Washington v. Strickland

JAMES C. HILL, Circuit Judge,

concurring in the dissenting opinion of RONEY, Circuit Judge.

Judge Vance has prepared for our court a most valuable cyclopedia on the subject of the duty of defense counsel in criminal cases to conduct investigations. It should be taught in law schools and seminars. I do not mean to detract from the value of the compilation as such. However, I dissent from the holding that, in a habeas corpus case alleging ineffective assistance of counsel the district judge’s inquiry should first address the duties imposed upon counsel as articulated in Part II.

When a person in custody resulting from a criminal conviction petitions for the writ of habeas corpus asserting that his conviction was unconstitutional because, at his trial, he was not afforded adequate counsel, the issue before the court is the defense afforded him at the trial resulting in the conviction. If that trial were constitutionally conducted” there is no merit to the petition. The majority opinion shifts the inquiry, in the first instance, from the challenged trial to the challenged defense attorney. District judges are instructed that they should pay no attention to the defendant’s trial until and unless they have first convicted his lawyer. Assertions by the petitioner that his lawyer failed to live up to the high standards of our profession are to be meticulously investigated and evaluated in the abstract. Every asserted act or omission of defense counsel (often, as in this case, willing to accept appointment to the case) is to be measured against the professional standards of lawyers. When the work of the lawyer has been gone over with a fine-toothed comb, and some of that work *1289 has been found to have been less than desirable, those findings are to be announced. When the lawyer has been found guilty of something less than the ideal, only then does the judge turn his attention to the defense afforded the petitioner. It then appearing that the failings of defense counsel worked no prejudice to the petitioner’s defense, the petition is to be denied.

In my opinion, this stands the inquiry on its head. The petitioner is complaining that he did not receive a constitutional trial leading to a constitutional conviction. Therefore, what he alleges about his trial should be the beginning, and often ending, inquiry. The petitioner must assert that there were errors of commission or omission by his attorney which, had they not been committed, would have benefitted his defense. 1 Further, he must assert that those errors were the result of inadequate counsel. Therefore, the district court’s first inquiry should be whether the claimed defense counsel defaults worked a prejudice to the defense. It should matter not to the habeas court whether or not the failure of defense counsel to have located and produced a witness was the result of incompetency if it now appears that the witness has been located and, had he been produced, would have given nothing but harmful testimony to the defense. If the petitioner gave his attorney a lead to the location of a witness who might have been of assistance, and if the attorney is said to have ignored the lead, choosing to attend an attractive social function rather than devote the time to the location of the witness, that assertion need not be investigated and evaluated by the district judge if it appears that the witness has now been located and never had any information material to the case at all. The opinion for our court authored by Judge Vance would require the district judge to ignore the result of claimed incompetency; take evidence and make findings of fact as to whether or not the lawyer did abdicate his duty to investigate the witness in favor of attending a social function; and only then take note of the fact that neither the presence or absence of the witness could have had any effect, one way or another, on the trial.

I have a sincere and abiding interest that trial counsel do their professional work according to high professional standards. However, it is not the work of the district court considering a petition for habeas corpus gratuitously to “grade the paper” of the lawyer unless it first be shown that, had the lawyer conducted the defense in the manner preferred by the petitioner, it would have benefitted the petitioner. It is, after all, the petitioner’s trial and conviction that is under investigation.

I have not overlooked the departure in the majority opinion’s footnote 33 from the mandate otherwise articulated in the opinion. In note 33, the majority suggests that there might be some occasions when obvious lack of prejudice would make it unnecessary to determine whether or not defense counsel’s omission or commission was the result of inadequacy. I submit that what should be the rule is, in footnote 33, made the exception. District judges are hardly to be expected to find the proper procedure in that footnote contrary to the directions given in the body of the opinion, and, particularly, in its conclusion. Holdings expressed in footnotes are often given little weight. See Miree v. DeKalb County, 433 U.S. 25, 33 , 97 S.Ct. 2490, 2495 , 53 L.Ed.2d 557 (1977).

In the case presently under review, the district court properly pretermitted deciding whether or not the claimed omissions of attorney Tunkey amounted to incompetency or inadequacy on the part of the attorney because the district court found that no prejudice resulted from the omissions and, upon that finding, denied the writ. I should affirm that finding. I have re *1290 viewed every affidavit of the witnesses said to have been overlooked by attorney Tun-key. The absence of the testimony of those witnesses at sentencing does not demonstrate the absence of any evidence likely to have had an effect on the outcome. Some of the tendered affidavits are of potential witnesses saying that he or she was surprised that petitioner stabbed a minister to death in the minister’s church; bound four elderly women and then methodically stabbed them; and, after kidnapping a young man, tied him spread-eagle on a bed and, while his face and head were covered with a pillow, stabbed him eleven times, producing his death. It is hard to conceive of a person about whom it might not be said that such conduct was surprising. Other suggested witnesses would have disproved mental condition as a mitigating circumstance while others would have testified to petitioner’s need for money, thus tending to substantiate that robbery for gain accompanied these murders. Proof that these witnesses were not called, whether by choice of strategy or otherwise, does not authorize the grant of the writ and, the district court was correct in that conclusion.

I take note that the district court heard the testimony of the sentencing judge to the obvious effect that the testimony of these witnesses would not have affected the imposition of sentence. I agree with Judge Roney that the propriety of the taking of this evidence need not be decided. The district judge made it clear that this testimony was not a controlling factor in his decision, finding the record otherwise demanded the conclusion that no prejudice had resulted. Whether or not the sentencing judge should be permitted to testify should await a case in which the issue is presented. However, I offer these observations.

First, if such evidence is to be excluded, that ought not be based upon any notion of lack of reliability. The progress of cases of this sort through the state-federal apparatus is such that years usually pass before there is an occasion for the taking of testimony in a federal habeas court. Therefore, all witnesses before the habeas court are recounting facts, observations, opinions and impressions of years earlier. I know of no characteristic forgetfulness of judges which would make them less reliable than other witnesses called upon to testify to such prior events. The district judge is empowered, and has the ability, to appraise the effect upon credibility of the remoteness in time of the events.

Second, I question that there should be a blanket prohibition against the taking of the testimony of a sentencing judge were he to offer to say that, had he been aware of the evidence overlooked by defense counsel, he would not have handed down a death sentence.

There are, however, serious institutional implications in permitting the calling of the sentencing authority to the stand in the habeas court. Where that authority is the jury, should jurors be permitted to testify, perhaps to impeach their verdict? If not, is there equal protection if the judge, as sentencing authority, is subject to being called?

The issue need not be decided today.

With these remarks, I concur in the dissenting opinion of Judge Roney.

. I agree with Judge Roney’s analysis of the prejudice requirement and am satisfied with the standard set out in United States v. Decoster, 624 F.2d 196 (D.C.Cir.) (en banc), cert. denied. 444 U.S. 944 . 100 S.Ct. 302 . 62 L.Ed.2d 311 (1979), but find little difference in this standard and that derived from United States v. Frady, 456 U.S. 152, 173 , 102 S.Ct. 1584, 1596 , 71 L.Ed.2d 816 (1982).