Petition — State of Alabama v. James G. Davis

FILIC

() =NOV 2 1979

IN THE f

K, JR., CLERK

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Supreme Court of The Oni e

OCTOBER TERM, 1979

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STATE OF ALABAMA ,

PETITIONER

VERSUS

JAMES G. DAVIS,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES A. GRADDICK

Attorney General of Alabama

CAROL JEAN SMITH

Assistant Attorney General

of Alabama

250 Administrative Bldg.

64 No. Union Street

Mont , Alabama 36130

205-834-5150

COUNSEL FOR PETITIONER

SUBJECT INDEX

Page

Te Oe GI it 8 bs SIS. SS LA Co. iii

TABLE OF CONSTITUTIONAL PROVISIONS......... Vv

po Vv

OPINIONS OF THE COURTS BELOW............... 2

TTI i iio a 4

So a 4

CONSTITUTIONAL PROVISIONS INVOLVED......... 5

STATUTORY PROVISIONS INVOLVED.............. 6

STATEMENT OF THE CASE...................... 6

A. COURSE OF PROCEEDINGS AND DISPOSITION

OF CASE IN COURT BELOW................ 6

B. STATEMENT OF THE FACTS................ 10

REASONS FOR GRANTING THE WRIT.............. 14

I. IMPORTANT QUESTION OF FEDERAL

JURISDICTION, PRACTICE AND PROCEDURE. .14

THE COURTS BELOW HAVE SUA SPONTE

DECIDED ISSUES NOT RAISED BY DAVIS

THUS VIOLATING ACCEPTED STANDARDS OF

FEDERAL JURISDICTION, PRACTICE AND

PROCEDURE

ee a 18

ii

Page

THE FEDERAL WRIT OF HABEAS CORPUS

SHOULD NOT BE AVAILABLE TO STATE

PRISONERS TO REVIEW MERE ERRORS OR

OMISSIONS BY DEFENSE ATTORNEYS

WHERE THERE IS NO SYATE ACTION........... 18

TIT. CONPLEICT GF DBCTSIONS: 6 oi. coc. cece ees 26

THE EFFECTIVENESS OF COUNSEL SHOULD

BE JUDGED BY THE STANDARD OF

"REASONABLY LIKELY TO RENDER AND

RENDERING REASONABLY EFFECTIVE

RRA EL OA k UL ou Weck kaos ois 26

CAE NTR SRS ESP as ac 34

CERILPAUAIE OP SERVICE, ..05... 0. oi ccctesccwcsas 35

BE hk 605. 8 Peeediaei bere Bound separately

A. Davis v. Alabama (N.D. Ala. 1975)

B. Davis v. Alabama 545 F.2d 460

C. Davis v. Alabama (N.D. Ala. 1977)

D

E

. Davis v. Alabama, 596 F.2d 1214

. Davis v. Alabama, denial of rehearing

and rehearing en banc

F. 28 U.S.C. 2254

Lii

Page

TABLE OF CASES

ton v. Harris,

; REE Cas SETS 6 ETRE ARES 17

Davis v. State,

53 Ala. App. 598, 302 So.2d 571 (1975)....2, 7

Davis v. Alabama,

~ ©.A.75-A-O303NE (N.D.Ala. 1975).............. 2

Davis v. Alabama,

35 F.2d 460 (Sth Cir. 1977),

denied 431 U.S. 957, 97 S.Ct. TER,

53 L.Ed.2d 275 (1977). dg: Oy EBs 13, 15, 16,

30-33.

Davis v. Alabama,

C.A. 75-A-O803NE (N.D.Ala. 1977)............. 3

Davis v. Alabama,

596 F.2d 1214 (5th Cir. 1979)...3, 9, 14-17, 21,

27-28, 31-33

Estelle v. Gamble,

L.Ed.2d 251, 97 S.Ct.

FOE TRUM. cick cr ita a

Estelle v. Williams, 425 U.S. 501, 48 L.Ed.2d

ak, er ee ree eT ee 23

Fitzgerald v. Estelle,

sn F.2d 1334 (th

Cir. 1975), cert. denied

422 U.S. 1011, 45 L.Ed.2d 675, 95 S.Ct.

So hg CR kd oR Eee eae 19-20

Greer v. Beto, 379 F.2d 923 (5th Cir. 1967)....28

iv

v. Alabama, —

F. » 1023 (Sth Cir. 1977)..... 27

OE v. Estelle,

: ; ene Ree Gar 290)... s,s 2 27

Hintz v. Beto,

Sto f.an Sat Coen Cir. 1967). oS. 28

Kallie v. Estelle,

515 F.2d 588 6th Cir. 1975), 423 U.S.

1019, 46 L.Ed.2d, 96 S.Ct. 455 (1976)....20

- MacKenna v. Ellis,

280 F.2d 592, (Sth Cir. 1960), modified

289 F.2d 928 (5th Cir. 1961), cert.

denied 368 U.S. 877, 82 S.Ct. I2I,

7 L.Ed. 2d 1978 (1961) Laks «= ek ees 26-27, 33

Malone v. Alabama, 514 F.2d 77 (Sth Cir.

1975), cert. denied , 423 U.S. 990,

46 L.Ed.2d, 96 S.Ct. 403 (1976)......... 20

Stone v. Powell,

G28 U.S. 465, 49 L.Ed.2d 1067, 96

S.Ct. Se (1976) Coe hee’ wal adeno oe bei bes 24

Taylor v. State,

291 Ala. 756, 287 So.2d 901 (1973),

cert. denied 416 U.S. 945, 40 L.Ed.2d

y. He Re OR, . Se a ota 23

Vv

Page

TABLE OF CONSTITUTIONAL

PROVISIONS

The Sixth Amendment to the

Constitution of the United States........... >

The Fourteenth Amendment to the

Constitution of the United States........... 5

TABLE OF STATUTES

Title 28, United States Code,

I SE OD de ews 34 544.00 e hee Pobae 4

ae bay on OE a aoe ae 4, 6-7, 18, 25 -

MISCELLANEOUS

American Bar Association Project for

Standards for Criminal Justice,

Standards Relating to the Prosecution

Function and the Defense Function §5.2(b)

Ce Es os svn esksiseesecgeues 19

Supreme Court of The Einited States

OCTOBER TERM, 1979

JAMES G. DAVIS,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, the State of Alabama, res-

pectfully prays that a writ of certiorari issue

to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit

2

entered in this proceeding on June 13, 1979, re-

hearing having been denied on August 6, 1979.

OPINIONS OF THE COURTS BELOW

The decision of the Court of Criminal Ap-

peals of Alabama affirming the respondent's ap-

peal from his conviction for murder is reported

as: Davis v. State, 53 Ala. App. 598, 302 So.2d

571 (1975). Certiorari was denied by the Supreme

Court of Alabama on April 25, 1975 but is unre-

ported. (R.Vol.I, p. 10) The denial of a subse-

quent petition for writ of error coram nobis was

affirmed by the Court of Criminal Appeals of Ala-

bama on February 18, 1975, but is unreported.

(R.Vol.I, p.292)

The first order of the District Court deny-

ing the writ of habeas corpus is not reported,

but was styled: Davis v. Alabama, C.A.75-A-0303NE

(N.D.Ala. 1975) (Appendix A).

7 The decision and opinion of the United

3

States Court of Appeals for the Fifth Circuit af-

firming in part, reversing in part the above de-

esate of the District Court is reported as fol-

lows: Davis v. Alabama, 545 F.2d 460 (5th Cir.

1977), cert. denied 431 U.S. 957, 97 S.Ct. 2682,

53 L.Ed.2d 275 (1977). (Appendix B)

The subsequent order of the District Court

denying the writ of habeas corpus as to the issue

which was remanded is not reported, but was

styled: Davis v. Alabama, C.A. 75-A-0803NE

(N.D.Ala. 1977). (Appendix C)

The decision and opinion of the United States

Court of Appeals for the Fifth Circuit reversing

and remanding for a further hearing is reported

as follows: Davis v. Alabama, 596 F.2d 1214

(5th Cir. 1979). (Appendix D)

Rehearing and rehearing en banc were denied

on August 6, 1979 (Appendix E).

4

JURISDICTION

The decision, opinion and judgment of the

United States Court of Appeals for the Fifth Cir-

cuit was issued on June 13, 1979. A timely appli-

cation for rehearing was denied by the said Court

of Appeals on August 6, 1979 and this petition is

filed within ninety (90) days of said date.

This Honorable Court's jurisdiction is in-

voked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

1. May federal courts, in exercising juris-

diction pursuant to 28 U.S.C. 2254, sua sponte

decide issues not raised by the convict or his

counsel?

2. To what extent may the error or omission

of a defense lawyer - retained or appointed - be

reviewed by the federal Writ of Habeas Corpus

where there is no state action?

3. May the effectiveness of counsel be

5

judged by a standard other than "reasonably like-

ly to render and rendering reasonably effective

assistance''?

CONSTITUTIONAL PROVISIONS INVOLVED

A.

The Sixth Amendment to the Constitution of

the United States, in particular the provision

relating to the right to counsel:

"In all criminal prosecutions, the

accused st1l enjoy the right . . . to

have the assistance of counsel for his

defense."

B.

The Fourteenth Amendment to the Constitution

of the United States, Section One:

"All persons born or naturalized

in the United States, and subject to

the jurisdiction thereof, are citizens

of the United States and of the state

6 7

wherein they reside. No state shall

make or enforce any law which shall

abridge the privileges or immmities

of citizens of the United States; nor '

for first degree murder. (R.Vol.I, p.48) He was

lawfully convicted in the Circuit Court of Cull-

man County, Alabama on November 28, 1973. (R.Vol.

I, p.63) Davis was sentenced to imprisonment in

shall any state deprive any person of the state penitentiary for life. (R.Vol.I, p.64)

life, liberty, or property, without

due process of law; nor deny to any

person within its jurisdiction the

He is presently on parole.

Davis' conviction was affirmed on appeal to

the Court of Criminal Appeals of Alabama. Davis v.

equal protectién of the las.” State, 53 Ala. App. 598, 302 So.2d 571 a975).

His Petition for Writ of Certiorari was denied by

STATUTORY PROVISIONS INVOLVED the Alabama Supreme Court on April 25, 1975. (R.

‘ie een es se Vol.I, p.10, unreported) The denial of a subse-

come being wibattted “a J lix "F" to this pe- quent Petition for Writ of Error Coram Nobis was

siiels: affirmed by the Court of Criminal Appeals of Ala-.

bama on February 18, 1975. (R.Vol.I, p. 292)

STATEMENT OF THE CASE ? The instant proceedings were initiated when

A Mr. Davis filed this his third petition for a writ

Course of Proceedings and Disposition

of Case in Court Below

Mr. Davis was indicted on November 2, 1973

of habeas corpus pursuant to 28 U.S.C. 2254 in

federal district court. (R.Vol.I, p.2) On December

9, 1975, the Honorable C. W. Allgood, United

8

States District Judge, issued an order denying

the present petition for habeas corpus filed by

James G. [evis. (R.p.300) (Appendix A) Judge All-

good by order dated January 27, 1976 issued the

certificate of probable cause. (R.Vol.I, p.305).

On January 14, 1977 the Court of Appeals for

the Fifth Circuit affirmed in part, reversed in

part. Davis v. Alabama, 545 F.2d 460 (5th Cir.

1977). (Appendix B) This Honorable Court denied

certiorari on those issues which had been af-

firmed by the Court of Appeals. 431 U.S. 957, 97

S.Ct. 2682, 53 L.Ed.2d 275 (1977).

Pursuant to the order of the Court of Ap-

peals this case was remanded to the district

court to determine if denial of the continuance

deprived petitioner of effective assistance of

counsel. Davis, 545 F.2d at 467, supra. In com-

pliance with the mandate of the Court of Appeals

an evidentiary hearing was held in the district

court before Judge Nelson, the United States

ne

9

Magistrate, on July 13, 1977. (R.Vol.II, p.1) On

October 4, 1977 the petition for habeas corpus

was granted by Judge C. W. Allgood. (R.Vol.I,

p. 333) On the Court's own motion, the Judgment

was stayed and on December 13, 1977 the petition

was denied. (Appendix C)(R.Vol.I, pp.334-339)

The certificate of probable cause was issued on

January 12, 1978. (R.Vol.I, p.341)

On appeal the Court of Appeals affirmed the

decision of the District Court in denying relief

on the sole issue which had been remanded to the

District Court. Nonetheless, the Court of Appeals

held that Davis' counsel had been ineffective and

remanded the case to the District Court to deter-

mine whether Davis had been prejudiced by the

conduct of his attorneys. This decision of the

Court of Appeals was issued on June 13, 1979 and

is reported as Davis v. Alabama, 596 F.2d 1214

(5th Cir. 1979). (Appendix C) Petition for re-

hearing and rehearing en banc was denied on

10

August 6, 1979. (Appendix E)

B.

STATEMENT OF THE FACTS

On November 26, 1973, the first day of the

state court trial, attorneys for Petitioner pre-

sented a Petition for Mental Examination and made

an oral Motion for Contimuance. (R.Vol.I, pp. 51,

73, 74) The court then held a joint hearing on

both motions. (R.pp. 78-83) Although both the

Petition and the Motion were reconsidered after a

full hearing, both were ultimately denied. (R.

Vol.I, pp. 83, 84) The denial of the Petition for

Mental Examination has already been examined and

affirmed. Davis v. Alabama, 545 F.2d 460 (5th

Cir. 1977), cert. denied 431 U.S. 957, 97 S.Ct.

2682, 53 L.Ed.2d 275 (1977).

After the motion and petition were present-

ed, Mr. Davis was questioned. He stated that a

California court had sent him to see a Dr. Dean

in May of 1972. (R.Vol.I, p.74) Davis explained

11

that he went to see Dr. Dean in order to meet the

terms of probation on an assault and battery

charge. (R.Vol.I, p.75)

Mr. Davis explained further that it was ne-

cessary for him to see Dr. Dean in order to sa-

tisfy requirements for the purpose of obtaining

custody of his children. (R.Vol.], p.76) He fur-

ther stated that he and his wife had, in fact,

been given approval of Dr. Dean and had obtained

custody of the children. (R.Vol.I, p.76-77) Mr.

Davis also testified that Dr. Dean had certified

that Mr. Davis no longer needed treatment. (R.

Vol.I, p.77)

Davis did state that he had a drinking pro- -

blem. (R.Vol.I, p.77) He also admitted that he

had many previous criminal arrests and convic-

tions. (R.Vol.I, p.78). It should be noted that

during both this hearing and the sentencing hear-

ing Mr. Davis answered questions alertly and ra-

tionally. (R.Vol.I, pp.79, 257, 258) At no point

12

did his attorneys allege that he had been unable

to help them in preparing his trial defense.

There was much testimony in both the hearing

and at trial which brought out fully all the par-

ticulars of the report of Dr. Dean. (R.Vol.I, pp.

73, 76, 77, 200, 206, 207, 208).

After the denial of Motion for Continuance,

the trial commenced under Davis' pleas of not

guilty and not guilty by reason of insanity. (R.

Vol.I, pp. 7, 84) There was testimony concerning

the mental condition of Mr. Davis and defense at-

torneys were allowed to question state's witness-

es, including the Alabama relatives of Mr. Davis,

and a defense witness, about the mental condition

of Mr. Davis. (R.Vol.I, pp.130, 194, 195, 198,

200, 202, 205, 207, 232, 280). Officer G. 0. Buc-

kelew stated that his investigation revealed that

Davis had been treated for alcoholism in Califor-

nia. (R.Vol.I, p.200) This officer also testified

that his investigation showed no mental problens,

13

except alcoholic problems, all the way through

his report. Officer Buckelew also stated that a

report written in February, 1973 stated that Dr.

Dean did not consider the defendant to be in need

of psychotherapy. (R.Vol.I, p.207, 208)

The state trial court judge very ably in-

structed the jury on all lesser included offenses

in a first degree murder charge and on the plea

of not guilty by reason of insanity. (R.Vol.I,

pp.240, 241, 244-247) For a further sumary of

facts, see Davis v. Alabama, 545 F.2d 460 (Sth

Cir. 1977), cert. denied 431 U.S. 957, 97 S.Ct.

53, L.Ed.2d 275 (1977).

REASONS FOR GRANTING THE WRIT

IMPORTANT QUESTION OF FEDERAL JU-

RISDICTION, PRACTICE AND PROCEDURE

THE COURTS BELOW HAVE SUA SPONTE

DECIDED ISSUES NOT RAISED BY DAVIS

THUS VIOLATING ACCEPTED STANDARDS

OF FEDERAL JURISDICTION, PRACTICE

AND PROCEDURE.

In both the majority and the dissenting

opinions the Court of Appeals for the Fifth Cir-

cuit concluded that the denial, by the state

trial court judge, of the motion for a contin-

uance did not deprive Davis of effective assis-

tance of counsel. Davis v. Alabama, 596 F.2d

1214, 1217, 1226 (5th Cir. 1979). It is clear, as

stated in the dissenting opinion, ''that was the

only question remanded to the district court".

Davis, 596 F.2d at 1228. It is equally clear that

aa

15

such issue was the only issue raised by Davis

which was not disposed of in the first appeal of

this case. Davis v. Alabama, 545 F.2d 460, 466

(5th Cir. 1977). Yet, the majority, after dispos-

ing of this issue, proceeds to determine that

Davis' trial attorneys were indeed ineffective

and remands the case a second time for a hearing

"on the single question of whether the attorneys’

conduct prejudiced Davis". Davis, 596 F.2d at

1223.

In his dissenting opinion, Davis, 596 F.2d

at 1226, 1228, Judge Skelton very ably states:

"We held that the contention of the

petitioner in this regard raised a sub-

stantial claim of ineffective assistance

of counsel, but it was tied to the action

of the trial judge in denying the motion

for continuance as shown by the remanded

order. We did not decide this issue, but

remanded the case to the district court

(16

by issuing the following order:

‘Accordingly, we remand this part

_ of the complaint to the district court

to determine if denial of the contin-

uance deprived petitioner of effective

assistance of his counsel.

‘Affirmed in part, reversed in part.'

545 F.2d 467 . . .

. -All of the members of the panel

on this appeal agree that the trial

judge is not to be faulted for deny-

int the motion, and his action in

that regard was proper. Accordingly,

since the denial of the motion was

proper, it could not and did not,

as a matter of law, deprive the pe-

titioner of the effective assistance

of counsel. That was the only question

remanded to the district court. It

=

N

17

has been answered by that court in the

negative. The finding and conclusion of

the district court, together with our

view that the denial of the motion was

proper, should end the matter."

The State of Alabama agrees that this hold-

ing should have ended this matter. Federal courts

have long recognized that orderly judicial pro-

cedure normally precludes an appellant from rai-

sing on appeal issues not reasonably within the

scope of the question presented for habeas cor-

pus. Covington v. Harris, 419 F.2d 617 (D.C.

1969). The State of Alabama respectfully submits

that more than orderly judicial procedure re-

quires the federal courts to refrain from rais-

ing and deciding issues sua sponte. The action

of the court below in deciding an issue not

raised by Davis and not considered in its opin-

ion before remand has clearly violated accepted

standards of federal jurisdiction, practice and

18

procedure and presents an important federal ques-

tion which should be decided by this Honorable

Court.

Lae

A NOVEL QUESTION

THE FEDERAL WRIT OF HABEAS CORPUS

SHOULD NOT BE AVAILABLE TO STATE

PRISONERS TO REVIEW MERE ERRORS OR

OMISSIONS BY DEFENSE ATTORNEYS

WHERE THERE IS NO STATE ACTION.

This Honorable Court has never directly

addressed the question of whether Federal Ha-

beas Corpus, under 28 U.S.C. 2254, is available

to state prisoners whose claims of ineffective

assistance of counsel are based on mere errors or

omissions of their attorneys - retained or ap-

pointed - where there is no state action.

The petitioner recognizes the basic consti-

tutional right of an indigent accused to have ef-

fective counsel. Competent counsel who are

19

licensed members of the bar must be appointed in

a timely manner. However, at some point the state

must relinquish control in order to protect and

give credence to the attorney-client relationship.

Absent "grossly deficient'' behavior by counsel,

there should be no further duty for state action.

See Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.

1975), cert. denied 422 U.S. 1011, 45 L.Ed.2d

675, 95 S.Ct. 2636 (1975). ‘The decisions on what

witmesses to call, whether and how to conduct

cross-examination, what jurors to accept or

strike, what trial motions should be made, and

all other strategic and tactical decisions are

the exclusive province of the lawyer after con- —

sultation with his client.'' American Bar Associa-

tion Project for Standards for Criminal Justice,

Standards Relating to the Prosecution Function

and the Defense Function §5.2(b) (tent. draft

1970).

The problems of using Habeas Corpus to re-

view mere errors or omissions by defense attomeys

ee

20

fall into two categories - practical and legal.

The legal problems arising from using

habeas corpus to review alleged errors or omissions

by defense counsel in state cases relate to the )

question of state action. The Court of Appeals

for the Fifth Circuit has itself recognized that

a mere error or omission of counsel is not action-

able under 28 U.S.C. 2254 unless there is some

state action involved. Fitzgerald; Malone v. Ala-

bama, 514 F.2d 77 (5th Cir. 1975), cert. denied,

423 U.S. 990, 46 L.Ed.2d, 96 S.Ct. 403 (1976);

Kallie v. Estelle, 515 F.2d 588 (5th Cir. 1975),

423 U.S. 1019, 46 L.Ed.2d, 96 S.Ct. 455 (1976).

A private attorney - retained or appointed -

is not a state official. He is not umder the di-

rect supervision of state officials. To provide

such supervision it would be necessary for the i

State to somehow enter the confidential attorney-

client relationship and to place restraints and

mandates on private attorneys. Even if such pro-

cedure could pass constitutional muster, it would

21

totally undermine our adversary system of justice.

In the case sub judice the Court of Appeals

has found no state action. Indeed, the trial court

judge has been held blameless. In Davis v. Alabama,

596 F.2d at 1217 the Court of Appeals held:

Instead of blaming the judge we hold

that Davis's trial attorneys were

responsible for the inadequacy of

Davis's defense.

Without regard to such finding, the Court of

Appeals either presumed other state action or

found none to be necessary and summarily decided

under the standard of "reasonably likely to render

and rendering reasonably effective assistance"

that counsel was ineffective and remanded to the

district court for a hearing to determine whether

Davis was prejudiced by the conduct of his attor-

neys.

State action cannot be presumed. It must

involve more than mere knowledge. If mere

= 22

knowledge were sufficient then every time state or

local officials learned of a crime in progress,

the crime would become state action. Clearly,

state action requires as a condition precedent

that the state or its officials be in a position

to control events. Otherwise, the state would be

at the mercy of persons and things beyond its

control.

In Estelle v. Gamble, 429 U.S. 97, 50 L.Ed.

2d 251, 97 S.Ct. 798 (1976) this Honorable Court

held that "medical malpractice does not become a

constitutional violation merely because the vic-

tim is a prisoner". The State of Alabama submits

that, by way of analogy, legal malpractice does

not become a constitutional violation merely be-

cause the client is an accused absent same show-

ing of state action.

The practical problems are mmerous. The

main difficulty is in identifying an error or

omission at the time when something corrective

—

23

can be done. What appears to be an error or omis-

sion by counsel may be the result of a strategic

decision or the result of a decision by the ac-

cused or simply a blunder.

This Honorable Court has recognized that

what may appear to be errors, may in reality be

tactical decisions. Estelle v. Williams, 425 U.S.

501, 48 L.Ed.2d 126, 96 S.Ct. 1691 (1976). Exam-

ples of this abound. For example, a failure of

defense counsel to object to a confession may be

an error or it may be the result of a strategic

decision based on one or more of the following:

(1) the accused has chosen not to testify; (2) the

confession, while incriminating, puts the accused

in a better light than the rest of the state's-

evidence; or (3) the confession is the accused's

only opportunity to get his story before the jury.

For another example, see Taylor v. State, 291 Ala.

756, 287 So.2d 901 (1973), cert. denied 416 U.S.

945, 40 L.Ed.2d 298, 94 S.Ct. 1955.

24

There are other practical problems. It is

most difficult for trial judges and prosecutors

to detect errors and sort them out from strategy

and the demands of the accused. Since there is no

time limit on habeas corpus, petitions may be

filed years after the trial when defense attorneys

may or may not recall why they did or did not do

something. Other remedies are more timely.

This Honorable Court has recognized that

there are Federal Questions for which habeas

corpus is an inappropriate remedy. Stone v. Povell,

428 U.S. 465, 49 L.Ed.2d 1067, 96 S.Ct. 3037

(1976). The petitioner respectfully submits that

questions relating to alleged errors of defense

attorneys, where there is no state action, as-

suming that these are Federal Questions, are among

the issues for which habeas corpus is not an

appropriate remedy.

In order to suppress crime, criminal jus-

tice mist be swift and certain. States must, how-

ever, accord accused persons due process of law.

eo»

25

If criminal justice is to be certain, the require-

ments of due process must be such that state offi-

cials can, by exercising reasonable diligence,

follow them in every case. The State, because

of the nature of our adversary system, cannot con-

trol all actions of defense attorneys. In the

view of the Court of Appeals, tactical decisions

of defense counsel arising from the attorney-

client relationship can wipe out the diligent

efforts of the legislature, judiciary and prose-

cutors to meet due process requirements. It is

the duty of a defense attorney to avoid having a

final conviction entered against his client. Why

should a defense attorney work with diligence to.

protect his client's rights, when he can better

serve his client by being negligent?

For all of the foregoing reasons, the

State of Alabama respectfully submits that Federal

Habeas Corpus under 28 U.S.C. 2254 should not be

available to state prisoners to review mere errors

)

26

or omissions where there is no state action even

when such issue is appropriately raised by a state

prisoner.

III.

CONFLICT OF DECISIONS

THE EFFECTIVENESS OF COUNSEL SHOULD BE

JUDGED BY THE STANDARD OF "REASONABLY

LIKELY TO RENDER AND RENDERING REASONABLY

EFFECTIVE ASSISTANCE".

Assuming for the sake of argument that the

scope of review of the Court of Appeals was suffi-

ciently broad to include the issue decided and

that state action either was not necessary or was

necessary and present, the Court of Appeals'

holding that petitioner's counsel were ineffec-

tive is in conflict with MacKenna v. Ellis, 280

F.2d 592, (5th Cir. 1960), modified 289 F.2d 928

(5th Cir. 1961), cert. denied 368 U.S. 877, 82

S.Ct. 121, 7 L.Ed.2d 1978 (1961). The standard of

_ the Fifth Circuit by which the effective assistance

mae

27

of counsel is to be determined is set forth at

page 599 in MacKenna, as follows:

"We interpret the right to counsel

as the right to effective counsel. We

interpret counsel to mean not errorless

counsel, and not counsel judged ineffec-

tive by hindsight, but counsel reasonably

likely to render and rendering reasonably

effective assistance."

This standard has often received approval

since that date. Herring v. Estelle, 491 F.2d 125,

127 (5th Cir. 1974); Haggard v. Alabama, 550 F.2d

1019, 1023 (5th Cir. 1977).

Furthermore, Judge Skelton in the dissenting

opinion in Davis, 596 F.2d at 1230, points out:

"The ‘effective assistance of

counsel' cases relied on by the majority

are distinguishable on the facts from

the instant case. Those cases, without

discussing them in detail, have, for

the most part, a common characteristic

28

or thread rumning through them, namely,

the fact that trial counsel conducted

no investigation at all, or, more

commonly, failed to investigate

specific leads furnished by their

clients that were germane to their

defenses."

Among the cases cited by the majority are

Hintz v. Beto, 379 F.2d 937 (5th Cir. 1967) in

which trial counsel unlike counsel for Davis,

raised absolutely no issue as to appellant's men-

tal condition in any respect. In Greer v. Beto,

379 F.2d 923 (Sth Cir. 1967) counsel failed to

offer any testimony on the question of sanity.

In the instant case, unlike those cited by

the majority, it is clear that defense counsel

has done much more than, as the majority says,

"put on only the shell of an insanity defense"’.

Davis, 596 F.2d at 1215. The majority consistently

refers to Davis’ "relatives in California" and

_ totally ignores the fact that many of Davis'

29

relatives resided in the Cullman area, were wit-

nesses at the trial, and were, in fact, questioned

by defense counsel with regard to the issue of in-

sanity. (R.Vol.I, pp. 130, 194, 195, 198, 200,

202, 205, 207; R.Vol.II, pp. 27, 62, 63).

Judge Skelton in his dissent at page. 1228

notes that Davis twice expressed satisfaction with

his attorney's representation. The record shows

that both defense counsel, unlike defense counsel

in authorities cited by the majority, were very

active in his defense. Evidence from the report

of Dr. Dean was thoroughly considered at the state

trial court level as there was much testimony in

both the hearing and at trial which brought out

his report. (R.Vol.I, pp. 73, 76, 77, 200, 206,

207, 208) The report indicated simply that Davis

had been treated for alcoholism in California and

that as of February 1973 Davis was no longer in

need of psychotherapy. The record also reflects

that Davis' attorneys cross-examined state's wit-

nesses extensively.

30

Petitioner's present attorney did not claim

at the evidentiary hearing nor did he claim in

brief that petitioner's trial attorneys were at

fault. (R.Vol.p. I 338). Before trial, defense

counsel made mmerous motions including a Petition

for Mental Examination. (R.Vol.I, p. 51) They

called Davis to the stand to testify during a

hearing on this motion. (R.Vol.I, pp. 73-83)

Davis' testimony at this hearing revealed only

that he had been treated for problems relating to

alcoholism and that he had, prior to coming to

Alabama, been released from further treatment .

(R.Vol.I, pp. 76-78) The denial of this Petition

has been previously approved. Davis v. Alabama,

545 F.2d 460 (5th Cir. 1977), cert. denied 431

U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977).

At the conclusion of the evidence, Davis'

attorneys made arguments to the jury in his behalf

on the issue of insanity. They requested written

charges on the special plea not guilty by reason

of insanity which were ably covered by the court

31

in its oral charge. (R.Vol.I, pp. 244-247) It is

readily apparent that co-counsel could have done

nothing more to be of effective assistance to

their client. |

Judge Skelton in the dissent at pages 1229

and 1230 also reaches this conclusion after cata-

loging the actions of trial counsel. In Davis,

596 F.2d at 1229, Judge Skelton writes:

"The foregoing efforts on the part of 7

trial counsel show that they rendered

reasonably effective assistance of

counsel on the insanity issue, which

seems to be the only issue troubling

the majority. This is especially true

in view of the holding of another

panel of this court in the prior

appeal, as quoted above, which is

binding on us, that:

(1) Petitioner had no history

of irrational behavior.

32

(2) Dr. Dean's report negated any

suggestion of incompetency.

(3) Lay witmesses testified he

did not act irrationally or

seem incoherent shortly after

the crime and while confined

in jail.

(4) Petitioner's demeanor when he

testified at the hearing on

the § 425 motion showed he was

able to recite with great parti-

cularity and understanding facts

concerning his family and his

criminal record. There was no

indication of incompetency.

(5) There was no evidence that he

acted incompetently at his

trial.

(6) The trial court did not err in

dismissing petitioner's habeas

petition which called into

33

question his competency.

545 F.2d 464, 465.

The majority opinion unnecessarily

expands and enlarges the doctrine of

‘effective trial counsel.' A defendant

is not entitled to 'errorless counsel’,

but only to counsel ‘reasonably likely

to render and rendering reasonably

effective assistance. '"

When the actions of Davis' counsel are judged by

the MacKenna standard of "reasonably likely to

render and rendering reasonably effective assis-

tance"’, it is certain that their actions, under

the circumstances of the case sub judice, were

more than sufficient to pass the test.

The State of Alabama submits that faced with

defending a client who by all accounts was undenia-

bly guilty of murdering his wife (Davis, 596 F.2d

at 1215), defense comsel, in presenting a defense

of not guilty by reason of insanity with knowledge

which inevitably led to the conclusion that Davis'

34

troubles related only to the consumption of alco-

hol and that he had been certified as no longer

needing treatment, discharged every duty owed to

their client.

CONCLUSION

For the foregoing reasons, a writ of certio-

rari should issue to review the opinion, decision

and judgment of the Honorable United States Court

of Appeals for the Fifth Circuit.

Respectfully submitted,

ASSISTANT ATTORNEY GENERAL

30

CERTIFICATE OF SERVICE

I, Carol Jean Smith, one of the attorneys for

the Petitioner and a member of the Rar of the

Supreme Court of the United States, do hereby

certify that on this __day of October, 1979,

I did serve the requisite mmber of copies of the

foregoing Petition for Writ of Certiorari on B.

Don Hale, Esq. whose address is 316 2nd Ave., SW,

Cullman, Alabama 35055, attorney for Respondent ,

by mailing said copies to him at the aforesaid

address with first class postage prepaid.

ADDRESS :

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

205-834-5150