# Opposition — MORRIS O. MASON V. MORRIS (No. 82-5093) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1274%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1982 ## Text 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 a RECEIVED AUG 2 4 1982 OFFICE OF THE CLERK SUPREME COURT, U.S, ee 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? aw OP ea a) ie i; : ; 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 “— © cS 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). 13 oO ‘4 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). 44 a Bie PM 0) OT ‘ oe @ 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 15 * Dee —_- ~ a . ee ‘e C 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 ; » + oe. Sy 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 ei ama a (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 Sih se i > 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 430 ~ 0 2 ae | Ms a eg ~*~ oy > 3 J ‘ 3 . 2 | rz — 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: ono ba ee oot é "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 Seu: © | oe 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 oe S 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1274%3A3. Public record. Not legal advice.