# Opposition Brief — Duckworth v. Dillon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0029%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1108

## Text

EDITOR'S NOTE

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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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— es

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0029%3A2. Public record. Not legal advice.