Opposition Brief — Redman v. Clark

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vitness because he was in prison. Trial counsel further informed

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lo t 445, 452 (1985), the long standing difficulty 1

ti 11 ir an is i one Ca ae) a a r "mixed quest

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e+ S| . it ‘<< r + be ae 1 ES By this case + 7 ¢ the 134St iI +

whet ‘ + he¢ 1 Y: f + he wit eccec'’ redibilit | J + ‘

‘ ‘ ro ¢ Hieck 4 the deference requirements,

Pr ao ¢ wanda ¢ + } ect tc ndenendent fe y eterr +

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and full appellate re ew

In Baumgartner nited States, 322 U.S 665, 35: 1 Ga :

64 t 124 (1944), the issue wa whether or not the f1 1

two lower Pt satisfied the clear-and-convincl! ta f

pr f necessary to sustai a denaturalization decree Thi ourt

he] that the onciusi f the two lower courts that the € 2

St rd of pr had beer tisfied was not a inr iewable {£

a F f + k it r that re 1eWwlY! court could indepes Le |

The Court referred t the finding as one of "ultimate" fact, wt

in that case involved an appraisal of the strength of the entire

bod f evidence. The Court said that the significance of the

lear- i- incing pr f standard “would be lost" if the

ascertainment by the lower courts whether the exacting tandar

of proof had been satisfied on the whole record were to |i Jeeme

a “fact” of the same order as 1 of the other “facts not ope t

review here" Tac, 322°U,8s. at 678 The Baumgartner discussio:

of "ultimate facts" referred not to the pure findings of fact, but

to indings that "clearly implly] the application of standards of

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nvolving extremely complicated situations;

however, these definitions offer sufficient guidance to resolve

the issue in this case.

Beyond a doubt, assuming arguendo that the performance and

prejudice components of mixed law and fact turned on witness

credibility determinations, then th:y are "facts" wh‘ch ": learly

impl{y] the application of standards of law" in ultimately

deciding whether the performance of trial counsel had been

deficient, or that Respondent had been prejudiced by trial counsel's

deficient performance. These "facts" which go to the very heart of

Respondent's claim of ineffective assistance of counsel, cannot

logically or possibly be denominated as subsidiary, basic, primary,

or historical facts protected by the statutory presumption of

correctness, or insulated from review by the deference requirement

of the clearly erroneous standard of review. As this Court pointed

out in Anderson v. Bessemer City, supra, 470-028. at 575,84 L.5a.20

"This is not to suggest that the trial

judge may insulate his findings from review by

denominating them credibility determinations,

for factors other than demeanor and inflection

go into the decision whether or not to believe

a witness. Documents or objective evidence may

contradict the witness' story; or the story

itself may be so "internally inconsistent or

mplausible on its face that a reasonable

fact finder would not cre it it. Where suvh

factors are present, the court of appeals may

well find clear error even in a finding pur-

portedly based on a credibility determination." =

(Citation omitted.)

The Opinion and disposition of this case by the Sixth Circuit

Court of Appeals did not, as Petitioner suggests, turn on a

redetermination of the credibility of Respondent's testimony, Or

that of the other witnesses. Smith v. Butler, 266 vss wolae Oo

L. Bac 2a 284, Bi S.Ct. 937, renearing denied, 366 U.S. 941,

6 L.B@.2@ 652;-81 S. Ct. 1657 (1961). The findings of fact set

forth in the majority opinion of the Court of Appeals, including

those pertaining to witness credibility, are drawn from the

record and do not conflict with, or contradict, any findings of

basic, primary, or historical facts found by either the State trial

court or the Federal District Court. The opinion of the Sixth

Circuit Court of Appeals differs from that of the lower courts

only in the application of the facts adduced at both evidentiary

hearings to the performance and prejudice components of the

ineffective assistance cof counsel analysis, which was either over-

looked or ignored by the two lower courts.

It was not, as Petitioner claims, a reassessment of

Respondent's testimony for the Sixth Circuit Court of Appeals to

make the accurate factual observation that his testimor was

uncontradicted at either evidentilar hearing Suct bser ti

] o¢ AP af Eo% Fours” admoniti in Mar

Lonberger, 459 U.S. 422, 424, 74 L.Ed.2d 646, 658, l ~ t a4

851 (1983), as tne jefere se re jlrement £ 2& S. §2254(d)

28 § 254(d) ‘ + a ‘ + +he ner? rma ~¢

: ws é | j t apply t per r

prejudice anai 1 trickland , supra, 46¢€ S

698 In additi , the Court f Appeals simply made r bsé t

that is part of the description of this case; and, u Like tr

lower court in Marshall Lonberger, supra, did not re le

A p34 “4

on Respondent's uncontradicte testimony in reachir it timate

decision

It was not, as Petitil er asserts, conjecture r reass¢

ment f Respondent's testimony for the Court of Appeais t ‘

that Respondent "...unquestionably mentioned the (hi le fense

a +r c < +< > +, by na<«¢ ) mor ” My }

alibi witnesses) he Price and 5010 X Willi

Price, thé riginall sourt-appointed trial insel, ibmitte

a! affidavit in the Feder tstrict Court iff WA. € e cE

that he withdrew as Re lent's tr.al attorns ‘s inasr a

my trial calendar wou not permit me to interview the s ral

witnesses that the (Respondent) had in the State of Ohio a

initiate other investigations necessary to provide thé Respond

with an opportunity for a fair trial." See Affidavit of Willia

his

ice, September 19, 1985. Mr. Barry Solomon, Respondent's

aring in Federal District Court that he remembered Respondent

ling him something about Mr. Stern (trial counsel) not calling

alibi witnesses in defense at his trial." (EH-2, page 16)

The Court of Appeals was not in error, as Petitioner

mistakenly believes, in its stat ment that Resporuent

".,.unquestionably mentioned them (the witnesses to both

Price and Solomon..." Respondent unquestionably told his

original court-appointed trial counsel (Price) and his court-

appointed appellate counsel (Solomon) about the existence of

his defense and alibi witnesses. See Petition for a Writ of

Certiorari to the Sixth Circuit Court of Appeals, page 36, fn

}

Pee ne

He testified that he must have asked his law partner (Mr. Stern)

about the matter, and was satisfied with his answer because he did

not raise the issue on direct appeal. (EH-2, pages 16-17) Plainly,

the asserted "conjecture" or "reassessment" is, in reality, factual

evidence in this case drawn Girectl from the record.

It is true that the Court of Appeals stated that there was 0

evidence on the record to indicate that trial counsel knew the

reason for Mr. Price's withdrawal from the case. Yet, Mr. Stern

knew of Respondent's claim of the existence of defense witnesses

by reason of his presence when Respondent complained to the trial

court that “you hampered my defense by keeping me locked up and

I can't find several of my witnesses." (TT, page 5) Respondent's

indignant complaints and outbursts could not have possibly escaped

Mr. Stern's attention. The Court of Appeals acknowledged that

Respondent did object to the trial court's “hampering” of his

defense by preventing him from finding his witnesses.

It was not, as Petitioner alle ;es, a blatant e:.ample of

appellate reassessment for the Court of Appeals to say that

.no conceivable reason exists for him (Respondent) to have

withheld this information (existence of his witnesses) from his

counsel ..." Respondent told his original counsel, Mr. Price,

about his witnesses; he complained to the trial court about his

need and inability to contact his witnesses; Mr. Stern was present

during Respondent's claim in open court concerning the existence

of his witnesses; and, later, Respondent informed his appellate

counsel, Mr. Solomon, that trial counsel had failed to investigate,

interview and produce his witnesses at trial. The Court of

Appeals was simply pointing out that it was highly unlikely,

implausible and internally inconsis.-ent for the District Court to

conclude that out of all of the people involved in this case,

Respondent "chose not to tell Stern" of the existence of his

defense and alibi witnesses. The more logical conclusion 1s that

if Mr. Stern did not investigate the defense witness, Mr.

Jackson-El, when Respondent brought him to Mr. Stern's attention,

that he also did not investigate the alibi witnesses when

a Dias

Respondent brought them to his attention.

It is true that Respondent was a very assertive, vocal, and

probably indignant person at trial; and, contrary to Petitioner's

allegations, Respondent did immediately raise the issue of his

alibi defense to Mr. Price, probably Mr. Stern, and Mr. Solomon

on direct appeal. It is also true that the alibi issue wa. not

specifically raised in the courts until the second series of

appeals. However, that delay can be attributed to the ineftfective-

ness of trial counsel to present his alibi defense at trial; and,

Mr. Solomon's refusal to raise the ineffectiveness issue on direct

appeal against his law partner.

Finally, the Court of Appeals explained the reasons tor its

findings and conclusions after reviewing the entire record that,

although there may be some evidence to support it, the District

Court's determination that Respondent had not made a sufficient

showing to establish that his claim of ineffective assistance

of trial counsel was clearly erroneous. (Appendix, pages 85a-83a)

The usual deference analysis under 28 U.S.C. §2254(d)

[28 U.S.C.S. §2254(d)] is not appropriate in this case as the

statutory presumption of correctness is inapplicable to the

performance and prejudice components of the ineffective assistance

of counsel analysis. Strickland v. Washington, supra, £66 0.58:

at 698. However, even in applying those standards, it 1s

noteworthy that the Federal courts are not necessarily bound by

a State court's findings and conclusions. A Federal court may

give different weight to the facts as found by a State court and

may reach a different conclusion in light of the legal standard.

Sumner v. Mata II, 455 U.S. 591, 597, 71 L.Ed.2d 480, 102 S. Ct.

13063 (1982).

It is also not necessary in this case to address the pplic-

ability of the deference requirement of Rule 52(a) of the Federal

Rules of Civil Procedure, as that provision also does not apply

to the performance and prejudice components of the ineffective

assistance of counsel analysis. Strickland v. Washington, Supra,

466 U.S. at 698. However, it is also noteworthy that Rule 52(a)

—25—

authorizes and requires appellate courts to review the entire

record to determine if a district court's findings of fact or

conclusions of law are clearly erroneous. To the extent that

findings of fact depend upon credibility determinations, an

secellate court is not relieved of its duty to determine if those

findings were clearly erroneous. Rule 52(a) requires that an

appellate court give due regard to " * * * the opportunity cf

the trial court to judge the credibility of the witnesses" it

does not require that the appellate court unquestionably accept

the credibility determinations of the lower court. An appellate

court may reverse a district court's credibility determinations,

findings of fact, or conclusions of law, even though there is

evidence to support them, if the reviewing court on the entire

record is left with the definite and firm conviction that a mistake

has been committed, and those determinations, findings or conclusions

are clearly erroneous. United States v. United States Gypsum Co.,

333 U.S. 364, 394, 395, 92 L. Ed. 746, 68 S. Ct. 525, rehearing

denied, 333 U.S. 869, 92 L. Ed. 1147, 68 S. Ct. 788 (1948); Kelley

v. Southern Pacific Co., 419 US. 318, 322, 423, 42 L. Eds2a@ 498,

505, 95 S. Ct. 472 (1974); Anderson v. Bessemer City, 470 t.S. 564,

84 L. Ed.2d 518, 105 S. Ct. 1054 (1535).

In each case, “the federal habeas petitioner who claims he

is detained pursuant to a final judgment of a State court in

violation of the United States Constitution is entitled to have

the federal habeas court make its own independent determination

* * * on the merits of that claim." Wainwright v. Sykes, 433

U.S. 72, 87, 53 L. Ed.2d 594, 97 S. Ct. 2497 (1977). The decision

by a federal district court is subject to full appellate review by

a federal court of appeals. Bohardus v. Commissioner, 302 U.S. 34,

39, 62.2. B4..32,: 58 8. Ct. 61 (1937); Helvering v. Rankin, 295

U.S. 123, 131, 79 L. BA. 1343, 55 S. Ct. 732 (1935). The deferential

review urged by the Petitioner would have the practical ef’ect of

abolishing the habeas corpus statute as it applies to State

prisoners, by depriving them of any realistic or meaningful habeas

review, and placing the federal courts in a position of simply

rubber-stamping State court action.

CONCLUSION

The bulk of this Court's cases addressing the issue, almost

a2Ge

without exception, foreclose Petitioner's comtention that either

the statutory presumption of correctness or the clearly erroneous

standard of review applies to credibility determinations which

involve a conclusion of questions of mixed law and fact; or, that

the ineffective assistance of counsel analysis merits anything less

than independent federal determination and full appellate -‘eview.

Wainwright v. Sykes, 433 U.S. 72228 oe be SG. 2d- 594,97 SS. Ct.

2497 (1977). Of course, subsidiary basic, primary, or historical

findings of fact made by a State court in tme course of deciding

claim of ineffective assistance of counsel are entitled to the

statutory presumption of correctness. Strickland v. Washington,

supra, 466 U.S. at 698. The federal courts should give great

weight to the considered conclusions of a co-equal State judiciary.

Columbe v. Connecticut, 367 U.S. 568, 605 L. Ed.2d 1037, 81 S. Ct.

1860 (1961) [Opinion of Frankfurter, wal Similarly, subsidiary

basic, primary, Or historical findings of fact made by a federal

district court in the course of deciding an ineffective assistance

of counsel claim are subject to the clearly erroneous stariard of

review. Strickland v. Washington, -upra, 466 U.S. at 698. However,

the ultimate question whether, under the totality of the

circumstances, counsel rendered effective assistance in a manner

compatible with the Sixth and Fourteenth Amendments to the United

States Constitution, is still a matter for independent federal

determination and full appellate review. Miller v. Fenton, 474

U.S. 104, 88 L. Ed.2d 405, 106 S. Ct. 445 (1985); Strickland v.

Washington, supra.

WHEREFORE, for the foregoing reasons, Respondent, Curtis

Lee Clark, respectfully prays that this Honorable Court deny the

Petition for a writ of certiorari to the United States Court of

Appeals for the Sixth Circuit.

Respectfully Submitted,

a ey

KENNETH A. WEBB

Attorney for Respondent

Dated: May 8, 1989 2855 Coolidge Road

Suite 112-A

Troy, Michigan 48084

Telephcne: (313) 643-0730

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