Petition — Estelle v. Passmore

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The7 316 3 FEB 25 989 |

IN THE

SUPREME COURT OF THE UNITED SEATES‘\./.. Clune |

OCTOBER TERM, 1979 :

* * *

_ W.J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

FRANKLIN DAVID PASSMORE,

Respondent

x * OK

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

* * *

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

TED L. HARTLEY

Executive Assistant ‘

W. BARTON BOLING

Assistant Attorney General

Chief, Enforcement Division

DOUGLAS M. BECKER

Assistant Attorney General

P.O. Eox 12548, Capite! Station

Austin, Texas 78711

(512) 475-3281

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| QUESTION PRESENTED............0.0.ecececececeeeeeees 2

STATUTORY AND CONSTITUTIONAL PROVISIONS

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STATEMENT OF THE CASE ..............0cccececececeees 5

REASONS FOR GRANTING THE WRIT ................-- 6

cnc aus vane 6

I. The Fifth Circuit Court of Appeals Erred

by Holding in Effect that the Require-

ments of Anders v. California Apply to

Retained Counsel in State Criminal Appeals ....... 6

Ii. The Issue Is One of Continuing National

a LE ge = NR RI Ree a eC gi Cr 11

III. The National Standards for Effective

Assistance of Retained Appellate Counsel

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TABLE OF AUTHORITIES -

Case Page

Anders v. California, 386 U.S. 738

a ee ee oe ipa dae en sieceeee passim

Commonwealth v. Sullivan, 371 A.2d 468

i lee ewan nedbewe cenee's 14

Edwards v. Louisiana, 520 F.2d 321

(5th Cir. 1975), cert. denied,

Dee cc eeawdeedskecoceb sews 13

Entsminger v. Iowa, 386 U.S. 748

i ne awaewdbeubeceseees 11, 13

Gainous v. State, 436 S.W.2d 137

os asa waike ees eceeecewnse 10, 11

1 Grant v. State, 343 S.W.2d 626

Teen Ts aw eealnedokenee swe eke 14

-ii-

TABLE OF AUTHORITIES

(CONTINUED)

Case Page

Hill wv. Page, 454 F.2d 679

ee ad alla wew th ohaendans arenes 13

Kallie v. Estelle, 515 F.2d 588

(5th Cir.), cert. denied, 423 U.S.

ERR SR SCIEES ASS SSF ot (te SLE, RC Ron a 13

Malone v. Alabama, 514 F.2d 77 (5th Cir.),

cert. demied, 423 U.S. 990 (1975)... 0. cece cece cc cccvccscesss 13

Passmore v. Estelle, 594 F.2d 115

Ne DP ced siege ba nk.t Wad oes dle passim

Passmore v. Estelle, 607 F.2d 662

eS Es er eee CR ect heck cu wes abeseeue pete 6 passim

People v. Frank, 272 N.E.2d 25

he Cae cid Ch ethene babe iek ee 14

People v. Lang, 520 P.2d 393

ee dabemunye wean ees neee 14

Perez v. Wainwright, 594 F.2d

ee ees ace dae bch eaehWeae aed 13

Shiflett v. Virginia, 443 F.2d 124

(4th Cir. 1970), cert. denied sub nom.

Love v. Virginia, 405 U.S. 994 (1972) ...... ccc cece eccces 14

State v. Parsley, 354 N.E.2d 185

SN a ae eda ee Keer eee 14

Talley v. State, _._ S.W.2d —__, No. 62,812

Cs RS I. BID by icg s ocas bs sans nieene ose 10, 11

United States v. Morrison, 602 F.2d 529

i ME CMDR ate ee iG ess Si he cin dtu ciel ea ed 11

United States v. Weiss, 599 F.2d 730

aes SE isle be Wis 4 ok eae 4 Ac On kn hedveckiscddinesoon 11

Weathersford v. Bursey, 429 U.S. 545 (1977). .............005- 10

Woodall v. Neil, 444 F.2d 92

RE ES aC as a via ee aug iiW ieeealaew had 14

- EE

-ili-

TABLE OF AUTHORITIES

(CONTINUED)

CONSTITUTIONAL PROVISIONS, STATUTES & RULES

ar ee a 2

Se, CI EON MER gcc ee ds chs hokbedbeiicwaeioseededa 2

en oe oh ett ae oe ghee un 2

na ok 60 bbb kde be Fk caeencac eee cee 11

Tex. Code Crim. Proc. Ann. art. 40.09 §13

RA, ENT eek TEE es ee Re, ae ET 3, 9

Tex. Code Crim. Proc. Ann. art. 42.09

as ea RIOR OE rainy -/0 ye 5 AC RET dE OER 3,8

Tex. Code Crim. Proc. Ann. art. 44.04

SR a a Ns i ee 4,8

Tex. Code Crim. Proc. Ann. art. 44.33

REESE RET ED FR Oo Pe ys dy Re ee ee IE 4,8

OTHER AUTHORITIES

Strazzella, “Ineffective Assistance of Counsel Claims:

New Uses, New Problems,” 19 Ariz. L.Rev.

TEE ods Be oie eee a ee ban waka bea hs lewedins 14

50th Ann. Rep., Texas Judicial Council & Office

of Court Administration at 129-30

MU ee oe rr ee Nes nm Np oe 12

(SESE I OE BESO. SER ne SSE SORT ce a eee ee ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

* * *

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

FRANKLIN DAVID PASSMORE,

Respondent

* * *

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

* * *

The Petitioner State of Texas respectfully prays that a

writ of certiorari issue to review the judgments of the

United States Court of Appeals for the Fifth Circuit

entered in this case on April 27, 1979, and November 27,

1979.

OPINIONS BELOW

The opinions of the United States Court of Appeals for

the Fifth Circuit are Passmore v. Estelle, 594 F.2d 115

(5th Cir. 1979), and upon motion for rehearing,

Passmore v. Estelle, 607 F.2d 662 (5th Cir. 1979). These

opinions appear in the Appendix hereto at A. land A. 6,

respectively.

JURISDICTION

The judgment of the United States Court of Appeals

for the Fifth Circuit in Passmore v. Estelle was entered

on April 27, 1979. A timely filed motion for rehearing

-2-

and for rehearing en banc was granted as to the petition

for rehearing. The court below then withdrew a portion

of the prior opinion and substituted a new opinion

therefor on November 27, 1979.

This petition for writ of certiorari was filed within

ninety days after final judgment in this case. This

Court’s jurisdiction is invoked under 28 U.S.C. §1254(1).

QUESTION PRESENTED

Whether this Court’s decision in Anders v. California,

386 U.S. 738 (1967), should apply to retained counsel in

state criminal appeals?

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Const. amend. VI.

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and have the

Assistance of Counsel for his defense.

U.S. Const. amend. XIV, §1.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or

immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to

-3-

any person within its jurisdiction the equal

protection of the laws.

Tex.Code Crim.Proc. Ann. art. 40.09, §13 (Vernon).

Upon refusal of the court to grant defendant a new

trial, the clerk shall thereupon promptly transmit

the record and briefs to the Court of Criminal

Appeals, in which court all grounds of error and

arguments in support thereof urged in defendant’s

brief in the trial court shall be reviewed, as well as

any unassigned error which in the opinion of the

Court of Criminal Appeals should be reviewed in

the interest of justice.

Tex.Code Crim.Proc. Ann. art. 42.09 (Vernon).

* * *

Sec. 3. Ifadefendant appeals his conviction and is

released on bail pending disposition of his appeal,

when his conviction is affirmed, the clerk of the trial

court, on receipt of the mandate from the appellate

court, shall issue a commitment against the

defendant. The officer executing the commitment

shall endorse thereon the date he takes the

defendant into custody and defendant’s sentence

begins to run from the date endorsed on the

commitment. The Department of Corrections shall

admit the defendant named in the commitment on

the basis of the commitment.

Sec. 4. If a defendant is convicted of a felony and

sentenced to death, life, or a term of more than ten

years in the Department of Corrections and he gives

notice of appeal, he shall be transferred to the

Department of Corrections on a commitment

pending a mandate from the Court of Criminal

Appeals.

-4-

Sec. 5. Ifadefendant is convicted of a felony and is

sentenced to a term of ten years or less and he gives

notice of appeal, he shall be transferred to the

Department of Corrections on a commitment

pending the mandate from the Court of Criminal

Appeals upon request in open court or upon written

request to the sentencing court. Upon a valid

transfer to the Department of Corrections under

this section, the defendant may not thereafter be

released on bail pending his appeal.

* * *

Tex.Code Crim.Proc. Ann. art. 44.04(d) (Vernon).

After conviction, either pending determination of

any motion for new trial or pending final

determination of the appeal, the court in which trial

was had may increase or decrease the amount of

bail, as it deems proper, either upon its own motion

or the motion of the State or of the defendant.

Tex.Code Crim.Proc. Ann. art. 44.33 (Vernon).

The Court of Criminal Appeals may make rules of

procedure as to the hearing of criminal actions upon

appeal not inconsistent with this Code. After the

record is filed in the Court of Criminal Appeals the

parties may file such supplemental briefs as they

may desire before the case is heard on oral

argument by such court. Each party, upon filing

any such supplemental brief, shall promptly cause

true copy thereof to be delivered to the opposing

party or to the latter’s counsel. In every case at least

two counsel for the defendant shall be heard in the

Court of Criminal Appeals if such be desired by

defendant.

Appellant’s failure to file his brief in the time

prescribed shall not authorize a dismissal of the

appeal by the Court of Criminal Appeals, nor shall

-5-

the Court of Criminal Appeals, for such reason,

refuse to consider appellant’s case on appeal.

STATEMENT OF THE CASE

Respondent was convicted by a jury upon his plea of

not guilty in the 47th Judicial District Court of Potter

County, Texas, Cause No. 16,348A, for the offense of

burglary. On March 31, 1975, Respondent was

sentenced to life imprisonment in the Texas

Department of Corrections. He pursued a direct appeal

to the Texas Court of Criminal Appeals. The

circumstances of that appeal were correctly stated in

the first opinion of the court below, Passmore v. Estelle,

594 F.2d at 116-17; A. 2:

On appeal, Petitioner retained as counsel Mr.

Harris Lofthus, who had not represented him

at trial [footnote omitted]. Mr. Lofthus filed a

one sentence, thirteen word, brief on

Petitioner’s behalf, which merely recited a

prayer for relief: “Appellant prays that this

case be reversed and remanded for a new trial.”

Although Mr. Lofthus had filed no request for

extension of time in which to file a brief as

provided by Rule 15 of the Texas Court of

Criminal Appeals, Tex.Code Crim.Proc. Ann.

art. 44.33 (1979), he submitted a “First

Amended Brief” after the deadline for filing

had passed. The Texas Court of Criminal

Appeals affirmed the conviction in an

unreported one paragraph per curiam opinion.

Of the one sentence brief, the court observed:

“Obviously, this presents nothing for review.”

Of the “First Amended Brief,” the court stated

it would not be considered because of its

untimely filing. Nonetheless, in the interest of

justice, the court examined the record.

————eoOoeomoeRl!

-6-

The opinion of the Court of Criminal Appeals also states,

“(In the interest of justice, we have examined the record

on appeal and find no reversible error therein.” A. 11.

Respondent next filed unsuccessful applications for

writ of habeas corpus in both state and federal court

before filing the application that forms the basis of this

case. The federal district court on February 22, 1979,

denied habeas relief. On April 27, 1979, a panel of the

United States Court of Appeals for the Fifth Circuit

reversed the decision of the district court and held that

respondent is entitled to an out-of-time appeal. On

motion for rehearing, the panel rewrote part of its

opinion, but the disposition remained the same. This

petition for writ of certiorari followed.

REASONS FOR GRANTING THE WRIT

I. The Fifth Circuit Court of Appeals Erred

by Holding in Effect that the Require-

ments of Anders v. California Apply to

Retained Counsel in State Criminal

Appeals.

II. The Issue Is One of Continuing National

Importance.

III. The National Standards for Effective

Assistance of Retained Appellate Counsel

Are Wildly Divergent.

ARGUMENT

I. The Fifth Circuit Court of Appeals Erred

by Holding in Effect that the Require-

ments of Anders v. California Apply to

Retained Counsel in State Criminal

Appeals.

The court below considered the one sentence brief

filed by respondent’s retained eounsel in his state appeal

-7-

to be so obnoxious that it was impelled to find all his

appellate proceedings fundamentally unfair and to

order an out-of-time appeal. In the original opinion the

court suggested that if respondent’s attorney had

wished to withdraw after notice of appeal had been

filed, he should have so advised the court and requested

permission in compliance with Anders v. California,

386 U.S. 738 (1967). In the second opinion, the court

suggested that the Texas Court of Criminal Appeals

should have ordered the case re-briefed, again citing

Anders v. California in support of that conclusion, 607

F.2d at 663 n. 4; A. 7. In wrongly extending in effect the

protections in Anders v. California to retained appellate

counsel, the court below ignored important realities

about the criminal appellate process. It gave

insufficient weight to the independent action of the

Texas Court of Criminal Appeals, which searched the

record for fundamental error and found none.

The decision also wrongly resolves important

questions concerning the extent to which state trial

judges, appellate judges, and prosecutors should

mor'‘tor the appellate activities of criminal defendants’

retained counsel and the extent to which those said state

officials should interfere with the attorney-client

relationship. Under its holding, every retained counsel

who on appeal files a cursory brief or no brief at all --

which for several reasons is a common occurrence on

appeal, as discussed below -- is vulnerable to a charge of

ineffective assistance of counsel. To prevent later claims

of ineffective assistance of retained counsel under those

circumstances, state officials are now charged with the

responsibility of interfering with the attorney-client

relationship to the extent of apparently demanding

explanations for such conduct from retained counsel or

rejecting the submitted briefs of such counsel and

demanding new ones. Finally, federal district courts are

in the business of reviewing the appellate performance

of retained counsel. Nothing in Anders v. California

-8-

authorizes any part of this, and the opinion itseif

furnishes little guidance upon the extent to which state

officials must oversee the performance of retained

appellate counsel.

First, the court failed to address the fact that there are

sseveral reasons, depending upon the particular law of

the jurisdiction, why a convicted defendant might

desire his retained attorney to appeal, but not desire

such attorney to file and exhaustive brief or to take any

other action beyond formal prosecution of that appeal.

In Texas, among these reasons is the operation of the

state statute governing bond on appeal, Tex.Code Crim.

Proc. Ann. art. 44.04 (Vernon). By prosecuting an

appeal, a criminal defendant may remain on bond for a

longer period of time or, if not on bond, may in certain

circumstances remain in the county jail instead of being

immediately transferred to the Texas Department of

Corrections. See Tex.Code Crim.Proc. Ann. arts. 42.09,

§5, 44.04(d) (Vernon). For the small price of a formal

appeal, a criminal defendant can gain significant

advantages.

For these reasons, many appeals are prosecuted in

Texas in which only a cursory or no appellate brief is

ever filed. By Texas statutes a criminal appeal cannot be

dismissed for failure of appellant to file a timely brief.

Tex.Code Crim.Proc. Ann. art. 44.388 (Vernon). Now

each attorney who so followed the desires of his client

and filed such a perfunctory brief is vulnerable to a

charge of ineffective assistance of counsel, and his

subsequently dissatisfied client, who at the time may

well have received all that he wanted -- including

affirmance, in some cases -- is now entitled to an out-of-

time appeal at public expense, assuming that he is now

indigent, as will ordinarily be the case.

This holding apparently solicits unwarranted state

interference with the attorney-client relationship and

-9-

may often, for the reasons state above, require state

interference directly contravening the wishes and best

interests of the attorney’s client. [t may also increase the

cost of appeals. Presumably the non-indigent client

must pay for the “arguable error” brief that his retained

counsel must now file. Furthermore, the public must

pay for the review of that brief that the appellate

judicial system must presumably give it.

Second, the court below reached this result in spite of

the independent review by the Texas Court of Criminal

Appeals on grounds of error not raised in the briefs in

the interest of justice. See Tex.Code Crim.Proc. Ann.

art. 40.09 §13 (Vernon). The annotations to that statute

contain literally hundreds of cases reversed by the

Texas Court of Criminal Appeals upon grounds not

raised in the briefs, or where no brief at all was filed.

These reversals are based on insufficient evidence,

defective indictments, invalid guilty pleas, defective

jury instructions, ordinary evidentiary error, and

virtually every other ground for reversal of a criminal

case. The opinion of the Texas Court of Criminal

Appeals in this case states that the court had combed the

record in the interest of justice and found no

fundamental error justifying reversal. Given the

respect that the federal courts usually accord the

findings of state courts, it is difficult to understand how

the court below held the appellate proceedings in

respondent’s case fundamentally unfair when the Texas

Court of Criminal Appeals explicitly stated that no

reversible error existed in the case. Thus, any deficiency

in respondent’s representation was remedied and

rendered harmless by the independent action of the

Court of Criminal Appeals.

Third, retained counsel in this case filed a presumably

adequate expanded brief, but filed it late under the

rules of the Court of Criminal Appeals, and so it was not

considered. The Court of Criminal Appeals should be

-10-

entitled to rely upon its own rules of procedure and time

requirements for the filing of briefs, as well as other

matters, by retained counsel. In the context of appointed

counsel, there is no question that the Texas court takes

.ts duties very seriously. See Gainous v. State, 436

S.W.2d 137 (Tex.Crim.App. 1969). Appointed counsel

who file late or inadequate briefs are dealt with very

severely by the Texas Court of Criminal Appeals; some

have been held in contempt of court. See Talley v. State,

__§.W.2d__, No. 62,812 (Tex.Crim.App. Jan. 30,

1980). But all courts, including this Court and the court

below, have rules of procedure and time limits that must

be complied with. Otherwise, the appellate process

could quickly become chaotic. Under the holding below,

however, the Texas Court of Criminal Appeals, to the

extent that it desires to dispose of appeals in one pro-

ceeding and in compliance with the court below’s ver-

sion of the Constitution, is no longer allowed to enforce

its own time deadlines with respect to retained counsel.

To justify all of this, the court below relied upon

Anders v. California, 386 U.S. 739 (1967). Anders set

forth the appellate duties of appointed counsel to

indigent defendants. It has no application whatsoever in

the context of retained counsel and non-indigent

defendants. To apply its requirements in the latter

context is to require state officials impermissibly to

interfere in the attorney-client relationship. Under

Anders, the state has the obligation to monitor the

attorney-client relationship that it has created. But a

non-indigent defendant who hires counsel of his choice

has himself created an attorney-client relationship. The

state has no obligation and far less right, if any, to

interfere with that relationship.! See Weathersford v.

1The public is not helpless against inadequate representation by

retained counsel in criminal cases. Respondent’s attorney in his

state appeal was disciplined by the State Bar of Texas, partly be-

cause of his conduct in this case. Passmore v. Estelle, 594 F.2d at 117

n. 3; A. 3. Also, a malpractice action for damages would be avail-

able in certain circumstances. y

-11-

Bursey, 429 U.S. 545 (1977); United States v. Morrison,

602 F.2d 529 (8rd Cir. 1979); United States v. Weiss, 599

F.2d 730 (5th Cir. 1979).

It should be recalled that this is not a case involving a

retained attorney’s total abandonment of his client. See

Entsminger v. Iowa, 386 U.S. 748 (1967). This is a case in

which a federal appellate court graded the one sentence,

thirteen word performance of retained counsel and

found it far short of a passing mark. The scoring of the

test was easy in this case, but surely this Court and all

others know of many ten sentence briefs, ten page briefs

and much longer ones that are so poor as to be little

better than a one sentence brief. Is it not a reasonably

foreseeable result of the holding of the court below that

we shall expect in due time to see many of these briefs

attached to federal habeas corpus applications, and

consequently the federal courts will be called upon to

grade each of them? To prevent that result, the Court of

Criminal Appeals is now called upon to grade such

briefs in that forum, and to take appropriate remedial

action. The Constitution should not require this result.

II. The Issue Is One Of Continuing National

Importance.

The requirements of Anders v. California, 386 U.S.

738 (1967), are well known. They have been fully

implemented in Texas and described in Gainous v.

State, 436 S.W.2d 137 (Tex.Crim.Anp. 1969).

The Texas Court of Criminal Appeals is the only

appellate court in the state of Texas for criminal

matters. Tex. Const. art. 5, §5. The Court of Criminal

Appeals has the heaviest caseload of any state appellate

court in the nation. Talley v. State, __S.W.__, No.

62,812 (Tex.Crim.App. Jan. 1980). In 1978, for example,

the Court of Criminal Appeals disposed of 2,634 cases.

In 1978 the nine judges, and three commissioners, and

one special judge of the Court of Criminal Appeals

-12-

authored 2,878 signed opinions. On December 31, 1978,

ther2 were 5,141 cases pending upon the docket of that

court. 50th Ann. Rep., Texas Judicial Council & Office

of Court Administration at 129-30 (May, 1979).

No great prescience is necessary to understand that if

the Texas Court of Criminal Appeals is required to

monitor and grade the performance of retained, as well

as appointed, appellate counsel, its continuing efforts to

achieve control over its massive docket will be severely

hampered. If the Court of Criminal Appeals is not

entitled to rely upon the efforts and implied representa-

tion of retained counsel as well as its own rules of

procedure and filing deadlines, the impact upon its

work is potentially disastrous. In light of the conflicting

holdings among other American jurisdictions (see part

III below), it is inevitable that other states will to some

degree face the same problem.

The impact upon the federal courts must be equally

substantial. In his specially concurring opinion in the

court below, Judge Coleman wrote:

By my concurrence I do not intend to be lending

support to the idea that the state appellate

courts must now review all briefs as to the

competency and adequacy of the representa-

tion afforded by retained counsel in order to

foreclose claims of imcompetency of counsel or

inadequacy of representation at the appellate

level, especially where, for all we know, the

filing may be simply for delay or for some other

reason not really based on any real hope of

reversal.

* * *

I must express the hope that this case will not

become the vehicle by which overburdened

federal. courts are to hegin reviewing the

-13-

competency and adequacy of retained appellate

counsel in state courts.

Passmore v. Estelle, 607 F.2d at 664; A. 10.

Petitioner shares Judge Coleman’s hope, but

perceives no basis for believing that state prisoners in

federal habeas corpus will not now seek review of the

performance of their retained counsel in their state

appeals, since the majority opinion in the court below

ng exactly that cause of action as a constitutional

right.

III. The National Standards for Effective

Assistance of Retained Counsel Are

Wildly Divergent.

Judge Coleman in the court below commented upon

the paucity of precedent on incompetency of counsel or

inadequate representation in state court appeals. 607

F.2d at 664; A. 10. Review of available authorities

reveals wildly divergent results in this area. Prior to the

holding in the instant case, the Fifth Circuit had refused

to grant habeas corpus relief in numerous cases

involving even total abandonment by retained counsel.

E..g., Perez v. Wainwright, 594 F.2d 159 (5th Cir. 1979);

Edwards v. Louisiana, 520 F.2d 321 (5th Cir. 1975), cert.

denied, 423 U.S. 1089 (1976); Kallie v. Estelle, 515 F.2d

588 (5th Cir.), cert. denied, 423 U.S. 1019 (1975); Malone

v. Alabama, 514 F.2d 77 (5th Cir.), cert. denied, 423 U.S.

990 (1975). Similarly, the Tenth Circuit Court of

Appeals, as well as the State of Oklahoma, have held

that nothing in either Anders v. California, or

Entsminger v. Iowa, 386 U.S. 748 (1967), renders

fundamentally unfair the appeal of a convicted

defendant whose retained counsel files no brief or

presents no oral argument, at least where the Oklahoma

Court of Criminal Appeals has examined the record for

“fundamental error.” Hill v. Page, 454 F.2d 679, 681

(10th Cir. 1971).

-14-

Some other jurisdictions have applied Anders in

varying degrees to the performance of retained

appellate counsel. Some have written that performance

of retained counsel on appeal can in certain

circumstances amount to denial of the constitutional

right to counsel. E.g., Woodall v. Neil, 444 F.2d 92 (6th

Cir. 1971); Shiflett v. Virginia, 433 F.2d 124 (4th Cir.

1970), cert. denied sub nom. Love v. Virginia, 405 U.S.

994 (1972). Others have simply delineated wildly

divergent standards for grading the performance of

appellate counsel, without necessarily differentiating

between retained and appointed counsel. F.g., People v.

Lang, 520 P.2d 393, 398 (Calif. 1974) (whether

“appellate counsel failed to raise crucial assignments of

error which arguably might have resulted in reversal”);

Commonwealth v. Sullivan, 371 A.2d 468, 474 (Pa. 1977)

(whether counsel’s actions had a reasonable basis

designed to effectuate the client’s interests in light of all

the alternatives); People v. Frank, 272 N.E.2d 25, 28 (Ill.

1971) (inquiring whether issue was so patently

meritorous that failure to raise it on appeal was

ineffective assistance); State v. Parsley, 354 N.E.2d 185,

187 (Ind. 1976), and Grant v. State, 343 S.W.2d 626, 627

(Tenn.Crim.App. 1975) (both evaluating the underlying

merits of the alleged errors counsel failed to raise on

appeal.) See Strazzella, “Ineffective Assistance of

Counsel Claims: New Uses, New Problems,” 19 Ariz.

L.Rev. 443, 464-71 (1977).

This Court should revolve these conflicting standards.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the opinion of the United States Court of Appeals

for the Fifth Circuit.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

-15-

JOHN W. FAINTER, JR.

First Assistant

TED L. HARTLEY

Executive Assistant

W. BARTON BOLING

Assistant Attorney General

DOUGLAS M. BECKER

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Respondent

APPENDIX

A-1

Franklin David PASSMORE,

Petitioner-Appellant,

Vv.

W. J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 78-1963.

United States Court of Appeals,

Fifth Circuit.

April 27, 1979.

Appeal from the United States District Court for the

Northern District of Texas.

Before COLEMAN, GODBOLD and INGRAHAM,

Circuit Judges.

INGRAHAM, Circuit Judge:

Petitioner Franklin David Passmore, a Texas state

prisoner, appeals the denial of his application for a

federal writ of habeas corpus. Two issues are before the

| court: (1) whether the state trial court’s ruling that

| defense counsel could not impeach a prosecution witness

| by evidence of prior incarceration violated petitioner’s

| Sixth Amendment right to confrontation; and (2)

whether petitioner’s retained counsel rendered

ineffective assistance on appeal in submitting a one

sentencé appellate brief. We affirm the denial of federal

habeas relief as to the first issue, but reverse and

| remand as to the second issue.

Petitioner was convicted in a Texas state district

court of the offense of burglary and was sentenced to life

imprisonment as an habitual offender. The chief

prosecution witness was petitioner’s accomplice, Mr.

Jimmy Chambers. During cross-examination of

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Chambers, petitioner’s counsel twice asked the witness

if he had been in jail since his arrest for the burglary. On

both occasions, the court sustained the government’s

objection to the question.

On appeal, petitioner retained as counsel Mr. Harris

Lofthus, who had not represented him at trial.! Mr.

Lofthus filed a one sentence, thirteen word, brief on

petitioner’s behalf, which merely recited a prayer for

relief: “Appellant prays that this case be reversed and

remanded for a new trial.” Although Mr. Lofthus had

filed no request for extension of time in which to file a

brief as provided by Rule 15 of the Texas Court of

Criminal Appeals, Tex.Code Crim.Proc. art. 44.33

(1979), he submitted a “First Amended Brief” after the

deadline for filing had passed. The Texas Court of

Criminal Appeals affirmed the conviction in an

unreported one paragraph per curiam opinion. Of the

one sentence brief, the court observed: “Obviously, this

presents nothing for review.” Of the “First Amended

Brief,” the court stated that it would not be considered

because of its untimely filing. Nonetheless, in the

interest of justice, the court examined the record.

Proceeding in forma pauperis, petitioner exhausted

state remedies before filing an application for federal

habeas corpus relief under 28 U.S.C. § 2254 (1976). On

February 22, 1978, the district court denied the

application for writ of habeas corpus in accordance with

the Report and Recommendation of the United States

Magistrate.

[1] Petitioner argues that the state trial court’s

ruling that defense counsel could not impeach a

prosecution witness by evidence of his incarceration

Petitioner retained different counsel at each stage of the

proceedings. At arraignment and plea, petitioner retained Mr.

Ronnie Posey. At trial, petitioner retained Mr. Charles

Fairweather. On appeal, petitioner retained Mr. Lofthus.

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violated the confrontation clause of the Sixth

Amendment. We find no merit in petitioner’s argument.

The court’s ruling was dictated by Article 38.29 of the

Texas Code of Criminal Procedure which forbids

impeachment by past criminal misconduct unless a

final conviction has been entered.? Application of the

statute by the trial court did not unduly restrict cross-

examination in violation of the Sixth Amendment. Cf.

United States v. Mayer, 556 F.2d 245, 248-49 (5th Cir.

1977); United States v. Crumley, 565 F.2d 945, 949-50

(5th Cir. 1978).

Petitioner’s second argument is that his retained

counsel rendered ineffective assistance on appeal in

submitting a one sentence brief.? In this circuit, a

criminal defendant is entitled to “counsel reasonably

likely to render and rendering reasonably effective

assistance.” United States v. Guerra, 588 F.2d 519 (5th

Cir. 1979), quoting MacKennav. Ellis, 280 F.2d 592, 599

(5th Cir. 1960), modified 289 F.2d 928, cert. denied, 368

2Tex.Code Crim.Proc. art. 38.29 (1966) provides:

The fact that a defendant in a criminal case, or a witness ina

criminal case, is or has been charged by indictment,

information or complaint, with the commission of an offense

against the criminal laws of this State, of the United States, or

any other State shall not be admissible in evidence on the trial

of any criminal case for the purpose of impeaching any person

as a witness unless on trial under such indictment,

information or complaint a final conviction has resulted, or a

suspended sentence has been given and has not been set aside,

or such person has been placed on probation and the period of

probation has not expired. In trials of defendants under

Article 36.09, it may be shown that the witness is presently

charged with the same offense as the defendant at whose trial

he appears as a witness.

8At oral argument before this court, petitioner’s counsel

informed the court that Mr. Lofthus had been suspended from the

practice of law for ten months by the State Bar of Texas Grievance

Committee because of his conduct of petitioner’s appeal. See Lofthus

v. State, 572 S.W.2d 799, 800 (Tex.Civ.App.-Amarillo, 1978).

oO a

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U.S. 877, 82 S.Ct. 821, 7 L.Ed.2d 78 (1961). Review of an

ineffective assistance claim “requires an inquiry into

the actual performance of counsel . .. and a

determination whether reasonably effective assistance

of counsel was rendered based on the totality of the

circumstances.” Carbo v. United States, 581 F.2d 91, 92

(5th Cir. 1978).

[2] Ineffective assistance of counsel in state court

may be predicated upon either the due process clause of

the Fourteenth Amendment or the assistance of counsel

clause of the Sixth Amendment. The Fourteenth

Amendment is violated when retained counsel’s

representation is “ ‘so grossly deficient as to render the

proceedings fundamentally unfair’.” Kallie v. Estelle,

515 F.2d 588, 591 (5th Cir. 1975); Fitzgerald v. Estelle,

505 F.2d 1334, 1837 (5th Cir. 1975). The Sixth

Amendment is violated when retained counsel’s

incompetent r2presentation is “so apparent that a

reasonably at. :ntive official of the state should have

been aware of and could have corrected it.” Jd. at 1337.

[3] The conduct of petitioner’s retained appellate

counsel was so maladroit as to run afoul of the

Fourteenth Amendment. “The constitutional

requirement of substantial equality and fair process can

only be attained where counsel acts in the role of an

active advocate on behalf of his client, as opposed to that

of amicus curiae. ... His role as advocate requires that

he support his client’s appeal to the best of his ability.”

Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396,

1400, 18 L.Ed.2d 493 (1967).

The submission of a one sentence brief by Mr. Lofthus

was tantamount to abandonment of representation. It is

well settled that appellate counsel “may not abandon

representation in his own ipse dixit.” Wright v. Estelle,

572 F.2d 1071, 1083 (5th Cir. 1978). If counsel wishes to

withdraw after notice of appeal has been filed, “he

should so advise the court and request permission to

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withdraw. That request must, however, be

accompanied by a brief referring to anything in the

record that might arguably support the appeal.”

Anders, 386 U.S. at 744, 87 S.Ct. at 1400; Barker v.

Wainwright, 459 F.2d 8, 10 (5th Cir. 1972). Like the no-

merit letter submitted by appellate counsel in Anders,‘

the one sentence brief submitted by Mr. Lofthus failed

to meet the minimum constitutional requirement of

effective assistance of counsel on appeal.

The state trial court’s ruling that defense counsel

could not impeach a prosecution witness with evidence

of his jail record comported with state law and did not vi-

olate the confrontation clause of the Sixth Amendment.

Submission of a one sentence brief by retained appellate

counsel, however, denied petitioner the effective

assistance of counsel required by the Fourteenth

Amendment. Accordingly, the district court’s denial of

the application for a writ of habeas corpus is affirmed in

part and reversed and remanded in part. Upon remand,

the district court is instructed to enter an order

granting the petition for writ of habeas corpus unless

the courts of Texas shall grant and afford the petitioner

a new and out-of-time appeal, the time of which shall

run from the date of district court’s order.

AFFIRMED in part, REVERSED and

REMANDED in part.

4In Anders v. California, 386 U.S. 738, 87 S.Ct. 13896, 18 L.Ed.2d

493 (1967), the issue before the court was whether appointed

counsel had rendered ineffective assistance on appeal of a felony

conviction to a California appellate court, when counsel had advised

the court that there was no merit to the appeai. Counsel wrote the

following letter to the appellate court: “I will not ‘ile a brief on

appeal as I am of the opinion that there is no merit to the appeal. I

have visited and communicated with Mr. Anders and have

explained may views and opinions to him. .. .” The Supreme Court

held that such representation amounted to ineffective assistance of

counsel under the Fourteenth Amendment. Id. at 744, 87 S.Ct.

1396.

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Franklin David PASSMORE,

Petitioner-Appellant,

Vv.

W. J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 78-1963.

United States Court of Appeals,

Fifth Circuit.

Nov. 27, 1979.

Appeal from the United States District Court for the

Northern District of Texas.

ON PETITION FOR REHEARING

AND PETITION FOR REHEAR-

ING EN BANC

(Opinion April 27, 1979, 5 Cir. 1979,

594 F.2d 115)

Before COLEMAN, GODBOLD and INGRAHAM,

Circuit Judges.

PER CURIAM:

The petition for rehearing is granted.

Our original opinion, 594 F.2d 115, is modified by

withdrawing the language beginning with the last full

paragraph on page 117 and continuing to the end of the

opinion and substituting the following therefor.

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[1, 2] It is obvious that the representation by

petitioner’s retained appellate counsel was

incompetent.‘Constitutionally ineffective assistance of

counsel in state court may be predicated upon either the

due process clause of the Fourteenth Amendmentor the

assistance of counsel clause of the Sixth Amendment.5

See Fitzgerald v. Estelle, 505 F.2d 1334, 1335-37 (5th Cir.

1975) (en banc).

In the first situation, we say that constitutionally

ineffective assistance of retained counsel occurs when

the whole proceeding is fundamentally unfair. In other

words, “the criminal justice system has so grossly

malfunctioned that the state’s subsequent

imprisonment or fine of the defendant is a violation of

due process. ... Fourteenth Amendment state action is

present, not because a state official knew or should have

known the particulars of the unfairness but because the

system has failed.” Cantrell v. Alabama, 546 F.2d 652,

653 (5th Cir. 1977) (citation omitted).

In the second situation, state action is present, not

because the whole proceeding is “fundamentally unfair”

but rather because a state official knew or should have

known of the “particulars of the unfairness.” Jd. The

language of Fitzgerald v. Estelle, supra, quoted in

Cantrell v. Alabama, supra, concerning the Sixth

Amendment denial of assistance of counsel is:

‘The submission by Mr. Lofthus of a one sentence appellate brief

on behalf of one whose conviction has resulted in a life sentence asa

habitual offender can hardly be said to reflect the “role of an active

advocate in behalf of his client’s.” Anders v. California, 386 U.S.

738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).

5The Sixth Amendment right of an accused to assistance of

counsel was made obligatory on the states by the Fourteenth

Amendment in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9

L.Ed.2d 799 (1963).

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To find state involvement in retained counsel’s

conduct which is adjudged to be less than

reasonably effective, yet not so grossly deficient as

to render the proceedings fundamentally unfair, it

must be shown that some responsible state official

connected with the criminal proceeding who could

have remedied the conduct failed in his duty to

accord justice to the accused. That the trial judge

and the prosecutor have such a capacity and duty is

unquestionable. Therefore, if the trial judge or the

prosecutor can be shown to have actually known

that a particular defendant is receiving

incompetent representation and takes no remedial

action, the state action requirement is satisfied. If

they directly participate in the incompetency, it is

even more so. Furthermore, if the incompetency of a

retained attorney’s representation is so apparent

that a reasonable attentive official of the state should

have been aware of and could have corrected it then

again the state action requirement is satisfied.

Fitzgerald, supra, 505 F.2d at 1337 (emphasis added).

It is abundantly clear that the Texas Court of

Criminal Appeals had actual knowledge that petitioner

was receiving incompetent representation and took no

remedial action. The per curiam opinion noted that

“[oJbviously, this [one sentence brief] presents nothing

for review.” This case is not unlike Cantrell v. Alabama,

supra, where, after an uncertified transcript had been

filed, the attorney general moved to dismiss the appeal

because of the lack of a certificate. The court noted that

the state’s highest legal officer had actual knowledge of

the defective assistance of counsel at a time when the

error could have been corrected. Cantrell, supra, 546

F.2d at 654.

In the instant case, the Texas Court of Criminal

Appeals could have ordered petitioner’s counsel to

rebrief the case before disposition of the appeal,

ene rad i BORN ee NS: era

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especially since counsel had attempted untimely to

submit a “First Amended Brief,” -which the Court

refused to consider. As in Cantrell, the Constitution

requires more than what was afforded petitioner.

[3, 4] The state trial court’s ruling that defense

counsel could not impeach a prosecution witness with

evidence of his jail record comported with state law and

did not violate the confrontation clause of the Sixth

Amendment. Submission of a one sentence brief by

retained appellate counsel, however, denied petitioner

the effective assistance of counsel required by the

“incorporated” Sixth Amendment. Accordingly, the

district court’s denial of the application for a writ of

habeas corpus is affirmed in part and reversed and

remanded in part. Upon remand, the district court is

instructed to enter an order granting the petition for

writ of habeas corpus unless the courts of Texas shall

grant and afford the petitioner a new and out-of-time

appeal, the time of which shall run from the Jate of the

district court’s order.

AFFIRMED in part, REVERSED and

REMANDED in part.

COLEMAN, Circuit Judge, concurring specially.

I was so appalled by the filing of a one-line brief by

retained counsel in acriminal appeal that I concurred in

the prior opinion in this case, reported at 594 F.2d 115.

Upon it being brought to the attention of the panel that

we were in conflict with the decision of another panel,

Perez v. Wainwright, 594 F.2d 159 (5th Cir.), rendered

almost simultaneously and which we did not know

about, the above revised opinion is being issued,

authored by Judge Ingraham and concurred in by

Judge Godbold.

I concur in this opinion because it directs only that

Passmore be given an out of time appeal. If his

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conviction was being subjected to outright invalidation I

would most certainly dissent.

I wish, however, to make a record of some of my

reservations about my concurrence. The solemn

judgment of the Texas Court of Criminal Appeals, in

which the retained lawyer filed the one-line brief,

recites that the Court had made an independent

evaluation of the record and had found no error. This

means that the lawyer’s dereliction hardly resulted in

any prejudice to Passmore. The better course would be

to apply the harmless error rule of Chapman v.

California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.

The out of time appeal is probably going to be a waste of

time and effort on the part of both counsel and the Texas

appellate court. Therefore, if I were deciding this case

individually I would apply the harmless error rule and

affirm the District Court.

By my concurrence I do not intend to be lending

support to the idea that state appellate courts must now

review all briefs as to the competency and adequacy of

the representation afforded by retained counsel in order

to foreclose claims of incompetency of counsel or

inadequacy of representation at the appellate level,

especially where, for all we know, the filing may be

simply for delay or for some other reason not really

based on any real hope of reversal.

I have searched the federal constitutional precedents

and I find almost nothing on incompetency of counsel or

inadequate representation in state court appeals. The

hundreds of precedents in this area deal with what

happened at the original trial on the merits, where the

focal issue of guilt or innocence was at stake.

I must express the hope that this case will not become

the vehicle by which overburdened federal courts are to

begin reviewing the competency and adequacy of

retained appellate counsel in state courts. As a Sixth

eases Panel tC AS TD BO Aen te " a -

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Amendment matter, when a defendant is represented

by retained counsel and a state court tells us that it has

reviewed the record in an ordinary felony case, such as

we have here, and found no error I think we should

accept that unless the habeas corpus applicant can cite

chapter and verse to show that the state appellate court

was clearly wrong, to the prejudice of his constitutional

rights.

IN THE TEXAS COURT OF CRIMINAL APPEALS

FRANKLIN PASSMORE,

Appellant

No. 51,792 vs. Appeal from Potter County

THE STATE OF TEXAS,

Appellee

OPINION

Appellant was found guilty by a jury of the offense of

burglary. His punishment enhanced by two prior felony

convictions was assessed by the court at life. Appellant

was represented by retained counsel at trial and by

different retained counsel on appeal. Appellant’s

original brief consisted of one sentence: “Appellant

prays that this case be reversed and remanded for new

trial.” Obviously, this presents nothing for review. The

record was approved on July 24, 1975 and on September

15, 1975 appellant filed his “First Amended” brief. The

record is devoid of any request for or granting of an

extension of time within which to file this brief.

Therefore, the brief not having been timely filed, it will

not be considered. However, in the interest of justice, we

have examined the record on appeal and find no

reversible error therein. In addition to the accomplice

testimony there was other evidence tending to connect

appellant with the offense committed. Cherb v. State,

472 S.W.2d 273.

The judgment is affirmed.

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Per Curiam

(Delivered June 30, 1976)