# Appendix — State of Alabama v. James G. Davis

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 903

## Text

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

1

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

2

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

3

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

4

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

5

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

6

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

7

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.

8
DATED, this 9th day of December, 1975.

EDWIN L. NELSON
United States Magistrate

9

APPENDIX B
James G. DAVIS, Petitioner-Appellant,
v.
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

10

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

11

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.

12

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).

13

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.

14

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.

15

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

16

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).

17

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.

18

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.

19

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.

20

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.

21

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.

22

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.

23

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.

24

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

25

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).

26

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

27

(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

28

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

29
APPENDIX D

UNITED STATES COURT OF APPEALS,
FIFTH CIRCUIT.

James G. DAVIS, Petitioner-Appellant,
v.
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

30

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

31

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.

32

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.

33

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.

34

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.

35

. . . 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.”

36

(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 ——

37

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

38

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.

39

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.

40

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.

41

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.

42

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.

ee

43

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).).

44

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.

45

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).

46

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

47

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

48

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

—

49

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

50

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

51

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.

52

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

53

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:

54

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

—— ——————

———

55

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.

56

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

57

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.”

58

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.”

59

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

60

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

61

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.

0e

“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

62

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

— —

63

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.

64

(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

65

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

66

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.

67
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

68
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

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_1188%3A3. Public record. Not legal advice.