Appendix — State of Alabama v. James G. Davis

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a i NOV 2

) 988

Supreme Court of the 1 sa

OCTOBER TERM, 1979

Mm, 9 711

STATE OF ALABAMA,

PETITIONER

VERSUS

JAMES G. DAVIS,

RESPONDENT

»*

APPENDICES TO PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CHARLES A. GRADDICK

Attorney General of Alabama

250 Administrative Building

64 No. Union Street

Montgomery, Alabama 36130

CAROL JEAN SMITH

Assistant Attorney General

of Alabama

250 Administrative Building

64 No. Union Street

Montgomery, Alabama 36130

205-834-5150

COUNSEL FOR PETITIONER

r Supreme Cort U. T

g FILED J

APPENDIX A

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JAMES G. DAVIS, )

Petitioner )

-Vs- )NO. CA 75-A-0808-NE

STATE OF ALABAMA, )

Respondent )

ORDER

The Court has considered the pleading filed by

petitioner in this cause, the response of the State of

Alabama to a show cause order heretofore entered by the

magistrate and the report and recommendation of the U.S.

Magistrate. The magistrate’s recommendation is hereby

ADOPTED and APPROVED.

It is therefore ORDERED that the petition for habeas

corpus filed by James G. Davis be and the same hereby is

DENIED.

The Clerk is directed to furnish petitioner and the

Hon. William Baxley, Attorney General of the State of

Alabama with a copy of the magistrate’s report and

recommendation and this Order.

DONE, this 9th day of December, 1975.

C. W. ALLGOOD

UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JAMES G. DAVIS,

Petitioner

-Vs-

STATE OF ALABAMA,

Respondent

NO. CA 75-A-0803-NE

EXAMINATION, REPORT AND RECOMMENDATION

On November 28, 1973, petitioner Davis was convicted

of murder in the first degree in the Circuit Court of

Cullman County, Alabama and sentenced to life

imprisonment. The indictment on which he was tried

charged the murder of Marsha Lee Davis, wife of the

petitioner, with a shotgun. To the charge, Davis entered

pleas of not guilty and not guilty by reason of insanity and

on the date of the trial, filed a written motion by which he

requested the trial court to “institute a careful

investigation .. with the view of determining the

mental condition of the defendant and the existence of any

mental disease or defect which would affect his present

criminal responsibility, or his criminal responsibility at

the time of the commission of the alleged crime, all in

accordance with Section 425, Title 15, Code of Alabama

(1940) as amended.” On appeal to the Alabama Court of

Criminal Appeals, it was asserted that the trial court’s

rejection of his request for an investigation into his

criminal responsibility deprived him of due process under

the Fourteenth Amendment. The conviction was affirmed

with the appeals court finding that there had not been a

sufficient showing before the trial court to require such an

investigation. Being indigent, Davis was represented at all

critical stages of the proceedings by two court-appointed

lawyers. Davis next returned to the trial court, pro se, with

a petition for a writ of error coram nobis where he alleged a

denial of due process in the court’s refusal to grant a

continuance in the trial so that his counsel might prepare to

prove his defense of insanity at the time of the alleged

crime and for the first time, clearly raised the issue of his

competency at the time of the trial itself. That petition was

dismissed without hearing on November 8, 1974. The

Court of Appeals affirmed and the Supreme Court of

Alabama and the Supreme Court of Alabama denied

certiorari. There then followed this petition for Federal

habeas corpus relief where Davis again claims denial of

due process in the court’s refusal to grant a continuance

and to order a hearing into his competency to stand trial.

The written motion filed by Davis’ counsel on the date

of trial alleged that in their opinion, he needed psychiatric

evaluation and that he had previously been ordered to

undergo psychiatric treatment by a court in Los Angeles,

California. In support of the motion, there was produced, a

copy of a probation report from the California court which

contained a letter from one Doctor Dean which indicated

that both Davis and his deceased wife had been consulted

by him and that Davis’ drinking problem had improved

somewhat during such consultation. Testifying in his own

behalf on the motion, Davis stated that the California court

had placed him on probation after his conviction for

assaulting the deceased and that his real problem was

related to his abuse of alcohol.

Without doubt, the conviction of a defendant while he

is legally incompetent violates due process, Bishop v. U. S.,

350 U.S. 961 (1956); Pate v. Robinson, 383 U.S. 375 (1966).

Due process requires that at any time the trial court has

reasonable ground to doubt the present competency of the

defendant, that such court must take reasonable steps to

assure that his competency is legally determined, Seibold

v. Daniels, 337 F.Supp. 210 (1972) and the state cannot rely

on a defendant’s failure to raise such issue at trial for it is

contradictory to argue that a defendant may be

incompetent and yet knowingly waive his right to such

determination. Pate v. Robinson, supra.

Alabama has sought by statute to insure “that

defendants in its courts will have their rights protected in

this regard. Section 425 of Title 15, Alabama Code, 1940

(recompiled 1948) provides in pertinent part as follows:

Whenever it shall be made known to the

presiding judge of a court by which an indictment

has been returned against a defendant for a

capital offense ... that there is reasonable

ground to believe that such defendant was insane

either, at the time of the commission of such

offense, or presently, it shall be the duty of the

presiding judge to forthwith order that such

defendant be delivered by the sheriff of the

county to the superintendent of the Alabama

state hospitals . . . with the view of determining

the mental condition of such defendant and the

existence of any mental disease or defect which

would affect his present criminal responsibility,

or his criminal responsibility at the time of the

commission of the crime.

While on the face of it, this Code Section appears to

mandate an inquiry into a defendant’s “mental condition”

at any time the court has “reasonable ground to believe that

such defendant was insane” the United States Court of

Appeals has interpreted such statute to direct an inquiry

into the defendant’s mental state at the time of the

commission of the offense. In Lee v. State of Alabama, 386

F.2d 97 (1967), the court said:

Although this section speaks of the “mental

condition” of the accused it seems clearly directed

towards the specific inquiry whether an indicted

person suffered from any mental disease or defect

which would affect his present criminal

responsibility or his criminal responsibility at the

time of the commission of the crime. It is plain that

this section does not expressly require any

determination by the lunacy commission 2 to the

mental capacity of the accused person, already

under indictment in a capital case to stand trial.

On the other hand, the Fifth Circuit is clear in Lee,

supra, to the opinion that Title 15, Section 426 is expressly

directed at the question of a defendant’s ability to stand

trial and that it contemplates the use of a separate jury to

determine such question. That section provides in

pertinent part as follows:

If any person charged with any felony be held

in confinement under indictment, and the trial

court shall have reasonable ground to doubt his

sanity, the trial of such person for such offense

shall be suspended until the jury shall inquire

into the fact of such sanity . . . If they find that

he is insane at that time, the court shall make an

order committing him to the Alabama state

hospitals, where he must remain until he is

restored to his right mind. When the

superintendent of the hospitals shall be of the

opinion that such person is so restored . . . such

person must be remanded to prison on an order of

such judge, and the criminal proceedings

resumed.

It is clear that the written motion filed by Davis was

one seeking relief under Title 15, Section 25. Indeed the

request for relief tracked the language of that section and

was directed to Davis’ defense of insanity, i.e., whether at

the time of the commission of the offense, Davis understood

the difference between right and wrong and was capable of

choosing the right over the wrong. At no time did Davis

raise the question of his then competency to stand trial, i. e.,

was he able to understand the charges against him and to

assist in his own defense. This is not to say that the state can

now rely on his failure to raise such issue for as we have

seen from Pate, supra, that would be a contradictory

position. The question which must be decided here is

whether based on Davis’ Section 425 motion and the

evidence presented on it, the trial court should have sua

sponte, considered that it had a Section 426 motion before it

and proceeded accordingly. Again, the Fifth Circuit Court

of Appeals has spoken to the duty of the Alabama trial

court when faced with a Section 426 motion, Brinks v.

Alabama, 465 F.2d 446, 5th Cir. 1972.

Before the trial judge suspends the normal course

of criminal proceedings and conducts a jury

inquiry into the fact of sanity, there must come to

his attention, factual data, or allegations of

factual data, tending to show “reasonable ground

to doubt (the accused’s) sanity.” The court has

discretion to determine if the underlying factual

basis said to exist does in fact exist, and whether

such factual basis constitutes “reasonable ground

to doubt (the accused’s) sanity.” If that standard is

attained, discretion drops out of the picture —

that is, the judge has no discretion to disobey the

mandate of the statute if the prerequisites for the

mandate are present.

Here, the evidence of Davis’ mental state was minimal

at best. It consisted of a probation report which contained a

letter from a doctor who was variously described by Davis

as either a psychiatrist or a psychologist. The report

indicated counseling with both Davis and his wife and that

the consultation may have concerned excessive use of

alcohol by Davis. Further, Davis testified himself, that his

problems were in large part related to alcohol and its use.

On such slim evidence, Davis wants this Court, which has

nothing more than a cold written record, to find that a

judge in the Alabama state court which had before it the

defendant; which heard his testimony, which observed his

demeanor and lucidity on the stand; and which was a part

of the actual proceedings, abused his discretion in refusing

to halt the trial of a first degree murder indictment on his

own motion and impanel a separate jury for the purpose of

inquiring into Davis’ then competency to understand the

charges against him and to assist his lawyers in his own

defense. It is the opinion of the magistrate that it would be

improper for this Court to substitute its judgment for that

of the Alabama state court absent compelling evidence of

incompetency on the part of Davis. Such evidence is not

apparent in the record before this Court.

As to Davis’ claim that the court abused its discretion

in refusing to grant a continuance so that his trial counsel

could prepare to prove the defense of insanity, it is difficult

to see such an abuse amounting to constitutional

proportions where there was so little which could

apparently gained by such a delay. Further, it is apparent

from the record that defense counsel had known of the need

to prepare themselves for several weeks. Accordingly, the

magistrate is of the opinion that there was no abuse of the

trial court’s discretion.

For the reasons stated above, it is the recommendation

of the magistrate that no evidentiary hearing be held in

this matter and that the petition for habeas corpus relief be

denied.

DATED, this 9th day of December, 1975.

EDWIN L. NELSON

United States Magistrate

APPENDIX B

James G. DAVIS, Petitioner-Appellant,

STATE OF ALABAMA, Respondent-Appellee.

No. 76-1273.

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

Jan. 14, 1977.

The United States District Court for the Northern

District of Alabama, Clarence W. Allgood, Senior District

Judge, denied petition for habeas corpus relief without

holding evidentiary hearing, and petitioner appealed. The

Court of Appeals, Lewis R. Morgan, Circuit Judge, held

that petitioner did not raise issue of competency at trial;

that bona fide doubt as to petitioner’s allegations in support

of his habeas corpus petition that he was incompetent to

stand trial were insufficient to require evidentiary

hearing; but that in light of defense counsels’ repeated

assertions that they did not have time to prepare adequate

defense and weak defense that they in fact presented,

petitioner’s claim concerning failure of trial court to grant

counsels’ motion for continuance to better prepare

themselves to defend petitioner would be remanded for

hearing to determine if denial of continuance deprived

petitioner of effective assistance of counsel.

Affirmed in part, reversed in part.

1. Constitutional Law § 268.2(2)

Trial of accused while he is incompetent violates the

due process. U.S.C.A. Const. Amend. 5.

2. Constitutional Law § 268.2(2)

Essential to claim that trial court violated defendant’s

procedural due process rights by not determining his

competence at time of trial is showing that defendant

presented evidence raising issue of competency.

3. Criminal Law § 625

Explicitly worded motion for competency hearing is

not only signal to trigger procedures that provide for

determination of competency; rather, if defendant has

presented evidence to trial court, before or during trial,

that raises “bona fide doubt” of his competence, trial

court’s failure to make further inquiry denies that

defendant his constitutional right to a fair trial.

4. Criminal Law § 625

Where defense never explicitly raised issue of

competency either prior to or during trial, and remarks of

both trial judge and defense counsel made clear that all

parties understood motion for mental examination to be

directed toward obtaining evidence relevant to petitioner’s

substantive defense of insanity, petitioner did not raise

issue of competency in his state court prosecution. Code of

Ala., Tit. 15, § 425.

5. Constitutional Law § 268.2(2)

Where petitioner had no history of irrational behavior,

psychologist’s report negated any suggestion of

incompetency that might have been inferred from fact of

his treatment, lay witnesses testified that petitioner did not

act irrationally or seem incoherent shortly after crime and

during his pretrial confinement, and petitioner's

demeanor indicated no incompetence on his part, bona fide

doubt as to petitioner’s competence did not exist at

petitioner’s state court trial and trial court’s failure to, sua

sponte, conduct competency hearing was not a violation of

petitioner’s due process rights. U.S.C.A. Const. Amend. 5.

6. Habeas Corpus § 25.1(4)

Although petitioner could not argue that state trial

court’s failure to invoke appropriate procedures to

determine his competency violated his rights to due

process where no bona fide doubt as to competency was

raised at trial, petitioner still could prevail if, at habeas, he

could show that he nevertheless was incompetent to stand

trial. 28 U.S.C.A. § 2254; U.S.C.A. Const. Amend. 5.

7. Habeas Corpus § 59

Petitioner’s demeanor, testimony of lay witnesses that

petitioner did not act irrationally or seem incoherent

shortly after crime and during his pretrial confinément,

and clinical psychologist’s report, which merely recorded

essence of interview with petitioner concerning his history

of domestic problems, which did not address issue of

petitioner’s present or past competency, and which even

accepted as true, did not raise real, substantial and

legitimate doubt as to petitioner’s competency, were

insufficient to require evidentiary hearing on petition for

habeas corpus, at least insofar as petition called into

question petitioner’s competency at his state court trial. 28

U.S.C.A. § 2254.

8. Habeas Corpus § 45.2(4)

Denial of motion pursuant to Alabama statute for

mental examination of petitioner, who was convicted in

state court of first-degree murder and was seeking habeas

corpus relief but who cited no relevant authority that

required, as constitutionally mandated, any procedure to

determine criminal responsibility similar to that provided

for by Alabama statute, was in accord with relevant state

law and violated no federal constitutional right. 28

U.S.C.A. § 2254; Code of Ala., Tit. 15, § 425.

9. Criminal Law § 586

Matter of continuance is traditionally within

discretion of trial court and not every denial of such a

motion violates one’s due process rights or renders

ineffective assistance of counsel. U.S.C.A. Const. Amends.

5, 6.

10. Habeas Corpus § 113(13)

On the basis of particular facts, including defense

counsel’s repeated assertions that they had not had time to

prepare a defense and failure to produce medical or

psychiatric testimony in support of insanity defense,

petitioner raised substantial claim of ineffective assistance

of counsel in state court trial and, since no full and fair

hearing had been held in state court, habeas corpus

proceeding would be remanded for hearing to determine if

trial court’s denial of continuance deprived petitioner of

effective assistance of counsel. U.S.C.A. Const. Amend. 6.

James G. Davis, pro se.

George G. Lynn (Court-appointed), Birmingham, Ala.,

for petitioner-appellant.

William J. Baxley, Atty. Gen., Carol Jean Smith, Asst.

Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the

Northern District of Alabama.

Before RIVES,* GEWIN and MORGAN, Circuit

Judges.

LEWIS R. MORGAN, Circuit Judge:

Petitioner James G. Davis appeals the denial of his

petition for habeas corpus relief, sought pursuant to 28

U.S.C. § 2254, by the United States District Court for the

Northern District of Alabama. The Circuit Court of

Cullman County, Alabama convicted Davis of first degree

murder on November 26, 1973. After exhausting his state

*Judge Rives was a member of the panel that heard oral argument.

but due to illness did not participate in this decision. The case is being

decided by a quorum. 28 U.S.C. § 46(d).

remedies,! Davis filed the present petition? with the

_ district court. Adopting the report of the United States

Magistrate and holding no evidentiary hearing, the

district court dismissed the petition.

On November 26, 1973, the day that Davis’ trial was

set to begin, his attorneys moved, pursuant to Ala. Code tit.

15, § 425,3 for a mental examination of the defendant.‘ At

the hearing on the motion, defense attorneys informed the

court that they had learned a month before that defendant

had undergone some psychiatric treatment in California in

May of 1972; according to the statements of the attorneys at

the hearing, this information, alone, prompted the § 425

The Criminal Court of Appeals of Alabama affirmed Davis’

conviction on October I, 1974. On November 8, 1974, the trial court

denied a petition for coram nobis; the criminal court of appeals likewise

affirmed this judgment on February 18, 1975. Finally, on April 24,

1975, the Alabama Supreme Court denied petitioner’s writ of certiorari.

2The present petition represents defendant’s third effort to obtain

habeas relief. The district court dismissed his first petition on December

20, 1974 and his second petition on June 11, 1975.

8Section 425 provides in pertinent part:

Whenever it shall be made known to the presiding judge of a

court by which an indictment has been returned against a

defendant for a capital offense, by the written report of not less

than three reputable specialist practitioners in mental and

nervous diseases, appointed by the judge, or by the written report

of the superintendent of the Alabama state hospitals, that there is

reasonable ground to believe that such defendant was insane

either, at the time of the commission of such offense, or presently,

it shall be the duty of the presiding judge to forthwith order that

such defendant be delivered by the sheriff of the county to the

superintendent of the Alabama state hospitals, who is charged

with the duty of placing such defendant under the observation and

examination of himself and two members of his medical staff to be

named by him, constituting a commission on lunacy, with the view

of determining the mental condition of such defendant and the

existence of any mental disease or defect which would affect his

present criminal responsibility, or his criminal responsibility at

the time of the commission of the crime.

‘Davis had previously entered a plea of Not Guilty and Not Guilty by

Reason of Insanity.

motion. Besides the testimony of the defendant, the only

evidence presented at the hearing related to the California

treatment was a probation report from a Dr. Dean, a

psychologist’ who had treated defendant. According to

defendant’s testimony, a California court required, as a

condition of defendant’s probation on an assault and

battery conviction, that defendant see Dr. Dean. In

addition, according to defendant,* the local welfare

department, which had removed defendant’s children

from his and his wife’s custody, stated that they would

return the children only upon a satisfactory report from

Dr. Dean.“ Dr. Dean’s report to the probation department

merely stated that he had evaluated defendant’s behavior

and determined that he and his wife were living together

harreoniously and that Davis had decreased his drinking.®

Upon Dr. Dean’s recommendation that Davis no longer

needed treatment, he and his wife again received custody

of their children.“ After hearing the above evidence, the

trial court denied the § 425 motion, noting that this

evidence was insufficient to require a § 425 mental

examination.!° Defense counsel then requested a

continuance so that they could gather more evidence to aid

in their preparation of Davis’ insanity defense; the trial

court likewise denied this motion.

Throughout the record of the hearing, the defendant and his

attorneys refer to Dr. Dean alternatively as a psychologist and a

psychiatrist.

R., p. 74-77.

IR., p. 77.

R., p. 72.

R., p. 76-77.

Section 425 requires that there be reasonable ground” to believe

the defendant insane. Earlier, the trial judge had denied the motion,

observing that counsel had known of the California treatment for over a

month and therefore had ample opportunities to present this motion

prior to the date the trial was to begin. He apparently reconsidered his

ruling and allowed defendant Davis to testify on the matter.

Issues before this court on this appeal concern the

effect of the trial court’s denial of both motions on

defendant’s constitutional right to a fair trial. Drope v.

Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L.Ed.2d 103 (1975);

Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d

126 (1976). We first examine the denial ofthe § 425 motion

as that denial related to defendant’s alleged incompetence

to stand trial. While defendant’s appellate counsel

admittedly does not pursue this issue with much vigor,

instead concentrating on the relation of the § 425 denial to

the substantive defense of insanity at the time of the

commission of the crime, we nevertheless find that Davis'

pro se complaint, liberally read, contains such aclaim. We

therefore. address this issue.

(1) Trial of an accused while he is incompetent

violates due process. Bishop V. United States, 350 U.S. 961,

76 S.Ct. 440, 100 L.Ed. 835 (1956); Pate v. Robinson, 383

U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Drope v.

Missouri, 420 U.S. 162, 95 S. Ct. 896, 43 L.Ed.2d 103 (1975).

The Supreme Court has held that the test for determining

mental competency to stand trial, as distinguished from

the standard to determine mental culpability for the

criminal act, itself, is

whether (the defendant) has sufficient present

ability to consult with his lawyer with a

reasonable degree of rational understanding—

and whether he has a rational as well as factual

understanding of the proceedings against him.

Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4

L.Ed.2d 824 (1960). This court has held that analysis of the

issue of competency is two-fold: first, a defendant has a

substantive right not to be tried while he is incompetent;"!

The Supreme Court precluded the possibility of waiver of a claim

of incompetence to stand trial in Pate v. Robinson, 383 U.S. at 384, 86

S.Ct. at 841, 15 L.Ed.2d at 821 (1966). While it later expressed some

second, pursuant to Pate v. Robinson, 383 U.S. 375, 86 S. Ct.

836, 15 L.Ed.2d 815(1966), the defendant also has a right to

adequate procedures to safeguard this substantive right.

Nathaniel v. Estelle, 493 F.2d 794 (5th Cir. 1974). The

Nathaniel panel reached this conclusion after observing

that long before Patel? federal courts recognized as

constitutionally mandated the guarantee against standing

trial when incompetent. Only with Pate, however, could a

federal habeas petitioner raise not only incompetence in

fact, but also, in a proper case, the trial court’s failure to

determine competence contemporaneous with trial.

Nathaniel, 493 F.2d at 796-97. Examining the Pate issue

first, we shall follow a similar bifurcated approach in our

analysis. :

(2-4) Essential toa claim that the trial court violated

one’s procedural due process rights, pursuant to Pate’s

mandate, by not determining competence at the time of

trial is a showing that the defendant presented evidence

raising the issue of competency, Nathaniel, 493 F.2d at

797. Accord, Grissom v. Wainwright, 494 F. 2d 30 (5th Cir.

1974). Tyler v. Beto, 391 F.2d 993 (5th Cir. 1968) cert.

denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969).

Obviously, one cannot fault a trial court judge for failing to

determine a question that he has no reason to believe is in

issue. Yet, the Supreme Court has indicated that an

explicitly worded motion for a competency hearing is not

the only signal to trigger procedures that provide for a

determination of competency. Pate v. Robinson, 383 U. S. at

384, 86 S.Ct. at 841, 15 L.Ed.2d at 821; Drope v. Missouri,

420 U.S. at 176-177, 95 S.Ct. at 906, 43 L.Ed.2d at 116. See

also Lee v. Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc)

misgivings on the viability of that proposition in Drope v. Missouri, the

non-waiverability of a claim of incompetence appears to survive in that

case. Drope, 420 U.S. at 176-177, 95 S.Ct. at 906, 43 L.Ed.2d at 116.

E. g., Bishop v. United States, 350 U.S. 961, 76 S. Ct. 440, 100 L.Ed.

835 (1956).

cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246

(1969). Rather, if the defendant has presented evidence to

the trial court, before or during trial, that raises a “bona

fide doubt,” of his competence, Pate, 383 U.S. at 385, 86

S.Ct. at 842, 15 L.Ed.2d at 822, the trial court’s failure to

make further inquiry denies that defendant his

constitutional right to a fair trial. While the Supreme

Court has not prescribed a general standard regarding the

nature or quantum of evidence necessary to require resort

to an adequate procedure, it has stated that three factors

should be considered. These factors are: existence of a

history of irrational behavior; defendant’s demeanor at

trial, and prior medical opinion. Drope v. Missouri, 420

U.S. at 180, 95 S.Ct. at 907, 43 L.Ed.2d at 118. Examining

the present case in light of the considerations discussed

above, we note that the defense never raised the issue of

competency either prior to or during the trial. While the

defense attorneys did make a § 425 motion for a mental

examination, this court has held that such a motion, alone,

does not place defendant’s competence in issue. 1s Lee v.

Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc.). Accord,

Seibold v. Daniels, 337 F.Supp. 210, 214(M.D.Ala.1972). In

addition, the remarks of both the trial judge and defense

counsel, as contained in the trial court record, make clear

that all parties understood the motion to be directed

toward obtaining evidence relevant to defendant’s

substantive defense of insanity."

(5) Having determined that defendant did not raise

the issue of competency, we look to the record to determine

uln Lee, 386 F.2d at 106, this court held that for purposes of

determining whether the Alabama trial court had made a finding on the

competency of a defendant, its ruling on a § 425 motion would not

constitute such a determination. Reciprocally, a § 425 motion, alone,

does not place co ncy into issue.

“Defendant’s appellate counsel conceded this point at oral

argument.

if, in light of the three factors listed in Drope, indicia

suggesting a bona fide doubt as to defendant’s competence

existed at trial. First, we note that while domestic quarrels

occasionally clouded defendant’s past, he had no history of

irrational behavior such as that uncovered in Pate v.

Robinson, 383 U.S. 375, 86 S. Ct. 836, 15 L.Ed.2d 815, (1966)

or in Lee v. Alabama, 386 F. 2d 97 (5th Cir. 1967) (en banc).

While the record indicates that defendant had seen a

psychologist, the psychologist’s report, indicating that

defendant was getting along better with his wife and no

longer needed treatment, negates any suggestion of

incompetency that one might infer from the fact of his

treatment. In addition, lay witnesses, who testified at trial

that defendant did not act irrationally or seem incoherent

shortly after the crime and during his pre-trial

confinement in jail, rebutted any suggestion of “bona fide

doubt” about defendant’s competence. Finally, defendant’s

demeanor at the pre-trial hearing on the § 425 motion!¢ as

reflected through his ability to recite, with great

particularity and understanding, facts concerning his

family and criminal record, indicated no incompetence on

his part. See McCune v. Estelle, 534 F.2d 611, 612 (5th Cir.

1976) (no incompetence shown where defendant

understood proceedings and able to coherently narrate

what had happened in his life as a whole, as well as

immediately before trial). Our examination of the trial

record, therefore, convinces us that no Pate violation

occurred through the trial court’s failure to sua sponte

conduct a competency hearing.

(6,7) “A determination that insufficient doubt (of

16“Pate and Lee present defendants whose behavior was

characterized by amply-attested, frank and extravagant symptoms of

derangement: in Pate’s case, irrational fears, occult and threatening

voices, waking visions of snakes and elephants; in Lee’s, delusions of

grandeur and persecution . . . Nathaniel v. Estelle, 493 F. ad at 797.

16Defendant did not testify at trial, although the record indicates no

evidence that he acted imcompetently at that proceeding.

competence) existed... at the time of trial does not

preclude a postconviction inquiry into competence to stand

trial.“ Nathaniel v. Estelle, 493 F. ad at 798.7 Although he

cannot argue that the trial court’s failure to invoke

appropriate procedures violates his rights to due process,

the defendant still may prevail if, at habeas, he can show

that he nevertheless was incompetent to stand trial. To

determine this second question, the Nathaniel panel adopts

the guideline articulated by Judge Gewin in Bruce v.

Estelle, 483 F.2d 1031 (5th Cir. 1973):

Courts in habeas corpus proceedings should not

consider claims of mental incompetence to stand

trial where the facts are not sufficient to

positively, unequivocally, and clearly generate a

real, substantial, and legitimate doubt us to the

mental capacity of the petitioner to meaningfully

participate and cooperate with counsel during a

criminal trial.. (T)he standard which should

be met to sustain such a claim (is) a history of

mental illness, substantial evidence of mental

incompetence at or near the time of trial

supported by the opinions of qualified physicians

and the testimony of laymen. The burden is on the

petitioner to prove his allegations; such proof shall

be clear and convincing. :

Id. at 1043 (emphasis added). Examining the state court

record and pleadings before the district court on habeas,

petitioner’s allegations do not meet this threshold

requirement. The facts before the trial court that were

potentially relevant to competency" clearly do not satisfy

1“ Pate did not disturb that right but sought only to diminish the

occasions for such determinations by requiring an inquiry

contemporaneous with trial if a bona fide doubt then existed.”

Nathaniel, 493 F. ad at 798.

10 Dr. Dean’s report, defendant’s demeanor at trial, testimony of lay

witnesses.

the Bruce standard. Petitioner’s only other factual

allegation to the district court was the existence of a report

by a clinical psychologist, Dr. Verna Wool, presumably

made during the first months of petitoner’s sentence on this

conviction.'® Introduced as Petitioner’s Exhibit E, the

report merely records the essence of an interview with

petitioner concerning his history of domestic problems. Dr.

Wool never addresses the issue of petitioner’s present or

past competency or insanity and none of her comments,

even if accepted as true, raise a ‘real, substantial, and

legitimate doubt” as to defendant’s competency.” Given

petitioner’s failure to present allegations that, even if

accepted as correct, meet the Bruce requirements, the

district court did not err in dismissing, without an

evidentiary hearing,”! petitioner’s habeas petition, at least

v Petitioner enclosed this report as Exhibit E, without making clear

the circumstances under which it was made. Dr. Wool dated the report

August 26, 1974.

20 In the main, Dr. Wool discusses petitioner’s transvestite behavior

and his passive relationships with his wives.

21Appellant’s counsel argues that the district court violated the

holding in Townsend v. Sain, 372 U.S. 298, 83 S.Ct. 745, 9 L.Ed.2d 770

(1963) that requires a federal court in habeas corpus to hold an

evidentiary hearing when, in a factual dispute, the state court has not

found the relevant facts in a full and fair evidentiary hearing. That

requirement does not apply to the competency issue here. With respect

to the Pate requirement that the trial court hold a competency hearing

whenever defendant raises a bona fide doubt as to his competency to

stand trial, our examination focuses on the facts known to the trial court

at the time of trial. Those facts are not in dispute; only the inferences to

be drawn from those facts are contested. Those inferences being

constitutionally guided by Pate and its progeny, no state evidentiary

hearing was required. Likewise, with regard to the substantive issue of

competence, we have determined that the factual allegations contained

in appellant’s petition, even if accepted as true, do not meet any test that

this circuit has established as a threshold requirement that a claim of

incompetency must satisfy; neither the “substantial allegations”

language of Lee, 386 F.2d at 97, the “bona fide” doubt test of Pate and

progeny—e. g. Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974),

Jordan v. Wainwright, 457 F.2d 338 (5th Cir. 1972); or the “real,

substantial and legitimate doubt” standard of Bruce, 483 F. 2d at 1043.

as that petition calls into question petitioner’s competency.

(8) Defendant’s appellate counsel argues primarily

that the trial court’s denial of the § 425 motion was

improper in that it foreclosed appropriate inquiry about

defendant’s criminal responsibility at the time of the

commission of the crime; i. e., appellant’s substantive

defense of insanity. A problem with appellant’s argument

however, clearly exists. That is, in order to receive habeas

corpus relief pursuant to 28 U.S.C. § 2254, the petitioner

must establish that the state court violated a federal

constitutional right. Yet, while appellant’s counsel

discusses at great length the constitutional requirement

that a defendant be competent to assist in his defense, he

cites us to no relevant authority that requires, as

constitutionally mandated, any procedure to determine

criminal responsibility similar to that provided for in

§ 425.2 Instead, he concentrates on the impropriety of the

§ 425 denial in terms of Alabama law. The Alabama

Criminal Court of Appeal, however, determined that the

trial court’s denial of that motion accorded with relevant

22Although the issue has not been extensively addressed, various

courts have examined the state’s responsibility to appoint a psychiatrist

to assist an indigent defendant in terms of that defendant’s

constitutional right to the effective assistance of his counsel. E. g.,

United States v. Edwards, 488 F.2d 1154, 1163 (5th Cir. 1974) (this court

has long recognized critical interrelation between expert psychiatric

assistance and minimally effective counsel) United States v. Taylor, 437

F.2d 371, 383-84 (4th Cir. 1971) (while Supreme Court declined to

declare such rights in Baldi, underpinning of that case eroded by later

court decisions expanding right to counsel); Davis v. United States, 413

F.2d 1226, 1229 n. 5 (5th Cir. 1969) (dictum) (Government may be

constitutionally required to afford indigent access to psychiatric

testimony when he raises an insanity defense and is otherwise unable to

procure evidence); Bush v. McCollum, 231 F.Supp. 560 (N.D.Tex.1964)

(effective assistance of counsel requires that indigent previously

adjudicated insane be appointed psychiatrist), aff'd sub nom., McCollum

v. Bush, 344 F.2d 673 (5th Cir. 1965). Contra United States ex rel.

Huguley v. Martin, 325 F.Supp. 489 (N. D. Ga. 1971). Appellant’s counsel

does not, however, make this argument and we do not consider it in this

appeal.

state law; we accept their determination.

(9,10) The final allegation of error contained in

defendant’s pro se complaint was the failure of the trial

court to grant counsel’s motion for a continuance to better

prepare themselves to defend Davis. In its order denying

Davis’ habeas petition, the district court merely noted that

the trial court’s denial of defendant’s motion for a

continuance did not rise to constitutional dimensions. We

are aware that the matter of continuance is traditionally

within the discretion of the trial court and that not every

denial of such a motion violates one’s due process rights or

renders ineffective the assistance of his counsel. Ungar v.

Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964).

See also United States v. Miller, 513 F.2d 791 (5th Cir.

1975). On the basis of the particular facts in this case, we

conclude that petitioner raises a substantial claim of

ineffective assistance by counsel. Cf., Hintz v. Beto, 379

F. 2d 937 (5th Cir. 1967) (with expanding right to effective

counsel, continuance should have been granted to allow

attorney to prepare his case adequately). Yet, the district

court dismissed this contention without holding an

evidentiary hearing. No full and fair hearing on this

matter having been held in state court, 7ownsend’s

requirement of a hearing in the district court applies. See

also Barker v. Wainwright, 459 F.2d 8 (5th Cir. 1972)

(where petitioner alleges that defense counsel refused to

investigate his case and devoted little time to its

preparation, allegations of ineffective assistance of counsel

that require an evidentiary hearing are raised). Accord,

Mitchell v. Henderson, 432 F.2d 435 (5th Cir. 1970);

In particular, at trial defense counsel repeatedly asserted that

they had not had time to prepare a defense. Indeed, although asserting

an insanity defense, defense attorney produced no medical or

psychiatric testimony. They called only one witness whose testimony

indicated only that defendant appeared to have been drinking when he

was arrested for the instant crime.

Hollingshead v. Wainwright, 423 F.2d 1059 (5th Cir. 1970).

Accordingly, we remand this part of the complaint to the

district court to determine if denial of the continuance

deprived petitioner of effective assistance of his counsel.

Affirmed in part, reversed in part.

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JAMES G. DAVIS, )

Petitioner, )

v. ) CIVIL ACTION

STATE OF ALABAMA, ) No. 75-A-0803-NE

Respondent. )

ORDER

In conformity with and pursuant to the Memorandum

Opinion of the court contemporaneously filed herewith,

It is ORDERED, ADJUDGED and DECREED the

petition of James G. Davis for a writ of habeas corpus be,

and the same hereby is, DENIED.

Done, this the 15th day of December, 1977.

G. W. ALLGOOD

SENIOR UNITED STATES DISTRICT JUDGE

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JAMES G. DAVIS, )

Petitioner, )

2 ' CIVIL ACTION

)

; No. 75-A-0803-NE .

STATE OF ALABAMA, te Gua ane

Respondent.

MEMORANDUM OPINION

This habeas corpus petition is before the court again,

having been remanded for an evidentiary hearing by the

United States Court of Appeals for the Fifth Circuit: The

issue posed for the court on remand is whether the “denial

of the continuance deprived petitioner of effective

assistance of his counsel.”!

In this Circuit, a motion for continuance is addressed

to the sound discretion of the trial court and its ruling will

not be disturbed unless there is a showing that there has

been an abuse of that discretion. U.S. v. Uptain, 531 F.2d

1281 (5th Cir. 1976); McKinney v. Wainwright, 488 F. 2d 28

(5th Cir. 1974). While the denial of a motion for a

continuance may beso arbitrary as to violate due process or

the right to effective assistance of counsel, there are no

mechanical tests. “The answer must be found in the

circumstances present in every case, particularly in the

reasons presented to the trial judge at the time the request is

denied.” (Emphasis added). Ungar v. Sarafite, 376 U.S. 575

(1964). In order to be entitled to a continuance, a movant

must show that he has exercised due diligence, that the

Davis v. State of Alabama, 545 F.2d 460, 467 (5th Cir. 1977).

continuance would enable him to procure substantial

favorable evidence, and that the denial of the continuance

would materially prejudice him. U.S. v. Miller, 513 F.2d

791 (5th Cir. 1975).

In view of the foregoing, a review of the motion and the

grounds therefor as presented to the trial court is in order.

The stated grounds for the motion basically were (1)

inadequate opportunity to prepare due to a heavy case load

and duty in the legislature; and (2) inopportunity to secure

records from the State of California with which to

determine the nature of petitioner’s mental condition.

However, petitioner’s counsel admitted that they had been

alerted to petitioner’s potential mental problems several

weeks prior to trial.

The evidence presented to the court consisted of a

probation report from a Dr. Dean, a psychologist who had

treated petitioner, and the testimony of petitioner himself.

Petitioner testified that the only reason for his psychiatric

treatment was to regain custody of his children and that

based upon Dr. Dean’s recommendation, the children were

returned to him. Petitioner also admitted that he had a

serious drinking problem and a history of alcohol related

offenses. Other than Dr. Dean’s report, petitioner

mentioned no evidence in California which, might be

obtained if the motion for continuance was granted.

Upon consideration of the showing required of a

movant vis-a-vis the actual facts laid before the trial court,

the court is of the opinion that the trial court was well

within its discretion in denying the motion. Counsel’s

argument of insufficient time for preparation is without

merit. The petitioner’s counsel did not, or could not, specify

to the trial judge what evidence they hoped to obtain

through the continuance or that any such evidence was in

fact available. As petitioner’s attorney stated in the

evidentiary hearing mandated upon this remand, “They

(petitioner's attorneys) in effect told the court then, we

have a lead here. We need to run this lead down (p. 10).”

The trial judge himself testified in that evidentiary

hearing that the motion had been a general one with no

specific grounds. Had the attorneys had something specific

to present and shown what could have been gained from

the continuance, he stated, the motion might have been

granted (p. 40-41).

A ruling that the trial judge was within his discretion

in denying the motion, however, does not foreclose the

possibility that petitioner was denied effective assistance

of counsel. Apart from any ruling by the court, neglect on

the part of petitioner’s attorneys might arguably have

denied petitioner the effective assistance of counsel.

The rule in this Circuit with respect to effective

assistance of counsel was stated in MacKenna v. Ellis, 280

F. 2d 592, (5th Cir. 1960); “We interpret the right to counsel

as the right to effective counsel. We interpret counsel to

mean not errorless counsel, and not counsel judged

ineffective by hindsight, but counsel reasonably likely to

render and rendering reasonably effective assistance. This

statement was approved recently in Haggard v. State of

Alabama, 550 F.2d 1019 (5th Cir. 1977).

While it is true that counsel should have investigated

petitioner’s mental cordition sooner, it does not necessarily

follow that through the failure of the counsel to do so,

petitioner was denied the effective assistance of his

counsel. Mr. Drake, one of petitioner’s trial counsel, stated

at the evidentiary hearing that up until the trial he did not

feel strongly about the insanity plea (p. 57). Certainly this

is understandable in light of what little petitioner had told

him and of petitioner’s alcohol related background.

Moreover, petitioner’s present counsel does not contend

that petitioner’s trial attorneys were at fault.

Upon a review of the record as a whole, the court is of

the opinion that petitioner was not denied the effective

assistance of his counsel, either from the ruling of the trial

judge or the representation of his attorneys. The petition

for the writ of habeas corpus therefore must be denied. :

This the 15th day of December, 1977.

C. W. ALLGOOD

SENIOR UNITED STATES DISTRICT JUDGE

APPENDIX D

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

James G. DAVIS, Petitioner-Appellant,

STATE OF ALABAMA,

Respondent-A ppellee.

No. 78-1165.

June 13, 1979.

Rehearing and Rehearing En Banc

Denied Aug. 6, 1979.

State prisoner sought habeas corpus. The United

States District Court for the Northern District of

Alabama, at Birmingham, Clarence W. Allgood, J.,

dismissed the petition, and petitioner appealed. Following

remand for hearing on issue of effective assistance of

counsel, 545 F.2d 460, the Court of Appeals, Goldberg,

Circuit Judge, held that: (1) trial defense counsel in

murder prosecution did not discharge duty owed to client

when they knew that defendant had a history of mental

problems and that insanity was his only possible defense

and thought that the defendant himself would be of little

help in developing the defense, and knew what possible

outside sources might be developed, yet made no effort to

investigate or develop possible sources of evidence, but (2)

further hearing was required to determine whether

defendant was prejudiced by failure to adequately

investigate insanity defense.

Reversed and remanded.

Skelton, Senior Judge, sitting by designation,-filed a

dissenting opinion.

1. Criminal Law § 1151

In examining denial of continuance, Court of Appeals

must focus on the reasons presented to the trial judge at the

time the request was denied, and recognize that the

question is traditionally within the discretion of the trial

judge.

2. Criminal Law § 605

State trial judge could not be faulted for denying

continuance in murder trial which deferse counsel sought

on the day of trial on grounds that they needed time to

develop an insanity defense, where motion was largely

unsupported by explanation or evidence and, though

defense counsel acknowledged that they had known of

defendant’s mental problems from the start of their

presentation some two months previously, they gave

virtually no explanation for failure to get the information

or to find an examining doctor sooner.

3. Attorney and Client § 106

Friendship and neighborliness among attorneys must

not be allowed to transcend a lawyer’s duty to his client.

4. Criminal Law § 641.13(6)

An attorney who does not provide effective assistance

of he fails to investigate sources of evidence which may be

helpful to the defense.

5. Criminal Law § 641.13(6)

Trial defense counsel in murder prosecution did not

discharge duty owed to client when they knew that

defendant had a history of mental problems and that

insanity was his only possible defense and thought that

defendant himself would be of little help in developing the

defense, and knew what possible outside sources might be

developed, yet made no effort to investigate or develop

possible sources of evidence.

6. Criminal Law § 641.13(6)

Failure of defense counsel to investigate insanity

defense was not offset because defendant himself, who was

found competent to stand trial, might have made defense

less of a sham by volunteering information.

7. Habeas Corpus § 112

Though defense counsel at state trial failed to

discharge duty to client in that they failed to adequately

investigate insanity defense, new trial would not be

ordered in federal habeas corpus proceeding without a

showing of prejudice where it was not known whether

attorneys would have uncovered evidence helpful to the

defense even if they had acted properly.

8. Habeas Corpus § 85.2(2)

Habeas corpus petitioner would bear burden of proof

as to whether he was prejudiced by state trial counsel’s

failure to investigate insanity defense, but had only to show

that attorney s errors were not harmless beyond a

reasonable doubt, and could discharge his burden of proof

either by showing prejudice or by showing that evidence

needed to prove prejudice had been lost.

9. Criminal Law § 1166.11

Not every defendant whose attorney was deficient

must show prejudice, and if defense attorney were to put on

what amounted to no defense at all, Court of Appeals would

not stop to determine whether prejudice resulted, but if

attorney has not adequately investigated possible defenses,

it will often, though not always, be appropriate to ask

whether defendant was prejudiced before ordering a new

trial.

B. Don Hale (court-appointed), Cullman, Ala., for

petitioner-appellant.

William J. Baxley, Atty. Gen., Carol Jean Smith, Asst.

Atty. Gen., Montgomery, Ala., for respondent-appellee.

Appeal from the United States District Court for the

Northern District of Alabama.

Before GOLDBERG, Circuit Judge, SKELTON’,

Senior Judge, and FAY, Circuit Judge.

GOLDBERG, Circuit Judge:

No one denies that James Davis, the appellant in this

case, killed his wife. He pleaded not guilty by reason of

insanity—his only possible defense—but a jury in Cullman

County, Alabama, convicted him of first degree murder.

After unsuccessfully pursuing his state remedies he

petitioned for federal habeas corpus. He alleged that there

were a number of constitutional errors in his trial. The

United States District Court for the Northern District of

Alabama dismissed his petition. When Davis appealed, we

upheld the district court on several grounds but remanded

for an evidentiary hearing to determine if Davis had

received the effective assistance of counsel. Davis v.

Alabama, 545 F.2d 460, 467 (5th Cir.), cert. denied, 431

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

a hearing was held before a magistrate, who recommended

that Davis be given a new trial. The district judge

disagreed and ruled against Davis. Davis appeals again.

We reverse because we believe that Davis’s trial attorneys

failed to discharge their duty to their client. We remand for

a further hearing on the question of whether their failure

prejudiced Davis.

Approximately two months before his trial, two

*Senior Judge of the United States Court of Claims, sitting by

designation.

attorneys were appointed to represent Davis. On the day of

trial, they moved for a continuance. They said they needed

time to develop an insanity defense. They cited their “heavy

caseload” and the duties one of the attorneys had in the

legislature. R. Vol. 1 at 73. Since Davis lived in California

and was only visiting in Alabama at the time of the crime,

see R. Vol. 2 at 27, 62-63, they wanted more time “mainly

for the purpose of getting information from the State of

California on this question of insanity.” R. Vol. 1 at 74. To

support their motion for continuance, they adduced only

one piece of evidence—the report of a psychologist named

Dr. Dean who had recently treated Davis in California.

They acknowledged, however, that they had known of Dr.

Dean’s treatments for several weeks, R. Vol. 1 at 68-69, 70-

71,1 and in addition the report principally discussed

Davis’s alcoholism. The trial judge denied the motion for a

continuance and the case immediately proceeded to trial.

At trial Davis’s attorneys put on only the shell of an

insanity defense. In Alabama, a variety of evidence can be

used to prove insanity; the testimony of lay witnesses and

general.medical practitioners, as well as that of experts, is

admissible. See e. g., Hamilton v. State, 281 Ala. 448, 203

So. 2d 684, 686-87 (1967); Smith v. State, 263 Ala. 1, 82 So. 2d

296 (1955). And while the record is unclear, it suggests that

a considerable amount of evidence might have been used in

support of Davis’s insanity plea.2 But Davis's trial

attorneys called exactly one witness—the sheriff who

arrested him. He testified that Davis often seemed “quite—

fairly strange.” The defense attorneys called no other lay

witnesses. They called no medical witnesses, even though

general practitioners, at least, were readily available in

In any event, the trial judge apparently refused to consider this

report because it was not properly authenticated. R. Vol. 1 at 74.

*See p. 1221 & n. 14 infra.

the area. See R. Vol. 1 at 83-84, 326.° All of this is

undisputed, and it requires us to suspect at once that Davis

has not received anything approaching the effective

assistance of competent counsel. See Hintz v. Beto, 379 F. 2d

937 (5th Cir. 1967). See also Greer v. Beto, 379 F.2d 923, 925

(5th Cir. 1967); McCollum v. Bush, 344 F.2d 672 (5th Cir.

1965).

(1,2) Indeed, even Davis’s trial lawyers agreed that

their representation of Davis was ineffective. They blamed

the trial judge’s refusal to grant a continuance for their

deficient performance. But when we examine the denial of

a continuance we must focus on “the reasons presented to

the trial judge at the time the request is denied,” Ungar v.

Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 850, 11 L.Ed.2d

921 (1964); see United States v. Uptain, 581 F.2d 1281,

1285-86 (5th Cir. 1976); McKinney v. Wainwright, 488 F. 2d

28, 29-30 (5th Cir.), cert. denied, 416 U.S. 973, 94 S. Ct. 1998,

40 L.Ed.2d 562 (1974), and recognize that the question is

traditionally within the discretion of the trial judge, see

Ungar v. Sarafite, 84 S.Ct. at 850; Avery v. Alabama, 308

U.S. 444, 60 S.Ct. 321, 322, 84 L.Ed. 377 (1940). Davis's

defense attorneys’ motion for a continuance was so

unsupported by explanation or evidence that the trial

judge cannot be faulted for denying it. When they made the

motion and again at the evidentiary hearing on Davis’s

federal habeas petition, the defense attorneys

acknowledged that they had known of Davis's mental

problems from the start. See p. 1218 & n. 8 infra.

Nevertheless, they gave the trial judge virtually no

explanation for their failure to “get () information from

3A pparently they tried to develop the defense by cross-examining

some prosecution witnesses. All of these witnesses were local residents;

since Davis lived in California and had grown up there, none of these

witnesses, as the magistrate noted, would have known about any

background of mental illness that Davis had. See R. Vol. 1 at 323 n. 5.

. . . California“ sooner.‘ They asked the trial judge to

appoint a doctor and to allow him time to examine Davis,

but they did not explain why they had failed to make that

request, or to find a doctor themselves, during the several

weeks they were involved with the case. See R. Vol. 1 at 68,

83, 70.

‘The defense attorneys urged that one piece of evidence appeared

just before the trial and that this evidence caused them to take the

insanity defense seriously for the first time. The one piece of evidence—

Davis’s trial attorneys had some difficulty describing it at the habeas

hearing—was apparently that Davis might not have been discharged

from Dr. Dean’s court-ordered care. R. Vol. 2 at 63-64, 64-65.

Significantly, this evidence was barely mentioned when the attorneys

moved for a continuance; it made its major debut in the habeas hearing,

when the attorneys were pressed to explain their delay. Compare R. Vol.

1 at 70-71, 73-74 with R. Vol. 2 at 46, 48-52. In addition, the trial judge

might well have wondered why this evidence was so crucial; if Dr.

Dean’s treatment itself did not alert defense counsel to Davis's possible

insanity, it is difficult to understand why Davis's continuing under the

treatment was so significant. In any event, if Davis’s attorneys did

attach so much importance to their belief that Davis had been

discharged from Dr. Dean’s care, Greer v. Beto, 379 F.2d 928 (5th Cir.

1967)—in which we said that a trial attorney was prima facie

incompetent because he ta:ied to present evidence of the defendant's

insanity two months after a jury found the defendant sane—may suggest

that Davis’s attorneys’ representation was inadequate.

5A pparently neither Da vis's trial counsel or the attorney appointed

to handle his habeas petit’ vn has ever argued that Davis’s poverty was

what prevented him from receiving a psychiatric or even medical

examination. See Davis v. Alabama, 545 F. 2d 460, 466 n. 22 (5th Cir.),

cert. denied, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977). Such an

argument would raise an important constitutional question. See, e. g.,

McCollum v. Bush, 344 F. 2d 672 (5th Cir. 1965), affg Bush v. McCollum,

231 F.Supp. 560 (N.D.Tex.1964). Indeed, we have recently suggested

that a court must appoint a psychiatrist to aid the defense of an indigent

whose sanity at the time of the crime is “seriously in issue.” See Pedrero v.

Wainwright, 590 F.2d 1383, 1390-91 n. 8 (5th Cir. 1979). But it seems

clear from this record that Davis was not examined by a doctor because

his attorneys made no effort to have him examined until the day the trial

began, see, e. g., R. Vol. 1 at 83, and because they made no efforts, other

than proffering Dr. Dean’s report, to put Davis’s sanity “seriously in

issue.”

(8-5) Instead of blaming the judge we hold that

Davis's trial attorneys were responsible for the inadequacy

of Davis’s defense.6 We have often said that a defense

attorney must be prepared to investigate and develop

evidence on behalf of his client. “It is the duty of the lawyer

The state suggests that our earlier opinion, Davis v. Alabama, 545

F. 2d 467 (5th Cir.), cert. denied 431 U.S 957, 97 S.Ct. 2682, 53 L.Ed.2d

275 (1977), forecloses inquiring into the competence of trial counsel. In

the last paragraph of that opinion, however, we said that “petitioner

raises a substantial claim of ineffective assistance by counsel,” and

mentioned, among other things, that the “defense attorney produced no

medicai or psychiatric testimony.” Jd. at 467 & n. 23. We also cited

Mitchell v. Henderson, 432 F. 2d 435 (5th Cir. 1970), and Hollingshead v.

Wainwright, 423 F.2d 1059 (5th Cir. 1970), both of which involved

attacks on the competence of counsel; and we cited Barker v.

Wainwright, 459 F.2d 8 (5th Cir. 1972), which we described as holding

that “where petitioner alleges that defense counsel refused to

investigate his case and devoted little time to its preparation, allegations

of ineffective assistance of counsel that require an evidentiary hearing

are raised.” 545 F.2d at 467.

This confusion about the scope of our remand order may result from

the actions of the attorney who represented Davis at the habeas hearing.

This attorney—who did not represent Davis at trial—virtually

stipulated that the trial attorneys were competent. In fact, he

apparently could not reiterate often enough that he was not challenging

the actions of trial counsel. See R. Vol. 2 at 4; id. at 6; id. at 8; id. at 9-10;

id. at 28; id. at 43; id. at 48-49; id. at 67. When Davis, in his testimony at

the habeas hearing, suggested that his trial attorneys’ conduct of the

case may have been deficient, his own-.habeas counsel reacted by

attempting to defend trial counsel and attack Davis. See R. Vol. 2 at 24-

25. At oral argument, the habeas attorney offered this explanation for

his actions:

Q. (by Judge Goldberg): Was there any stipulation that

Davis’s trial counsel was competent?

A. Judge, I think that trial counsel was competent.

A. Judge, I would have to say that I know both these people

(Davis's trial attorneys). I practice at the same bar, and they

are competent.

Q. You mean they’re generally competent.

A. Yes, sir, generally competent, yes, sir.

2 ——

to conduct a prompt investigation of the circumstances of

the case and explore all avenues leading to facts relevant to

guilt and to a degree of guilt or penalty.” American Bar

Association Project on Standards for Criminal Justice,

Standards Relating to the Prosecution Function and the

Defense Functions § 4.1 (tent. draft 1970). An attorney

does not provide effective assistance if he fails to

investigate sources of evidence which may be helpful to the

defense. See, e. g., Rummel v. Estelle, 590 F.2d 103, 104-05

(5th Cir. 1979); Gaines v. Hopper, F. 2d 1147 (5th Cir. 1978);

Bell v. Georgia, 554 F.2d 1360, 1361 (5th Cir. 1977); Gomez

v. Beto, 462 F.2d 596 (5th Cir. 1972); Chalk v. Beto, 429 F. 2d

225, 227 (5th Cir. 1970); King v. Beto, 429 F.2d 221, 224 (5th

Cir. 1970), cert. denied, 401 U.S. 936, 91 S.Ct. 921, 28

L.Ed.2d 216 (1971); Caraway v. Beto, 421 F. 2d 636, 637-38

(5th Cir. 1970).

Davis’s attorneys made practically no efforts to

develop such information. This is undisputed. Davis had

relatives in California who might have known, firsthand or

secondhand, about his background of mental problems;

but as the magistrate found, “(i)t is apparent that

. defense counsel made no effort prior to the time of

trial to secure the testimony of lay persons in California

who had had an opportunity to observe irrational acts (by)

Davis.” R. Vol. 1 at 326. The attorneys might have written

to one of Davis’s relatives there.’ There is no evidence that

A. Judge, I practice down the hall from (one of the defense

attorneys). I am reluctant to say he’s incompetent.

Friendship and neighborliness among attorneys are virtues to be

admired, but they must not be allowed to transcend a lawyer’s duty to his

client. Nor can they be allowed to prevent us from doing our

constitutional duty to defendants like Davis. For the reasons we

elaborate, it seems plain to us that Davis’s trial attorneys did not

discharge the duty they owed to their client.

7At the federal habeas corpus hearing, Davis testified:

From California, and I asked them if they wanted my

mother as a witness or my sisters or brothers, and they

they did anything of the sort. Similarly, we would have

thought it axiomatic that defense attorneys considering an

insanity defense should have their client examined by a

psychiatrist or psychologist. In Alabama, as we have said,

see pp. 1215-1216 supra, even a general practictioner can

testify to the defendant’s insanity. As the magistrate found:

“Any local physician could have been called to testify as to

his sanity. Yet the record strongly implies that no effort

was made prior to trial to have Davis examined by a

physician or to establish facts on which a physician could

have based an opinion of Davis’ sanity.” R. Vol. 1 at 326.

Moreover, it was utterly clear from the start that an

effective defense required some investigation. Davis’s

attorneys knew almost from the time they first met Davis

that he was mentally unstable and had a history of mental

problems. The district court suggested, see R. Vol. 1 at 337.

38, that except for Dr. Dean’s report the defense attorneys

had no evidence indicating that Davis was insane; this

suggestion is scontradicted by the defense attorneys

themselves. At the habeas hearing one of them

acknowledged that Dr. Dean’ 8 report was the main thing”

but testified:

Q. (D) id you have.. anything other than this

one encounter with Dr. Dean in California?

A. “Yes. We had all kinds of information about

him, about problems he had had when he was a

kid on up. As a matter of fact, we wanted to go to

other cases where he had convictions and where

he had been in court before because of problems

he had had from it while he was a small kid. As I

recall, one where he and his brother took money

wouldn’t tell me yes or no until the last day of the trial. I

could have got testimony from my brothers and sisters, my

mother and father.

R. Voi. 2 at 24.

from the offering plate at a church, for example

R. Vol. 2 at 55-56. This defense attorney—appointed two

months before the trial—also testified:

We had known for a month or two that there was

some insanity in his background or some

problems where he had to see a psychiatrist.

R. Vol. 2 at 46. When they argued for a continuance the

defense attorneys cited the facts of the crime itself as

evidence of Davis’s insanity. R. Vol. 1 at 74. They

repeatedly said that their own encounters with Davis

convinced them that he had mental problems.®

Not only did the defense attorneys know that insanity

was a possible defense; they apparently knew that it was

Davis’s only possible defense. Thys their failure to

investigate cannot be excused by saying that it did not

seem to be a very strong defense. In deciding not to develop

the insanity defense Davis’s attorneys effectively decided

to put on no defense at all. We cannot say that such an

approach amounts to adequate representation. See Bell v.

Georgia, 554 F. 2d 1360, 1361 (5th Cir, 1977); Gomez u. Beto,

462 F.2d 596, 597 (5th Cir. 1972).

In addition, Davis’s attorneys knew that he lived in

California and had grown up there,.so that evidence of his

background would likely be found there; they also knew, of

course, of the role of medical testimony in an insanity

defense, see R. Vol. 1 at 83. And they knew—or thought

For example, Davis's trial attorney testified:

“I had known that he had had some mental problems. He had

told me, as I recall, that he had.”

R. Vol. 2 at 57, and:

“Your Honor, as I stated before, there was 8 9

him that just didn’t appear to be right all the way through,

and that is the reason, Your Honor, that I asked him if there

had been any background of mental problems, because he

just didn’t appear to be able to talk like a competent person

would. And that is when I asked him, and what I asked him,

if he had problems, and he said yes, he did.”

R. Vol. 2 at 59.

they knew®—that Davis himself would not be able to assist

them very much in preparing the defense. Davis’s trial

counsel, discussing his request for a continuance, testified

at the habeas hearing: “. . . I was of the opinion that we

could gain some additional information if we were allowed

to go out there and take depositions. Because just to tell you

the truth, Mr. Davis didn’t seem competent to me to tell us a

lot about ‘himself and his case.” R. Vol. 2 at 47. He also

testified:

THE COURT: Did (Davis) appear to be able to

remember events in his life and to relate those

events to you?

A. Your Honor, this is one of the problems that

he appeared to have. He just didn’t seem to be able

to recall a lot of things that had happened in the

past.

R. Vol. 2 at 60, and:

THE COURT: Other than his experience with

... Dr. Dean. .. did he tell you of any other

incident in his past?

A. He couldn't remember a lot about them. He

had been in and out of trouble so much, he

couldn’t really remember. I think the major

scrapes he had had with the law, he remembered

back . . . But he didn’t recall all the facts about

that.

The matter is not free from doubt: there are some signs that Davis’s

trial attorneys were as cavalier in eliciting the evidence Davis had as

they were in developing other sources. Frequently, for example, Davis’s

attorneys first learned facts about Davis from the sheriff's office. See, e.

‘g., R. Vol. 1 at 55, 71; R. Vol. 2 at 57. Presumably the sheriff's office

learned those facts either from Davis or from pursuing leads that Davis

supplied. When communications between a criminal defendant and the

sheriff are better than those between the defendant and his attorney, we

are entitled to be skeptical about the vigor with which the attorney is

seeking evidence.

R. Vol. 2 at 60.

In summary, Davis's attorneys knew that Davis had a

history of medical problems, knew that insanity was his

only possible defense, knew, or thought, that Davis himself

would be little help in developing the defense, knew what

possible outside sources might be developed, and—to judge

from what they said when they argued for a continuance—

knew that without some investigation they had practically

no defense to offer. Still they made no effort to investigate

or develop the possible sources of evidence. This is not a

borderline case; it is a clear breach of the duty a defense

attorney owes to his client.

(6) Accordingly, the state’s effort to exonerate

Davis’s attorneys by saying that Davis might have given

them more leads, more evidence of his insanity, is mostly

irrevelant. Davis’s attorneys had aclear duty to investigate

and did not fulfill it. That failure is not somehow offset just

because Davis himself might have made the defense less of

a sham by volunteering information. But the state’s

suggestion raises larger and more interesting issues. The

state and district court seemed to believe that by not

informing his attorneys of all the evidence of insanity he

knew, Davis had somehow failed in his duty to his

attorneys. 10 But eliciting relevant information from the

client is a central part of the defense attorney’s task. Long

ago, for example, the Fourth Circuit held ineffective a

defense attorney whose failure to explain a possible

defense to his client resulted in the client’s not disclosing

information which would have established the defense. See

Coles v. Peyton, 389 F. 2d 224, 226-27 (4th Cir.), cert. denied

393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). In other

words, a defendant’s failure to disclose certain information

to his attorney is not necessarily, or obviously, or even

probably the defendant’s fault. We must examine the facts

/ See R. Vol. 1 at 337-38.

of each case. Even defenses which seem straight-forward

to lawyers may be misunderstood by defendants or may be

beyond their comprehension."' Legal insanity, Davis’s

defense, is an unusually difficult and technical notion, and

a defendant cannot be expected to know what facts are

relevant to it. For example, Davis told his attorneys about

Dr. Dean, who had treated him until he left for his visit to

Alabama, but Davis may not have realized that earlier

events and treatments were also relevant. We should not

hold a defendant responsible for failing to reveal certain

information to his attorney unless the attorney has made

every reasonable effort to elicit the information, has made

his client aware of the sort of information that might be

relevant, and has given his client an opportunity to disclose

it. We do not know that Davis’s attorneys did any of those

things.!2

When a defendant has mental problems, as Davis

evidently did, it is even more unrealistic to penalize him for

failing to disclose every relevant piece of information to his

attorneys. As we have said, see p. 1218 & n. 8 supra, Davis’s

1A defendant may not even know that insanity—or, for example.

self-defense—is a possible defense. He may think that asserting self-

defense only provides a motive for a crime; similarly, we may be

reluctant to disclose evidence of his insanity for fear that it will become

generally known and will incriminate him or increase his sentence.

12When Davis was asked whether he had informed his lawyers of one

piece of evidence (the Army psychiatrist’s report, see footnote 14 infra),

he said:

“No, they didn’t give me a chance to, and like I said, I only

seen them twice. And I didn’t know what kind of evidence

they needed or anything else. And they didn’t come up and

talk to me or nothing.”

R. Vol. 2 at 20. Davis’s attorney did testify that he “interviewed (Davis) a

number of times and talked with him,” R. Vol. 2 at 58, but this testimony

was not intended to contradict what Davis said. See also R. Vol. 2 at 15.

Davis’s attorney did not describe his discussions with Davis; he did not

even say whether he had asked Davis questions that were likely to elicit

the information that the state accuses Davis of withholding.

apparent mental condition caused his attorneys not to take

him seriously as a source of evidence; under those

circumstances, it is difficult for us to blame Davis for the

information that did not come to light. An attorney who

does seriously interview an arguably insane client may

find him to be one of those many insane persons who

placidly insist that they are entirely sane; and the attorney

is likely to find that an arguably insane client is not the best

or most reliable source of information. The state suggests

that because Davis was found competent to stand trial, he

is to be blamed for not disclosing evidence to his attorneys.

But not only must we take account of the fact that Davis’s

attorneys apparently did not interview him very

intensively; more generally, a finding that a defendant is

competent does not entitle his counsel to act as if the

defendant were intelligent, articulate, and learned in the

law. An attorney must take account of his client’s

particular incapacities and weaknesses, and a reviewing

court must examine the specific dealings between them. ls

For these reasons we have no difficulty holding that

Davis’s attorney, by failing to develop and investigate

183In any event, the state’s argument begs the question to a

significant degree. Davis’s attorneys had practically no evidence to

present in support of their motion to have Davis declared incompetent.

For example, the attorneys themselves did not testify to their difficulties

in-dealing with Davis; we have indicated that such ‘testimony is

important in establishing incompetence to stand trial. See Pedrero v.

Wainwright, 590 F.2d 1383, 1388 & n. 3 (5th Cir., 1979). Our ruling in

this earlier appeal of this case, Davis v. Alabama, 545 F. 2d 460 (5th Cir.),

cert. denied, 431 U.S. 957 97 S.Ct. 2682, 53 L.Ed.2d 275 (1977), was based

on only the evidence available to the trial judge and the report of the

psychologist who interviewed Davis in prison; that report, we said,

“never addresses the issue of petitioner’s present or past competency.”

Id. at 465. Moreover, we did not find the defendant competent; we held

that he had not “positively, unequivocally, and clearly generate( d) a real,

. substantial, and legitimate doubt” of his competency by “clear and

convincing” evidence. Id. (quoting, and adding emphasis to, Bruce v.

Estelle, 483 F.2d 1031, 1043 (5th Cir. 1973).).

possible sources of evidence, did not discharge their duty to

their client. In saying this we do not suggest that Davis’s

attorneys were generally inept; perhaps they thought that

when they told the trial judge of their work load they would

be given more time. Perhaps that is the reason they did not

try to develop the insanity defense before trial. Perhaps

they would have succeeded with another trial judge, but

this judge, trying his first case, see R. Vol. 1 at 15, insisted

on more evidence of insanity and denied the continuance.

Perhaps it was all simply a miscalculation. But the defense

of this indigent, possibly insane accused did not call for a

calculation balancing his rights against the attorneys’

convenience. It did not call for brinkmanship with the

defendant’s only possible defense. It called for thoughtful,

thorough preparation and investigation. Instead it

received virtually none.

(7,8) Nevertheless we cannot yet order that Davis be

given a new trial, because we do not know that his

attorneys would have uncovered evidence helpful to his

defense even if they had acted properly. The record does

suggest, fairly strongly, that some such evidence exists.

For example, (I) a clinical psychologist who has examined

Davis since his trial reported his “strong latent aggressive

feeling” toward women, his “paranoid thinking,” and his

“schizo-affective disorder,” R. Vol. at 36; (2) Davis was

discharged from the Army for failing to adjust to military

life, see R. Vol. 2 at 21, 70, which may suggest psychological

problems; (3) after Davis’s conviction, and apparently at

the request of the attorney who handled his habeas corpus

petition, Davis’s mother wrote a letter describing some of

his irrational behavior. R. Vol. 2 at 11-12; R. Vol. 1 at 325.4

An addition. Davis may have consulted a psychologist or

psychiatrist in the Army, R. Vol. 2 at 20-21, and he may have seen an

additional psychiatrist, besides Dr. Dean, in civilian life, R. Vol. 2 at 15,

18.

But this evidence has not been eritically examined or

connected to Davis’s condition at the time of the crime.

Therefore we remand to the district court for another

hearing devoted solely to the question of whether Davis's

attorneys misfeasance prejudiced him. At this hearing

Davis will bear the burden of proof, is but he need only show

that his attorneys’ errors were not “harmless beyond a

reasonable doubt,” see Chapman v. California, 386 U.S. 18,

24, 87 S.Ct. 824, L.Ed.2d 705 (1967). If he makes such a

showing, he will be entitled to a new trial on the ground

that he has not received the “reasonably effective

assistance” of counsel. MacKenna v. Ellis, 280 F.2d 592,

599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S. Ct. 121, 7

L.Ed.2d 78 (1961).

(9) Weare dealing with a crucially important right,

so our holding on this point is narrow. Not every defendant

whose attorney was deficient must show prejudice. The

Supreme Court has said that “(t)he right to have the

assistance of counsel is too fundamental and absolute to

allow courts to indulge in nice calculations as to the amount

of prejudice resulting from its denial,” Glasser v. United

States, 315 U.S. 60, 76, 62 S.Ct. 457; 467, 86 L.Ed. 680

(1942), and has held that the denial of counsel at a critical

stage of a criminal proceeding is always considered

prejudicial. e. g., Chapman v. California, 386 U.S. 18, 23 &

n. 8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); White v.

15For example, Davis might show that the disorders identified by

the psychologist who examined him after conviction probably also

existed at the time of the crime; or he might show that he was indeed

discharged from the Army for psychological reasons. Either of these

showings would prove that Davis had been prejudiced by his attorneys’

conduct.

16A habeas petitioner can discharge his burden of proof either by

showing that the evidence he needs to prove prejudice has been lost. See,

e. g., McQueen v. Swenson, 498 F.2d 207, 220 (8th Cir. 1974); United

States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (8rd Cir. 1970).

Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 10 L.Ed.2d 193

(1963). “That, indeed, was the whole point of Gideon v.

Wainwright, 372 U.S. 335, (83 S.Ct. 792, 9 L.Ed.2d 799)

(1963).” Chapman v. California, 386 U.S. at 43, 87 S.Ct. at

837 (Stewart, J., concurring). But “the purpose of Gideon

was not merely to supply criminal defendants with warm

bodies, but rather to guarantee reasonably competent

representation,” Cooper v. Fitzharris, 551 F.2d 1162, 1164

(9th Cir. 1977), so if a defense attorney were to put on what

amounted to no defense at all, we would “not stop to

determine whether prejudice resulted,” Hamilton v.

Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114

(1961).

The Supreme Court has gone further than this,

however; indeed the Court seems never to have applied the

harmless error doctrine to a case involving the ineffective

assistance of counsel. But see Brooks v. Tennessee, 406 U.S.

605, 92 S.Ct. 1891, 1895, 32 L.Ed.2d 358 (1972). In three

recent cases involving ineffective representation the Court

pointedly found constitutional violations without inquiring

into prejudice. In Geders v. United States, 425 U.S. 80, 96

S.Ct. 1330, 47 L.Ed.2d 592 (1976) rev’g. United States v.

Fink, 502 F.2d 1 (5th Cir. 1974), the trial court prohibited a

defendant from consulting his attorney during an

overnight recess that separated the defendant’s direct

testimony from cross-examination. Because the defendant

had shown no prejudice, we held that he had not been

denied the effective assistance of counsel, see 502 F.2d at 9;

the Supreme Court, requiring no showing of prejudice,

reversed. In Herring v. New York, 422 U.S. 853, 95 S.Ct.

2550, 45 L.Ed.2d 593 (1975), the Supreme Court held that

refusing to allow defense counsel to make a closing

argument at trial violated the defendant’s right to the

effective assistance of counsel, even if the issues were

simple and the prosecution’s case very strong. See id. 95

S. Ct. at 2556, 2553. Finally, in Holloway v. Arkansas, 435

U.S. 475, 98 S.Ct. 1173, 55 L. Ed. 2d 426 (1978), the Court

held that whenever a trial court improperly permits or

requires the same attorney to represent two defendants at

a joint trial, “reversal is automatic” even if neither

defendant can show specifically that he was prejudiced. Id.

98 S.Ct. at 1180-82.

Some circuits have gone further still and have held

that a defendant never needs to show prejudice in order to

establish that he has been denied the effective assistance of

counsel. See Cooper v. Fitzharris, 551 F.2d 1162, 1164-65

(9th Cir. 1977); Beasley v. United States, 491 F. 2d 687, 696-

97 (6th Cir. 1974); but see United States v. Sumlin, 567 F.2d

684, 688 (6th Cir. 1977), cert. denied, 434 U.S. 932 (1978).

Other eircuits disagree and explicitly require a prejudice

to be shown in some cases. See United States v. Cooper, 580

F.2d 259, 263 n. 8 (7th Cir. 1978); McQueen v. Swenson, 498

F.2d 207, 218-20 (8th Cir. 1973); United States ex rel. Green

v. Rundle, 434 F.2d 1112, 1115-16 (3rd Cir. 1970); United

States v. DeCoster, 159 U.S. App. D. C. 326, 333, 487 F. 2d

1197, 1204 (1973) (placing burden on government to show

lack of prejudice); Coles v. Peyton, 389 F.2d 224, 226 (4th

Cir.), cert. denied 393 U. S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120

(1968) (same). See also United States v. Bosch, 584 F. 2d

1113, 1123 (1st Cir. 1978) (leaving question open).

We have sometimes intimated that a defense

attorney’s shortcomings vitiate a conviction only if they

prejudice the defendant. See Friedman v. United States,

588 F.2d 1010, 1016, 1017 (5th Cir. 1979); Thomas v. Estelle,

588 F. 2d 170, 171 (5th Cir. 1979); Buckelew v. United States,

575 F.2d 515, 521 (5th Cir. 1978); Pennington v. Beto, 437

F.2d 1281, 1285 (5th Cir. 1971). See also Sand v. Estelle, 551

F. 2d 49 (5th Cir. 1977), cert. denied, 434 U.S. 1076, 98 S.Ct.

1267, 55 L.Ed.2d 783 (1978); Cheely v. United States, 535

F.2d 934, 936 (5th Cir. 1976). All of these cases involved an

attorney’s failure to conduct an adequate investigation of

possible defenses, and we believe this is decisive. Not every

variety of attorney ineffectiveness should be treated in the

same way. If an attorney has not adequately investigated

possible defenses, it will often, although not always, be

appropriate to ask whether a defendant was prejudiced

before ordering a new trial.

We reach this conclusion for several reasons. First, a

court deciding whether a failure to investigate was

prejudicial ordinarily will perform a task to which it is

suited. Usually it need only examine the specific evidence

that an investigation would have uncovered; it will

determine how prospective witnesses will testify and

whether certain tangible evidence exists. Affidavits,

depositions, or if necessary live testimony will generally be

reliable and economical means of deciding the question. By

contrast, a court will face a far less congenial prospect if it

attempts to decide whether prejudice has resulted from,

for example, the kind of ineffectiveness involved in

Holloway, where an attorney was forced to represent

defendants with conflicting interests. Such a court would

have to examine the various strategies that the attorney

_ might have pursued and the choices the defendants might

have made had they all not been hamstrung by the

attorney’s conflict; as the Supreme Court noted, this task

will often be difficult or “virtually impossible” and would

require “unguided speculation,” see Holloway v. Arkansas,

435 U.S. 475, 98 S.Ct. 1173, 1181-82 (1978). Similarly, a

court would not be well equipped to inquire into the

prejudice caused by an attorney’s failure to consult

sufficiently with his client—a failure which was mandated

by the trial judge in Geders but might also result from the

attorney’s dereliction. A court could intelligently evaluate

prejudice in such a case only by becoming closely familiar

with both the course of the trial and the relationship

—

between the attorney and the client; then the court would

have to put itself in the place of an attorney who was better

informed by a client who was better advised, and decide

what different decisions that attorney would have made.

This will often be a hopelessly intricate task, especially

compared to the accumulation of relatively concrete

evidence which will be the sole function of the district court

on remand here. For this reason, our holding does not

conflict with Holloway or Geders; nor does it require that

prejudice be shown before an attorney is held ineffective

for representing clients with differing interests or for

failing to consult adequately with his client.

Relatedly, a court examining the prejudice caused by

an attorney’s failure to investigate can, for the most part,

avoid speculating about how a jury would have reacted to

certain evidence or certain events at trial. See Sand v.

Estelle, 551 F.2d 49, 51 (5th Cir. 1977), cert. denied, 434

U.S. 1076, 98 S.Ct. 1267 (1978). To be sure, the court will

have to decide whether it is satisfied, beyond a reasonable

doubt, that the jury’s verdict would not have been altered

by the evidence presented to it. But this is a threshold

inquiry into whether evidence is sufficient to create a

question for the jury; it is the sort of inquiry that courts

must often make. See generally Chapman v. California,

386 U.S 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Indeed it is

not unlike the question a federal trial judge answers when

he decides whether the defendant has adduced enough

evidence of insanity to warrant submitting the issue to the

jury. See Davis v. United States, 160 U.S. 469, 476, 16 S.Ct.

353, 40 L.Ed.2d 499 (1895). By contrast, inquiring into the

prejudice resulting from other alleged forms of attorney

ineffectiveness will often demand a much more

thoroughgoing replication of the jury’s function. Thus in

Herring v. New York the Supreme Court recognized how

difficult it is to imagine not just the summation an attorney

would have given, had he been allowed, but the reaction

that the finder of fact would have had. See 422 U.S. 853, 95

S.Ct. 2550, 2555-56 & n. 15 (1975). The same may

sometimes be true of a variety of trial ‘decisions—for

example, a decision not to prepare or call a certain witness,

not to cross-examine a witness, or not to ubject to certain

evidence, see e. g., Cooper v. Fitzharris, 551 F.2d 1162 (9th

Cir. 1977)—that reflect deficient performance by an

attorney. So those cases, too, like Herring, are comfortably

distinguishable from the situation we address here. Of

course, the facts of each case must be examined; in each

case we must assess the advisability of requiring a showing

of prejudice. Sometimes, it may be inappropriate to insist

that a defendant show prejudice when his attorney has

failed to investigate his case adequately; sometimes it will

be appropriate to require a defendant to show how he was

injured by some other variety of attorney dereliction.

Because we hold that Davis’s trial attorneys did not

discharge their duty to their client, we reverse the

judgment of the district court. The case is remanded for a

hearing on the single question of whether the attorneys’

conduct prejudiced Davis. If it did, Davis is entitled to a

new trial.

REVERSED and REMANDED.

SKELTON, Senior Judge, dissenting.

I respectfully dissent. I cannot agree with much of the

reasoning of the majority nor with the result they reach in

this case. :

This is an appeal from an order of the United States

District Court for the Northern District of Alabama,

Northeastern Division, entered on December 15, 1977,

denying the petition of James G. Davis for a writ of habeas

corpus.

— —Uü—ä6ᷣ— oe

Davis, the petitioner herein, was convicted of first-

degree murder in the Circuit Court of Cullman County,

Alabama, on November 28, 1973, for the murder of his

wife. He was sentenced to imprisonment in the state

penitentiary for life. After exhausting his state remedies,}

Davis initiated the instant proceedings by filing this his

third petition for a writ of habeas corpus.? Adopting the

report of the United States Magistrate and holding no

evidentiary hearing, the Honorable C. W. Allgood, United

States District Judge, dismissed the petition. Upon appeal

of that dismissal, this court affirmed in part and remanded

in part, directing the district court to determine if the

denial of petitioner’s motion for continuance by the state

trial court deprived petitioner of effective assistance of

counsel. Davis v. Alabama, 545 F. 2d 460 (5 Cir. 1977). The

Supreme Court of the United States denied certiorari.

Davis v. Alabama, 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d

275 1977).

On the prior appeal of this case, this court stated that

there were two issues before the court, namely, (1) whether

the trial court erred in dismissing that part of petitioner's

habeas petition that called into question his competency to

stand trial, and (2) whether the trial court erred in denying

the motion of petitioner’s counsel for a continuance to

better prepare themselves to defend him at the trial. (545

F.2d 463).

As to the first issue relating to petitioner’s competency

at the time of trial, this court found, concluded and held

The Court of Criminal Appeals of Alabama affirmed Davis'

conviction on October 1, 1974, Davis v. State, 53 Ala. App. 598, 302 So.2d

571 (1975). On November 8, 1974, the trial court denied a petition for a

writ of error, coram nobis; the Court of Criminal Appeals affirmed this

judgment on February 18, 1975. Finally, on April 24, 1975, the Alabama

Supreme Court denied Davis’ petition for a writ of certiorari.

2Davis’ first petition was dismissed on December 20, 1974. His

second petition was dismissed on June 11, 1975.

that he was competent when the trial was held. The court

cited the factors listed by the Supreme Court in Drope v.

Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 907, 43 L.Ed.2d

103, 118 (1975), that should be considered to determine

competency if the issue is raised, saying:

“While the Supreme Court has not

prescribed a general standard regarding the

nature or quantum of evidence necessary to

require resort to an adequate procedure, it has

stated that three factors should be considered:

These factors are: existence of a history of

irrational behavior; defendant’s demeanor at

trial, and prior medical opinion. Drope v.

Missouri, 420 U.S. at 180, 95 S.Ct. at 907, 43

L.Ed.2d at 118. Examining the present case in

light of the considerations discussed above, we

note that the defense never raised the issue of

competency either prior to or during the trial.”

545 F.2d 464.

Even though the petitioner did not raise the issue of his

competency, the court, nevertheless, considered and

disposed of the question, adversely to him, as shown by the

following:

“Having determined that defendant did not

raise the issue of competency, we look to the

record to determine if, in light of the three factors

listed in Drope, indicia suggesting a bona fide

d-ubt as to defendant’s competence existed at

trial. First, we note that while domestic quarrels

occassionally clouded defendant’s past, he had no

history of irrational behavior such as that

uncovered in Pate v. Robinson, 383 U.S. 375, 86

S.Ct. 836, 15 L.Ed.2d 815 (1966) or in Lee v.

Alabama, 386 F.2d 97 (5th Cir. 1967) (en banc).

While the record indicates that defendant had

—— — cen ete echoes oe

seen a psychologist, the psychologist’s report,

indicating that defendant was getting along

better with his wife and no longer needed

treatment, negates any suggestion of

incompetency that one might infer from the fact

of his treatment. In addition, lay witnesses, who

testified at trial that defendant did not act

irrationally or seem incoherent shortly after the

crime and during his pre-trial confinement in jail,

rebutted any suggestion of ‘bona fide doubt’ about

defendant’s competence. Finally defendant's

demeanor at the pre-tricl hearing on

the & 425'*motion as

1Defendant did not testify at trial, although the record

indicates no evidence that he acted incompetently at that

proceeding.” 545 F.2d 464, 465. (Emphasis supplied).

reflected through his abilit, to recite, with great

particularity and understanding, facts

concerning his family and his criminal record,

indicated no incompetence on his part. See

McCune v. Estelle, 534 F.2d 611, 612 (5th Cir.

1976) (no incompetence shown where defendant

understood proceedings and able to coherently

narrate what had happened in his life as a whole,

as. well as immediately before trial). Our

examination of the trial record, therefore,

convinces us that no Pate violation occurred

through the trial court’s failure to sua sponte

conduct a competency hearing.”

The court then stated that a defendant may still

prevail if he can show at a post-conviction habeas hearing

that he, nevertheles, was incompetent to stand trial. This

question was disposed of by the holding of the court in this

case that post-conviction evidence did not show that

petitioner was incompetent at the time of trial, as follows:

A determination that insufficient doubt (of

competence) existed . . . at the time of trial does

not preclude a post-conviction inquiry into

competence to stand trial.’ Nathaniel v. Estelle,

493 F.2d (794) at 798 (5th Cir.). Although he

cannot argue that the trial court’s failure to

invoke appropriate procedures violates his rights

to due process, the defendant still may prevail, if

at habeas, he can show that he nevertheless was

incompetent to stand trial. To determine this

second question, the Nathaniel panel adopts the

guideline articulated by Judge Gewin in Bruce v.

Estelle, 483 F.2d 1031 (5th Cir. 1973):

‘Courts in habeas corpus proceedings

should not consider claims of mental

incompetence to stand trial where the facts

are not sufficient to positively,

unequivocally, and clearly generate a real,

substantial, and legitimate doubt as to the

mental capacity of the petitioner to

meaningfully participate and cooperate

with counsel during a criminal trial.

(T)he standard which should be met to sustain

such a claim (is) a history of mental illness,

substantial evidence of mental incompetence

at or near the time of trial supported by the

opinions of qualified physicians and the

testimony of laymen. The burden is on the

petitioner to prove his allegations; such proof

should be clear and convincing.”

“Id. at 1043 (emphasis added). Examining the

state court records and pleadings before the

district court on habeas, petitioner’s allegations

do not meet this threshold requirement. The facts

before the trial court that were potentially relevant

—— ——————

———

to competencis clearly do not satisfy the Bruce

1Dr, Dean’s report, defendant’s demeanor at trial,

testimony of lay witnesses.”

standard. Petitioner’s only other factual allegation to

the district court was the existence of a report by a

clinical psychologist, Dr. Verna Wool, presumably

made during the first months of petitioner’s sentence

on this conviction. Introduced as Petitioner’s Exhibit

E, the report merely records the essence of an

interview with petitioner concerning his history of

domestic problems. Dr. Wool never addresses the issue

of petitioner’s present or past competency or insanity

and none of her comments, even if accepted as true,

raise a ‘real, substantial, and legitimate doubt’ as to

defendant’s competency. Given petitioner’s failure to

present allegations that, even if accepted as correct,

meet the Bruce requirement, the district court did not

err in dismissing without an evidentiary hearing,”!

21“ With respect to the Pate requirement that the trial

court hold a competency hearing whenever defendant raises

a bona fide doubt as to his competency to stand trial, our

examination focuses on the facts known to the trial court at

the time of trial. These facts are not in dispute; only the

inferences to be drawn from those facts are contested. Those

inferences being constitutionally guided by Pate and its

progeny, no state evidentiary hearing was required.

Likewise with regard to the substantive issue of competency,

we have determined that the factual allegations contained in

appellant’s petition, even if accepted as true, do not meet any

test that this circuit has established as a threshold

requirement that a claim of incompetency must satisfy;

neither the ‘substantial allegations’ language of Lee, 386

F.2d at 97, the ‘bona fide’ doubt test of Pate and progeny—e.

g. Grissom v. Wainwright, 494 F.2d 30 (5th Cir. 1974);

Jordan v. Wainwright, 457 F.2d 338 (5th Cir. 1972); or the

‘real, substantial and legitimate doubt’ standard of Bruce,

483 F.2d at 1043.” 545 F.2d 465-466. (Emphasis supplied).

petitioner’s habeas petition, at least as that

petition calls into question petitioner's

competency.

Finally, on the competency question, we held on the

prior appeal that the trial court acted properly in denying

the Section 425 motion of petitioner’s counsel that he be

given a mental examination.’ In this connection, we held:

. .. in order to receive habeas corpus relief

pursuant to 28 U.S.C. § 2254, the petitioner

must establish that the state court violated a

federal constitutional right. Yet, while

appellant’s counsel discusses at great length the

constitutional requirement that a defendant be

competent to assist in his defense, he cites us to no

relevant authority that requires, as

constitutionally mandated, any procedure to

determine criminal responsibility similar to that

provided for in § 425. Instead, he concentrates

on the impropriety of the § 425 denial in terms of

Alabama law. The Alabama Criminal Court of

Appeals, however, determined that the trial

court’s denial of that motion accorded with

relevant state law; we accept -their

determination.” 545 F.2d 466.

Thus, it is clear that a previous panel of this court

found and concluded that the petitioner was competent just

before his trial, during his trial, and after his trial was

held. This is binding on us. United States v. Hernandez, 580

F.2d 188 (5 Cir. 1978), affirmed and remanded for

resentencing, 591 F.2d 1019 (5 Cir., en banc, 1979). I have

dwelt at length on this competency question to dispel once

and for all time any notion or speculation that the

petitioner was not competent at the time of his trial.

This brings me to a discussion of the second issue that

was before this court on the previous appeal, namely,

Petitioner's counsel were appointed by the court and could hardly

have been expected to have such a mental examination made at their

own expense after the trial judge refused to order it.

No ee eee

ö — SME RIES

whether the court erred in denying the motion of

petitioner’s counsel for a continuance to better enable them

to prepare his defense. The district court did not hold an

evidentiary hearing on this question. We held that the

contention of the petitioner in this regard raised a

substantial claim of ineffective assistance of counsel, but it

was tied to the action of the trial judge in denying the

motion of continuance as shown by the remand order. We

did not decide this issue, but remanded the case to the

district court by issuing the following order:

“Accordingly, we remand this part of the

complaint to the district court to determine if

denial of the continuance deprived petitioner of

effective assistance of his counsel.

“Affirmed in part, reversed in part.”

545 F.2d 467.

Much of the difficulty and confusion in the district

court on remand, and now in this court in the present

appeal, was and is due to the bifurcated wording of the

above remand order. As can be seen from the order, it is

divided into two queries, namely, (1) the correctness of the

denial of the motion for continuance, and (2) the relation of

the denial to effective assistance of counsel. The two

queries are interrelated and it is difficult to dispose of one

without at the same time taking care of the other. No doubt,

that is why the district court on remand considered and

disposed of both questions when he made the following

finding and conclusion after an evidentiary hearing;

“The record as a whole shows that the

petitioner was not denied the effective assistance

of his counsel either from the denial of the motion

for continuance by the trial judge or from the

representation he received from his attorneys at

the trial.”

As to the denial of the motion for continuance, the facts

show that it was a general motion with no mention of the

existence of specific evidence which was known to exist,

and which counsel might develop if given more time, nor

the name of any material witness who might testify for the

petitioner if time was allowed for counsel to locate him and

procure his testimony. Neither did the motion allege what

prejudice, if any, would likely result to the petitioner if the

motion was denied.“ A motion for a continuance is

addressed to the sound discretion of the trial court and the

exercise of that discretion will not be deemed improper

without a clear showing that such discretion has been

abused. Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84

L.Ed. 377 (1944); United States v. Uptain, 531 F.2d 1281 (5

Cir. 1976); Jackson v. United States, 330 F.2d 445 (5 Cir.

1964), cert. denied 379 U.S. 821, 85 S.Ct. 42, 13 L.Ed.2d 32

(1964); United States v. Sahley, 526 F.2d 913 (5 Cir. 1976).

Furthermore, when such an abuse has been alleged, it

must be decided on a case by case basis. As the Supreme

Court held in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841,

11 L.Ed.2d 921 (1964):

“There are no mechanical tests for deciding

when a denial of a continuance is so arbitrary as

to violate due process. The answer must be found

in the circumstances present in every case,

particularly in the reasons presented to the trial

judge at the time the request is denied. Nilva v.

United States, 352 U.S. 385, 77 S.Ct. 481, 1

L.Ed.2d 415; Torres v. United States, 270 F.2d

252 (CA 9th Cir.); cf. United States v. Arlen, 252

F. 2d 491 (CA 2d Cir.). (376 U.S. 589-90, 84 S.Ct. at

‘At the evidentiary hearing, Judge Fred Folsom, Circuit Judge of

the 32nd Judicial Circuit, State of Alabama, Cullman County, Alabama,

who tried the ease, testified as follows:

„. .. they made no showing as to what could be gained from a

continuance, and their motion was general, in that they stated they

wanted more time to prepare the defense.”

850).” (Emphasis supplied).

This court, in United States v. Uptain, supra, stated

that a “particularly common claim is that a continuance

was necessary to interview and subpoena potential

witnesses,” and listed the criteria the court has specifically

considered with regard to such cases as follows:

“ . . (T)he diligence of the defense in

interviewing witnesses and procuring their

presence, the probability of procuring their

testimony within a reasonable time, the

specificity with which the defense is able to

describe their expected knowledge or testimony,

the degree to which such testimony is expected to

be favorable to the accused, and the unique or

cumulative nature of the testimony. A general

rule recently has emerged:

‘A movant must show that due diligence

has been exercised to obtain the attendance

of the witnesses, that substantial favorable

testimony would tendered by the witness,

that the witness is available and willing to

testify, and that the denial of a continuance

would materially prejudice the defendant.’

United States v. Miller, 513 F.2d 791, 793 (5

Cir. 1975). See also United States v. Cawley, 481

F.2d 702, 705 (5 Cir. 1973).“ 531 F. ad at 1287.

It is clear that petitioner’s motion for continuance did

not contain any of the necessary criteria required by the

above cases. Under these circumstances, the trial judge did

the only thing he could do when he overruled the motion.

All of the members of the panel on this appeal agree that

the trial judge is not to be faulted for denying 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 petitioner of the

effective assistance of counsel. That was the only question

remanded to the district court. It 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. Obviously,

trial counsel could have been effective before the motion

was denied, or afterwards, or both. In my opinion, they

were effective in both instances under the circumstances in

this case, and the finding and conclusion of the district

court, on this question is not plainly erroneous, but is

supported by substantial evidence, as shown below.

Now, the majority is reversing the decision of the

district court by holding that trial counsel did not

discharge their duty to their client in connection with his

trial. I cannot agree.

At the end of the trial, the petitioner, whom we have

held to be competent, did not claim that his trial attorneys

did not discharge their duty to him. In fact, just the

opposite appears to be true, as he expressed satisfaction

with their services. At that time he asked the trial judge to

appoint them to appeal his case, all as shown by the

following proceedings.

When the jury returned a verdict of guilty of first-

degree murder and fixed petitioner’s punishment at life

imprisonment, the petitioner told the court that he wanted

to appeal the case, but that he did not have the money to

hire an attorney for the appeal. Whereupon, the court told

him that attorneys would be appointed for him. The court

asked petitioner twice if his trial counsel would be

satisfactory with him if they were appointed to appeal his

case, and both times petitioner answered that he was

satisfied with them and that their appointment for the

appeal would be satisfactory with him. At that time the

following colloquy took place between the court and the

—

—Ü—ꝓ— — —Eßñ— i

petitioner:

The Court: The court is going to at this time

ik it is agreeable with you appoint the two

attorneys who have represented you thus far in

this case. Mr. Tom Drake and Mr. John

Chapman. Now, are these attorneys agreeable

with you? Are you satisfied with them to perfeet

this appeal for you?

„The defendant: Ves, sir.

“The Court: Of course, I have appointed these

attorneys for you—Mr. Drake and Mr.

Chapman—and you have indicated to the court

that you are satisfied with them to perfect the

appeal for you?

“The defendant: Yes.”

There is no question but what petitioner’s counsel were

competent attorneys. His present attorney in this appeal

admits and concedes that they were and are competent

attorneys.

The present contention of petitioner that his trial

counsel did not discharge their duty to him in connection

with his trial is a complete reversal of his expressed

satisfaction with their services at the end of the trial. It is

obvious to me that such an argument is nothing but a

hindsight maneuver on his part to get out of prison.

I assume that in remanding the case for a hearing on

whether the attorneys’ conduct prejudiced the petitioner,

the majority has in mind the efforts of trial counsel with

reference to petitioner’s insanity plea. I would point out

that at no stage of the proceedings up to the present time

has the petitioner named any witness who would testify

that he was insane at the time of the offense, nor what the

testimony would be, nor that any such witness is available

and willing to testify and could be produced at a hearing.

He has not alleged that his trial attorneys failed to

investigate a single lead that he gave them relating to his

insanity plea. Thus, it is clear that none of the basic and

rudimentary requirements set forth in United States v.

Uptain, supra, and other decided cases are present.

Furthermore, petitioner has not shown any prejudice

because of the services of his attorneys. We held in United

States v. Phillips, 585 F. 2d 745, 747 (5 Cir. 1978) that a

showing of prejudicé, is required for the reversal of a

conviction, saying:

(W)e cannot reverse appellant’s conviction in

the absence of a showing of prejudice. See United

States v. James, 495 F.2d 434 (5th Cir.), cert.

denied, 419 U.S. 899, 95 S.Ct. 181, 42 L.Ed.2d 144

(1974); United States v. Saitta, 443 F.2d 830, 831

(5th Cir.) cert. denied, 404 U.S. 938, 92 S.Ct. 269,

30 L.Ed.2d 250 (1971).”

The record shows that petitioner’s trial counsel were

active in his defense. Besides filing the motion for

continuance, they filed a motion for a mental examination

of petitioner under Title 15, § 425, of the Alabama Code,

and various other motions. They filed a plea of not guilty by

reason of insanity, which had to be filed as a special plea

under Alabama law. During the trial they introduced the

report of psychologist, Dr. Dean, who had treated

petitioner in California.’ They examined and cross-

examined various witnesses on the insanity issue,

including the sheriff, Olin Buzbee, the sheriff's special

investigator, G. O. Buckelew, and the petitioner’s relatives.

At the conclusion of the evidence, his attorneys made

arguments to the jury in his behalf on the insanity issue.

5See a discussion of the contents of this report in our prior opinion

(545 F. 2d 465) as quoted above.

eS ee

— —

They also requested in writing a special charge on insanity

and another on intoxication, both of which were denied by

the court. However, the court did give the jury a full and

complete charge on insanity as a defense. The court also

furnished the jury with a special form prepared by counsel

on which they could find Davis not guilty by reason of

insanity. The court also charged the jury on the law as to

first-degree murder and all lesser offenses, including

murder by reason of insanity. They fully investigated the

only lead given to them on the insanity issue by the

petitioner, namely the treatment by Dr. Dean and his

report. Nothing more could reasonably have been expected

of trial counsel, especially in view of the fact they were

appointed by the court and were representing a defendant

who was competent both before and during the trial. In my

opinion, petitioner’s trial counsel complied with the

requirement of this circuit by rendering reasonably

effective assistance to petitioner under the circumstances

of this case. Furthermore, in my opinion, the

representation which petitioner’s appointed trial counsel

furnished to Davis fully discharged their duty to him.

The foregoing efforts on the part of 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.

(2) Dr. Dean’s report negated any suggestion of

incompetency.

(3) Lay witnesses 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 particularity 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

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.“

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 or

thread running 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. That is

not the situation here. In our case, the trial attorneys

conducted an investigation on their own, and they fully

See Mac Kenna v. Ellis, 280 F.2d 592 (5 Cir. 1960), modified 289

F. 2d 928 (5 Cir. 1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121 7 L.Ed.2d

78 (1961), wherein the court held:

“We interpret the right to counsel as the right to effective counsel.

We interpret counsel to mean not errorless counsel and not counsel

judged ineffective by hindsight, but counsel reasonably likely to render

and rendering reasonably effective assis .” Also, see Herring v.

Estelle, 491 F.2d 125, 127 (5 Cir. 1974); and Haggard v. Alaba

F.2d 1019, 1023 (5 Cir., 1977). 88

investigated the only lead furnished to them by the

petitioner bearing on his insanity defense, namely, the

treatment by Dr. Dean and his report. But I gather from

the majority opinion that they would require trial counsel

to do more, such as travel from Alabama to California,

presumably at their own expense, and conduct an

investigation of petitioner’s life from the time he was 10

years of age to the time he murdered his wife, without any

leads furnished to them by their competent client, to try to

discover by their own efforts in a widespread “fishing

expedition,” a witness somewhere, some place, somehow,

who might possibly testify on petitioner’s insanity defense.

I think this is an unwarranted extension of the doctrine of

what is required of an attorney “rendering reasonably

effective assistance of counsel.”

In the instant case, if there was any deficiency in

counsel’s investigation of petitioner’s case, it was caused by

failure of their competent client to furnish leads, and not by

negligence on the part of counsel.

By hindsight, petitioner now suggests for the first time

certain other “leads” which might, or might not, have

revealed information favorable to his defense had they

been fully investigated. And whereas, the majority finds

defense counsel ineffective: (1) for failure to search

petitioner’s past and uncover these leads for themselves,

and (2) for then not fully developing these leads, I would

require a competent defendant, such as the petitioner, and

indeed find it his duty, to assist his counsel by revealing

instances of his past helpful to his own defense.

And lastly, should it be asserted that defense counsel

failed to ask the right questions, which I candidly agree

may or may not have been the case under the present state

of the record, it must be remembered that the burden of

proving ineffectiveness of counsel is upon the petitioner.

And with regard to the record now before us, if there is any

evidence at all establishing ineffectiveness in this regard,

it is clearly not sufficient in my opinion to allow this court

to overturn the finding of the district court made after

hearing the witnesses and evaluating the evidence at the

plenary hearing.

Finally, I would point ovt that petitioner has already

had practically every kind of hearing and trial known to

the state and federal courts. His case has been in litigation

for seven years. He has practically made a career of it. He

has had trials and hearings in all the Alabama state courts,

including a trial and a coram nobis hearing in the district

court, then appeals to the Court of Criminal Appeals, and

the Supreme Court. His hearings in the federal courts

include three habeas corpus appearances in district courts,

two appeals to this court, and an appeal to the Supreme

Court of the United States. He has had his day in court

many times over. In my opinion, instead of starting the

proceedings all over again, it is time petitioner’s case is

brought to a conclusion and he is made to pay the penalty

assessed against him by the jury and the trial court for the

heinous crime he committed. This is especially true in view

of the overwhelming evidence of his guilt, which the

majority admits.

It could be argued that the majority opinion,

considered as a whole, along with the wording of the

remand order, virtually predicts the outcome of the new

hearing on prejudice it requires in the district court.

Prejudice must be shown: by the facts, and the district

judge should have a free hand and be uninfluenced by

anything we might say in determining it.

I would affirm the judgment of the district court in

denying the writ.

APPENDIX E

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

August 6, 1979

TO ALL PARTIES LISTED BELOW:

NO. 78-1165 - JAMES G. DAVIS v. STATE OF

ALABAMA

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition ( ) for rehearing, and the Court having

been polled at the request of one of the members of the

Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it, (Rule

35, Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 16) the petition () for rehearing en banc has

also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH, Clerk

By Sally Hayward

Deputy Clerk

ce: Mr. B. Don Hale

Hon. William J. Baxley

Ms. Carol Jean Smith

APPENDIX F

UNITED STATES CODE TITLE 28

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for a

writ of habeas corpus in behalf of a person in custody

pursuant to the judgment of a State court only on the

grounds that he is in custody in violation of the Constitution

or laws or treaties of the United States.

(b) An application for a writ of habeas corpus in

behalf of a person in custody pursuant to the judgment ofa

State court shall not be granted unless it appears that the

applicant has exhausted the remedies available in the

courts of the State, or that there is either an absence of

available State corrective process or the existence of

circumstances rendering such process ineffective to

protect the rights of the prisoner.

exhausted the remedies available in the courts of the State

within the meaning of this section, if he has the right under

the law of the State to raise, by any available procedure, the

question presented.

(d) In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in a

proceeding to which the applicant for the writ and the

State or an officer or agent thereof were parties, evidenced

by a written finding, written opinion, or other reliable and

adequate written indicia, shall be presumed to be correct,

unless the applicant shall establish or it shall otherwise

— —

appear, or the respondent shall admit

(1) that the merits of the factual dispute

were not resolved in the State court hearing;

(2) that the factfinding procedure

employed by the State court was not adequate to

afford a full and fair hearing;

(3) that the material facts were not

adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction

of the subject matter or over the person of the

applicant in the State court proceeding;

(5) that the applicant was an indigent and

the State court, in deprivation of his

constitutional right, failed to appoint counsel to

prepresent him in the State court proceeding;

(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court

proceeding; or

(7) that the applicant was otherwise denied

due process of law in the State court proceeding;

(8) or unless that part of the record of the

State court proceeding in which the

determination of such factual issue was made,

pertinent to a determination of the sufficiency of

the evidence to support such factual

determination, is produced as provided for

hereinafter, and the federal court on a

consideration of such part of the record as a whole

concludes that such factual determination is not

fairly supported by the record:

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual

determination has been made, unless the existence of one

or more of the circumstances respectively set forth in

paragraphs numbered (1) to (7), inclusive, is shown by the

applicant, otherwise appears, or is admitted by the

respondent, or unless the court concludes pursuant to the

provisions of paragraph numbered (8) that the record in

the State court proceeding, considered as a whole, does not

fairly support such factual determination, the burden shall

rest upon the applicant to establish by convincing evidence

that the factual determination by the State was erroneous.

(e) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to

support the State court’s determination of a factual issue

made therein, the applicant, if able, shall produce that part

of the record pertinent to a determination of the sufficiency

of the evidence to support such determination. If the

applicant, because of indigency or other reason is unable to

produce such part of the record, then the State shall

procure such part of the record and the Federal court shall

direct the State to do so by order directed to an appropriate

State official. If the State cannot provide such pertinent

part of the record, then the court shall determine under the

existing facts and circumstances what weight shall be

given to the State court’s factual determination.

(f) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and

correct copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by

the State court shall be admissible in the Federal court

proceeding.

* 34 —[t„t 4

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.