# David Leroy Washington v. Charles E. Strickland, Superintendent, Florida State Prison, and Jim Smith, Attorney General of the State of Florida

> Court of Appeals for the Fifth Circuit · April 23, 1982 · 673 F.2d 879

URL: https://www.frixlaw.com/law-library/cases/9469018

## Case

- **Full name:** David Leroy WASHINGTON, Petitioner-Appellant, v. Charles E. STRICKLAND, Superintendent, Florida State Prison, and Jim Smith, Attorney General of the State of Florida, Respondents-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** April 23, 1982
- **Citations:** 673 F.2d 879; 10 Fed. R. Serv. 338; 1982 U.S. App. LEXIS 19841
- **Precedential status:** Published
- **Opinion:** Dissent by Roney
- **Judges:** Roney, Vance, Randall
- **Cited by:** 33 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled by Washington v. Strickland, 693 F.2d 1243 (1982).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9469018

## Opinion text

RONEY, Circuit Judge,
dissenting:
I would affirm. The question before the district court was whether this state prisoner, sentenced to death for three murders, was deprived of his Sixth Amendment right “to have the Assistance of Counsel for his defence”. This constitutional mandate, visited upon the states through the Fourteenth Amendment, 1 has been interpreted to require “effective” assistance of counsel 2 at sentencing, as well as at trial. 3
Attorney William Tunkey was appointed to represent Washington. He was a well established criminal lawyer, thoroughly experienced in criminal and capital cases. After Tunkey had prepared for trial on one murder, petitioner pled guilty to all three, contrary to his attorney’s advice. The acts committed by Washington, which made him a prime candidate for capital punishment if there is to be capital punishment at all, are fully recited in the Florida Supreme Court’s opinion affirming the death sentence. Washington v. State, 362 So.2d 658 (Fla. 1978), cert. denied, 441 U.S. 937 , 99 S.Ct. 2063 , 60 L.Ed.2d 666 (1979).
On September 20, following carefully arranged plans, Washington stabbed to death Daniel Pridgen, a minister, while an accomplice restrained the victim and covered his *908 face with a pillow. On September 23, in the presence of her three helplessly bound elderly sisters-in-law, petitioner murdered Mrs. Katrina Birk by stabbing her and shooting her in the head. Washington thereafter attacked the sisters-in-law with gun and knife, inflicting serious, permanent injuries. Finally, on September 29, Washington murdered Frank Meli, a twenty-year-old college student whom he had kidnapped two days before. While Meli was tied spread-eagled to a bed, Washington stabbed him 11 times. Although an accomplice had covered Meli’s face with a pillow, petitioner stated he heard his victim repeat the Lord’s Prayer “over and over” during the fatal attack. Thus, Washington’s victims included black and white, young and old, male and female, all. intentionally murdered in torturous ways.
Faced with this situation, Tunkey, relying on his experience in prior capital cases and his familiarity with the petitioner and the state trial judge, decided his client had but one chance to avoid the electric chair. Aware the judge normally responded favorably to a free, unqualified, unbargained for admission of guilt, Tunkey thought the only hope of leniency was for his client to show remorse and seek mercy. 4 Tunkey sought to establish remorse by introducing at sentencing Washington’s testimony at the guilty pleas hearing. 5
In sum, the record reveals that highly competent counsel made a reasoned, tactical decision as to how to get life instead of death for his client and followed through on that decision. We have consistently held that counsel will not be regarded constitutionally deficient merely because of tactical decisions. See United States v. Guerra, 628 F.2d 410 (5th Cir. 1980), cert. denied, 450 U.S. 934 , 101 S.Ct. 1398 , 67 L.Ed.2d 369 (1981); Buckelew v. United States, 575 F.2d 515 (5th Cir. 1978); Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). 6 That the tactic failed is of no necessary consequence. Indeed, even if an attorney’s strategy should appear clearly wrong in retrospect, constitutionally ineffective representation does not automatically result. Baty v. Balkcom, 661 F.2d 391 , 395 n.8 (5th Cir. 1981); Baldwin v. Blackburn, 653 F.2d 942, 946 (5th Cir. 1981).
When a strategic choice of action makes unnecessary a certain line of investigation, it should not be necessary for effective counsel to pursue that investigation. See Plant v. Wyrick, 636 F.2d 188, 189-90 (8th Cir. 1980); Ewing v. Williams, 596 F.2d 391, 396 (9th Cir. 1979). We have held that counsel for a criminal defendant is not required to pursue every line of inquiry in a case until it bears fruit or until all conceivable hope withers. Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980). The Court’s suggestion that the affidavits filed in this *909 habeas corpus case show ineffective assistance of counsel because Tunkey’s tactical decision was based on inadequate information establishes a disastrous principle for two reasons. First, that decision has been made on a record that does not suggest Tunkey would or should have taken a different approach had he been aware of the information in the affidavits. Second, there will probably never be a case where in retrospect some so-called “favorable” affidavits on points not investigated by counsel cannot be obtained after the fact.
Only if we sit “to second guess considered professional judgments with the benefit of 20/20 hindsight,” contrary to the protestation of the Court’s opinion, can it be argued Tunkey was ineffective. 7 Had he hit the mark, his tactic would have been brilliant. But the curious part of the Court’s decision in this case, however, is that even with the benefit of 20/20 hindsight, there has been no showing on this record that anything else would have had any likelihood of working.
Although the Court rejects a test that would require a showing of some likelihood that another tactic would have been successful, it concedes some prejudice must be shown. Davis v. Alabama, 596 F.2d 1214 (5th Cir. 1979), vacated as moot, 446 U.S. 903 , 100 S.Ct. 1827 , 64 L.Ed.2d 256 (1980). In this record there is an absolute void of evidence showing even the slightest possibility that anything Tunkey could have done would have saved his client from a death sentence. In my judgment, in the absence of some possibility that another course of action would have benefited his client, the record compels a finding that Washington’s attorney was not constitutionally ineffective. A remand is a fruitless prolongation of already protracted litigation because had the district judge come to any other conclusion on this record, he would have been in error as a matter of fact and wrong as a matter of law.
I likewise dissent from the Court’s striking down the Florida Supreme Court’s standard for reviewing ineffective assistance of counsel claims set forth in Knight v. State, 394 So.2d 977 (Fla.1981), which followed United States v. DeCoster, 624 F.2d 196 (D.C.Cir.), cert. denied, 444 U.S. 944 , 100 S.Ct. 302 , 62 L.Ed.2d 311 (1979). The district court should not be reversed for following the same standard.
The Court rejects the requirement that a habeas corpus petitioner must demonstrate prejudice “to the extent that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.” Instead, it says the petitioner must show “but for his counsel’s ineffectiveness the sentencing phase, but not necessarily its outcome, would have been altered in a way helpful to him.” The Court substitutes semantics and appellate theory for sound reasoning and the real life requirements of the courtroom. How can the sentencing phase of a capital case be altered in a way helpful to the defendant which would not have a likelihood of affecting the outcome of the proceeding?
The only task involved in representing a guilty, convicted capital criminal is keeping *910 him out of the electric chair. I would think a truly competent trial attorney should do nothing, absolutely nothing, that would not have a “likelihood” of affecting the outcome of the proceeding. The test of De-Coster clearly satisfies the constitutional demands in this case and should be adopted, not rejected, by this Court.
That the Court is wrong in rejecting De-Coster is apparent for several reasons.
First, where the allegation is that qualified counsel’s act or omission rendered him ineffective, prior cases in this Circuit probably require a showing of prejudice in relation to the outcome of the capital sentencing proceeding. See Washington v. Watkins, 655 F.2d 1346, 1362 (5th Cir. 1981); Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir. 1981); Mendiola v. Estelle, 635 F.2d 487, 491 (5th Cir. 1981); Lovett v. Florida, 627 F.2d at 709-10 ; Buckelew v. United States, 575 F.2d at 521 ; United States v. Doran, 564 F.2d 1176, 1178 (5th Cir.), cert. denied, 435 U.S. 928 , 98 S.Ct. 1498 , 55 L.Ed.2d 524 (1977); Pennington v. Beto, 437 F.2d 1281, 1285 (5th Cir. 1971). Of course, these cases are different from those in which there was no counsel or counsel was completely blocked from action. See, e.g., Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963); Geders v. United States, 425 U.S. 80 , 96 S.Ct. 1330 , 47 L.Ed.2d 592 (1976); Herring v. New York, 422 U.S. 853 , 95 S.Ct. 2550 , 45 L.Ed.2d 593 (1975).
Second, a state prisoner seeking a writ of habeas corpus from a Federal court on ineffective assistance of counsel grounds has the burden of proving facts that show he is being unconstitutionally detained. United States v. Killian, 639 F.2d 206, 210 (5th Cir. 1981). To require a showing of a “likelihood” that ineffective cpunsel contributed to that detention does not saddle him with an unsurmountable burden.
Third, the Court’s concern that under the DeCoster test the Court would be required to “predict with some degree of accuracy what that fact finder would have done had it been presented with different evidence” is unjustified. The undertaking required by the DeCoster rule is indistinguishable from the courts’ functions in a variety of other contexts. What does a trial court do when faced with a motion for new trial based on newly discovered evidence? What does this Court do when faced with garden variety harmless error arguments? Just as trained lawyers are able to make professional judgments as to what will or will not have a likelihood of benefitting a client, trained judges should be able to take the application of the DeCoster test out of the “highly speculative” range of activity the Court’s opinion describes. Moreover, the Court has misstated the exercise, because reviewing courts need only decide whether different evidence would have a likelihood of affecting the outcome. They need not decide “what the fact finder would have done.”
Fourth, the Court’s opinion reflects that none of the other circuits have specifically rejected DeCoster , some have standards of review that are similar, and others seem to assume that where prejudice must be shown, it must run to the outcome of the proceeding about which the petitioner is complaining. Even the Sixth Circuit, described by the majority as perhaps the only circuit rejecting the prejudice requirement in its entirety, has of late retreated from its absolutist position. See McKeldin v. Rose, 631 F.2d 458, 460-61 (6th Cir. 1980), cert. denied, 450 U.S. 969 , 101 S.Ct. 1488 , 67 L.Ed.2d 619 (1981).
The other grounds for relief asserted in Washington’s habeas corpus petition are insubstantial. Petitioner protests the district court’s summary rejection of a number of grounds asserted in his petition. While it would have been better to address the grounds individually, I would not reverse on the basis of the form of the district court’s opinion, particularly in light of the lack of substance of the claims disposed of summarily.
Finally, the Court’s opinion addresses the fact that in the federal court evidentiary hearing, the state sentencing judge was permitted to testify as to the weight he accorded mitigating and aggravating fac *911 tors in the case and as to whether the evidence Washington urges would have made a difference. I would not here decide the legal effect of the admission of that testimony. Although the district court made note of it, disregarding it does not make the contrary true, and the record is still insufficient to support a decision for the petitioner. The Court’s opinion ably demonstrates the problems with such testimony. It should be noted, however, that in the particular setting of habeas corpus evidentiary hearings, courts have considered the testimony of trial judges. See Haggard v. Alabama, 550 F.2d 1019, 1022 (5th Cir. 1977); Williams v. Beto, 354 F.2d at 703 ; United States v. Follette, 410 F.2d 1276, 1278 (2d Cir. 1969). We have found no denial of an application for writ of habeas corpus reversed because of the admission of such testimony. Moreover, one can reasonably speculate that if the sentencing judge had given positive testimony that unpresented evidence or different tactics would have had a likelihood of affecting the sentence, this or any other reviewing court would be hard put to refuse to consider such testimony in a death case.
This record compels the decision that Washington was not deprived of constitutionally effective counsel. Even if some fault can be found in his counsel’s conduct, there is no showing that a different strategy would have had any likelihood of affecting the sentence of the state court. I would affirm.
. Gideon v. Wainwright, 372 U.S. 335, 342 , 83 S.Ct. 792, 795 , 9 L.Ed.2d 799 (1963).
. McMann v. Richardson, 397 U.S. 759 , 771 n.14, 90 S.Ct. 1441 , 1449 n.14, 25 L.Ed.2d 763 (1970); Lovett v. Florida, 627 F.2d 706, 708 (5th Cir. 1980).
. Mempha v. Rhay, 389 U.S. 128 , 88 S.Ct. 254 , 19 L.Ed.2d 336 (1967); Dozier v. U. S. District Court, 656 F.2d 990, 992 (5th Cir. 1981).
. Tunkey testified:
To myself, I certainly thought if David had any chance at all, and I am really getting subjective, in front of this particular Judge, on these particular facts for these particular kind of crimes, that the one shot he perhaps had was the fact that he genuinely was coming before the Court and admitting his guilt, unlike some' defendants who come in and plead guilty to avoid a harsher punishment. Later in his testimony:
Q. Do you think that Judge Fuller would have been concerned about a defendant’s remorse?
A. Oh, yes, I think that was all part and parcel of David’s attitude in court and also to me out of court. That is why I had the strong feeling that this was the most important thing he had going for him.
. On cross-examination, when questioned as to why he did not produce members of the family whose affidavits were before the court in the habeas corpus proceeding, Tunkey said:
[T]he remorse that was shown, I assume it would have been shown in jail since he was not any place but jail from the day of his arrest until the sentencing on the 6th of December.
1 also thought it would have been superfluous because the remorse that David exhibited to me in court was of sufficient quality and quantity that it was obvious, to me anyway, and I thought to the trial Judge, that it was completely sincere, that it was not something that was phonied up, if you will, to try to get a life sentence....
. The Eleventh Circuit, in the en banc decision of Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981), adopted as precedent the decisions of the former Fifth Circuit.
. That Tunkey was correct in his assessment of the sentencing judge is illustrated by the following excerpts from the guilty pleas hearing;
THE DEFENDANT: I would like to say this. I believe the crime fits the punishment and I don’t want to die. You understand what I am saying, but I say if I got to sit up in some jail and rot I would rather get the chair.
THE COURT: We will resolve the question of punishment. I want you to be satisfied that I have a great deal of respect for people who are willing to step forward and admit their responsibility. That is not an automatic key to the door nor is it anything else.
I am certainly satisfied you have been represented up to this point and will continue to be represented through Mr. Tunkey and I find him to be a very able and competent counsel and that you have had ample opportunity to discuss this matter with him, and in fact, are entering pleas in this case that take away from him the opportunity of really being a lawyer that he would like to be for you.
But, I respect you for that and I think it speaks in your favor.
There certainly is a factual basis for the Court to accept your pleas in this case and on that basis I will do so.
(Emphasis added).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9469018. Public record. Not legal advice.