Opposition Brief — Duckworth v. Dillon

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NO: 8471540

IN THE 2

SUPREME COURT OF "THE UNITED STATES

OCTOBER TERM, 1984

JACK DUCKWORTH,

WARDEN, INDIANA STATE. PRISON

Petitioner

V

RICHARD W. DILLON,

Kespondent

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SEVENTH CiRCUIT

STEVEN E. RIPSTRA

LYTTON AND RIPSTRA

Y,; © Box 767

416 South Main Street

Jasper, [indiana 4154

Telephone: (812) 4R?P-t 414

Attorneys tor kespond

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

JACK DUCKWORTH,

, INDIANA STATE PRISON

WARDEN

Petitioner

V

RICHARD W. DILLON,

Respondent

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE

TATES COURT OF APPEALS FOR THE SEVENTH

STEVEN E. RIPSTRA

LYTTON AND RIPSTRA

P. O« BOX 167

416 South Main Street

Jasper, Indiana 4754

lelephone: (812) 482-6414

Attorneys for Responder

QUESTIONS PRESENTED FOR REVIEW

Whether Respondent was denied effective assistance

of counsel pursuant to the Sixth Amendment where

trial counsel informed the Court of his incompetence,

failed to act in a competent manner at trial and

the trial court failed to ascertain whether Respondent

knowingly and intelligently appreciated his counsel's

conduct ?

TABLE OF CONTENTS

PAGE

Questions Presented for REVIEW... 2. ee eeeeeeecees i

Table Of AUTNOFiItleS....ce eee ee eer ee gereeeeseces 111

Statement of the Ca€S€... cece cee ee eer eeeeceesscecs l

Nature of the Ca@S@.... cc cere ccccscececcecees l

Course of Proceedings and Disposition

of Case by Lower Courts.......-eeeeeee a.

Statement Of FactS....ccccscccseces easceceecacecse @

Summary of the Argument.........-. ececceeccoseses 3

Reasons for Denying the Writ:

RESPONDENT WAS DENIED EFFECTIVE ASSISTANCE

OF COUNSEL WHEN TRIAL COUNSEL'S STATEMENTS

AND ACTIONS CAST SERIOUS DOUBT UPON

COUNSEL'S COMPETENCE, WHILE THE TRIAL

COURT FAILED TO DELVE INTO, OR DETERMINE,

RESPONDENT'S UNDERSTANDING OF HIS

ATTORNEY'S ACTIONS... cc cccccccccccccescece 3

CONC LUSIOR< « o «0606 666606606606066646046006446 080880 7

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TABLE OF AUTHORITIES

CASES PAGE (S)

Hackman v. Parratt, 661 F. 2d 1161

Pee aes SORE 6 e-6 WEA ee kaos 6 ow ec ccavians |S

Kemp v. Leggatt, 635 F. 2c 453

Porn Skee SOOE) 040640506408 iebittiedasacase S&S

North Carolina v. Butler, 441 U.S. 369,

99 S.Ct; 1755, 60 iL. SA. 2a 266 (7979)... 7

Robinson v. State, 309 N.E. 2d 833

Cltlas Bes 19TE 56 ince ew ces Le over ere re 5

Rufer v. State, 264 Ind. 258, 342 N.E. 2d

Tho. } ae PO FEST eee ore rr Cre ee 5

In Re Sobieski, 246 Ind. 222, 204

Nis we ooe LPeOel 64 60s ee ces ee ee eee 5

Strickland v. Washington, U.S. °

106-5. Ge. Zoee, C0 L.Ed. 20: 674. (1984)... 3,4, 6.7

United States v. Alvarez, 580 F. 2d 1251

(aOn Cie. PP TEl 6 ci cess owe ory ery re eee ee 7

United States v. Cronic, U.S. 5 £06 S.Ct.

2030, BO ts GG. Ba GO? CI9GRM «6 6 i 0% Cisse cece 1, ¢@, 6

RULES

Rule 17(c), Rules of the Supreme Court

OF C8 UHiSOE BStAtORs i dss ccacckecscaes twee: So

iii

4, ]

NO: 84-1540

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

JACK DUCKWORTH,

WARDEN, INDIANA STATéE PRISON

Petitioner

Vv

RICHARD W. DILLON,

Respondent

STATEMENT OF THE CASE

NATURE OF THE CASE

This appeal involves the grant of Respondent,

Richard Dillon's Petition for Writ of Habeas Corpus,

which reversed a District Court judgment denying

the Petition.

COURSE OF PROCEEDINGS AND

DISPOSITION OF CASE BY LOWER COURTS

Respondent was convicted of Murder, Burglary

and Conspiracy in the Superior Court of Knox County,

Indiana. Respondent was sentenced to death August

21, 1981. On direct appeal, the Indiana Supreme

Court affirmed the verdicts and sentence October

3, 1983, and denied rehearing.

The United States Supreme Court denied Respondent's

Petition for Writ of Certiorari, No. 83-6136, on

March 19, 1984.

On March 30, 1984, Respondent filed in District

Court, in Forma Pauperis, his Petition for Writ of

Habeas Corpus. This Petition alleged, inter alia,

that Respondent's Sixth Amendment right to counsel

was denied in the State court. The District Court

denied Respondent's motion ‘for an evidentiary hearing

on the issue of effective counsel. The District

Court denied the Habeas Corpus Petition on June 21,

1984. Appendix, pp. A-18 and A-31.

® | L

Notice of Appeal was properly filed July 18,

1984. Respondent appealed, in Forma Pauperis, three

issues to the Seventh Circuit Court of Appeals:

(1) Whether Respondent, Pet itioner-Appel lant below,

received effective assistance of counsel; (2) Whether

the District Court should have held an evidentiary

hearing; (3) Whether the State trial court's findings

imposing the death penalty were sufficient. Briefs

were filed and oral argument held on October 31,

1984.

The Seventh Circuit reversed the District Court

as to the issue of ineffective counsel. The Seventh

Circuit ordered the Writ of Habeas Corpus to issue

unless Respondent was retried within ninety (90)

days. This order has been stayed pending the disposition

of the State's Petition.

STATEMENT OF FACTS

Respondent's trial in Knox County, Indiana,

Superior Court, began July 20, 1981. The death penalty

was requested. On July 7, 1981, at a suppression

hearing, Respondent's trial attorney told the court

that he was not prepared for trial, was not competent

to try the case and asked to withdraw as Respondent's

counsel. After the Respondent's conviction, trial

counsel filed an affidavit attesting to his incompetence.

Appendix, pp. A-33 and A-53. Trial counsel cited

outside pressure and lack of preparation as his major

problems.

After trial counsel's actions on July 7, the

trial court did not talk to Respondent to determine

whether he understood what had transpired. An im

court colloquy followed, but this was only between

Respondent and his trial attorney. The trial court

did not intervene. R. 640-42, 842. Respondent's

counsel was given one (1) extra weekend to prepare

for trial. Appendix, p. A35. At trial, counsel

tendered no final instructions and objected only

generally to the State's trial instructions. R.464-65.

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During the trial, apparent ly believing himself

to be an accessory to the crime, Respondent attempted

to plead guilty. R.- 1346. Respondent failed to

,ay a basis for his plea and it was rejécted. R.

1357.

At the sentencing portion of the trial, Respondent 's

entire trial testimony was placed in evidence by

his attorney. Respondent, by affidavit in support

of his Petition for Writ of Habeas Corpus, alleged

that his trial counsel had a potential conflict of

interest with a co-defendant and committed other

improprieties during the trial. Dist. Ct. R.- doc. 9.

SUMMARY OF THE ARGUMENT

Respondent's trial counsel stated he was not

competent immediately prior to the capital murder

trial beginning. Counsel's acts and omissions could

not be characterized as strategic decisions. The

facts here do not achieve the level of the attorney's

actions in Strickland v. Washington. Sufficient

evidence exists to support the Seventh Circuit Court of

Appeal's finding of ineffective counsel.

REASONS FOR DENYING THE WRIT

RESPONDENT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL WHEN TRIAL COUNSEL'S STATEMENTS AND ACTIONS

CAST SERIOUS DOUBT UPON COUNSEL'S COMPETENCE, WHILE

THE TRIAL COURT FAILED TO DELVE INTO, OR DETERMINE,

RESPONDENT'S UNDERSTANDING OF HIS ATTORNEY'S ACTIONS.

————————

The decision of the Seventh Circuit is not in

conflict with the applicable rulings of this Court:

Strickland Vv. Washington, U.S. , 104 S.Ct. 2052,

80 L. Ed. 2d 674 (1984); United States V.- Cronic,

U.S. , 104 S. Ct. 2039, 80 L.Ed. 2a 657 (1984).

The Seventh Circuit's decision is a detailed analysis

of a complex set of facts,’ not one which completely

ignores precedent. Thus, Rule 17(c), Rules of the

Supreme Court of the United States, does not make

this a case where certiorari should issue.

9 | ~

yy 2

———_

Strickland and Cronic apparently set an objective,

federal standard in Sixth Amendment counsel cases.

Strickland v. Washington, Supra, at 80 L. Ed. 2d

693. On the surface, some of the facts in these

two cases comport with the instant case. However,

there are major differences distinguishing the Respondent 's

case from Strickland and Cronic.

In Strickland it is clear that the defense attorney

made specific, strategic decisions. Clear evidence

existed on the record to support counsel's action.

A presentence report would likely have hurt the defendant.

Strickland v. Washington, supra at 80 L.Ed. 2d 684.

Counsel was receiving little cooperation from his

client. Id. at 683-84. The defendant lied about

his past record to the trial judge prior to sentencing.

Id. Counsel had a clear, albeit limited, avenue

of defense open to him: “rely on the plea colloquy

for evidence about respondent's background and about

his claim of emotional distress....": im essence

submit to the mercy of the court based upon the trial

judge's prior statements. Id. at 80 L.Ed. 2d 684.

There is no defense or strategic purpose implied

by counsel's actions in Respondent's case.

Strickland considered several factors in evaluating

counsel's performance. This Court pointed out that

defendant was appointed “an experienced criminal

lawyer to represent him." Id. at 80 L.Ed.2d 683.

The analysis included counsel's actions as compared

to the actions of his client. Id. at 80 L.Ed. 2d

683-84. Counsel's preparation and discovery activities

were examined. Id. at 80 L.Ed.2d 683-84, 688 89.

Further, this Court examined counsel's alleged errors

in representation. Id. at 80 L.Ed.2d 685-86, 688-89,

700-01. Counsel in Strickland was involved only

in a criminal plea and sentencing hearing. There

was no trial conduct to examine. Id. at 80 L.Ed.2d

683-84.

Clearly, the Court in Strickland specifically

considered the factors looked to by the Seventh Circuit

in the instant case, as they were available to them

from the particular facts of the case: experience,

conduct of counsel and preparation. Other factors

considered by the Seventh Circuit have traditionally

been included in cases involving ineffective counsel.

Kemp v. Leggatt, 635 F. 2d 453 (Sth Cir. 1931)

involved an affidavit asserting incompetence, filed

by the trial attorney und failure to present jury

instructions. Hackman v. Parratt, 661 F. 2d 1161

(8th Cir. 1981) involved counsel's failure to attempt

any plea negotiations. A proper analysis, therefore,

can include experience, trial and pre-trial motions

evidencing lack of preparation, problems effecting

preparation, counsel's trial conduct, plea negotiation

efforts and actual preparations.

There is nothing preceivably evident from trial

counsel's conduct from which his strategy or evaluation

of the case can be discerned. Thirteen days before

the trial, counsel declared his incompetence and

lack of preparation to the court. R.638. Counsel

at that time tried to withdraw from the case. R.

638, 640. Respondent was advised he was an accessory

and attempted to enter a guilty plea. R.1346-57.

Respondent was unable to lay a proper basis for the

plea. R.1357. Counsel waived any error in the State's

jury instructions by only generally objecting to

them. R.465. Counsel failed to submit any final

instructions on Respondent's behalf. R.464. See

Rufer v. State, 264 Ind. 258, 342 N.E. 2d 856 (1976);

In Re Sobieski, 246 Ind. 222, 204 N.E. 2d 353 (1965);

Robinson v. State, 309 N.E. 2d 833 (Ind. App. 1974).

Trial counsel incorporated all of Respondent's

damaging testimony from the guilt portion of the

trial into the sentencing portion. P.2077. Further,

he failed to object to the State's introduction of

this testimony. R.2075-76. During trial, counsel

consulted with the attorney for a co-defendant, an

alleged accomplice Respondent ultimately testified

against. R. 834-35. Additionally, Counsel] later

stated that he did not prepare adequately, or consult

with his client sufficiently, in connection with

the case. Appendix, pp. A-53-4, Counsel's behavior

was SO bizarre, so clearly outside the conduct expected

by an attorney in a Capital case, that the Strickland

factual situation is inapposite,.

Strickland, as was clearly stated by this Court,

was decided on that particular combination of facts.

Strickland v., Washington, Supra, 80 L.Ed.2d at 701.

Respondent contends that the instant case involves

“circumstances that are so likely to prejudice the

accused that the cost of litigating their effect... is

Justified.” United States v. Cronic, Supra, 60 L.Ed.

2d at 667. Because of counsel's behavior, it is

impossible to say whether he Subjected the State's

case to a meaningful adversarial test. Id. 80 L.Ed.

2d at 668.

Admittedly, every refusal to continue a criminal

trial does not presume insufficient preparation.

Id. at 80 L.Ed. 2d 669. Here, though, additional]

factors are present: counsel’s Statement of incompetence;

trial of a death penalty case; assertion of inadequate

Preparation; indications that counsel, by his actions

and omissions, took a hurried, perfunctory course in

defending Respondent. A continuance of one weekend

does not remedy these problems. Appendix, Pp. A-35.

Any one factor is not necessarily determinative.

id. at 80 L.Ed 2d 671. However, the weight created

by the entire record Stpports the Seventh Circuit's

decision,

in Cronic, the defendant's apparent satisfaction

with his trial counsel was determined a: trial.

id. at 80 L. Ed. 2d 663, n. 6. AS was argued below,

the trial court in the instant case did not question

Respondent about his attorney's statement or actions.

R. 842; Appendix, p. A-6, n.3. Although Respondent's

Opinion May not be materia), Id. at 80 L. Ed. 2d

667, n.21, under the exceptional set of facts herein,

it was incumbent upon the trial] court to ascertain

Respondent 's understanding of what was happening.

© carers

See North Carolina v. Butler, 441 U.S. 369, 99 S.

ct. 1755, 60 L. Ed. 2d 286 (1979); United States

v. Alvarez, 580 F. 2d 1251 (5th Cir. 1978).

Trial counsel's actions were not what should

be expected from a reasonably competent attorney.

No case relied upon by either party ever began with

the trial attorney declaring himself to be incompetent.

The Respondent was facing a possible death penalty.

Respondent's trial counsel has subsequently been

disbarred. Appendix, p. A-9, n.6. The result of

the trial cannot be labeled reliable and just.

The narrow factual situation of Strickland is

not present here. Counsel's conduct cannot be linked

to the clearly strategic Strickland conduct. No

indication of “reasonable professional judgment”

exists. Strickland v. Washington, supra, at 80 L.

Ed. 2d 7901. Counsel's conduct is so unusual that

it patently “undermined the proper functioning of

the adversarial process.” Id. at 80 L. Ed. 2d 692-93.

equity and an interest in the perception of fairness

and justice in this type of capital case dictates

that Respondent should be granted a new trial.

CONCLUSION

For the reasons set forth above, it is respectfully

requested that a writ of certiorari be denied.

Respectfully submitted,

LYTTON AND RIPSTRA

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(——— rs Lega

STEVEN E. RIPSTRA~

Attorney For Respondent

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