Washington v. Strickland

FRANK M. JOHNSON, Jr., Circuit Judge,

joined by ANDERSON, Circuit Judge, concurring in part and dissenting in part:

This Court today holds that a habeas petitioner must show that his counsel’s ineffectiveness causes “actual and substantial disadvantage” to the conduct of his defense. If the petitioner meets this burden, the state may rebut by showing “in the context of all the evidence that it remains certain beyond a reasonable doubt that the outcome of the proceedings would not have been altered but for the ineffectiveness of counsel.” 693 F.2d at 1262 (emphasis in original). Rather than discussing the application of this standard to the facts of the case before us, Judge Vance would simply remand the case to the district court, citing Pullman-Standard v. Swint, - U.S. -, 102 S.Ct. 1781 , 72 L.Ed.2d 66 (1982). I concur with Parts I, IIA, and IIIA-C of Judge Vance’s opinion, particularly in its discussion of the standard for determining effectiveness of counsel and the degree of prejudice required. I also conclude, as Judge Vance does, that this case should be remanded to the district court for further proceedings under the standards described in Parts II and III. I dissent, however, from Part IIB of his opinion, which concludes that the record and district court’s findings in this case do not permit us to reach a conclusion as to whether counsel was effective. I also dissent from Part HID, which holds that a remand is necessary to determine whether the petitioner sustained his burden of showing prejudice. I conclude that the district court’s findings of fact clearly support the conclusion that counsel was ineffective. In addition, the district court’s findings require the conclusion that counsel’s ineffectiveness “caused actual and substantial disadvantage to the conduct of [the petitioner’s] defense.” 693 F.2d at 1250. Thus, I would not remand for further hearings on either of these issues. I would, however, remand this case to the district court to permit the state to attempt to rebut the petitioner’s showing of prejudice.

The district court found the following facts. According to the uncontradicted testimony of Mr. Tunkey, Washington’s lawyer at the sentencing hearing, Tunkey “made no active effort to bring in witnesses to testify on petitioner’s behalf regarding his childhood, family ties, or financial problems.” 1 After Washington’s wife and mother “failed to show” for an appointment with Tunkey (the court did not make clear who had arranged the meeting), Tunkey “did not seek them out.” 2 The district court found that “it is evident that Mr. Tunkey should have made an independent investigation of factors relevant to mitigation, and that such investigation would have produced generally favorable information from family, friends, former employers, and medical experts.” 3 The court found further that this failure to investigate constituted an “error in judgment.” 4

The district court also recited testimony from Tunkey to the effect that Tunkey *1282 “couldn’t say that [his failure to request a presentence investigation] was a trial strategy.” 5 The court found that Tunkey testified that “he felt [the investigation] would possibly be more detrimental than helpful,” 6 but the district judge below clearly rejected this fear as unfounded: “It is evident from Mr. Tunkey’s testimony,” the judge wrote, “that he was concerned that such a report could also prove detrimental. Nonetheless, in light of the generally supportive affidavits filed in this case [from family members, neighbors, and friends], it is evident the report may have provided additional independent information in mitigation of the aggravating circumstances previously shown.” 7 In fact, the real reason found by the court for Tunkey’s failure to investigate had nothing to do with strategic reasoning or evaluation of the information that might have been obtained in an investigation. ' Instead, the court found that Tunkey simply gave up:

It is evident that in the instant case, Mr. Tunkey’s judgment was affected by the evidence of Washington’s guilt and his desire to plead guilty. Mr. Tunkey candidly admitted that once multiple confessions were given, he had a feeling that nothing could be done to save Washington and that this feeling was behind his failure to do an independent investigation into petitioner’s background and potentially mitigating emotional and mental reasons for the killings. 8

The court earlier characterized Tunkey’s feeling as one of “hopelessness.” 9 Thus, the court plainly accepted Tunkey’s uncon-tradicted testimony that his failure, among other things, to request a presentence investigation report was not strategy.

Tunkey did pursue a strategy of “attempt[ing] to convince the [sentencing] judge of Washington’s sincerity and frankness in pleading guilty” on the ground that the judge might consider such a fact favorably in his sentencing decision. 10 But the defense strategy clearly was not to pursue this course at the expense of others. The district court noted that the sentencing judge also had before him evidence as to Washington’s background and possible mental and emotional reasons for the killings; Washington apparently had made statements to this effect during the plea colloquy-

Finally, in a subsequent Order Denying Motion for Rehearing or New Trial [hereinafter “retrial order”], the same district court judge found that an April 1981 psychiatrist’s report “provides the first indication that evidence may exist which shows that at the time of the offenses, defendant was under the influence of extreme mental or emotional disturbance or that he was unable to conform his conduct to the requirements of law.” 11 Further, the district court found that the report shed light on factors (b) and (f) of the mitigating circumstances enumerated in Florida’s death penalty statute. 12 See Fla.Stat.Ann. § 921.-141(6) (West Supp.1982).

These findings clearly support the conclusion that counsel was ineffective and that this ineffectiveness caused actual and substantial disadvantage to the petitioner’s defense. Part IIA of Judge Vance’s opinion correctly establishes the general proposition that, if counsel makes a reasonable strategic choice to rely upon one plausible line of defense at trial, his failure to conduct a substantial investigation into another plausible line of defense does not constitute ineffective assistance. 693 F.2d at 1254- *1283 1256. But when counsel for “no strategic reason” fails to conduct a substantial investigation into a plausible line of defense, the attorney fails to render effective assistance. 693 F.2d at 1257-1258. Thus, this case turns on the question whether counsel made a strategic choice, and, if so, whether his strategy was reasonable. 13

Three elements of the district court’s findings of fact point to the conclusion that counsel’s failure to investigate had nothing to do with strategy. 14 I review these elements considering only the findings of fact as described in the district court opinion, reserving for independent judgment the ultimate determination of whether counsel’s actions constituted ineffective assistance. See Pullman-Standard, supra, 102 S.Ct. at 1788 n. 16.

First, although a counsel’s action in failing to investigate is presumed strategic, “[t]his presumption can be rebutted ... when trial counsel testifies credibly at an evidentiary hearing that his choice was not strategic.” 693 F.2d at 1257. The district court cited just such testimony from Tun-key, in which he “couldn’t say that [his failure to request a presentence investigation] was a trial strategy.” 15 Moreover, given the district court’s explicit finding that the reason for Tunkey’s noninvestigation was his feeling of hopelessness, it is difficult to contemplate,what more the district court must find on remand in order to conclude, that strategy was irrelevant to his inaction.

Second, a presumption that counsel’s action was strategic “can be rebutted ... when certain of counsel’s actions do not conform to a general pattern of rational trial strategy.” 693 F.2d at 1257-1258. Under certain circumstances, it may be rational trial strategy to elect one course of investigation at the expense of another — particularly when two potential courses are inconsistent. See 693 F.2d at 1256 n. 23. In the case before us, however, Tunkey’s strategy of relying on Washington’s “sincerity and frankness” in pleading guilty would have been wholly consistent with a course of explaining to the sentencing judge his behavior by putting before the court Washington’s background and circumstances. “When the lines of defense are consistent so that both could be presented at trial,” Judge Vance’s opinion suggests, “there may be a less compelling reason not to have pursued both prior to trial.” Id. In the present case, the district court found no compelling reason and the record contains *1284 none. Hopelessness certainly is not a compelling reason. 16

Third, analysis of the defenses actually offered to the sentencing judge confirms that Tunkey did not make a strategic decision to avoid the issue of Washington’s background and circumstances. As indicated earlier, the sentencing judge heard just such evidence from Washington himself. Although this line of defense was weakly supported,in the absence of evidence from family, friends, and neighbors, the government is hard pressed to argue that Tunkey pursued a “reasonable strategy” of not attempting to explain Washington’s actions. 17

Each of these considerations leads to the conclusion that Tunkey’s action — or inaction — was not motivated by strategy, and thus that counsel was not effective. Yet Judge Roney in his dissent would have this Court hold that counsel was effective, apparently on the ground that Tunkey made a tactical decision to appeal to Judge Fuller’s appreciation for those who make unqualified admissions of guilt. Such an argument misses the basic question at issue in this appeal. As I have already suggested, Tun-key easily could have pursued his strategy of appealing to Judge Fuller and, without undermining the effectiveness of that strategy, could have at the same time investigated Washington’s background. The point is that, while Tunkey’s approach to Judge Fuller certainly was strategy, his failure even to investigate other consistent defenses was not. Tunkey himself claimed only that his approach to the sentencing judge was strategy. He never claimed that his non-investigation was based on strategy; the court’s opinion below even stated that Tunkey had testified that he could not say it was strategy. Given the circumstances, it is difficult to imagine how Tunkey could have honestly testified otherwise — and to his credit he did not.

More disturbing about Judge Roney’s dissent, however, is its emphasis on the theory that this Court should consider the issue of effectiveness of counsel “with[] a full understanding as to what counsel was up against when Washington pled guilty to those brutal acts.” By cataloging in detail what were clearly atrocious and shocking crimes, and by suggesting that we view counsel’s omissions and errors in the context of these crimes, the implication is that somehow our standard of review for constitutional error should be more lenient when the crime is more serious. Defense counsel has a sacred, professional duty to represent his client zealously. Particularly in death penalty cases, we should not turn our heads because a lawyer, however qualified and experienced, felt a sense of hopelessness when faced with a difficult case. Otherwise, we would abandon our duty as judges to ensure that all defendants — not just those who commit non-brutal crimes — receive full due process protections and effective assistance of counsel.

*1285 Having concluded that Washington was deprived of effective assistance of counsel, I also conclude that the district court findings establish that the ineffectiveness caused actual and substantial disadvantage to the conduct of Washington’s defense. I find clearly sufficient the court’s repeated findings that an independent investigation might have uncovered supportive evidence. 18 Also probative of this issue is the court’s characterization of the April 1981 psychiatrist’s report. In the rehearing order, the court stated that the report indicated that the petitioner was “under the influence of extreme mental or emotional disturbance or ... was unable to conform his conduct to the requirements of law.” The court went on, however, to determine that “there is insufficient basis to conclude that findings consistent with [the April 1981] report would have been available to counsel” had he investigated in 1976. Because this Court holds that a petitioner need not prove a probable effect on the outcome of his case, the district court’s latter finding was based on an excessively strict legal standard. Regardless of whether the 1981 report actually would have been available the first time, it is enough under the standard enunciated today that the existence of such a report indicates generally the extent and nature of counsel’s omissions. When evidence of obvious importance might have been available in a case involving a question of life or death, and counsel decided, because of a feeling of “hopelessness,” not to independently investigate Washington’s background at all, it is difficult to imagine greater possible disadvantage to Washington.

Thus, the district court’s findings of fact have already completely determined that counsel’s ineffectiveness caused actual and substantial disadvantage to Washington’s defense. Otherwise, the record “permits only one resolution of the[se] factual issue[sj,” so, applying the principles of Pullman-Standard , a remand is not the proper course as to these issues. 19 I would remand only for a determination of whether the government can rebut the petitioner’s showing of prejudice.

. Order of District Court Denying Petition for Writ of Habeas Corpus and Continuing Stay for 48 Hours at 6 [hereinafter “order”].

. Order at 7.

. Order at 15.

. In the same sentence the court concluded that such error did not constitute ineffective assistance of counsel. As the court itself noted, however, see order at 17, the court’s application of law to facts is itself a conclusion of law. Thus, unlike its findings of fact (which this Court can overturn only if clearly erroneous), the district court’s conclusions of law may be independently reviewed. This Circuit has followed this practice in cases involving claims of ineffective assistance of counsel, see, e.g., Baty v. Balkcom, 661 F.2d 391 , 394 n. 7 (5th Cir. Unit B 1981) (“historical,” or “pure,” facts judged by clear error standard of review; appellate court applied own judgment, however, to ultimate determination of mixed question of fact and law as to whether counsel was effective), a practice which the Supreme Court explicitly approved in Pullman-Standard v. Swint, - U.S. -, 102 S.Ct. 1781 , 1788 n. 16, 72 L.Ed.2d 66 (1982). Pullman-Standard did not alter the standard of review in cases involving questions of mixed fact and law; it held only that a finding of intent to discriminate under Title VII is a pure fact and is thus subject to the clear error standard of review.

. Order at 7.

. Id.

. Order at 14 (emphasis added).

. Order at 15.

. Order at 6.

.Order at 7.

. Rehearing order at 1.

. As the district court noted in its earlier order, however, any mitigating evidence may be considered by a sentencing judge, whether or not it is specifically listed in the statute. Order at 10; Lockett v. Ohio, 438 U.S. 586 , 98 S.Ct. 2954 , 57 L.Ed.2d 973 (1978).

. Because I conclude that the district court in effect found that counsel did not make a strategic choice, it obviously is not necessary to reach the question whether the strategy was unreasonable. I note, however, that for the strategy to be reasonable, the assumptions upon which it is based cannot be formed with no investigation at all. Powell v. Alabama, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 (1932). Even in Gray v. Lucas, 677 F.2d 1086, 1093 (5th Cir.1982), a case which the majority cites as supporting the proposition that a strategic choice is sometimes permitted without investigation, see 693 F.2d at 1254-1255 & n. 20, the court found some investigation necessary before deciding not to pursue a certain line of defense: “Had [counsel] failed to [interview some of the witnesses], we might reach a different result.” 677 F.2d at 1093 .

. This conclusion may be reached by following either of two possible routes. The first is that the district court actually found that counsel’s “decision” not to investigate was a nonstrategic decision. This is indicated by the court’s recitation of counsel’s actual reason for not investigating (his feeling of hopelessness), which was in no way “strategic.” In light of the fact that the district court did not state this fact in words of one syllable, as Judge Vance seems to want it to do, a second, though less simple, course is available. According to the Supreme Court in Pullman-Standard, supra, 102 S.Ct. at 1792 , “where findings are infirm because of an erroneous view of the law, a remand is the proper course unless the record permits only one resolution of the factual issue.” (emphasis added). The record in this case permits only the conclusion that counsel’s non-action was not strategically motivated — as the district court’s findings as to the real motivation for counsel’s failure clearly suggest.

.Because the presentence investigation and information from other witnesses all tended to support the same line of defense, Tunkey’s failure to request a presentence report should be considered in the same light as his failure to seek out supporting character witnesses.

. In finding ineffective assistance, a court need not necessarily impugn the general qualifications of the counsel in question. In the case of Mr. Tunkey, the record makes clear that, as a criminal attorney, he is eminently qualified and experienced. In this particular case, however, the district court notes that he was simply overwhelmed by the unique circumstances of his client’s decision to plead guilty. See order at 15 n. 3. The issue before this Court is not the competence of Mr. Tun-key; it is only whether on this particular occasion counsel was effective. Cf. Gray v. Lucas, 677 F.2d 1086, 1094 (5th Cir.1982) (unique circumstance of non-cooperation by client does not negate attorney’s duty to conduct independent investigation).

. Judge Vance’s recitation of facts that the district court must find seems to encompass more than just the question whether Tunkey’s failure to investigate was the result of a strategic decision. Apparently, he would remand to determine: first, “[i]f ... there was more than one plausible line of defense in the case;” second, “if Tunkey made a strategic choice based upon reasonable assumptions to pursue one line of defense at the expense of another;” and third, “if that strategic choice was reasonable.” 693 F.2d at 1258. As the above discussion indicates, the district court opinion already makes it abundantly clear that the court found that there was more than one plausible line of defense. It also concluded that counsel’s inaction was not a result of strategy. Thus, it is irrelevant whether counsel’s assumptions were reasonable, and whether the “strategic choice” was reasonable.

. See, e.g., order at 12, 14, 15, rehearing order at 1.

. See note 14 supra.