Opposition — MORRIS O. MASON V. MORRIS (No. 82-5093)

NO. 82-5093

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1981

MORRIS ODELL MASON,

Petitioner

EDWARD C. MORRIS,

Respondent

BRIEF IN OPPOSITION TO CERTIORARI

Counsel for Respondent

James E. Kulp

Senior Assistant Attorney General

Supreme Court Building

101 North Eighth Street - 6th Floor

Richmond, Virginia 23219

(804) 786-6565

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RECEIVED

AUG 2 4 1982

OFFICE OF THE CLERK

SUPREME COURT, U.S,

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1.

2.

QUESTIONS PRESENTED

WAS THE REPRESENTATIONS AFFORDED PETITIONER BY TRIAL

COUNSEL WITHIN THE RANGE OF COMPETENCE DEMANDED OF

ATTORNEYS IN CRIMINAL CASES?

DID THE TRIAL COURT RULE CORRECTLY IN IMPOSING THE

BURDEN ON PETITIONER TO ESTABLISH PREJUDICE FROM

ERRORS AND OMISSIONS OF COUNSEL?

IF PETITIONER DID BEAR THE BURDEN OF ESTABLISHING

PREJUDICE BY A PREPONDERENCE OF THE EVIDENCE, DID

PETITIONER MEET THAT BURDEN?

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; TABLE OF CONTENTS

QUESTIONS PT ob a 6 0' 6 we inbid Oe ©:0.0ce 0 owe 08

PUMLSDAUTLUN abies s O40 oN ass b bwtasens OUCH OS

STATEMENT OF THE CRBs sees ev oe Wee 6 nee omae

ARGUMENT I

THE TRIAL COURT CORRECTLY RULED THAT

PETITIONER HAD RECEIVED THE EFFECTIVE

ASSISTANCE OF COUNSEL AT HIS CAPITAL

EPCRUE EDS to hein. 6 odo 0.6 ob Sc 800 Obs Bielte ae ee

ARGUMENT II

THE TRIAL COURT PROPERLY RULED THAT

PETITIONER WAS REQUIRED TO ESTABLISH

PREJUDICE FROM ANY ACT OR OMISSIONS

OF PU EEIy tb bbb 0 Fae ace 0 ediee ee c@ewu

, ARGUMENT III

THE PETITIONER DID NOT BEAR HIS

BURDEN OF ESTABLISHING PREJUDICE.....

CORI L Ss 66 bin Uidels cee beh nite be bees taekax

CERTIFICATE OF SERVICE... .ccccvcccccccces

Page

1

2

2

14

18

23

23

TABLE OF CITATIONS

Cases

Page

Brennan v, Blankensh Bs 472 F. Supp.

145 (W.D. a. Oe tae eke ee OOS ee a OO Seb, Olas Oe ae 10,11

Casey v. United States, 276 U.S. 413,418 (1928)...... 17

Chambers v. Marone 399 U.S. 42, at 53-54

90 S.Ct. 1978. v6 L.Ba.2a 419 CROR uN pus iN wee 16

cone v. Fitzharris, 586 F.2d 1325, 1330

t Cir. LOPORK pick o tien *enree *eeeeeeeeeeeeeeaeeeeeee 11,18

Darcy v. Handy, 351 U.S. 454 (1956). ...cccceccccccces 16

Dorsey v. State, 586 S.W.2d 810 (Ct. App. Mo. 1979).. 12

Earvin v. State, 582 S.W.2d 794 (Cr. App. Tx. 1979).. 13

Franklin v. United States, 589 F.2d 192 (5th Cir.

1979), cert. denied, 441 u.s. 950. to wn 06 ome-e oe 00 ou 13

Gedders v. United States, 425 U.S. 80 (1976........5. 14

Henderson v. Kibbe, 431 U.S. 145, 154 97 S.Ct. 1730,

D7 50y: BS Nive A 20S CIGTO os env co decedsceicemean 16

Herring v. New York, 422 U.S. 853 (1975). ...cececceves 14

Holloway v. Arkansas, 435 U.S. 475 (1978)...cccceeces 14

Kibert v. Blankenship, 611 F.2d 520, 526 (4th Cir.

9), cert. denied, 446 U.S. 911 (1980), reh.

GON 08s 450 Vie FOS: CIS) io bos cee eale<ae ewe cous 18

Mason v. Commonwealth, 219 Va. at 1094... .ccccccccccs 19

Matthews v. United States, 518 F.2d 1245

t Cir. RTL OFUUAV A 6 Ud bie oC CK Coe Ma a tle Tk Dee 18

Parton v. Wyrick, 614 F.2d 154, 158

(8th Cir. BY vias co aint HOLA UURK Uc Lact aae eae 18

ii

S ne

Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978)......... 8

Robinson v. United States, 448 F.2d 1255, 1256 (1970)... 8

eeeeweeeveeeevneeeeeeeeveeeeeveeeveeeeeeeeeeeeeeeeee ee eee ee 13

Sanders v. Eyman, 600 F.2d 728 (9th Cir. 1977)....eeeee. 13

United States v. Addonizio, 442 U.S. 178, 184

~Ct. 2235, 2239, 60 L.Ed.2d 805 (1979)....-eseees 15

United States v. Baca, 451 F.2d 1112 (10th Cir. 1971)... 18

United States v. DeCoster, 624 F.2d 196, 203

. . r. 1979) eevee eeeeee eee eer ee eee eee ee ee eeee 12,14,15,17

United States v. Frady, U.S.___, 102 S.Ct. 1584,

ISOS CLD) c OWNS aout bon irin aN a 6a SUM I ian Bia . 15,16,17

United States ex rel. Green v. Rundle, 452 F.2d

525 S50 CREO Cll i LOTS) c ccdinw ce TYEREEEEE ETT 12

United States v. Michael, 645 F.2d 252, 254 n. 2

(5th Cir. 1981) (en banc, cert. uenied

Bey LOR’ BO. COs SED CAGOS Pa cbs ss 6a cdi adue cccus 9,18

United States v. Swinehart, 617 F.2d 336, 340

Gt Rees SEG cs Wekins CUS oot omemed Die ay OU Aas eahotie 17,18

Washington v. Estelle, 648 F.2d 276 (5th Cir.)

se cert, Ganded, DB...» 102 B.0t. 802 (3901)... 0». #

Washington v. Strickland, 673 F.2d 879 (1982),

eh. en bane granted F.2d (5th Cir.

May 14, 1982)..... sien ives RS ST AE el I ‘ 9,18

Washington v. Watkins, 655 F.2d 1346, 1356

t r. 1981), cert. denied, U.S. es

102 S.Ct. 2021 (1982)...... Cocoerecseccccne eeecvccese 8,9

Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978)........ 10,11

OTHER AUTHORITIES

28 U.S.C. § RAST LSD wiiscdiee 0.0.6 bbine bbe oes howe eee “eee eevee . : 2

Section 19.2-264.4 Code of Virginia (1950),

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JURISDICTION

The petitioner asserts jurisdiction pursuant to 25

U.S.C. § 1257(3), to review the judgment of the Supreme

Cour® of Virginia of April 20, 1982, denying petitioner's

Petition for Appeal.

STATEMENT OF THE CASE

The petitioner is attacking the effectiveness of his

counsel only during the sentencing phase of his trial,

accordingly the facts will be limited to this portion of

petitioner's trial. |

References will be to the transcript of the habeas

corpus proceeding and in conformity to the designation

used by petitioner will be cited as (T. __). References

will also be to the transcripts of petitioner's trial

and will be designated (T.T. __) followed by date of the

transcript and page reference.

Upon being appointed, counsel immediately moved to

have petitioner examined. Counsel additionally moved for

funds for the appointment of a private psychiatrist. The

report of Dr. Dietzgen of May 26, 1978 reports that

petitioner was able to stand trial and assist in his own

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defense. The report further states that while petitioner

was reluctant to go over charges with Dr. Dietzgen, he did

explain the meaning of rape and that it was wrong to have

sex with an unwilling partner. There is no indication in

the report that petitioner denied the crimes. Not satisfied

with the report of Dr. Dietzgen, counsel requested a further

psychiatric evaluation from Central State Hospital. Dr.

Dimitris filed a report dated June 27, 1978, advising that

petitioner had undergone psychiatric, psychological, and

sociological evaluations and that petitioner's previous

hospitalization had been reviewed. This report concluded as

follows:

Petitioner "is not mentally 111 (not insane) and

is not feeble-minded. He is aware of the charges

which are pending against him, the seriousness

of the charges, the pending litigation and the

possible outcome of a trial. It is our opinion

that he is mentally competent and capable of

cooperating with his counsel in the preparation

of his defense."

This report concluded with a request that information,

such as any statement of the petitioner at the time of arrest,

information from officers who arrested him and had dealings

with him as to his behavior during questioning and while

incarcerated, be sent in order to enter an opinion as to

petitioner's competence and sanity at the time of the offenses.

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This information was forthwith forwarded to Central State and

Dr. Dimitris replied by letter dated August 23, 1978, in which

he opined that petitioner was aware of the nature, quality and

consequences of his acts and furthermore knew his acts were

wrong. There is no mention in these reports that petitioner

had denied his involvement in the crimes or that there was any

indication petitioner might have been suffering from any mental

deficiencies at the time of the offenses.

Counsel then filed a motion to suppress petitioner's

several confessions. At the suppression hearing petitioner:

testified that he gave the first statement because he was

tired and sleepy and gave the other statements because he had

given the first one. (T.T. 9/13/78 pp. 129-131). It is

interesting to note that petitioner never claimed that he had

not committed the offenses. (T.T. 9/13/78 pp. 126-142). Upon

the completion of the testimony the trial court found that

petitioner's statements had been voluntarily and intelligently

given. (T.T. 9/13/78 p. 143).

The petitioner was then brought to trial where he entered

pleas of guilty to the offenses against the advice of his

attorneys. (T.T. 9/28/78 p. 11). During the examination by

the trial court the petitioner admitted he was entering the

pleas of guilty because he was guilty and specifically admitted

he had raped Mrs. Hand. (T.T. 9/28/78 pp. 4-5). The petitioner ;

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additionally advised the court that he had had sufficient time

to discuss his case with his attorneys including possible

defenses. (T.T. 9/28/78 p. 9). The trial court found

petitioner's pleas to have been knowingly and voluntarily

entered. (T.T. 9/28/78 p. 11).

At the sentencing portion of the bifurcated proceeding

counsel presented mitigation that was available to them.

Counsel tried to support petitioner's statements that he was

under the influence of drugs or alcohol at the time of the

offenses. They talked to his girlfriend and mother. They

were unable to obtain from petitioner the name of any person

who could support this theory and their investigation disclosed

none. (T. pp. 70,139). Members of petitioner's family were

contacted but refused to assist. (T. pp. 82, 140). The

petitioner himself refused to testify even though counsel

wanted him to. (T.T. 9/29/78 pp. 21,22). Counsel presented

the reports of petitioner's prior hospitalizations at Eastern

State, the VA Hospital in Northport, New York, and the VA

Hospital in Coatesville, Pennsylvania. (T.T. 9/29/78 pp.

18-22). Counsel felt they "were up against a brick wall."

(T. p. 140). Additionally, counsel made an impassioned plea

for petitioner's life. (T. 9/29/78 pp. 34-40).

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ARGUMENT I

THE TRIAL COURT CORRECTLY RULED THAT PETITIONER

HAD RECEIVED THE EFFECTIVE ASSISTANCE OF COUNSEL

AT HIS CAPITAL TRIAL.

Petitioner asserts that counsel failed to explore,

develoc and present available evidence of mitigating mental

abnormality. The record shows that counsel sought and

secured two separate psychiatric examinations. In neither

the report of Dr. Dietzgen nor the reports of Dr. Dimitris

is there any indication that petitioner was suffering from

any mental deficiencies at the time of the offenses. To the

contrary, the reports showed that petitioner had undergone

psychiatric, psychological and sociological evaluations and

had an electroencethalographic examination. The reports

found petitioner competent and that he was aware of the nature,

quality and consequences of his acts and knew his acts were

wrong. Counsel have testified that petitioner had described

to them in detail the circumstances surrounding the offenses.

(T. pp. 69,138). They found no real inconsistencies between

what petitioner had told them and what petitioner had told

the police. (T. p. 69). Counsel were unable to develop any

evidence to support petitioner's statements that he was under

the influence of drugs or alcohol. (T. pp. 70,139). It is

important to note that petitioner never gave counsel any

indication that he was unaware of what he was doing at the

time he committed the offenses and in fact was extremely

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explicit in describing the entire episode. (T. p. 77).

Counsels' impression was that petitioner knew totally what

he was doing from the day of the crimes through the time he

was convicted. (T. p. 54).

While counsel did not call Dr. Dimitris to ask about

possible mitigation, counsel explained that in view of the

record, knowing the statements which had been made and the

discussions with the petitioner, and the psychiatric reports,

they did not believe Dr. Dimitris or anyone else could be

beneficial without some additional evidence which they did

not. have. (T. pp. 45,77). Counsel testified that the

decision not to call Dr. Dimitris was a judgment call made at

the time (T. p. 77).

Trial counsel testified that they were fully aware of

the provisions of § 19.2-264.4 of the Code of Virginia (1950),

as amended, and had discussed this with the petitioner. They

tried to elicit petitioner's testimony, but he refused. (T.

p. 82). Trial counsel attempted to elicit testimony from

family members to no avail (T. p. 82). While counsel recog-

nized that the psychiatric reports did not address mitigating

mental abnormalities in those terms, they felt that without

additional evidence none of the psychiatrists would be of

assistance (T. pp. 82,83).

It is submitted that petitioner's attorneys exercised

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PF ‘ots Pt hale ed ; ’ ae ; 7 2 : } Pe, - va

reasonable judgment in this case. And even when hindsight

reveals a mistake in that judgment, such does not render a

lawyer negligent or lacking in competence in rendering his

service. Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978).

In this same vein, the Eighth Circuit said in Robinson v.

United States, 448 F.2d 1255, 1256 (1970):

Hindsight can always be utilized by

those not in the fray so as to cast

doubt on trial tactics a lawyer has

used. Trial counsel's strategy will

vary even among the most skilled

lawyers. When that judgment exercised

turns out to be wrong or even poorly

advised, this fact alone cannot support

a belated claim of ineffective counsel.

The determination of whether an attorney rendered reasonably

effective assistance turns in each case on the totality of

facts in the entire record. See Washington v. Estelle, 648

F.2d 276 (5th Cir.), cert. denied, U.S. » 102 S.Ct. 402

(1981).

Petitioner argues that the range of competence must be

higher in capital cases because of the qualitative difference

between death and other penalties. This argument was rejected

by the Virginia Courts, and has been rejected by the Fifth

Circuit in Washington v. Watkins, 655 F.2d 1346, 1356 (5th

Cir. 1981), cert. denied, U.S. » 102 S.Ct. 2021 (1982).

In rejecting the argument that a higher standard of

representation must apply in capital cases, the Fifth Circuit

stated:

Innumerable practical problems would be

presented by such a holding. For example,

since effective assistance is not judged by

hindsight, the heightened standard would

have to apply to all cases in which a

capital offense was charged, regardless of

whether the jury subsequently convicted the

defendant of a non-capital offense or re-

fused to impose the death penalty ina

capital case. Recognition of a "sliding

scale" for this constitutional standard

would also suggest, for example, that a

defendant charged with aggravated assault

would be entitled to a more effective

lawyer than one charged with simple assault

or public intoxication. We decline to

embark on such a treacherous path.

Id. at 1357, n. 18.

The petitioner refers to Washington v. Strickland, 673

F.2d 879 (1982), rehearing en banc granted, F.2d

(5th Cir. May 14, 1982). When a case is reheard en banc,

the panel opinion is stripped of any precedential value.

United States v. Michael, 645 F.2d 252, 254 n.2 (5th Cir.

1981) (en banc), cert. denied, U.S.__, 102 S.Ct. 489

(1981).

Petitioner also asserts that the evidence presented at

the capital sentencing phase of his trial was so meager and

so bereft of any development or explanation as to be worth-

less. Petitioner points out that counsel did not obtain

the detailed records of petitioner's prior hospitalizations

but only introduced the summaries. Counsel has explained

that they felt that the records they had obtained from the

hospitals were sufficient and did not believe any further

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records would be beneficial. Counsel also explained that

they did not subpoena any of the psychiatrists because they

felt that the best evidence was in the summaries and did not

want to subject the psychiatrists to cross-examination. (T.

pp. 71,72). It is strange indeed that petitioner would

/ complain about the lack of the full reports not being in-

troduced when he has completely failed to show in any way how

such reports would have been beneficial. Petitioner's present

counsel did not see fit to introduce such reports in the habeas

hearing, and it must be assumed that they would not have been

beneficial in any respect to petitioner, It is also note-

worthy that in the habeas proceeding petitioner failed to

produce one single piece of evidence to support his claim that

he was under the influence of drugs or alcohol at the time of

the offenses. Petitioner has also failed to produce any

evidence that his family, girlfriend, or anyone else was

available to provide mitigation for petitioner.

This case is simply not like the circumstances found in

Wood v. Zahradnick, 578 F.2d 980 (4th Cir. 1978). In Wood

the court found counsel ineffective for the reason that he

completely failed to explore an insanity defense when evidence

was known to counsel which indicated such a defense. It is

also apparent that Brennan v. Blankenship, 472 F. Supp. 149

(W.D. Va. 1979), furnishes no support to petitioner. In

Brennan the court concluded that counsel was ineffective in

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failing to follow-up on a psychiatric opinion that the

defendant was insane at the time of the crime. In the

present case counsel secured two psychiatric reports,

obtained records from petitioner's past hospitalizations,

attempted to discover evidence to support the theory of

alcohol or drugs, and attempted to obtain petitioner's

family and others to testify on petitioner's behalf. The

actions of counsel in this case are a far cry from the

failures of counsel in Wood and Brennan. To characterize

counsels’ actions as failing to take the minimal steps

necessary to explore, develop and prepare a case in miti-

gation is to ignore the facts.

In determining whether counsel is ineffective the fact

that counsel erred is not alone sufficient to establish a

denial of the Constitutional right. The Constitution does not

guarantee representation which is infallible and an accused

assumes the risk of ordinary error in either his or his

attorney's assessment of the law and facts. Cooper v.

Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978).

The function of a defense attorney is to apply his pro-

fessional judgment to an infinite variety of decisions in the

development and prosecution of a case. Any determination that

any given act or omission by counsel amounted to ineffective

assistance must be viewed in light of the peculiar facts and

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circumstances that influenced counsel's judgment. United

States v. DeCoster, 624 F.2d 196, 203 (D.C. Cir. 1979).

Realistically, counsel develops his case in large part

from information supplied by the defendant. In United States

ex rel Green v. Rundle, 452 F.2d 232, 235 (3rd Cir. 1971), the

court indicated that choices based upon such information should

not later provide the basis for a claim of ineffectiveness even

though that basis would have been undercut by inquiry of others.

Any “claimed deficiency must fall measurably below

accepted standards. To be ‘below average' is not

enough, for that is self~evidently the case half

the time. The standard of shortfall is necessarily

subjective, but it cannot be established merely

by showing that counsel's acts or omissions de-

viated from a checklist of standards." United

States v. DeCoster, 624 F.2d at 215.

With the factual background of this case in mind it is

appropriate to examine other cases which have examined the

issue of ineffective assistance of counsel. In Dorsey v.

State, 586 S.W.24 810 (Ct. App. Mo. 1979), the defendant was

addicted to drugs and undergoing methadone treatment at the

time of his arrest. The defendant claimed that counsel was

ineffective for not pursuing this defense. The court held

that in the absence of some suggestion of mental instability

there was no duty on counsel to initiate an investigation of

the mental condition of the accused. It was alleged that

counsel was ineffective for failing to consider an insanity

12

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defense in Sanders v. Eyman, 600 F.2d 728 (9th Cir. 1977).

The court rejected the claim and found that the record

contained evidence that petitioner's post-arrest conduct was

not the type that would raise any suspicions of his sanity

or capacity. Additionally in Franklin v. United States,

589 F.2d 192 (5th Cir. 1979), cert. denied, 441 U.S. 950

the court rejected a claim that the attorney was ineffective

for the failure to move for a competency exam when the

record showed that the defendant was alert and coherent.

In this case counsel had reviewed the psychiatric

reports and petitioner in his discussions with counsel had

not given counsel any reason to suspect that petitioner was

suffering from any mental deficiency at the time of the

offenses. Ineffective assistance of counsel is to be gauged

by the totality of the representation. An accused is not

entitled to errorless counsel whose competence or adequacy

is to be judged by hindsight. While the hindsight of post-

trial counsel may perceive instances wherein trial counsel

was not perfect and his strategy was not infallible, that is

not the test applied when meeting such complaints. Sanchez

v. State, 589 S.W.2d 422 (Cr. App. Tx. 1979); Earvin v.

State, 582 S.W.2d 794 (Cr. App. Tx. 1979).

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ARGUMENT II

THE TRIAL COURT PROPERLY RULED THAT

PETITIONER WAS REQUIRED TO ESTABLISH

PREJUDICE FROM ANY ACT OR OMISSIONS

OF COUNSEL.

The petitioner maintains that the trial court committed

error when it imposed upon him the burden of establishing

prejudice from any act or omission of counsel. In support

of his argument petitioner principally cites Holloway v.

Arkansas, 435 U.S. 475 (1978); Gedders v. United States, 425

U.S. 80 (1976), and Herring v. New York, 422 U.S. 853 (1975).

These cases are readily distinguishable from cases involving

claims of ineffective assistance of counsel and provide no

basis for petitioner's argument that he does not have to show

prejudice.

Gedders was not based upon ineffectiveness but upon a

Court ruling that prevented the accused from having actual

assistance of counsel during a critical stage of his trial.

Holloway, involved joint representation of multiple clients

with conflicting interest, and in Herring a State statute gave

the trial judge tn a non-jury trial the power to deny defense

counsel's closing summation. For a more exhaustive analysis

of why these cases do not support petitioner's argument, Sce

United States v. DeCoster, 624 F.2d 196, 201-202, 234-238

(D.C. Cir. 1979).

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The rationale behind DeCoster is soundly based upon the

very nature of collateral relief. In United States v. Frady,

U.S. » 102 S.Ct. 1584, 1593 (1982), this Court explained

why in federal collateral proceedings the defendant must bear

a greater burden of proof entirely:

"By adopting the same standard of

review for §2255 motions as would be

applied on direct appeal, the Court of

Appeals accorded no significance what-

ver to the existence of a final judg-

went perfected by appeal. Once the

defendant's chance to appeal has been

waived or exhausted, however, we are

entitled to presume he stands fairly

and finally convicted, especially when,

as here, he already has had a fair

opportunity to present his federal claims

to a federal forum. Our trial and

appellate procedures are not so unreliable

that we may not afford their completed

operation any binding effect beyond the

next in a series of endless post-con-

viction collateral attacks. To the con-

trary, a final judgement commands respect."

[Emphasis added].

The Frady court further explained:

"It has, of course, long been

settled law that an error that may justify

reversal on direct appeal will not neces-

sarily support a collateral attack on a

final judgment. The reasons for narrowly

limiting the grounds for collateral attack

on final judgments are well known and

basic to our adversary system of justice.

[quoting] United States v. Addonizio,

442 U.S. 178, 184, 99 S.ct. . 9,

60 L.Ed.2d 805 (1979) (footnotes omitted)."

"The burden of demonstrating that an

erroneous instruction was so prejudicial

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that it will support a collateral attack

on the constitutional validity of a state

court's judgment is even greater than the

showing required to establish plain error

on direct appeal. [quoting] Henderson v.

Kibbe, 431 U.S. 145, 154, 97 S.Ct. 1730,

52 L.Ed.2d 203 (1977). " [Emphasis

supplied].

See, also, Chambers v. Maroney, 399 U.S. 42, at 53-54,

90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (even if counsel was

ineffective, an examination of the whole record reveais

that the errors had no effect upon the outcome of the cause);

Darcy v. Handy, 351 U.S. 454 (1956) (merely that counsel did

not complete a list of things he could do does not establish

error in the constitutional sense; the record reflects no

actual prejudice).

In Darcy v. Handy, this Court explained the requirement

that a defendant show actual prejudice:

"While this Court stands ready to

correct violations of constitutional

rights, it also holds that ‘it is not

asking too much that the burden of

showing essential unfairness be sus-

tained by him who claims such injus-

tice and seeks to have the result set

aside, and that it be sustained not

as a matter of speculation but as a

demonstrable reality.'" [Emphasis

added; citations o attted].

351 U.S. at 462.

This Court in Frady in fact explained that a habeas

corpus petitioner has the burden to show actual prejudice

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to the outcome of his cause from the error he asserts:

"Contrary to Frady's suggestion, he

must shoulder the burden of showing, not

merely that the errors at his trial created

a possibility of prejudice, but that they

worked to his actual and substantial dis-

advantage, infecting his entire trial with

error of constitutional dimensions."

[Emphasis supplied by the Court].

102 S.Ct. at 1596.

The bur. n should normally lie upon the person pressing

the claim. An exception may be made when the other party has

sole access to the facts. As Justice Holmes noted in Casey v.

United States, 276 U.S. 413, 418 (1928):

"It is consistent with all the constitutional

protections of accused men to throw on them

the burden of proving facts peculiarly with-

in their knowledge and hidden from discovery

by the Government."

If the State were required to prove that defense counsel

was adequate, there would be a strong motivation to oversee

the decisions and activities of defense counsel in order to

protect convictions. To do so would invariably place the

prosecutor in the role of probing the confidential relationship

between a criminal defendant and his attorney. See United

States v. DeCoster, 624 F.2d 196, 227-229 (D.C. Cir. 1979).

For these reasons the burden of establishing ineffective

assistance of counsel has appropriately been placed upon the

petitioner.

For cases placing the burden on petitioner to prove

prejudice See United States v. Swinehart, 617 F.2d 336, 340

LT jst eh. REO

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(3rd Cir. 1980); Parton v. Wyrick, 614 F.2d 154, 158 (8th

Cir. 1980); Kibert v. Blankenship, 611 F.2d 520, 526 (4th

Cir. 1979), cert. denied, 446 U.S. 911 (1980), reh. denied,

446 U.S. 993 (1980); Cooper v. Fitzharris, 586 F.2d 1325,

1331 (9th Cir. en banc 1978); Matthews v. United States,

518 F.2d 1245 (7th Cir. 1975); United States v. Baca, 451

F.2d 1112 (10th Cir. 1971).

Petitioner continues to rely upon Washington v.

Strickland, 673 F.2d 879 (5th Cir. 1982). As previously

pointed out, this case has been scheduled for rehearing

en banc and consequently the opinion has no precedential

value. See United States v. Michael, supra.

ARGUMENT III

THE PETITIONER DID NOT BEAR HIS BURDEN

OF ESTABLISHING PREJUDICE.

Petitioner's argument hinges upon his assertion that by

his counsel's failure to talk to Dr. Dimitris he has been

deprived of available mitigating evidences Even if it is

assumed that counsel had some duty to call Dr. Dimitris,

petitioner has failed to establish prejudice from any such

18

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failure. Petitioner assumes that the report of Dr. Dimitris

of July 14, 1980, raises a substantial issue of fact concern-

ing the presence of mitigating mental abnormalities at the

time of the offenses, _

Respondent submits that petitioner's position cannot

withstand scrutiny. Dr. Dimitris' opinion is essentially

that if the facts of the case are as stated by petitioner to

Investigator K. E. Collins on September 28, 1978, then he

finds no mitigating mental abnormalities. If on the other

hand the facts are those which petitioner presented in June.

1980, there would exist mitigating mental abnormalities due

to reported heavy intoxication.

There can be no question about which statement of

petitioner comprises the facts of this case. Shortly after the

crimes petitioner gave several detailed statements describing

his participation in the crimes. The voluntariness of these

statements was contested during a motion to suppress at which

time petitioner testified. Petitioner did not then and did

not during the habeas hearing conducted on April 25, 1980,

deny the truthifuiiess of the statenonts which hin gave in |

1978. The trial court has found that petitioner's state-

ments in 1978 were voluntarily and intelligently given. The

Supreme Court of Virginia has credited these 1978 statements

as stating the facts. See Mason v. Commonwealth, 219 Va. at

1094. The petitioner never gave his counsel any reason to

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believe he was at best "a hair's breath" distant from

unconsciousness at the time of the offenses. (7. p. 77).

To the contrary, petitioner's explicit description is :

consistent with a person who is cold and calculating and is

inconsistent with the actions of a person bordering on

unconsciousness. (T. p. 77).

The physical facts found at the scene of the crimes

corroborated petitioner's statements given in 1978.

Petitioner said he went into the house of Mrs. Hand and told

her to undress. Petitioner said she went into the bedroom to

comply. Mrs. Hand's clothes were found in the bedroom.

Petitioner stated that he had hit Mrs. Hand several times

with an ax. An ax was found at the scene and laboratory

examination revealed hair samples consistent with Mrs.

Hand's hair. Petitioner stated he had introduced the ax

into Mrs. Hand's rectum. The physical examination showed

her anus opening was dilated and slightly patulous. Petitioner

stated he started the fire under the chair and the arson

examiner confirmed this to be the point of origin of the

fire. Most importantly petitioner stated he set the house

on fire to keep down the evidence. (T. 9/28/78 p. 59), and

that he went back into the burning house to recover a bag

which he believe contained his fingerprints. (T. 9/28/78

pp. 64, 65). In this regard a portion of Dr. Lee's testimony

is pertinent:

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"For example, I recall a statement where he had

access to traveler's checks where he was look-

ing for money. It just doesn't register that

a person who is mentally upset and doing hideous

things would discriminate against taking

traveler's checks because they looked like

money." (T. p. 115).

Such actions as these are entirely inconsistent with a person

‘pordering upon unconsciousness,

It is further to be noted and of importance that part of

Dr. Dimitris' opinion expressed in his letter of July 14, 1980,

is based upon petitioner's uncorroborated self-serving state-

ments of his ingestion of drugs and alcohol. When petitioner

was examined by Dr. Dimitris in 1978 he specifically advised

Dr. Dimitris that at the time of the offenses he was having no

problem with drugs or alcohol. (T. pp. 21, 26). Conveniently,

however, in 1980 the petitioner has decided that he had a

problem with drugs and alcohol at the time of the offenses.

Dr. Lee testified that had the attorneys called him he would

have told them that in light of his test findings and peti-

tioner's statements they would have to develop considerable

independent confirming evidence that petitioner was not in

possession of adequate judgment to appreciate the nature of

his acts. (T. p. 99). The record establishes without con-

tradiction that although counsel tried to find corroboration

they were unsuccessful.

Petitioner argues that the responsibility for

determining which of Dr. Dimitris’ opinions is correct would

have rested on the. fact finder. Respondent submits that the

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habeas court had the responsibility to make such judgment.

In Proffitt v. United States, 582 F.2d 854 (4th Cir. 1978),

the court held that the district court in a federal habeas

corpus proceeding had the responsibility of determining

whether there existed a substantial question of criminal

responsibility. The factual scenario in Proffitt is

similar to the claim being made in the present case.

From the facts in this case it can only be concluded

that the statements given by petitioner to Investigator

K. E. Collins on September 28, 1978, are true, accurate and

are the facts of this case. There is no question, substantial

or otherwise, about the existence of mitigating mental abnor-

malities. Dr. Dimitris' opinion firmly concludes that

petitioner was not suffering from any mitigating mental

abnormalities at the time of his crimes based upon the state-

ments he made in 1978. This being so, petitioner has failed

to carry his burden of establishing prejudice from any

. omission by counsel.

For the reasons previously set out there can be only one

factual circumstance in this case and that arises from

petitioner's statements in 1978. On these facts no court

could or would hold that petitioner was suffering from any

mitigating mental abnormalities at the time of his offenses,

and any failure to have petitioner examined is harmless beyond

a@ reasonable doubt.

22

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CONCLUSION

For the reasons set forth, respondent asserts that the

Petition for Habeas Corpus was properly denied, the Court's

finding that petitioner received effective assistance of

counsel is clearly supported by the record, and the Petition

for a Writ of Certiorari should be denied.

EDWARD C. MORRIS

By Arr t.

L/ Counsel au

James E. Kulp

Senior Assistant Attorney General

Supreme Court Building

101 North Eighth Street

Sixth Floor

Richmond, Virginia 23219

(804) 786-6565

CERTIFICATE OF SERVICE

I, James E. Kulp, a member of the bar of this Court, do

certify that on August 19, 1982, I caused this Brief In

Opposition to be deposited in a United States Post Office or

mailbox, first class postage prepaid, and properly addressed

to the Clerk of the Supreme Court of the United States,

pursuant to Rule 28.2.

ae =

eo ee

I further certify that a copy of this Brief In Opposition

was mailed, first class postage prepaid, to F. Guthrie Gordon,

III, 409 Park Street, Charlottesville, Virginia 22901, counsel

for petitioner.

An Ss Sale

Ass E. Kulp

Senior Assistant Attorney General

VIRGINIA

CITY OF RICHMOND, to-wit:

The foregoing instrument was subscribed and sworn before

me on this 19th day of August, 1982, by James E. Kulp.

Notary Public

My, Commission Expires October 4, 1982

My commission expires: ;

24