finding that cross-examination is a matter of trial strategy that cannot be second-guessed in a collateral habeas proceeding
How later courts described this case
- finding that cross-examination is a matter of trial strategy that cannot be second-guessed in a collateral habeas proceeding
- finding cross-examination is a matter of trial strategy that cannot be second- guessed in a collateral habeas proceeding
- noting that decisions concerning which questions to ask a witness on cross examination cannot be second guessed in a habeas proceeding
- “[reasonableness] standard not intended to promote judicial second-guessing on questions of strategy as basic as the handling of a witness”
Written by the judges who cited it.
The opinion
CHAPMAN, District Judge,
concurring:
I concur wholeheartedly in Parts I, II, III and IV, and I concur in the result reached in Part V. However, I am disturbed by the discussion and decision of an unnecessary Sixth Amendment question, that creates such a large exception to Stone v. Powell as to endanger its future application in habeas corpus cases.
As the opinion so well observes, we have a complete evidentiary record in this matter, including testimony taken upon a prior remand by this court. All of this was done before Stone v. Powell. Under these circumstances I would prefer a decision which holds that since the record is available and the search so obviously reasonable, there is no need to discuss or decide the Sixth Amendment question.
For the past decade Federal Courts have been inundated by an ever increasing stream of habeas corpus petitions from state prisoners. This flood of petitions, the vast majority of which are frivolous, has overwhelmed the federal judiciary and delayed the work of the courts at a cost of *642 billions of dollars in fees, cost and court time. In 1976 the Supreme Court in Stone v. Powell offered some relief by precluding Fourth Amendment collateral attacks where the state prisoner had the opportunity for full and fair litigation of this right in his state trial. The present opinion has the effect of sweeping aside Stone, since petitioners may now simply allege that counsel was incompetent in not raising the search and seizure issue at the state trial.
When the present decision is read with the retroactive application of Marzullo, a new and even greater flood of state prisoner petitions will be forthcoming. Every unhappy prisoner now has a new ground to attack his conviction. Every writ writer in the five states comprising the Fourth Circuit will be ordering paper to begin this assault.
All of this is unnecessary, since the Sixth Amendment issue need not be decided or even discussed to arrive at the proper result in the present case. I suggest that we follow three of the cardinal rules of appellate review as set forth in Ashwander v. TVA, 297 U.S. 288, 346, 347 , 56 S.Ct. 466, 483 , 80 L.Ed. 688 (1936):
“2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it’, (citations omitted). It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case (citations omitted).
“3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied’, (citations omitted).
“4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.”
Let us leave the Sixth Amendment issue for another time and for a case that requires the constitutional question to be faced and decided.