# Petition — Rickenbacker v. Warden, Auburn Correctional Facility

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1977
- **Citation:** 434 U.S. 826

## Text

Supreme Court of the Muited \Ptaths ition

MICHAEL RODAK, JR., CLERK !

OCTOBER TERM, 1976

7671655

Petitioner,

ROBERT RICKENBACKER,

-against-

THE WARDEN, AUBURN CORRECTIONAL
FACILITY AND THE PEOPLE
OF THE STATE OF NEW YORK,

Respondents.

a a a a at ss -- OO OO

PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

ALBERT J. KRIEGER
AARON ]. JAFFE
Attorneys for Petitioner
401 Broadway
New York, New York
(212) 966-6790

Of Counsel:
AARON |. JAFFE
FREDERIC GROSS

Dick Bailey Printers, 290 Richmond Ave., Staten Island, N.Y. 10302
Tel.: (212) 447-5358

TABLE OF CONTENTS

Page
Petition for a Writ of Certiorari ....................
a a is 9 i :
etki sade 6 ckébs ¢cenecubeqnsoucess< 2
Question Presented for Review ................0005- 2
Constitutional Provision Involved .................. 2
I é ccccccccecss tevéccsvsedeces 3
Reason for Granting the Writ.................. ssee
nn cocks cacbescosescosesecse 5
Courts which Have Abandoned the “Farce, Sham,
ST Tih a. nne cath ac ceehenseseensensées 8
IED cc cocncceacecesedavcepeeces 13

Circuits which Continue to Apply the “Farce, Sham,

Dt Hi Kidhoudbeveescencdesceseetesss 14
i ae ee ee ee eeaee 15
The State Courts in the Second Circuit .............. 16

ee a ie a Ee 25

Appendices

Appendix A—Opinion of the United States Court of

Appeals for the Second Circuit ...............+. le

Appendix B—Opinion of the United States District

Court Judge for the Eastern District of New York . , 15a

Appendix C—Order of the United States Court of
Appeais for the Second Circuit Denying Re-
Argument En Banc ....... 6... 6. eee e eee e eee

28a
Cases Cited:

Federal Cases

Argersinger v. Hamlin, 407 U.S. 25 (1972) ........... 6
Avery v. Alabama, 308 U.S. 444 (1940) ...........65: 6
Beasley v. United States, 491 F.2d 687 (6th Cir. 1974) . |!
Black v. United States, 269 F.2d 38 (9th Cir. 1958) .... 15
Bottiglia v. United States, 431 F.2d 930 (ist Cir. 1970). !3
Brown v. Mississippi, 297 U.S. 278 (1936) ..... Pere 7
Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962) ..... 15
Bruce v. United States, 379 F.2d 113 (D.C. Cir. 1967) . 8

Cardarella v. United States, 375 F.2d 222, 230 (9h Cir.
Dt cbasthadesdscblawnastoednecaekeseseoees 12

Diggs v. Welch, 148 F.2d 667 (D.C. Cir.), cert. denied
ED. veneeenseeuess6eeeneuds est

Dunker v. Vinzant, SOS F.2d 503 (1st Cir. 1974) ...... 14
Faretta v. California, 422 U.S. 806, 834 (1975) ....... 24

Frand v. United States, 301 F.2d 102 (10th Cir. 1962).. !5

Garten v. Sivenson, 497 F.2d 1137 (8th Cir. 1974) ..... 12
Gideon v. Wainwright, 372 U.S. 335 (1963) .......... 6
Griffin v. Illinois, 351 U.S.12 (1956) .............+.. 23
Hardy v. United States, 375 U.S. 278 (1964) ......... 21

Johnson v. Johnson, 18 Cr. L. Rep. 2559 (3rd Cir. 1976) 10

Johnson v. United States, 306 F.2d 640 (8th Cir.), cert.

denied 95 S. Ct. 1404 (1974) .......... ccc ee eee 12
Johnson v. Zerbst, W4 U.S. 458 (1938)... 2... eee ee. 7
Jones v. Huff, 152 F.2d 14 (D.C. Cir. 1945) .......... 7

| Karger v. United States, 388 F. Supp. 595 (D. Mass.

SUEY Chdnseudeabbudedsorceccreannesecaccces 14
Latimer v. Cranor, 214 F.2d 926 (9th Cir. 1954) ...... 15

McKenna v. Ellis, 2830 F.2d 592, 599 (Sth Cir. 1960)... 11
McMann v. Richardson, 397 U.S. 759, 771 (1970) .... 2

McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974).... 12

Mitchell v. United States, 259 F.2d 787 (D.C. Cir.),

cert. denied 358 U.S. 850 (1958) ...........0000: IS
Mooney v. Holohan, 294 U.S. 103 (1935) ............ ’
Moore v. Dempsey, 261 U.S. 86 (1923) ...........4.. 7
Moore v. United States, 432 F.2d 730 (3rd Cir. sed

Gem BENE occ ccvcccesecececs 6euaeeeeenene
Moran v. Hogan, 494 F.2d 1220 (1st Cir. 1974) ....... 13

O'Malley v. United States, 285 F.2d 733 (6th Cir. 1961) |!
Powell v. Alabama, 287 U.S. 45 (1932) ...... 00.0000. 6
Ross v. Moffit, 417 U.S. 600 (1974)... 2... eee eee 23
Scott v. United States, 427 F.2d 609 (D.C. Cir. 1970) .. 9
Snead v. Smyth, 273 F.2d 838 (4th Cir. 1959) ......... 10

United States v. Blunk, 17 USCMA 158, 37 CMR 422
(OGDTD « o coccccccesecetceneennne 13

United States v. Currier, 405 F.2d 1039 (2nd Cir.), cert.
denied 395 U.S. 914 (1969) .... 0... cc eee eee ee 14

United States v. De Coster, 487 F.2d 1197 (D.C. Cir.
SGUED covccevcseeseseensssnenteee 9

United States v. DeCoster |11] ———-F.2d——., 20 Cr. L.
Rep. SGD GC. Civ. FIFE 2c ccccccccccneseeees 22

United States v. Durant, ——F.2d——, Slip Op. 635
(Me. 7-80GR, Bab Cis. GUD oo cccccncessuaeeenn 23

United States v. Evans, 18 USCMA 3, 39 CMR 3 (1968) | 3

United States v. Fessel, 531 F.2d 1275, 1278 (Sth Cir.
SS a 22

United States v. Hines, 470 F.2d 225 (3rd Cir.), cert.
denied 410 U.S. 968 (1972) .. 2... cc ccc cee eee 10

United States v. Hunter. 2 USCMA 601 26 CMR 381
a 12
1973) ..... ee ceecees 14

United States v. Stern. 519 F.2d $21 (9th Cir. 1975) ... 15

United States v. Taylor. et al. Slip Op. No. 76-1210,
1256 1264-66, 1288, pp. 2829-30 (2nd Cir., April

SS 21
United States v. Wight, 179 F.2d 376 (2nd Cir.), cert.
denied 338 U.S. 950 (1950) . 2.6. nees 14
United States v. Yanishevsky, SOO F.2d 1327 (2nd Cir.
EES SIL EPPO OTOP POLE TT TT TY 14
United States ex rel. Darcy v. Handy, 203 F.2d 407, 417
(3rd Cir. 1953) (em banc) .... 2... 6 ce cece 9
United States ex rel Maselli v. Reincke, 383 F.2d 129
EEE SEPP EP OTE LOTT TT TTT TTT TT TY 25
United States ex rel Feeley v. Ragan, 166 F.2d 976, 981
ST cn 206 cobb soccoeecocescccecceces 11
United States ex rel. Reis v. Wainwright. 52S F.2d 1269

CBee. OGTR) 0 oc ccc cc cccccccccccccccccccees 22

~~

United States ex rel. Walker v. Henderson. 492 F.2d
SL a a A re ae ae oe

United States ex rel. Williams v. Twomey, 510 F.2d
GOO, SESE CHG, BOGE occ cevcccccccccccces

West v. Louisiana, 478 F.2d 1026, 1033 (Sth Cir. 1973)
Williams v. Beto, 354 F.2d 698, 704 (Sth Cir. 1965)... .
STATE CASES

In Re Bousley, 130 Vt. 2%, 299, 292 A.2d 249, 252 ..
In re Cronin, ——— Vt. ——., 336 A. 2d 164, 168 (1975) .

People v. Bennett, 29 N.Y .2d 462, 466-67, 329 N.Y.S.
I Oe ree

People v. Labree, 34 N.Y .2d 257, 260-61, 387 N.Y.S.2d
SS Fe ee ee

State v. Clark, 19 Cr. L. Rep. 2558 (1976) ...........
FICTION

L. Carroll, Through the Looking Glass, Ch. 6 (1871) ..
COMMENTATORS

Bazelon, Defective Assistance of Counsel, 42 U. of
oo SF Se BR Rae ee

Burger, The Special Skills of Advocacy: Are Specialized
Training and Certification of Advocates Essential
to our System of Justice? 42 Ford. L.R. 227, 234
GUUUED 6 6 cvcdcccacdsuncyacocseenaddaets tebe

14

16

16

Bines, Remedying Ineffective Representation in
Criminal Cases: Departures From Habeas Corpus, _

99 Vo. LR. G7 (9GTDD 0.2 ence cccccccccccces 16
Finer. Ineffective Assistance of Counsel, 58 Corn. L.R. re
SEED « coccevceedsssseccccoccccoecoeses
Kaufman, Address at County Lawyers Dinner, -
N.Y.LJ. Dec. 7, 1973 p. 1... .. 6. cece eee ee eeee

Note, Effective Assistance of Counsel for the Indigent
Defendant, 78 Harv. L.R. 1434 (1965) ..........- 16

Stone. Ineffective Assistance of Counsel and Post
Conviction Relief in Criminal Cases: Changing
Standard and Practical Consequences, 7 Col.
Human Rights L. Rev. 427 (1975) ......-----++5+ 24

Waltz, Inadequacy of Trial Defense Representation as
a Ground for Post Conviction Relief in Criminal
Cases. 5S9N.W.U.L.R. 289 (1964) .......---655- 16

In THE

Supreme Court of the United States
OCTOBER TERM 1976
No.
ROBERT RICKENBACKER,
Petitioner,

THE WARDEN, AUBURN CORRECTIONAL
FACILITY AND THE PEOPLE
OF THE STATE OF NEW YORK,

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals for the Second
Circuit.

TO THE HONORABLE CHIEF JUSTICE OF
THE UNITED STATES AND THE ASSOCIATE
JUSTICES OF THE SUPREME COURT OF
THE UNITED STATES

Your petitioner, Robert Rickenbacker, prays that a writ
of certiorari issue to the United State Court of Appeals for
the Second Circuit to review its judgment entered on the
22nd day of December, 1976, rehearing en banc denied on
the fifth day of April, 1977, affirming the dismissal and
denial of a Writ of Habeas Corpus in the United States
District Court for the Eastern District of New York.

OPINIONS BELOW _ committed which district shall have been previously

ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses
against him; to have compulsory process for obtaining
witnesses in his favor, and to have the Assistance of
Counsel for his defence.

The judgment of the Court of Appeals was accompanied
by an opinion, not as yet officially recorded, (——F24d.—
. 1976) a copy of which is annexed hereto as Appendix A

The judgment of the District Court was accompanied by

an opinion, a copy of which is annexed hereto as Appendix
a. STATEMENT OF THE CASE

JURISDICTION

The Decision of the Court of A
December 22, 1976 and the we a ae ee bom
was denied on April 5, 1977. A copy of the order denying
the hearing en banc is annexed hereto as Appendix C.

This petition has been timely filed.

The jurisdiction of the Court is invoked
sassenn under 28 U.S.C.

QUESTIONS PRESENTED FOR REVIEW

Should the Court in light of McMann v. Richardson,
U.S. 759 (1970) and parte v. North Gunton 397 Us.
790 (1970) define the lower limits of competency of counsel
within the meaning of the Sixth Amendment and compel
the several circuits to adopt a uniform standard regarding a
lawyer's performance—a standard that is presently non-
existent, resulting in inevitable conflict in the circuits.

CONSTITUTIONAL PROVISION INVOLVED

Amendment 6

In all criminal prosecutions
| , the accused enjoy
to a speedy and public trial, by an eae 7
e State and district wherein the crime shall ime os

On July 30, 1975, three men entered a grocery store at
Nostrand and Albermarle Avenues in Brooklyn. The
owner, Sam Fichera, was serving customers. In the store
were Fichera’s cousin, Vito Petrancosta, and Petrancosta’s
son Michael. One of the three thugs, Zachary Morgan, was
armed. The three attempted to rob the store. In the course
of the robbery, Morgan shot and killed Vito Petrancosta.
The three then ran out of the store fleeing towards a
waiting car. Fichera, who was licensed to possess a weapon,
pursued them, firing two shots.

Patrolmen Thomas Walsh and Donald Scannapieco
were on radio motor patrol in the area at that time.
Hearing Fichera’s shots, they ran in that direction. They
saw three men running towards a parked car. One of them,
Zachary Morgan, entered the car and was apprehended by
Scannapieco together with the driver, one Curtis Austin.
The other two fled on foot and were pursued by Patrolman
Walsh in his police car. Walsh testified that one of the two
men, whom he later identified as Rickenbacker, tossed a
gun between two parked cars during flight. When the two
fleeing men ran in different directions Walsh pursued and
caught David Ferguson. The third man escaped.

At the police station, Morgan, Ferguson and Austin, or
one of them, apparently disclosed that Robert Ricken-
‘ acker was the man who had escaped.! Detective Robert

1. Nor "these three was called as a witness. All three had been conv icted
prior to i.» instant trial.

Lee

Marshall, who had been assigned the case, and after
speaking to Morgan, Ferguson and Austin at the police
Station, sought Rickenbacker at 63 Decatur Street in
Brooklyn. There he spoke to one Thomas Rickenbacker,2
and made a room-to-room search of the house. He sub-
sequently went to several other addresses in Brooklyn and
— searching for Rickenbacker, but was unable to find
im.

Rickenbacker was not located until March 11, 1971,
nine months after the robbery when he was purportedly
apprehended on unrelated charges, charges that are not
specified in the record. His first trial, at which Morgan and
Ferguson were co-defendants, ended in a hung jury solely
as to Rickenbacker.

At his second trial, both Fichera and Michael Peiran-
costa testified that only one of the robbers, identified as
Zachary Morgan, had a gun. Both Fichera and Petrancosta
identified Morgan and David Ferguson as participants in
the robbery. Neither could identify Rickenbacker. The two
patrolmen, Scannapieco and Walsh, identified Ricken-
backer. Scannapieco’s identification was based on two
glimpses, Walsh’s on possibly five during the chase.
Scannapieco and Walsh both testified that two of the three
men they saw running towards the parked car had guns,
although both Fichera and Petrancosta insisted that only
Morgan was armed.

At the trial Rickenbacker was represented by assigned
counsel.3 In cross-examining the state’s seven witnesses,

2. The trial judge struck the name of the person allegedly spoken to,
Thomas Rickenbacker, from the record, and instructed the jury to disregard
it. Shortly thereafter, Marshall testified that at another address he spoke to
one James Rickenbacker. That name was also ordered stricken, and the jury
again instructed to disregard it (T 78-79, 82-84). It is well-known that jurors,
like all human beings, cannot totally “strike” words from their memories
merely because they are instructed to do so. Neither Thomas Rickenbacker
nor James Rickenbacker was called as a witness.

3. Counsel had apparently been initially retained by Rickenbacker’s
family. However, during the time of trial he was appearing as assigned
counsel.

counsel asked a total of twenty-six questions.4 The defense
rested without presenting any case.

An appeal was taken to the Supreme Court of the State
of New York, Appellate Division, Second Department and
the judgment was affirmed. (No opinion). Leave to appeal
was denied by the Court of Appeals of the State of New
York on November 14, 1974. The petitioner is presently
serving an indeterminate sentence of twenty five years to
life in a New York State Correctional Facility.

REASONS FOR GRANTING THE WRIT

1. Confusion exists in the several circuits regarding the
minimal standards required of counsel to meet the Sixth
Amendment's demand of effective assistance. It is essential
that the Supreme Court of the United States define the
lower and acceptable limits below which assistance
becomes ineffective. Such a ruling would eliminate conflict
and eradicate the confusion.

CONFLICT IN THE CIRCUITS

The Sixth Amendment provides, in pertinent part, that
“In all criminal prosecutions, the accused shall enjoy the

4. Counsel asked seven questions of Mr. Fichera. The State objected to
two of these, and the objections were sustained. All seven questions related
to Mr. Fichera’s own gun, and to tests performed by the police on that gun.

Eight questions were asked of Patrolman Walsh. At least three were
repetitious of the district attorney's questions (i.e., Q. “Did | understand
you to say ... 7?" A. “Yes.”)

Counsel asked seven questions of Patrolman Scannapieco, five of which
were repetitious of direct testimony.

Marshall was asked four questions, three of which were a repetition of
direct.
No questions at all were asked of Michael Petrancosta, Patrolman Thomas
Moore (who had gone to the store after the robbery, and accompanied the
victim to King’s County Hospital, but was not involved in the chase) or Dr.
Milton Wald (the Med'cal Examiner).

right ...to have the Assistance of Counsel for his
defence." That right is guaranteed in state criminal trials
by the Fourteenth Amendment Due Process clause. Gideon
v. Wainwright, 372 U.S. 335 (1963), Argersinger v.
Hamlin, 407 U.S. 25 (1972). The Constitution is not
satisfied bythe proforma appearance of counsel, Powell v.
Alabama 287 U.S. 45 (1932). Rather it mandates that an
accused receive effective assistance of counsel. Avery vy.
Alabama, 308 U.S. 444 (1940).

What is effective assistance of counsel? Against what
Standard is any court to measure the performance of
counsel at the trial level? This Court has not yet definitively
spoken on the question.5 The circuits are in conflict.

The earliest case to establish a standard for measuring
the effectiveness of counsel is Diggs v. Welch, 148 F.2d 667
(D.C. Cir.), cert. den. 325 U.S. 889 (1945). The Diggs
court held that trial counsel would be considered effective
unless his performance were so inadequate as to turn the
proceedings into a sham, a farce, a mockery of justice. Five
Supreme Court cases were cited for this proposition (148
F.2d at 669, fn. 2). None of them supports it. Rather, each
stands for the proposition that where the proceedings have
been turned into a farce, for whatever reason, no conviction

5. In a related context the Court has held that pre-trial advice to an ac-
cused must be “within the range of competence demanded of attorneys in
criminal cases." McMann v. Richardson, 397 U.S. 759, 771 (1970). The
Court noted that counsel could not and should not be expected to predict
accurately future court decisions, but advised the courts “that if the right to
counsel guaranteed by the Constitution is to serve its purpose, defendants
cannot be left to the mercies of incompetent counsel, and . . _ judges should
Strive to maintain proper standards of performance by attorneys who are
representing defendants in criminal cases in their courts.” Jd. In the com -
panion case of Parker v. North Carolina, 397 U.S. 790 (1970), the Court held
that the advice rendered by counsel was also within the required range. It has
not further defined the lower limits of “competence.”

can stand.6 None suggests the proceedings must be
reduced to that level before relief will be granted.

The Diggs Court then offered what is best described as a
pragmatic rationale for its holding. It noted that “‘(i)n
many cases there is no written transcript and so (a habeas
petitioner or ‘jailhouse lawyer’ attacking a conviction) has a
clear field for the exercise of his imagination.” Id. at 670.
It surmised that convicts would, out of sheer boredom or
monotony, submit groundless petitions for federal habeas
relief based upon incompetency, thus inundating the
federal courts. Today, of course, virtually all criminal
proceedings are transcribed so that the pragmatic
justification no longer exists.

The District of Columbia Circuit reaffirmed the “farce,
sham, mockery” standard in Jones v. Huff, 152 F2d 14
(D.C. Cir. 1945) and subsequent cases. When the question
arose in other circuits they, in the absence of other
precedent, adopted the Diggs test without analyzing the
underlying rationale. Thus a form of precedential in-
breeding was instituted, with each circuit (except the
Fourth Circuit) rotely asserting the “farce, sham,
mockery” standard, merely citing Diggs and/or cases
which ultimately rely on Diggs.

Over the years, though, most of the circuits have come to
realize that the Diggs standard is on its face too low, that
an attorney's performance may well be ineffective without
falling to the level of a “farce”, that the constitutional
guarantee of effective assistance assures an accused

‘something more than a travesty, that the line must be

drawn somewhere above the level of the absurd.

6. The five cases cited are Moore v. Dempsey, 261 U.S. 8 (1923) (mob
violence), Powell v. Alabama, supra, (mob violence; no counsel appointed),
Mooney v. Holohan, 294 U.S. 103 (1935) (knowing use of perjured testimony
by prosecutor; writ not issued for failure to exhaust state remedies), Brown
v. Mississippi. 297 U.S. 278 (1936) (coerced confession), and Johnson v.
Zerbst, 304 U.S. 458 (1938) (no counsel at trial).

We demonstrate in the argument that courts have used
different words to describe what constitutes “effective”’
assistance of counsel. Some have broadened the definition
of ‘farce’, while continuing to pay lip service to the Diggs
test. Others speak of broadening the definition of “ef-
fective’. Some have attempted to devise “‘check lists” of
various things an attorney must do in order to be effective
within the meaning of the Sixth Amendment. Others have
said the attorney's performance must meet a “minimum
level’, or a “customary level’’, or the “prevailing ievel’’ of
competency.” Whatever words are chosen, the fact remains
that the courts are demanding a higher level of per-
formance than that imposed by Diggs and its progeny.

Only three circuits continue to apply the “farce, sham,
mockery” standard without modification. Each initially
adopted it without analysis, merely stating it and citing
cases. None has ever attempted to vindicate or support it
independently. The reason is obvious. The application of
the uncompromising “‘farce, sham, mockery’ test can no
longer be justified. Every circuit which has subjected that
standard to examination has modified it.

COURTS WHICH HAVE ABANDONED
THE “FARCE, SHAM, MOCKERY” TEST

The District of Columbia Circuit.

The circuit which gave birth to the “farce, sham,
mockery” standard abandoned it sub silentio in Bruce v.
United States, 379 F.2d 113 (D.C. Cir. 1967), where it
held:

“In earlier cases it was said that a claim based on
counsel's incompetence cannot prevail unless the

7. The term “minimum lev el’’ would appear to be ill-chosen. An analysis of
the cases using the phrase indicates that those courts actually demand a
performance which meets a prevailing or customary level of competency .

trial has been rendered a mockery and a farce.
These words are not to be taken literally, but
rather as a vivid description of the principle that
the accused has a heavy burden in showing
requisite unfairness.”’ Jd. at 116.

The circuit has since reaffirmed Bruce, in Scott v. United
States, 427 F.2d 609 (D.C. Cir. 1970), where it remarked:

“The ‘farce and mockery’ standard derives from
some older doctrine of the content of the due
process clause of the Fifth Amendment. What is
involved here is the Sixth Amendment. The Sixth
Amendment has overlapping but more stringent
standards than the Fifth Amendment as is clear
from other contexts. Compare, for example,
United States v. Wade, 388 U.S. 218 (1967) with
Stovall v. Denno, 388 U.S. 293 (1967). The ap-
propriate standard for ineffective counsel, set forth
in Bruce, supra, is whether gross incompetence
blotted out the essence of a substantial defense.”
Id. at 610.

In United States v. DeCoster, 487 F.2d 1197 (D.C. Cir.
1973), the court held:

“A defendant is entitled to the reasonably com-
petent assistance of an attorney acting as his
diligent, conscientious advocate.’’ Jd. at 1202
(Emphasis in original)

The Third Circuit.

The Third Circuit adopted the Diggs test in United
States ex rel. Darcy v. Handy, 203 F.2d 407, 417 (3rd Cir.
1953) (en banc), citing cases which rely, ultimately, on
Diggs. That standard was abandoned in 1970 when the
court held, again en banc:

“The standard of adequacy of legal services as in
other professions is the exercise of the customary

10

skill and knowledge which normally prevails at the
time and place.” Moore v. United States, 432 F.2d
730, 736 (3rd Cir. 1970) (en banc) (footnote
omitted)

The court noted the differing terms used by various circuits
to describe the standard against which counsel’s per-
formance is to be measured, and relied on McMann vy.
Richardson, supra, to support its own formulation. The
circuit has since reaffirmed Moore in United States v.
Hines, 470 F.2d 225 (3rd Cir.) cert. den. 410 U.S. 968
(1972), and Johnson v. Johnson, 18 Cr. L. Rep. 2559 (3rd
Cir. 1976) (applying Moore to cases arising in the state
courts).

The Fourth Circuit.

The Fourth Circuit is the only one to have adopted the
‘farce, sham, mockery”’ standard without explicitly relying
on Diggs or its progeny. In Snead v. Smyth, 273 F.2d 838
(4th Cir. 1959), it presented the test as if it were a basic
proposition for which no authority need be cited. And
indeed the Snead court cited no authority whatsoever.

The Fourth Circuit continues to pay lip service to the
standard. However, beginning with Coles v. Payton, 389
F.2d 224 (4th Cir. 1968), it has been compiling a kind of
‘check list’’ of professional obligations which counsel must
fulfill to provide constitutionally effective representation. A
defense attorney must, for example, confer with his client,
explain the elements of the charge to his client, ascertain
possible defenses, conduct apprer’is — »~stigations
(factual and legal), and allow himse- ~ ~* « «« .cct and
prepare. 389 F.2d at 226. Fulfillmer.. .° 1% gations
would obvicusly lift the quality of representation well into
the “prevailing level’’ category.

The Fifth Circuit.

In 1960, when first faced with the question of what
standard to apply, the Fifth Circuit held that the Sixth
Amendment required:

ineffective by hindsight,
likely to render and rendering reasonably effective
assistance."’ MacK enna v. Ellis, 280 F.2d 592, 599
(Sth Cir. 1960)

In subsequent cases the court appeared to retreat from
MacKenna, adopting the “farce, sham, mockery” ter-
minology and citing cases which rely (with the exception of
one Fourth Circuit case) on Diggs. Williams v. Beto, 354
F.2d 698, 704 (Sth Cir. 1965).

But in 1973 the court stated specifically that in
MacKenna it had rejected the Diggs test, and that
MacKenna is controlling. West v. Louisiana, 478 F.2d
1026, 1033 (Sth Cir. 1973). It is clear from the discussion in
West that the MacKenna standard contemplates a per-
formance analogous to the Third Circuit's “prevailing
level” standard.

The Sixth Circuit.

The Sixth Circuit initially adopted the Diggs test in
O'Malley v. United States, 285 F.2d 733 (6th Cir. 1961). In
doing so, it too relied on Diggs and its progeny. /d. at 734.
It rejected the standard in Beasley v. United States, 491
F.2d 687 (6th Cir. 1974), with an exhaustive analysis of the
Supreme Court cases related to the Sixth Amendment right
te effective counsel and an authoritative discussion of
Diggs. Bruce, and West, supra. The Beasley court's
examination of McMann v. Richardson indicates that the
Sixth Circuit also contemplates a prevailing level standard.
491 F.2d at 771.

The Seventh Circuit.

The Seventh Circuit was one of the earliest to adopt the
“farce, sham, mockery” test, relying specifically on Diggs.
United States ex rel. Feeley v. Ragan, 166 F.2d 976, 961
(7th Cir. 1948). Last year it “broadened” that standard,

Stating:

12

‘The criminal defendant, whether represented by
his chosen counsel, or a public agency, or a court-
appointed lawyer, has the constitutional right to an
advocate whose performance meets a minimum
professional standard . . . We now hold that the
Constitution guarantees a criminal defendant legal
assistance which meets a minimum standard of
professional representation.’ United States ex rel.
Williams v. Twomey, 510 F.2d 634, 640-41 (7th
Cir. 1975)

The Eighth Circuit

The Eighth Circuit apparently had no occasion to rule on
the question of what standard to apply until 1967. It then
adopted the “farce, sham, mockery”’ test, without analysis.

rr xe Cardarella v. United States, 37S F.2d 222, 230

and
Johnson v. ee ee ee

The military courts have abandoned the “farce, sham,
mockery” test. Indeed, they were among the first to do so.
The Court of Military Appeals had adopted it in United
States v. Hunter, 2 USCMA 601, 26 CMR 381 (1958), the
court cited Hunter for the farce standard, but immediately
went on to say:

8 Cardarella opinion was reieased one month prior to Bruce.

13

“By that broad language we did not intend to be

understood as saying that the highest degree cf

professional competency is not to be expected of an

appointed defense counsel." 9 USCMA at 604.
The Horne court reversed the conviction because of
counsel's inactivity at trial and his failure to present an
entrapment defense.

In United States v. Blunk, 17 USCMA 158, 37 CMR 422
(1967), it was noted that “[t}his Court has consistently
"iene
. . . Of an appointed defense counsel’ (citing Horne]”’, and
went on to indicate that the same standard applied to
retained counsel. 17 USCMA at 160. In reversing a con-
viction for incompetency of counsel in United States v.
Evans, 18 USCMA 3, 39 CMR 3 (1968), the court
caustically remarked, ‘‘defense counsel did not fully un-
derstand that he is not amicus for the court-martial, but an
advocate for the accused", 18 USCMA at 4, citing Blunk
and Horne.

A CIRCUIT IN TRANSITION

The First Circuit, like the Eighth, was late in adopting
the Diggs standard. Bottiglia v. United States, 431 F.2d

dependent analysis of the standard, merely relying on cases
from the District of Columbia, Second, Ninth and Tenth

Circuits. Bruce, Scott, and MacK enna are not mentioned,
although Bottigiia relies on an older District of Columbia
ee ee = ea SD eIgEREEED ty Drtae ond
at 931.

cuit's MacK enna- West formula. In Moran v. Hogan, 494
F.2d 1220 (ist Cir. 1974), the court stated: “The instant

‘4

4. And in Dunker v. Vinzant. SOS F.2d S03 (ist Cir. 1974),
the court noted that trial counsel's performance had passed

CIRCUITS WHICH CONTINUE TO APPLY
THE “FARCE, SHAM, MOCKERY” TEST

The Second Circuit

This Circuit was one of the first to adopt the Diggs
standard, United States v. Wight, 179 F.2d 376 (2nd Cir.
1949), cert. den. 338 U.S. 950 (1950), gave no reasons of its
own for adopting the test. It merely relied on Diggs, its
progeny in the District of Columbia Circuit, and Feeley in
the Seventh Circuit. Numerous cases in this circuit have
continued to apply that standard, e.g., United States v.
Currier, 40S F.2d 1039 (2nd Cir.), cert. den. 395 U.S. 914
(1969) (relying on Wight), United States v. Sanchez, 483
F.2d 1052 (2nd Cir. 1973) (relying on Currier
Wight), United States ex rel. Walker vy. Henderson, 492
F.2d 1311 (2nd Cir. 1974) (relying on Wight and its
progeny).

Most recently, in United States v. Yanishefsky, SOO F.2d
1327 (2nd Cir. 1974), the Second Circuit reiterated its
formulation of the Diggs test, i.e., whether the
representation was so woefully inadequate as to shock the
conscience. It noted that it had been invited to adopt the
Sixth Circuit's “minimum level” approach, but declined to
do so. SOO F.2d at 1333, fn. 2. The Yanishefky court did
not explain why it declined the invitation. Nor did it offer

The “farce, sham, mockery"’ standard was by
the Ninth Circuit in Latimer y. Cranor, 214 F.2d 926 (9th

e-g-. United States v. Stern, 519 F.2d S21 (9th Cir. 1975),
It has never attempted to justify the test qua test. It has

adopting the Digg
301 F.2d 102 (10th Cir. 1962), the Tenth Circuit relied on

9. In Brubaker v. Dickson. 310 F.2d 30 (9h Cir. 1962), the court cited
MacKenna with approval. This appears to be an aberration. however

16

attacked the standard as “itself a mockery of the sixth
amendment”’. Baze.on, Defective Assistance of Counsel, 42
U of Cinn. L. R. 1, 28 (1973). See Bines, Remedying
Ineffective Representation in Criminal Cases: Departures
from Habeas Corpus, 59 Va. L.R. 927 (1973); Finer,
Ineffective Assistance of Counsel, 58 Corn. L.R. 1077
(1973) (suggesting the proper standard is “whether counsel
exhibited the normai and customary degree of skill
possessed by attorneys who are fairly skilled in the criminal
law and who have a fair amount of experience at the
criminal bar." 1d. at 1080, emphasis in original); Waltz,
Inadequacy of Trial Defense Representation as a Ground
for Post-Conviction Relief in Criminal Cases, 59
N.W.U.L.R. 289 (1964); Note, Effective Assistance of
Counsel for the Indigent Defendant, 78 Harv. L.R. 1434
(1965). Counsel has been unable to find any critics
upholding the “farce, sham, mockery"’ test on its merits,

THE STATE COURTS IN THE SECOND CIRCUIT

Connecticut

On March 2, 1976, the Connecticut Supreme Court
abandoned the “farce, sham, mockery”’ test. State v.
Clark, 18 Cr. L.Rep. 2558. In its place, the court adopted a
standard similar to that proposed by Finer, supra, holding
that the defense attorney's performance must be “within
the range of competence displayed by lawyers with ordinary
training and skill in the criminal law.” Jd. at 2559.

New York

New York, like the Fourth Circuit, continues to pay lip
service to the “farce, sham, mockery” standard. However,
it too has begun to “spell out” the affirmative duties of
counsel, and in fact relies on Coles v. Payton, supra, in
doing so. People v. Bennett, 29 N.Y.2d 462, 466-67, 329
N.Y.S.2d 801, 804 (1972); People v. Labree, 34 N.Y. 2d
257, 260-61, 357 N.Y.S.2d 412, 414-15 (1974).

17

Vermont

Vermont, while using the “farce, sham, mockery’’
terminology, declares its standard thus:

“We have, therefore, while expressing the lesser
standard of ‘mockery of justice’, at the same time
carefully reviewed the complained-of conduct to
test its conformity with the standards of reasonable
competence, thus justifying our own comment that
there is ‘neither uniformity of discussion nor
certainty’ on the point in question. [/n re Bousley,
130 Vt. 296] at 299, 292 A.2d [249] at 252 [(1972)].
In re Cronin, Vt. , 33% A.2d 164, 168
(1975)

The Vermont Supreme Court went on to cite MacK enna,
supra, and the Third Circuit's “prevailing level’’ standard
as expressing “the modern weight of authority, and the
better view,”” and noted that the United States Supreme
Court appeared to have endorsed that standard in Mc-
Mann, supra. (336 A.2d at 168]

The Vermont Court in Cronin also dealt with the oft-
asserted argument that a particular attorney had in the
past demonstrated skill in criminal defense:

“As a matter of common knowledge, the most
competent counsel may, from time to time, deviate
seriously from standards of reasonable com-
petence, and it is no complete answer to say to a
respondent that his attorney has demonstrated
great proficiency in other cases. His concern is his
own case; his right is reasonable competence in this
case.” 336 A.2d at 168.

Thus, all three states within this Circuit have moved
beyond the unmodified ‘‘farce, sham, mockery’’ standard.

GIDEON’S TRUMPET HAS SOUNDED

“The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by
counsel.” Powell v. Alabama, 287 U.S. 45, 68-69. The

18

right to be heard likewise would be of little avail if it did not
include the right to be heard by effective and competent
counsel. Effective assistance of counsel is central to our
adversary system. The right to notice, confrontation,
compulsory process would stand naked and alone if ef-
fective assistance simply meant a warm body making
sounds. An effective attorney breathes life into a trial. His
special skill gives meaning to the Sixth Amendment and
without him the Sixth Amendment becomes a whisper.

The dead hand of the past governs us from the grave. An
irrational standard, “farce, sham and mockery of justice”
exists in several circuits who stubbornly refuse to join the
others in the adoption of a more rational and reasonable
definition of an attorney's performance and duties. There
are those who also would allow brain surgery to be per-
formed by cretins.

The United States Court of Appeals for the Second
Circuit teeters on the ledge of change. Yet it refuses to take
the plunge. The Second Circuit has a respected reputation.
Its decisions have been cited with approval by many courts.
Its reluctance in the area of effective assistance of counsel,
is difficult to understand, particularly so when the rule it
embraces so ardently has no rational basis, if it ever had
one.

Concern has been expressed in all areas of the profession
about the quality of legal representation found in our
courts. Chief Justice Burger assumes “as a working
hypothesis that from one-third to one half of the lawyers
who appear in the serious cases are not really qualified to
render fully adequate representation.’ Burger, The Special
Skills of Advocacy: Are Specialized Training and Cer-
tification of Advocates Essential to Our System of Justice?
42 Ford. L.R. 227, 234 (1973) The Second Circuit has led a
movement in an attempt to improve the quality of legal
assistance. See Kaufman, Address at County Lawyers
Dinner, N.Y.L.J. December 7, 1973, p. 1. It is mind-

19

boggling for the Second Circuit on the one hand to seek to
improve legal services while on the other it refuses to
protect the criminal defendant from the tender mercies of
unqualified trial lawyers unless the performance sinks to
the level of a farce, a sham and a conscience shocking
mockery.

What constitutes due process changes with the times.
The beauty of the common law is that it recognizes and
accommodates such evolving concepts. It does not become
a slave to precedent and Courts cannot abdicate their
duties—which is their glory—to re-examine stale holdings
and create new ones which recognize present human
conditions.

The examination when it is claimed that counsel's
performance was incompetent or ineffective, demands a
close scrutiny of the total picture. Individual
miscalculations, “‘strategic decisions” when taken alone
might often be characterized as human error. However an
examination of the Rickenbacker trial record finds error
after error, miscalculation after miscalculation followed by
“strategic error after strategic error.” The opinions in
Rickenbacker, majority and dissent, agree that counsel's
performance did not approach “the farce, sham and
mockery’’ standard with an additional observation by the
majority that counsel's performance did not fail by any
standard. To arrive at this conclusion the majority created
a peculiar balance pan in which a handful of pluses in the
abstract will outweigh a plethora of indicia of in-
competence. Thus trial counsel is twice complimented
(Appendix A 9a-10a, 11a) for preventing the introduction
of prior convictions—the exclusion of which is
virtually automatic in New York State. He gained another
plus for arguing identification, although the majority
damns him with faint praise because it cannot say that the
argument was effective or that the record was sufficiently
developed for effective argument. Although counse! ob-

jected to some of the prosecutor’s arguments during
summation, the quoted comment was allowed to slip by—a
comment that should have commanded reversal upon
direct appeal.
“You know, and you will be told in no uncertain
terms that the verdict must be unanimous, and if
one juror is fooled, the People have lost the case
and I don’t mean like Baltimore losing to Pitt-
sburg. We've lost it on behalf of the People of the
State of New York, to bring a defendant to justice
whom the People feels merits justice in the form of

a guilty verdict.” (T170)
Such thin gruel, excerpted at random cannot be sufficient
to overcome the heavy evidence that established in-

competence.

Judge Oakes, in agreement with the majority that the
petitioner's conduct while not approaching a farce, sham
and a mockery characterized counsel’s efforts as
“hopelessly inept.” (Appendix A,p.12a) The ineptness
was documented by J udge Oakes in language most acid:

“In my view it was unreasonably incompetent
for appellant's counsel not to drive home the fact
that neither Fichera, the store owner, nor
Petrancosta, the victim's son, could identify the
defendant and not to query Officer Walsh

‘ regarding the weapon he said he had found, the
absence of fingerprints on it, and his opportunities
for observation of the third man during the chase.
Counsel did not even object to the introduction of
the weapon. These exatnples could be multiplied; I
need not belabor the point, as I think footnotes 1-4
of the majority opinion are almost self-compelling.
When these are considered along with the facially
absurd proposition advanced by counsel in
summation, that perhaps it was a shot from

21

Fichera’s own weapon that killed Vi

Pic Vito Petrancost

it is a wond j i ™
pine er that the jury took as long as it did to

The dissent then recommended that

“Gideon’s Trumpet has long since sound
should join the several other circuits i Foon
rejected Diggs as no longer having precedential
value and declare it a dead letter, bringing the law
of our circuit into line with the rule of, e.g.. United
States v. DeCoster, 487 F.2d 1197 (DC. Cir
1973), that, under the Sixth Amendment “a
defendant is entitled to the reasonably competent
assistance of an attorney acting as his diligent
conscientious advocate,” id. at 1202 (emphasis
omitted). See also Finer, Ineffective Assistance of
Counsel, S8 Cornell L. Rev. 1077 (1973): Waltz
Inadequacy of Trial Defense Representation as s
Ground for Post-Conviction Relief in Criminal
Cases, 59 Nw. U. L. Rev. 289 (1964); Note Ef-
Jective Assistance of Counsel for the Indi t
Defendant, 78 Harv. L. Rev. 1434 (1965).” =

See also United States v. Taylor et al. No. 76-1210. 1256

1264-66, 1288. Sli
7n. Slip op. pp. 2829-30 (2d Cir. Apri. 13,

An example of tri si i
PF ccc ple o 7 counsel's inexcusable ineptness is his
The majority opinion overlooks thi
this and the decision i

Hardy v. United States, 375 U.S. 278 (1964). There bo
a federal defendant desired to prosecute an appeal

from his conviction, but his appointed trial counsel
had
tha snawn- The appeal therefore had to be perfected with
ras of a new attorney. Under the rules and practices
S eeseen defendant could not obtain more than a
= trial transcript. Only those portions of the record in
error allegedly occurred would be provided. Any

22

allegation of error necessarily was advanced by the accused
or his trial counsel, since appellate counsel was a stranger
to the trial.

On certiorari, the Supreme Court construed the per-
tinent statutes as requiring the government to furnish a
complete transcript, because otherwise counsel s duty
cannot be discharged.” 375 U.S. at 282; see also id. at 280.

ai ' ‘ority’s finding of
It is impossible to harmonize the majority's fin
competent counsel under any standard 10 (Appendix A 9a-

10. The judges of most sister circuits might not care to be painted with ~
ipse dixit of Judge Smith's constitutional brush. In the unlikely event _
the District of Columbia Circuit would tolerate trial counsel's incred
theory of the case, it would undoubtedly remand for an evidentiary hearing
to determine whether the sudden abandonment of the intent to a
defense witnesses (Slip 1069) reflected considered strategy or our -
failure to prepare fer trial. Cf. United States v. DeCoster |I1}, _— F.-

20 Cr.L. 2080 (D.C. Cir. 1976).

Tie Third and Fourth Circuits would undoubtedly grant relief upon fin-
ding that trial counsel had breached his duty to read the mistrial a,

ration for the retrial. Cf, Moore v. United States, 432 F.2d 730 (3d Cir.

1970) (en banc); Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968).

The Fifth Circuit would not iikely have found that trial counsel =
“rendering reasonably effective assistance,” United States v. Fessel, aa
F.2d 1275, 1278 (Sth Cir. 1976); especially when that court applies a =
stringent standard im cases of assigned, rather than retained, —. 4
U.S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (Sth Cir. 1976). The Sixt
Circuit , as J udge Smith observes, follows the same standard. Slip 1071

The Seventh and Eight Circuits are aligned with the Third oe
apply ing variants of the civil malpractice standard. See cases cited at Slip

ht
he fortuitous intervention of time and place the present case mig
ut i cen—chat circuit has applied the Fifth Circuit's > ee oe
Dickson, 310 F.2d 30 (%h Cir. 1962), citing McKenna v. Ellis. 280 F.2d
(Sth Cir. 1960). sas 7
It seems more than likely that the First Circuit would © accept

present appeal as the long-desired vehicle for the “farce, sham.
mockery -of-justice” standard. See Dunker v. Vinzant. 505 F.2d 503 (ist Cir.
1974): Moran v. Hogan, 494 F.2d 1220 (ist Cir. 1974); of. Karger ——
States, 388 F.Supp. 595 (D. Mass. 1975) (“reasonably diligent con-

scientious” standard applied).

23

10a) with the Supreme Court’s recognition in Hardy that
effective representation presupposes familiarity with the
whole case. Surely if meaningful appellate advocacy
necessarily entails familiarity with the whole trial record,
meaningful trial advocacy necessarily entails familiarity
with the record of a prior mistrial.!1

Appellant’s trial counsel had no familiarity with the
record of the mistrial. This is proven by his trial conduct.
He could not rationally have disputed the corpus delecti,
and all but conceded the questionable identification of his
client, unless he was oblivious to the events at the prior
trial. The first jury hung because the witnesses to the crime
could identify the other co-defendants, but not appellant.
At the second trial, none were cross-examined to develop
their non-recognition of the accused as a perpetrator. The
first jury heard Officer Walsh base his identification of
appellant on glimpses gained during a few seconds of
chase. The second jury never learned that seconds has been
converted into minutes—because trial counsel forfeited the
opportunity to impeach by prior inconsistent statements.
This was no considered trial strategy; this was inexcusable
ignorance, utter lack of preparation.

Surely if the State had withheld the mistrial transcript,
this Court would invalidate appellant’s conviction. C/-
Hardy v. United States, supra; United States v. Durant, —
—F.2d——, Slip 635 (No. 76-1198, 2d Cir. 1976) (refusal
to provide funds for defense to hire expert; statutory
construction). In the wake of Griffin v. Illinois, 351 U.S. 12
(1956), and its progeny, it is beyond dispute that the State
could not constitutionally handcuff appellant by
withholding the mistrial transcript. But appointed trial

11. The force of this argument is augmented by the holding in Ross v.
Moffit, 417 U.S. 600 (1974). There trial counsel is deemed much more im-
portant than appellate counsel. The former is both a sword and a shield.
sparring with the benefit of the presumption of innocence; the latter is but a
sword, contest ing the manner in which guilt was est ablished.

24

counsel, the panel holds, is free to manacle himself by
ignoring that transcript. How easily the Court forgets that
“defendant, and not his lawyer or the State, will bear the
personal consequences of a conviction.” Faretta v.
California, 422 U.S. 806, 834 (1975).12

The “farce, sham, mockery of justice’ criterion is
deserving of its own short chapter in the history of con-
stitutional jurisprudence. From its ill-considered first
appearance in Diggs v. Welch, 148 F.2d 667 (D.C. Cir.),
cert. denied, 325 U.S. 889 (1945), much like Topsy it “just
growed.”’ It was adopted by every circuit and the military
judiciary, although some had discarded it before the later
arrivals discovered it.

As Judge Oakes points out, “Diggs simply cannot
withstand analysis.” (Appendix A-12a). No court that has
attempted an analysis has adhered to the Viggs standard.
No commentator has attempted to justify its continued
application. See Stone, Ineffective Assistance of Counsel
and Post-Conviction Relief in Criminal Cases: Changing
Standards and Practical Consequences, 7 Col. Human
Rights L. Rev. 427 (1975), for the most recent survey of the
case law and literature.

In reality, the application of the Diggs doctrine in this
Circuit has produced a singular result. Except where

12.1n reality, the Second Circuit seems to have chosen to humiliate trial
counsel for his indecent Second Circuit performance, by publishing notice to
that effect. To that extent, the panel has disproved the substance of the
quotation from Faretta.

It is surely a Court's preogative to expose deserving members of the bar to
scorn. But it is a bit discomfitting when this is done without notice and an
opportunity to be heard. It is even more discomfitting to observe the Court
pillory counsel for his failure to protect appellant's interests. when the Court
refuses to extend its protection to the same interests. Appellant finds slight
solace and much cause for bitterness in the majority's determination to
forfeit his freedom while ridiculing his trial counsel. It is as though Humpty
Dumpty controlled the meaning of effective representation. See L. Carroll,
Through the Looking Glass ch. 6 (1871).

matters dehors the record demonstrate a strong probability
that counsel's strategic decisions “ ‘pertained only to his
own considerations’ * U.S. ex rel. Maselli v. Reincke, 383
F.2d 129 (1967) or those of another client, counsel's un-
complaining presence at trial is invariably sufficient to
defeat an assertion of ineffective assistance. The Diggs
formula is reminiscent of the Emperor's new clothes; the
rest of the world knows the truth of the matter. It is long
since time to abandon such a shameless conceit, and
breathe new life into the sixth amendment’s promise.

CONCLUSION

THE PETITION FOR CERTIORARI SHOULD
BE GRANTED AND THE DENIAL AND
DISMISSAL OF THE WRIT OF HABEAS
CORPUS REVERSED.

Respectfully submitted,
AARON J. JAFFE
ALBERT J. KRIEGER

Of Counsel:
AARON J]. JAFFE
FREDERIC GROSS

APPENDIX “A”

OPINION OF THE UNITED STATES
COURT OF APPEALS FOR
THE SECOND CIRCUIT

UNITED STATES COURT OF APPEALS
For rue Secoxp Ciecurr

No. 39—September Term, 1976.
(Argued September 14,1976 Decided December 22, 1976.)
Docket No. 76-2036

Rosget Rickewsacxer,
Relator- Appellant,

v.

Tae Warvex, Avsvaw CorrectiowaL Facmury, and
Tae Peorte or rae Stare or New Yorx,

Respondents- Appellees.

Before:
Smrrn, Oaxes and Mesxu,
Circuit Judges.

Appeal from denial of petition for a writ of habeas
corpus by the United States District Court for the Eastern
District of New York, Thomas C. Platt, Jr., Judge. Appel-
lant’s petition is based on a claim that his counsel at trial
for murder was so incompetent as to violate his sixth
amendment rights.

Affirmed.

Aanow J. Jarrz, New York, N.Y. (Molly Col-
burn, Law Student, on the brief), for Appel-
lant.

Lau» Z. Comex, Assistant Attorney General
(Louis J. Lefkowitz, Attorney General of
the State of New York, Samuel A. Hirsho-
witz, First Assistant Attorney General, of
Counsel), for Appellees.

Surrn, Circwit Judge:

Robert Rickenbacker appeals from the denial of his
petition for a writ of habeas corpus by the United States
District Court for the Eastern District of New York,
Thomas C. Platt, Jr., Judge. On appeal Rickenbacker’s
sole claim is that his counsel at his trial for murder was so
incompetent as to violate his sixth amendment rights. We
find no error and affirm the denial of his petition.

L

About 6:30 p.m. on July 30, 1970 three men entered a
grocery store in Brooklyn. During the ensuing robbery a
man helping the store owner was killed. Two nearby New
York City patrolmen, Thomas Walsh and Donald Scan-
napieco, heard shots and went toward the store. They saw
three men running in the direction of a parked gypsy taxi
containing a fourth man. Scannapieco arrested one of the
three robbers and the man in the taxi. Walsh chased the
other two men through the streets and a store, first in his
patrol car and then on foot. He captured one robber, and
the other one escaped. The police were told that the
escapee was Rickenbacker and that he lived at 63 Decatur
Street in Brooklyn. Police went to that address and were
unable to locate Rickenbacker, despite a search of the
neighborhood. About eight months later, on March 11,
1971, Detective Robert Marshall, who was in charge of the
investigation, saw appellant in the police station while he

was in custody for another unrelated offense. Marshall
asked him his name and address. When he responded
Robert Rickenbacker, 63 Decatur Street, he was arrested.

The driver of the parked car pleaded guilty to a lesser
offense during the first trial in May, 1971. While the jury
could not agree on a verdict as to Rickenbacker, it found
the other two men guilty of murder. At Rickenbacker’s
second trial in October, 1971 he was represented by Joseph
Lombardo, another court-appointed attorney. At the
second trial, in New York Supreme Court (Kings County),
the jury deliberated less than two hours and found him
guilty of murder. He was sentenced to 25 years to life
imprisonment and is currently confined in Auburn Cor-
rectional Facility.

His conviction was affirmed without opinion by the
Appellate Division, Second Department, and leave to
appeal to the New York Court of Appeals was denied on
November 14, 1974. He then filed a petition for a writ of
habeas corpus, which was denied by Judge Platt on
February 24, 1976.

IL.

Rickenbacker argues that his attorney’s incompetence is
shown by (1) his failure to make an opening statement,
(2) his failure to object to the introduction of a gun, (3)
his failure to object to portions of the charge to the jury,
(4) his inadequate cross-examination, (5) his ineffective
closing argument, and (6) his failure to object to portions
of the government’s closing argument. While we find no
merit in the first three claims, the last three raise trouble-
some issues.

The testimony at the trial took some two hours to
present. The government presented seven witnesses, and
Rickenbacker presented none.

4a

Sam Fichera, the owner of the store, testified and
described the robbery. He said he was able to identify
only two of the robbers, Morgan and Ferguson, and that
Morgan had had a gun. On cross-examination he answered
nine questions about the gun he owned and which he had
fired at the robbers while pursuing them.'

Michael Petrancosta, who was helping Fichera at the
time of the robbery and who is the son of the victim, testi-
fied and described the robbery. He said he was able to
identify one robber, Morgan, and that Morgan had had a
gun. There was no cross-examination.

! The entire cross-examination of Fichera was:
Q. Did you say you own a 38 Smith and Wesson? A. Yes.
Q. After this incident that you've testified to, was that weapon
ever examined ballistically by the Police Department? A. They did.
Somebody that came at—the Police Department checked it out.
Tue Court: Did someove examine it, yes or no?
Tue Wirwess: Yes, at the Police Department.

Q. By examining it, did they fire the gun? A. I don't know.
Ma. Scuuier: Objection, your Honor.
Tue Court: Objection sustained.

(). What d'd you see them dof

AI
don't

Q. How long did they bave the gun? A. What's that?

Q. long did they have the gun? A. Not long, about half an
hour after I was being questioned at the police station.

Q
Tae Court: (int'g) They gave the gun back to you?
Tue Wirvess: Right.
Q. They gave the gun back to yout A. Yes.
Q. Did hear the gun being fired at any time!

Mr. Scuuige: Objection, your Honor.

Tue Covet: You heard the gun fired when you fired it? You
way you fired two shots?
mpc: I don't mean that, your Honor. While the

5a

Patrolman Thomas Moore testified that he saw the vic-
tim after the robbery and that he was dead. There was no
cross-examination.

Patrolman Walsh testified and said he saw three men
running toward the taxi and that two, Morgan and Ricken-
backer, were carrying guns. He described the chase and
identified Rickenbacker as the person who had eluded him.
He said that during the chase Rickenbacker threw a gun
between the two parked cars. The gun was later retrieved
and was introduced in evidence. On cross-examination
Walsh answered nine questions and said that during the
chase, which lasted three or four minutes, the robbers were
running fast and that he had turned possibly five corners.’

Patrolman Scannapieco testified that he saw three men
run toward the taxi and that two, Morgan and Ricken-
backer, were carrying guns. He said that Rickenbacker ran

2 The entire cross-examination of Walsh was:
Q. Officer, during the time that you say you were chasing these
two men, st any time were they walking or were they always running?
A. Always running.
Q. So, in answer to Mr. Schmier's question, when you said it wax
& chase, it was, in effect, a chase, they were running and you were
chasing; is that correct! A. Yes, sir.

A. They were running fast.

Q They were running fast. Did I understand you to testify that
at one point you got into your car after you had seen the two men
running away and turned the corner to chase them; is thai correct?
A. Yes, sir.

Q Now, did you turn @ corner more than once while you were
chasing them? A. Yes.

the initial time I saw them until I apprehended Ferguson
Q Yes, sir. A. Three or four minutes, possibly.
Q. That would be your best estimate; is that correct? A. Yes,

Ge

within 20 feet of him and that he saw his face. He then
identified Rickenbacker. On cross-examination he answered
seven questions and said all three robbers were male
Negroes.’

Detective Marshall testified that he searched 63 Decatur
Street and other places in the neighborhood for about 4
month and was unable to find Rickenbacker and that when
he was arrested on March 11 Rickenbacker gave 63 Decatur
Street as his home address. On cross-examination he an-
swered four questions and said that the first time he had
ever seen Rickenbacker was o2 March 11 at the Brooklyn
police station.*

The identification testimony concerning Rickenbacker
was essentially the same as in the first trial, in which the
jury failed to agree. In the second trial the state for the
first time brought in the evidence of Rickenbacker’s ab-
sence from his usual haunts on a theory of flight to avoid
_ prosecution. Lombardo succeeded in keeping out evidence

3 The entire cross-examination of Seannapieco was:
Q, Officer, these three men that you say you first saw running in
your direction, were they all the same color? A. Color, sir?
Q. Yes, were they all black? A. All male Negroes.
Q. All male Negroes. When you first saw them, were they running
im your direction? A. Yes, sir.
Q, And then the other two turned and ran back away from you,
is that your testimony? A. Which other two, sir?
Q. The two that did not get into the car. A. Yes, sir, they turned.
Q. They turned and ran; is that correct? A. Yes, sir.
Q. And your partner then gave chase? A. Correct, sir.
Mr. Lomparvo: No further questions.

4 The entire cross-examination of Marshall was:
Q, Officer, did I understand you to say that when you first saw the
defendant, you saw him at a police station? A. Yes, I did.
Q. When was that? A. March 11th of this year.
Q. In Brooklyn? A. Sixty-seventh Precinct in Snyder Avenue.
Q. Do you know whether or not he had been arrested in Brooklyn!
A. Yes, sir.

Me. Lomparpo: No further questions.

Ta

the state sought to adduce that Rickenbacker had failed
to make his weekly report to his parole officer during the
eight months between the holdup and his arrest.

Dr. Wald, the medical examiner, testified that the victim
died from a gunshot wound. There was no cross-examina-
tion.

At the close of the state’s case Rickenbacker’s attorney
told the court that Rickenbacker wanted to call some wit-
nesses. After some discussion between Rickenbacker and
his attorney, the defense decided not to call any witnesses.

Rickenbacker’s attorney gave a brief (13 double-spaced
typed pages) summation in which he stressed the failure
of the state to introduce any fingerprints from the gun
Rickenbacker allegedly threw between the two parked cars,
the failure of Fichera and Petrancosta to identify Ricken-
backer, the circumstances under which Walsh and Scanna-
pieco saw the robber during the chase, the meager efforts
the police made to find Rickenbacker, and the fact that
Rickenbacker was later found in Brooklyn.

The state’s closing argument emphasized Rickenbacker’s
flight from his home and the reliability of the identification
by Walsh and Scannapieco. During his argument the
prosecutor said, without objection, “if one juror is fooled,
the People have lost the case and I don’t mean lose like
Baltimore losing to Pittsburgh. We've lost on behalf of
the People of the State of New York, to bring a defendant
to justice whom the People fee] merits justice in the form
of a guilty verdict.”

iil.

Rickenbacker concedes that in this circuit the standard
for inadequate counsel was enunciated in United States
v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied,
338 U.S. 950 (1950). “[U]nless the purported representa-

tion by counsel was such as to make the trial a farce and
a mockery of justice, mere allegations of incompetency or
inefficiency of counsel will not ordinarily suffice as grounds
for the issuance of a writ of habeas corpus.... A lack of
effective assistance of counsel must be of such a kind as
to shock the conscience of the Court and make the pro-
ceedings a farce and mockery of justice.” This court has
reaffirmed this standard numerous times in recent years.
Lunz v. Henderson, 533 F.2d 1322, 1327 (2d Cir. 1976);
United States v. Yanishefsky, 500 F.2d 1327, 1333 (2d Cir.
1974); United States ex rel. Walker v. Henderson, 492
F.2d 1311, 1312 (2d Cir.), cert. denied, 417 U.S. 972 (1974);
United States v. Sanchez, 483 F.2d 1052 (2d Cir. 1973),
cert. denied, 415 U.S. 991 (1974); United States ex rel.
Marcelin v. Mancusi, 462 F.2d 36, 42 (2d Cir. 1972), cert.
denied, 410 U.S. 917 (1973); United States ex rel. Scott
v. Mancusi, 429 F.2d 104, 109 (2d Cir.), cert. denied, 402
U.S. 909 (1971); United States v. Katz, 425 F.2d 928,
930-31 (2d Cir. 1970).

We agree with Judge Platt that by the Wight standard
Rickenbacker’s attorney was not so incompetent as to war-
rant reversing Rickenbacker’s conviction.

Wight is based on the due process clause of the fifth
amendment and the assistance of counsel clause of the
sixth amendment. Gideon v. Waimwright, 372 U.S. 335
(1963) and its progeny rest on the sixth and fourteenth
amendments. Scott v. United States, 427 F.2d 609, 610
(D.C. Cir. 1970) (per curiam).

Rickenbacker invites this court to follow other courts
in rejecting the “farce and mockery” standard. The Dis-
trict of Columbia Circuit, which originated the “farce and
mockery” standard in Diggs v. Welch, 148 F.2d 667 (D.C.
Cir.), cert. denied, 325 U.S. 889 (1945), has now said that
the test is whether the defendant had “reasonably com-
petent assistance of an attorney acting as his diligent

conscientious advocate.” United States v. DeCoster, 487
F.2d 1197, 1202 (D.C. Cir. 1973). The Third Circuit says
“the standard of adequacy of legal services as in other
professions is the exercise of the customary skill and
knowledge which normally prevails at the time and place.”
Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970)
(en banc). The Fifth Circuit has said the test is having
“Counsel reasonably likely to render and rendering rea-
sonably effective assistance.” United States v. Fessel, 531
F.2d 1275, 1278 (5th Cir. 1976). The Sixth Circuit has
also adopted this standard. United States v. Toney, 527
F.2d 716, 720 (6th Cir. 1975). The Seventh Circuit has
said that the attorney’s performance must meet “a min-
imum professional standard.” United States ex rel. Wil-
iiams v. Twomey, 510 F.2d 634, 640 (7th Cir.), cert. denied
sub nom. Sielaff, Corrections Director v. Williams, 423
U.S. 876 (1975). The Eighth Circuit has said “the stan-
dard would be to test for the degree of competence pre-
vailing among those licensed to practice before the bar.”
Johnson v. United States, 506 F 2d 640, 646 (8th Cir.),
cert. denied, 420 U.S. 978 (1974).

In the context of cases where a defendant claims he
pleaded guilty because ae had incompetent counsel, the
Supreme Court has held that the defendant must show
that his attorney’s advice was “outside the ‘range of com-
petence demanded of attorneys in criminal cases.’” Tollet
v. Henderson, 411 U.S. 258, 268 (1973), quoting McMann
v. Richardson, 397 U.S. 759, 771 (1970).

IV.

It may be that this court should reconsider the standard
set forth in Wight. But we need not decide this issue
now, for we conclude that the performance of Ricken-
backer’s counsel does not fail to meet any of the sug-

10a

gested standards, all of which involve the heavy burden
of establishing incompetence.

Review of the records of the two trials reveals apparent
weaknesses in Lombardo’s performance. Walsh’s testi-
mony in the first trial measured the time Rickenbacker
was in his sight during the chase in seconds, in the second
trial at three or four minutes possibly. Lombardo did not
focus in cross-examination on the time discrepancy, but
brought out the fast running and the corners turned.
While Lombardo sought unsuccessfully a second Wadr
hearing on the claim that Walsh’s identification was tainted
by the circumstances of his observation of a photograph
of Rickenbacker after the chase and before identification
at the trial, he chose not to explore the subject on cross-
examination.

Lombardo was unsuccessful in keeping from the jury
evidence from which the jury could infer that Ricken-
backer was in flight or hiding for some eight months after
the crime, although he did succeed in keeping out proffered
evidence that Rickenbacker had failed to make required
weekly reports to his parole officer during the period.

Lombardo’s summation, while somewhat longer than
that of counsel in the first trial, covered only 1° pages of
transcript. It did however argue the questions of iden-
tification and flight and there is no way we can really
assess the manner of its delivery or its impact. The jury
did call for the reading of the full testimony of Officers
Walsh and Scannapieco, the identifying witnesses.

Rickenbacker’s attorney had access to the transcripts
of the first trial and the prior hearing called for by United
States v. Wade, 388 U.S. 218 (1967). Reading the results
of past cross-examination of the state’s witnesses, Ricken-
backer’s attorney may reasonably have concluded that
more extensive cross-examination would strengthen rather
than weaken the state’s case. His closing argument, while

lla

brief, did discuss all the important points the jury should
consider. The prosecutor’s remark in summation was ob-
jectionable and should have called forth a protest and
request for censure. To other remarks Lombardo did
object. That he let one slip by is not, we think, sufficient
to establish incompetence. The courts cannot guarantee
errorless counsel or counsel who cannot be made to seem
ineffective by hindsight. The fact that “the case could
have been better tried” is not sufficient reason to sustain
appellant’s claim. United States v. Katz, 425 F.2d at 931.
Both the trial judge and the habeas corpus judge con-
sidered the performance of Lombardo, with whose com-
petence they were familiar, satisfactory.£ We cannot say
that his performance was outside the required level of
competence.

Affirmed.

12a

Oakes, Circuit Judge (dissenting) :

I agree that, in all probability, Rickenbacker’s defense
counsel’s performance, while hopelessly inept, was prob-
ably not a “farce and mockery” within the long line of
cases in this circuit referred to by the majority, despite
such features as “cross” examinations of the key prosecu-
tion witnesses that served only to give the witnesses an
opportunity to repeat their direct testimony. But, partic-
ularly in view of this court’s promotion of higher stan-
dards of advocacy, in the wake of Chief Judge Kaufman’s
well-chosen remarks,’ I think the time has come to follow
the lead of the six other circuits (including the originating
circuit) that have rejected the rule of Diggs v. Welch, 148
F.2d 667 (D.C. Cir.), cert. denied, 325 U.S. 889 (1945).
And I cannot agree that counsel’s performance here was
up to the standard of reasonable competency to which the
better rule speaks.

Judge Smith for the majority has, as always, stated
the facts fully and fairly, so they need not be restated.
In my view it was unreasonably incompetent for appel-
lant’s counsel not to drive home the fact that neither
Fichera, the store owner, nor Petrancosta, the victim’s
son, could identify the defendant and not to query Officer
Walsh regarding the weapon he said he had found, the
absence of fingerprints on it, and his opportunities for
observation of the third man during the chase. Counsel
did not even object to the introduction of the weapon.
These examples could be multiplied; I need not belabor

1 See, ¢.g., Kaufman, The Court Needs a Friend in Court, 60 A.B.A.
175 (1974); New Admission Rules Proposed for Federal District Courts,
61 A.B.A.J. 945 (1975) (summary of work of
Second Circuit Judicial Conference and

i
|

13a

the point, as I think footnotes 1-4 of the majority opinion
are almost self-compelling. When these are considered
along with the facially absurd proposition advanced by
counsel in summation, that perhaps it was a shot from
Fichera’s own weapon that killed Vito Petrancosta, it is
a wonder that the jury took as long as it did to convict.

United States v. Wight, 176 F.2d 376 (2d Cir. 1949),
cert. denied, 338 U.S. 950 (1950), the case that established
our circuit’s “farce and mockery” standard, followed Diggs
and its District of Columbia Circuit progeny and United
States ex rel. Feeley v. Ragen, 166 F.2d 976 (7th Cir.
1948), which also relied on Diggs, id. at 981. As the major-
ity opinion recognizes, both the District of Columbia and
Seventh Circuits, along with four others, have now aban-
doned this standard. Diggs simply cannot withstand anal-
ysis. The Supreme Court cases on which it relied, 148
F.2d at 669 n.3,’ all held that, where the trial proceedings
had been turned into a farce or mockery of justice, a con-
viction could not stand; none held that the proceedings
must have come to that point to warrant judicial inter-
vention. The principal rationale advanced in Diggs, id.
at 670, that “[i]n many cases there is no written tran-
script,” thereby giving a habeas petitioner “a clear field
for the exercise of his imagination” (and thereby pre-
sumably inundating the federal courts), no longer holds
true, since written transcripts are now generally available.
Gideon’s Trumpet has long since sounded.’ We should

2 #$=‘The five cases cited were Moore v. Dempsey, 261 US. 86 (1923)
(mob violence); Powell ¥. Alabama, 287 U.S. 45 (1932) (mob violence;
no counsel appointed) ; Mooney v. Holohan, 294 U.S. '03 (1935) (know.
ing use of perjured testimony by prosecutor; writ not issued for failure
to exhaust state remedies); Brown v. Mississippi, 297 U.S. 278 (1936)
(coerced confession); and Johnson v. Zerbst, 304 U.S. 458 (1938) (no
counsel at trial).

b See Gideon ¥. Wainwright, 372 U.S. 335 (1963); A. Lewis, Cideon’s
Trumpet (1964).

l4a

join the several other circuits that have rejected Diggs
as no longer having precedential value and declare it @
dead letter, bringing the law of our circuit into line with
the rule of, e.g., United States v. DeCoster, 487 F.2d 1197
(D.C. Cir. 1973), that, under the Sixth Amendment, “a
defendant is entitled to the reasonably competent assis-
tance of an attorney acting as his diligent, conscientious
advocate,” id. at 1202 (emphasis omitted). See also Finer,
Ineffective Assistance of Counsel, 58 Cornell L. Rev. 1077
(1973); Waltz, Inadequacy of Trial Defense Representa-
tion as a Ground for Post-Conviction Relief in Criminal
Cases, 59 Nw. U. L. Rev. 289 (1964); Note, Effective As-
sistance of Counsel for the Indigent Defendant, 78 Harv.
L. Rev. 1434 (1965).

Forty-four years ago, Mr. Justice Sutherland wrote:
“The right to be heard would be, in many cases, of little
avail if it did not comprehend the right to be heard by
counsel.” Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
In 1976 I think our court should recognize that the right
is equally meaningless if counsel is not at least reasonably
competent.

I dissent.

15a

APPENDIX B—OPINION OF THE UNITED STATES
DISTRICT COURT JUDGE FOR THE EASTERN
DISTRICT OF NEW YORK

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

THE UNITED STATES OF AMERICA ex rel. ROBERT
RICKENBACKER,
Petitioner.

-against-

THE WARDEN, AUBURN CORRECTIONAL
FACILITY and THE PEOPLE OF THE STATE OF NEW

YORK,
Respondents.
75 C634
MEMORANDUM AND ORDER
February 24, 1976
PLATT, D.J.

By a petition for a writ of habeas corpus, Robert
Rickenbacker challenges an allegedly illegal conviction
imposed by the State of New York in violation of the United
States Constitution. Title 28 U.S.C. §§2241 and 2254.

Petitioner, a citizen and resident of New York, is
currently confined in Matteawan State Hospital, Beacon,

(Kern, J.) of Kings County to twenty-five (25) years to life
imprisonment.

16a

The judgment of conviction was unanimously affirmed
without opinion by the Appellate Division, Second
Department (People v. Rickenbacker, 46 A.D.2d 740 (2d
Dept. 1974]) and leave to appeal to the New York Court of
Appeals was denied on November 14, 1974 (Stevens, J.).

Here, petitioner raises four issues that have been
previously presented to the state courts on direct appeal
and which he contends violated his constitutional rights:
(1) the court’s charge on flight coupled with the trial
judge's comments was so prejudicial as to deny petitioner a
fair trial; (2) a statement by petitioner was introduced at
his trial in violation of Miranda v. Arizona, 384 U.S. 436
(1966); (3) his Sixth and Fourteenth Amendment rights
were violated when a detective testified regarding his in-
terrogation of petitioner’s accomplices; and, (4) he was
denied adequate assistance of counsel. As to each of these
issues, petitioner has exhausted the available state court
remedies and thus those issues are properly before this
Court. Title 28 U.S.C. 2254(b). In addition, petitioner
alleges for the first time that the trial judge was not an
“impartial arbiter” and, therefore, assisted the
prosecution's case. This additional claim, never having
been presented to the state courts, is not properly before
this Court. Picard v. Connor, 404 U.S. 270, 275-76, 92
S.Ct. 509, 512 (1971); United States ex rel. Hayden v.
Zelker, S06 F.2d 1228 (2d Cir. 1974); United States ex rel.
Daneff v. Henderson, SO1 F.2d 1180 (2d Cir. 1974).

I—FACTS

Petitioner and three other men were charged with felony
murder and common law murder following a robbery
during which one of the victims was shot and killed.
Petitioner's three accomplices were apprehended as they
attempted to flee from the scene of the crime. Petitioner
was arrested approximately nine months later. One of the

17a

accomplices entered a guilty plea to a lesser charge, and the
remaining two were convicted of murder. Petitioner's first
trial ended in a hung jury; the errors he now complains
about occurred during his second trial.

II— FLIGHT CHARGE

Petitioner's first contention is that the trial court's
charge on flight, coupled with the judge’s analysis of the
evidence that had been adduced during the trial, was so
prejudicial as to deny petitioner a fair trial. Specifically, it
argued that the instruction on flight2 as evidencing a
consciousness of guilt failed to comply with the applicable
legal standards as set down by the New York Court of
Appeals. The cases cited by petitioner do not support his
contention that the judge’s charge to the jury was in any
manner deficient as a matter of law. On the contrary, the
charge was a precise statement of every element required by
the New York state courts when charging flight. See People
v. Baker, 26 N.Y.2d 169, 174 (1971); People v. Yazum, 13
N.Y.2d 302, 304 (1964); People v. Leyra, 1 N.Y.2d 199,
209 (1956). Furthermore, it is argued that the judge, in
commenting on the evidence while charging flight,
erroneously stated to the jury that the witnesses in the
superette where the robbery occurred had testified that two
of the holdup men carried guns. A review of the record
shows that the two eyewitnesses testified that three men
participated in the robbery and murder, but that only one
man was observed to be carrying a gun. However, the
testimony of the police officers who chased and ap-
prehended three or the robbers, was that petitioner and one
other co-defendant were observed to be carrying guns.
Assuming that the judge’s misstatement of the facts was
error, it was not of such magnitude as to deny petitioner a
fair trial. It is a well established proposition that a single
instruction to a jury may not be judged in artificial
isolation, but must be viewed in the context of the overall

18a

charge. The judge instructed the jury in his opening
remarks and again at the conclusion of his charge that,
“Now, I'll caution you that what I said, it is not
my recollection of the testimony of the witnesses, or
the recollection of Mr. Lombardo [defense counsel]
or the recollection of the District Attorney, it is
your recollection which controls and only your
recollection." (Record at 225).

Neither of petitioner's challenges to the charge are well
taken. When the charge is viewed as a whole, the error, if
any, did not rise to the level of a denial of due process. It is
settled law that a jury charge in a state trial is normally a
matter of state law and is not reviewable on federal habeas
corpus unless the alleged errors are so serious as to deprive
the petitioner of a federal constitutional right. Cupp v.
Naughten, 414 U.S. 141, 94 S.Ct. 396, 38 L.Ed.2d 368
(1973); United States ex rel. Stanbridge v. Zelker, 514 F.2d
45 (2d Cir. 1975); United States ex rel. Smith v. Montanye,
50S F.2d 1355 (2d Cir. 1974); United States ex rel. Win-
field v. Cascles, 403 F.Supp. 956 (E.D.N.Y. 1975).

‘Before a federal court may overturn a state trial
. , it must be established not merely that the
instruction is undesirable, erroneous, or even
‘universally condemned,’ but that it violated some
right which was guaranteed to the defendant by the
Fourteenth Amendment.” Cupp v. Naughten,
supra, 414 U.S. at 146, 94 S.Ct. at 1359.
The rendering of the flight charge and the judge's ac-
companying remarks did not violate petitioner's con-
stitutional rights.

I1]—USE OF PETITIONER’S STATEMENT

On March 11, 1971 approximately nine months after the
robbery and murder, Police Detective Robert Marshall
encountered petitioner at the 67th Precinct Police Station

19a

where Rickenbacker was in custody for an unrelated of-
fense. Before advising petitioner of his constitutional rights
as mandated by the Supreme Court's decision in Miranda
v. Arizona, 384 U.S. 436 (1966), Marshall questioned
petitioner and elicited from him his name and address (63
Decatur Street). During petitioner’s trial, Marshall
testified about his investigatory efforts regarding the
robbery and killing. He testified that on the night of the
crime he went to a rooming house at 63 Decatur Street
seeking the petitioner, but that he searched the house
without success. He further testified that at various times
over the next nine months he kept that address under
surveillance and also visited numerous other places and
spoke with various people. Petitioner's admission was
offered by the prosecution as proof of its contention that
Rickenbacker had fled his usual haunts and, in so fleeing,
displayed a guilty conscience. Defense counsel argued that
petitioner’s statement, although innocuous on its face,
should have been suppressed for failure to comply with
Miranda. The trial court allowed the statement to be in-
troduced, ruling that it only concerned “‘pedigree’’ and,
therefore, was not governed by the broad prophylactic rule
laid down in Miranda.

Petitioner now argues that the admission of his
statement, elicited without the benefit of Miranda war-
nings, violated his Fifth Amendment privilege against self-
incrimination.

In United States ex rel. Hines v. LaValle, 521 F.2d 1109
(2d Cir. 1975S), a similar argument was made by a state
prisoner appealing the denial of his writ of habeas corpus.
There, the defendant, while in custody and enroute to the
police station, but before being advised of his rights, in-
formed the police, ‘‘[I]n response to questions designed to
pass the time by seeking background data (i.e., his name,
address, age, marital status), that he had been married ior
11 years and had 2 children."’ Hines, supra, at 1110.

20a

During the robbery and rape, for which that defendant had
been arrested, the assailant had told the victim that he had
been married 11 years and had 2 children. The court, after
a suppression hearing, admitted the victim s testimony and
that of the arresting officer regarding the defendant s
statement to each, respectively, that he had been married
11 years and had 2 children. The Circuit Court, although
stating that a person’s name, age, address, marital status
and similar data, is usually non-incriminatory in character,
acknowledged that it “[MJay in a particular context
provide the missing link required to convict. Hines,
supra, at 1112. However, the court held that the in-
troduction of the defendant’s statement was not error
because,
“(T]he answer furnished by Hines to the arresting
officer . . . constituted merely basic identification
required for booking purposes, its admission was
not barred because of the officer’s failure to satisfy
Miranda’s warning-waiver procedure.” Hines,
supra, at 1113.
A fortiori, the introduction of the petitioner's statemen
in porn sub judice, did not violate Rickenbacker-s Fifth
Amendment privilege. See also United States v. LaMonica,
472 F.2d 580 (9th Cir. 1972); Farley v. United States, 381
F.2d 357 (Sth Cir.), cert. denied, 389 U.S. 942 (1967).

IV—SIXTH AMENDMENT CLAIM

On the evening of the robbery-murder Detective Mar-
shall questioned each of petitioner's co-defendants. As a
result of information acquired from the interview, Marshall
went to 63 Decatur Street in search of petitioner. At the
trial Marshall testified that he spoke with each of the co-
defendants and that he thereafter traveled to 63 Decatur
Street. Petitioner argues that the Detective’s testimony was
a ‘subtle, indirect and inferential” use of a co-defendant's

21a

statement without affording him an opportunity to cross-
examine the declarant and, therefore, violated his right to
confront witnesses against him as secured to him by the
Sixth and Fourteenth Amendments. Bruton v. United
States, 391 U.S. 123 (1968). Bruton held that the ad-
mission during a joint trial of a non-testifying defendant's
extrajudicial statement which implicates a co-defendant,
violates the co-defendant’s right to confront witnesses
against him. Here, petitioner was tried separately from his
co-defendants; and, no statement made by a co-defendant
was offered against him. There was no testimony that any
co-defendant implicated petitioner or that they gave the
address where petitioner could be found to the police.
Therefore, the “substantial threats to the defendants
constitutional rights,”’ which the Supreme Court sought to

prohibit by its decision in Bruton are not present in this
case.

V—INEFFECTIVE ASSISTANCE OF COUNSEL

Petitioner's final contention is that the incompetence of
his appointed counsel deprived him of his Sixth and
Fourteenth Amendment rights to a fair trial. Gideon v.
Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963). The burden of proof is of course on petitioner to
sustain the allegations of his habeas corpus petition, in-
cluding the specific claim here under consideration.
However, before examining Rickenbacker’s contention, it
is appropriate to consider the standards by which these
allegations must be weighed. This Circuit has established
Stringent standards to be applied when passing on the
alleged inadequacy of counsel. United States v.
Yanishefsky, SOO F.2d 1327, 1333 (2d Cir. 1974); United
States ex rel. Walker v. Henderson, 492 F.2d 1311, 1312
(2d Cir.), cert. denied, 417 U.S. 972 (1974); United States
ex rel. Marcelin v. Mancusi, 462 F.2d 36, 42 (2d Cir.
1972), cert. denied, 410 U.S. 917 (1973); United States ex

rel. Scott v. Mancusi, 429 F.2d 104, 109 (2d Cir. 1970),
cert. denied, 402 U.S. 909 (1971); United States v. Katz,
425 F.2d 928, 930-31 (2d Cir. 1970); United States v.
Currier, 405 F.2d 1039, 1042-43 (2d Cir.), cert. denied, 395
U.S. 914 (1969); United States v. Garguilo, 324 F.2d 79S,
796-97 (2d Cir. 1963); United States v. Wight, 176 F.2d
376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950 (1950).

The showing required to establish inadequacy of counsel
was enunciated by this Circuit in United States v. Wight,

supra, 176 F.2d at 379:

“.. The proof of the efficiency of such
assistance lies in the character of the resultant
proceedings, and unless the purported
representation by counsel was such as to make the
trial a farce and a mockery of justice, mere
allegations of incompetency or inefficiency of
counsel will not ordinarily suffice as grounds for
the issuance of a writ of habeas corpus ...
(citations omitted).

**A lack of effective assistance of counsel must be
of such a kind as to shock the conscience of the
Court. ...”” (citations omitted).

That standard, articulated in 1949, has been followed
consistently by this Circuit in determining the adequacy of
counsel’s representation. Most recently, this standard has
been characterized as requiring that the representation be
so “*|WJoefully inadequate ‘as to shock the conscience of
the Court. . . .” ” before a finding of ineffective assistance
will be made. United States v. Yanishefsky. supra, SOO
F.2d at 1333, quoting United States v. Currier, supra, 40S
F.2d at 1043, which in turn quoted from United States v.
Wight, supra, at 379. However, “Errorless counsel is not
required. . . .”” Yanishefsky, supra, at 1333, and “[Blefore
we may vacate a conviction there must be a ‘total failure to
present the cause of the accused in any fundamental
respect.” United States v. Garguilo, supra, 324 F.2d at

79%, quoting Brubaker v. Dickson, 310 F.2d 30, 39 (9th
Cir. 1962), cert. denied, 372 U.S. 978 (1963).

The Court has carefully examined all of Rickenbacker’s
allegations with respect to his attorney’s performance. In
doing so, the Court has come to the conclusion that
petitioner's attorney did not fail to “present the cause of
the accused,’’ or, perform so “‘ineptly’’ as to give rise to a
valid claim of inadequate assistance under the strict
standard laid down in Wight, supra.

Applying these standards to this case, petitioner’s claim,
viewed in the light most favorable to him, may be sum-
marized as follows: The prosecution’s case was not an
overwhelming one and, at petitioner's earlier trial, the jury
had been unable to reach a verdict. Defense counsel knew
what to expect from the People’s witnesses because they
had testified at the earlier trial. In light of these facts,
petitioner cites four areas where he claims his counsel’s
performance is suspect: (1) his cross-examination of the
police officers who identified petitioner was “brief and
perfunctory’; (2) counsel failed to challenge the police
officers’ facility to identify petitioner in view of the nine
month lapse of time between the crime and petitioner's
apprehension; (3) there was no objection to the receipt in
evidence of the gun petitioner supposedly discarded during
the chase; and, (4) the failure to challenge the
prosecution's offer of proof of flight. The combination of
these errors, it is argued, amounted to a total failure by
counsel to adequately represent petitioner.

As is pointed out in the respondent's brief, the flaw in
petitioner’s claim is that, in essence, he simply differs with
defense counsel’s strategy. Whether to have cross-
examined the police more extensively was a judgment to be
made by counsel based upon the facts known to him. Here,
counsel had access to the officers’ testimony at the earlier
trial as well as at the Wade hearing which preceded it. As
has been pointed out many times before, the advisability of

24a

extensive cross-examination is a matter open to honest
differences of opinion. Even if we assume that it was error
for counsel to have failed to cross-examine more ex-
tensively, it did not result in a failure to put before the jury
the inherent unreliability of eye-witness identification.
Counsel devoted much of his summation to this issue as
well as to the lapse of time between the crime and
petitioner's arrest. It has been consistently held that a court
may not grant relief for “*[Ajlleged tactical errors or
mistakes in strategy . . . ."” Garguilo, supra, 324 F.2d at
797.

In regard to petitioner's allegation that his counsel failed
to object to the introduction in evidence of the gun which
he had been observed to be carrying, it is doubtful that any
objection made by counsel would have succeeded. Both

lice officers testified that they saw the gun in petitioner's

and, and Officer Thomas Walsh stated that when
itioner was only 30 or 40 feet from him Rickenbacker
hrew the gun between two parked cars. Walsh also
testified that after losing sight of petitioner he returned
immediately to the spot where he had seen petitioner
discard the gun and found a gun lying between two cars.
Further, each officer identified Officer Scannapieco’s
initials that had been scratched on the gun when it was
initially recovered. Again, experienced counsel may well
have determined that an objection would have been futile.

Finally, petitioner maintains that when the prosecution
failed to introduce petitioner's relatives and friends to
testify on the issue of flight, counsel failed to move to strike
the statements by the prosecution in its opening which had
promised such evidence. The Court can find no basis in the
record to support such an allegation. The fact is, defense
counsel objected to the whole line of questioning of
Detective Robert Marshall regarding flight and moved to
strike all of the detective’s testimony on the ground that a
proper foundation had not been laid.

Having studied the record, the Court can find no basis

for petitioner's allegation of ineffective assistance of
counsel.

Parenthetically it might be added that petitioner’s at-
torney, Joseph Lombardo, Esq., has appeared before this
Court on numerous occasions and it is familiar with his
skill. Furthermore, the Court is aware of his high
reputation as a criminal defense attorney and the fact that
he is a former President of the Brooklyn Bar Association.
In the present case, Mr. Justice Michael Kern, who
presided at petitioner’s trial, in commenting on the case
after the jury had been discharged, stated:

[I]t was really a pleasure to preside at a trial
because we have such able lawyers.”

This Court finds nothing to support the contention that
Mr. Justice Kern erred in his appraisal of Mr. Lombardo’s
performance. The fact that petitioner was represented at
his trial in a manner differently from what petitioner's
present attorney would have done is not a basis for setting
aside the judgment of conviction. This case is a long way
from approaching the standard for ineffective assistance of
counsel set forth above.

CONCLUSION
Accordingly it is
ORDERED that the petition be dismissed and the writ
of habeas corpus denied.
SO ORDERED.

s/ Thomas C. Platt
U.S.D.J.

26a 21a

FOOTNOTES

circumstances, reasoning from such established facts, claims the
District Attorney, exclude to a moral certainty every other hypothesis,
save that of the guilt of this defendant. Such is the contention of the

1. At the time this petition was filed, petitioner was incarcerated in the nites soe

At was ; was ,

Auburn Correctional Facility, Auburn, New York. Fe pee es ao ety Ae tery .

2. The court charged as follows: 217-219.

“Now, I said to you that | would charge you as to what the District
Attorney calls ‘flight of the defendant.’ Madam and gentlemen, the
conduct of an accused such as flight or attempted flight is always a
proper subject for the consideration of a jury as indicative of a guilty
mind and in determining the question of the guilt or innocence of the
person charged. Such evidence may be considered under the law if
there are facts pointing to the commission of the crime charged as to
the motive which prompted such flight. Such evidence is admissible on
the theory that an inference of guilt may be drawn from acts which
indicate a consciousness of guilt. The District Attorney maintains that
this defendant fled, as I have already told you and I have outlined his
contention with respect to efforts to arrest the defendant.

“Such evidence, members of the jury, standing alone and with
nothing else, is insufficient to warrant a verdict of guilty. It must be
supported by other proof of the defendant's involvement in the alleged
robbery and killing of a substantial character. Here the District At-
torney maintains that the other proof lies in the testimony which he has
submitted of witnesses who were in the store and who described the
three men to the extent that they said two of them had guns. The
District Attorney maintains that such other proof lies in the testimony
of police officer Walsh, that is, he saw the defendant, gun in hand, with
another man, gun in hand, and a third man running along; that when
they gave chase, one of them got into a car and was apprehended, and
as I said, the other two, including this defendant, during the course of
such chase, threw the gun which he held in his hand underneath an
automobile or between two parked automobiles.

the
District Attorney. The conclusion flows freely and smoothly and
logically to the ultimate conclusion that this defendant was
three men in the store at the time of the perpetration of the robbery,
and at the time of the shooting of Vito Petrancosta, and that those

3
q
7

APPENDIX “C”
ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE SECOND
CIRCUIT DENYING RE-ARGUMENT EN BANC

At a stated term of the United States Court of
Appeals, in and for the Second Circuit, held at the
United States Court House, in the City of New
York, on the fifth day of April, one thousand nine
hundred and seventy-seven.

Docket No. 76-2036

ROBERT RICKENBACKER,
Appellant,
“V.-
THE WARDEN, AUBURN CORRECTIONAL

FACILITY AND THE PEOPLE
OF THE STATE OF NEW YORK,

Appellees.

A petition for rehearing containing a suggestion that the
action be reheard en banc having been filed herein by
counsel for the appellant, and no active judge or judge who
was a member of the panel having requested that a vote be
taken on said suggestion,

Upon consideration thereof, it is

Ordered that said petition be and it hereby is denied.

IRVING R. KAUFMAN,
Chief Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1895%3A1. Public record. Not legal advice.