a cases, (9th 1965); rule in Reid phylactic to counsel such 344 F.2d 872 Cir. Herring Geders, ignored. (9th cannot 334 F.2d 915 Cir. say ap fair to appropriate It seems harmless-con- The more statement of the Chap- plicable standard, rule harmony announced in is more in stitutional-error man did not alter the position development regarding court’s in with the of case law Comment, Many Assistance are 3. See Ineffective of these cases collected at 26 A.L.R. and the Harmless Error Rule: The Counsel Fed. 252-53. Chapman, Eighth Circuit Abandons 43 Geo. Wash.L.Rev. 1384 circuits, other traught (Andrews of counsel in Robertson, effectiveness adopted by this court Brubaker v. (5th 1944)); Cir. or sleeping through Dickson, 1962).5 F.2d 30 Cir. In (United of the trial much v. Katz, Dickson, supra court this Brubaker (2d 425 F.2d 928 1970)). had previously a standard which adopted summary, In the role of the District applied by Fifth in Mac- presented allegations of inef Ellis, 1960), Kenna fective assistance of counsel is to pass 289 F.2d 928 hold- modified the merits of the action not taken but process does not ing “[d]ue whether, determine particular under the judged and not counsel ‘errorless facts and circumstances of the by hindsight, counsel reason- but failed to render reasonably effec ably likely rendering to render and reason- ”6 tive assistance. This does not mean that it (Emphasis assistance.’ ably effective guess should second reasoned choices be original). tween trial tactics nor does it mean that Although references farce or counsel, to protect defense against himself survived Brubaker allegations of inadequacy, must make every Dickson, supra, recent cases have made conceivable motion no matter how remote notwithstanding such language, possibilities are of success. It is suffi ineffective counsel to demonstrate one need if prepared cient he is and conducts the only establish that counsel failed to render *5 defense with reasonable knowledge and reasonably effective assistance. Leano v. skill with an of knowledgeable exercise 1208, 457 (9th F.2d of trial tactics. accept choices To less sim denied, 889, Cir.), 162, cert. assures the ply criminal defendant the form 34 L.Ed.2d United States v. not the substance of any represen but real Miramon, 470 F.2d (9th Cir. tation. denied, 1972), cert. This is consist The District Court’s denial of the writ expressed the view ent with in ways various on March entered 1973 is reversed and in other circuits that the mockery farce or cause remanded to the the District Court is little today more than a meta a factual determination as to whether indicating that phor the has deprived was of Sixth Amend- relatively prove heavy burden to ineffec the reasonably ment to effective as- tiveness of counsel. v. Scott United of during sistance his state trial. U.S.App.D.C. 339, 427 F.2d REVERSED AND REMANDED. (1970); McQueen Swenson, supra at 214. view that the farce or lan DUNIWAY, Judge Circuit (concurring): guage not to be taken literally is particu larly appropriate in this circuit which has compulsion I concur under the of our never used this standard to Craven, Cir., affirm convic decision in Sanders where tions the failures of counsel suggest, however, were as I 488 F.2d 478. that we egregious as conducting the defense getting while: on a merry- are ourselves semantic (Hudspeth intoxicated McDonald, 120 go-round, prospect with little of real benefit (10th 1941)); F.2d Cir. or mentally dis- the law. Dickson, supra,

5. When Brubaker ingredient was decid- assistance of is an essential ed, Brady, Betts v. Rose, in fundamental fairness. Wilson v. (1942), required 86 L.Ed. in state trials a 1966). by case case determination as to whether assistance of counsel and hence has 6. This standard since been reaffirmed equivalent, its the effective assistance of coun- Estelle, Herring Fifth in Circuit 491 F.2d sel, constituted denial of fundamental fair- adopted in the Sixth However, Brady, supra, since ness. Betts v. Beasley in Wainwright, supra, overruled in Gideon v. was every been that in it has case the effective different that there are two fairness. claimed suggest I there were counsel” “inadequate assistance of respects kinds three which his counsel was in- is the in which the defend One case cages. adequate. The first is that counsel did (I lawyer classify no at all has ant to suppress make a motion certain evidence. Judge Peckham considered whether failure though such a even L.Ed. grant suppress, motion to if were purport appoint all the mem made, court did would harmless under Chap- defendants; represent the bar to rule, bers man held that it would be them), fact, really lawyer represented no harmless. Under the Bradford standard performance counsel’s is so bad or in facts, on the same say, one could that it was as to amount to no representation inept or arguable whether motion have would The other is a case in which there all. good, been the decision whether trial, lawyer, he handled been .a has make, move is for counsel to and that his well, done of it but it is pretty most he has to make the motion does not amount respects repre certain claimed inadequate representation, be- especially The latter sentation ineffective. cause use evidence in question was case that have here. kind Chapman. harmless under language of our decision in Sanders Cooper’s second claim is that counsel Craven, supra, requires in such a admitted Cooper’s should have prior convic- corpus decide habeas court must ease the tions and that failure to do so allowed impermissible there has “an whether attorney to the district introduce evidence rights,” i. deprivation which might about them otherwise counsel, rather e., assistance of been excluded. Peckham said whether, that coun deciding assuming than not rise to the level this did making ineffective, partly sel’s assistance or a mockery justice, sham to a resulting in Unit error was harmless. Yet failure to assert crucial defense. The last Bradford, Cir., ed States phrase close to comes Bradford’s “denial *6 Judge opin is not cited in East’s fairness” language. fundamental ion, said: we claim was Cooper’s third that counsel did will not be The rule conviction about his appeal. not tell inadequacy of counsel unless reversed Judge found as a Peckham fact that reasonably failed to render effec- appeal knew about assistance, resulting in a denial of tive therefore, decisions, our was not fairness. v. United fundamental Smith obligation of counsel to tell him. That 1117,1119 1971). to the again is close Bradford standard. expe- counsel was an able and Bradford’s Judge require To Peckham to hold anoth- He lawyer. did the best could rienced hearing judicial er waste of virtually impossible case. At good find no why I reason time. can only counsel’s actions were tactical worst go him through should make that exercise. might retrospect which in decisions Sanders, Wére it not I would dissent. Ortiz, wrong. See States 1973); Stern, F.2d 521 900.) (Id. stating way is not different If that rule, error what is it?

harmless that while Peckham did

I suggest Bradford, what he language

not use says close to what comes Bradford

did done, namely, decide should have

that he was a there denial of fundamental

whether