Petition for Writ of Certiorari — Austin v. Tennessee

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BE ae ih oti itty age ee

Supreme Court, U.S.

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NOY 1 65

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

RICHARD HALE AUSTIN,

Petitioner,

STATE OF TENNESSEE,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

Attorneys for the Petitioner

Frank J. Glankler, Jr.

J.N. Raines

C. Barry Ward

Randall B. Womack

GLANKLER, BROWN, GILLILAND,

CHASE, ROBINSON & RAINES

1700 One Commerce Square

Memphis, Tennessee 38103

(901)525-1322

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

RICHARD HALE AUSTIN

Petitioner,

vs.

STATE OF TENNESSEE

Respondent~-Appellee

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

Attorneys for the Petitioner

Frank J. Glankler, Jr.

J. N. Raines

C. Barry Ward

Randall B. Womack

GLANKLER, BROWN, GILLILAND,

CHASE, ROBINSON & RAINES

1700 One Commerce Square

Memphis, Tennessee 38103

(901)525-1322

QUESTIONS PRESENTED

Was the Petitioner denied effective

assistance of counsel as guaranteed by

the Sixth Amendment to the United

States Constitution?

Was the Petitioner denied due process

of law, aS guaranteed by Fourteenth

Amendment to the United States

Constitution, by the dismissal of the

Petition for a Writ of Error Coram

Nobis without an evidentiary hearing?

sic 7 om

ee ak eee

TABLE OF CONTENTS

Questions Presented . . . +. + +s «

Table of Authorities. . . .« « « « «

Opinion Below . . .« «© © «© «© © «© « «

Jurisdiction. . .« « « «© «© «© © e « «

Constitutional and Statutory

Provisions Involved ...+. « « «

Statement of the Case ...+-+e.«

Statement of the FactS. ...-.«-«-.

Argument in Support of the Issuance

of the Writ of Certiorari:

A. The Petition for Post-

Conviction Relief Should

have been Granted ....

B. The Trial Judge Erred in

Dismissing the Petition

for Writ of Error Coram

a Ee ee eo ok ee

Conclusion and Prayer for Relief. .

Index to the Appendix . ...-««. -«

Page

. i

eiii-v

: 1

: 2

. 3

. 8

" 13

: 24

. 66

. 78

. 82

TABLE OF AUTHORITIES

Cases

Baxter v. Rose, 523 S.W.2d 930

(Tenn. Tepe seeeee ee ee

ao. v. United States, 491 F.2d

( th Cir. a +<¢ -25-27.41.

Berhle v. United States, 100 F.2d

714 (D.C. 1938). . . . 7 . . . .

Rlake v. Kemp, 758 F.2d 523

(lath Cie. 19865) « «© «© © © © @

Eddings v. Oklahoma, 455 U.S. 104,

112, L.Ed.2d 1, 102 S.Ct.

869 (1982) 7. >. > > >. > = o > . —

Green v. State, 187 Tenn. 545,

sumcae 20S CA96GG). wc ew eee

Hayes v. Maggio, 699 F.2d 198,

soita02 ue Gee. BOER). 2 0 ct

Hollis v. United States, 687 F.2d

257, 259 (@th Cir. 1982) ....

Martin v. Maddie 711 F.2d 1273,

( t Cir. 1983) . . . . . .

Martin v. State of Texas, 694 F.2d

423, 424-425 (5th Cir. 1982)...

Mooney v. Holohan, 294 U.S. 103,

ll -1l2, 55 $.ct. 340,

79 L.Ed.2d 791 (1935). . . « « «

iii

24-26

40-50

56-59

69-70

TABLE OF AUTHORITIES (cont.)

Page

Moultrie v. State, 584 S.W.2d 217,

(Tenn.Cr.App. 1978). . . « « « « 48

Nealy v. copane 764 F.2d 1173,

t Cir. 1985) . . . . . . 32

Rogers v. Israel, 746 F.2d 1288,

1296, n.& (7th Cir. 1984)... . 33

Rowe v. State, 498 S.W.2d 322 (Tenn.

). >. > >. . . . . ° . . . . . 72

State v. Johnson, 661 S.W.2d 854

(Tenn. 1983) . . - . . . . . . . 62

State ex rel. Richmond v. Henderson,

W. enn. eee 25

Strickland v. Washington, U.S.

80 L.ED.2D 674, 104 S.Ct.

3052 (1984). Se 9S ee fa - 28-36, 40-41, 50

Tyler v. Kemp, 755 F.2d 741

(lith ee. 1984) . « © © © © edOeseeee

United States v. Cronic, U.S.

’ L.ED. 2D 7, 104

S.Ct. 203 (1984) ee - es + @&. 42 @ 37-38

United States v. DeCoster, 487 F.2d

(D.C. Cc ce de i. - 25-28, 54

United States v. Soo dete 531 F.2d

( Cir. De oe eee e@ 76

United States v. Goodwin, 531 F.2d

t Ce. ). . . . . . . 14,39

TABLE OF AUTHORITIES (cont.)

Page

United States v. Stewart, No. 73-2125

(Feb. 1974). . . . Cs = . 7 ° ° a 14,39

United States v. Tucker, 716 F.2d

BTO, Sek Seem Cakes S20ea) 2 0 @ 40

Vela v. Estelle, 708 F.2d 954,

965 (Sth Cir. 1983). . .... . 33

Watts v. Putnam County, 525 S.W.2d

496, 492 (Tenn. 1975). « «© «© © « 73

Witherspoon v. Illinois, 391 U.S.

510, 88 S.Ct. 1770, 20 L.Ed.2d

776 (1968) 7 2 e e ia e ° + . * . 65

Statutes

T C.Ae 39-2-203 . a Se eo Se ee a a i 62-63

T.C.A. 39=-2-205 . 6 © 6 6 14> sss iS 9

T.C.A. 40-26-105. es ee a a a 66,69-72,75

Orher Authorities

18 Am.Jur.2d CORAM NOBIS, ETC. §1l,

p.446. . 7 s . >. ° « . 7 oe - o >. 68

70 C.J.S. Perjury §59, p.530. . « « « 76

24 C.J.S. Criminal Law §1602(2),

p.667. . . * 7 7 > >. * > e * sd . 68

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

RICHARD HALE AUSTIN

Petitioner,

vs.

STATE OF TENNESSEE

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF TENNESSEE

The Petitioner, Richard Hale Austin,

respectfully prays that a writ of

certiorari be issued to review the judgment

and order of the Supreme Court of Tennessee

entered on July 8, 1985 and resulting in

the affirmation of his conviction and

sentence of death by electrocution.

OPINION BELOW

The judgment and order of the Supreme

Court of Tennessee appears in the Appendix

as A-l, and the decision has not been

reported. A petition for rehearing was

timely filed on behalf of the Petitioner.

The judgment and order of the Supreme Court

of Tennessee denying the Petition for

Rehearing filed on behalf of che Petitioner

is dated September 3, 1985, and appears in

the Appendix as A-2.

JURISDICTION

The judgment and order of the Supreme

Court of Tennessee was dated July 4, 1985.

A petition for rehearing was timely filed

on July 29, 1985. The judgment and order

denying the petitior for rehearing is dated

September 3, 1985. This Petition for Writ

of Certiorari is filed within the time

allowed by this Court. This Court's

jurisdiction is invoked under 28 U.S.C.

§1257 and 28 U.S.C. §2101.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

CONSTITUTION OF THE UNITED STATES,

Amendment V:

"No person shall be held to answer for

a capital, Or otherwise infamous

crime, unless on a presentment or

indictment by a grand jury, except in

cases arising in the land or naval

forces, or in the militia, when in

actual service in time of war or

public danger; nor shall any person be

subject for the same offense to be

twice put in jeopardy of life or limb;

nor shall be compelled in any criminal

case to be a witness against himself;

nor be deprived of life, liberty, or

property, without due process of law;

nor shall private property be taken

for public use, without just

compensation."

Il.

rz]

CONSTITUTION OF THE UNITED STATES,

Amendment 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 ascertained by law, and _ to

be informed of the nature and cause of

the accusation; to be co.fronted with

the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to have

the assistance of counsel for his

defense."

CONSTITUTION OF THE UNITED STATES,

Amendment XIV:

"...-([NJor shall any state deprive any

person of life, liberty, or property,

IV.

without due process of law; nor deny

to any person within its jurisdiction

the equal protection of the laws."

TENNESSEE CODE ANNOTATED §40-26-105

"Writ of error coram nobis.--There is

hereby made available to convicted

defendants in criminal cases a

proceeding in the nature of a writ of

error coram nobis, to be governed by

the same rules and procedure

appiicable to the writ of error coram

nobis in civil cases, except insofar

as inconsistent herewith. Notice of

the suing out of the writ shall be

served on the district attorney

general. No judge shall have

authority to order the person having

custody of the petitioner to produce

him in court for the hearing of the

proceeding. The relief obtainable by

this proceeding shall be confined to

errors dehors the record and to

matters that were not or could not

have been litigation on the trial of

the case, on a motion for a new trial,

on appeal in the nature of a writ of

error, on writ of error, or in a

habeas corpus proceeding. Upon a

showing by the defendant that he was

without fault in failing to present

certain evidence at the proper time, a

writ of error coram nobis will lie for

subsequently or newly discovered

evidence relating to matters which

were litigated at the trial if the

judge determines that such evidence

may have resulted in a different

judgment, had it been presented at the

trial. The issue shall be tried by

the court without the intervention of

a jury, and if the decision be in

tinea

favor of the petitioner the judgment

complained of shall be set aside and

he shall be granted a new trial in

that cause. In the event a new trial

is granted the court may, in its

discretion, admit the petitioner to

bail, provided the offense be

bailable. If not admitted to bail the

petitioner shall be confined in the

county jail to await trial. The

petitioner or the state may pray an

appeal in the nature of a writ of

error to the Supreme Court from the

final judgment in this proceeding."

bee.

aie aia

‘

STATEMENT OF THE CASE

This matter comes before the Court on

a petition for writ of certiorari arising

from an order and judgment denying relief

sought by the Petitioner under Tennessee

post-conviction remedy statutes.

| The Petitioner, Richard Hale Austin,

was indicted in early July, 1977 as an

accessory before the fact to murder in the

first degree and for the crime of murder

(rR. 2/34), The trial of the Petitioner

commenced on October 17, 1977, and

concluded on Cstober 22, 1977, (Trial

Transcript ,+/ 2, 1138-1141). The Petitioner

1/ References to "R" are references to

the record as it appears below.

2/ References to the "Trial Transcript"

are references to the trial transcript

of the Petitioner's trial for murder.

References simply to "et." are

references to the transcript of the

hearing on the Petition for

Post-Conviction Relief.

was convicted on both counts of the

indictment and, upon a finding of a

Statutory aggravating circumstance, was

sentenced to death by electrocution (Trial

Transcript, 1138-1141).

A Motion for New Trial was filed on

November 7, 1977 (R.36). By that Motion it

was asserted that the evidence was not

sufficient to sustain the verdict and that

the evidence preponderated in favor of the

Petitioner's innocence. It was also

asserted that the Tennessee Death Penalty

Statute was contrary to the Constitutions

of the State of Tennessee and the United

States. The Motion for New Trial was

overruled by an order of the Court which

was entered on January 27, 1978. (Hearing

Exhibit No. 21).

The Petitioner perfected a direct

appeal to the Supreme Court of Tennessee

pursuant to T.C.A. §39-2-205. The

Tennessee Supreme Court affirmed the

Petitioner's conviction and sentence in its

opinion, State v. Austin, 618 S.W.2d 738

(Tenn. 1981) .3/ A Petition for Rehearing

was filed but was denied by an Order of the

Court entered on July 27, 1981 (R.14).

On September 25, 1981, a Petition for

Writ of Certiorari was filed with the

Supreme Court of the United States. The

Petition was denied by the Court at 454

U.S. 1128, 71 L.Ed.2d 116, 102 S.Ct. 980

(1981).

On March 26, 1982, a Petition for

Post-Conviction Relief, attacking the

effectiveness of the Petitioner's trial

counsel, was filed on behalf of the

Petitioner (R.34-46). On March 12, 1982, a

Petition for Writ of Error Coram Nobis was

3/ A copy of this opinion appears in ,the

Appendix as A-_.

= 16 «

filed on behalf of the Petitioner

(R. 21-39). A hearing on these petitions

commenced on December 6, 1983 (Tr., 1). At

the outset of the hearing, after hearing

the argument of counsel, the trial judge

ruled that the Petition for Writ of Error

Coram Nobis should be dismissed. After

hearing the proof presented, the trial

judge denied the Petition for

Post-Conviction Relief and he dismissed the

Petition for a Writ of Error Coram Nobis

(R.152-165).

Thereafter a Notice of Appeal was

timely filed on behalf of the Petitioner

(R.166). Oral argument before the Court of

Criminal Appeals occurred on January 15,

1984. By an order and opinion of the Court

of Criminal Appeals dated April 17, 1985 (a

copy appears in the Appendix as A-3), the

decision of the trial judge was affirmed.

«22 «

On May 17, 1985, an Application for

Permission to Appeal to the Supreme Court

of Tennessee was filed. By an Order

entered July 8, 1985, the Supreme Court of

| Tennessee denied the Application thereby

refusing to consider an appeal on the

issues considered by the Court of Criminal

Appeals (See Appendix, A-1). On July 29,

1985, a petition asking the Supreme Court

to rehear its decision to not consider the

appeal was filed. By a judgment and order

dated September 3, 1985, the Supreme Court

of Tennessee denied the petition to rehear

(See Appendix, A-2). This matter is now

before the Court upon the Petition for a

Writ of Certiorari.

= 12 e

STATEMENT OF THE FACTS

The Petitioner, Richard Austin, was

. indicted in July, 1977, as an accessory

before the fact to the murder of Julian

Watkins, a police informant. The

Petitioner was indicted along with Terry

Casteel for this murder (Trial Transcript

2; Tr. 460-461).

After a trial that commenced

October 17, 1977, the Petitioner was

convicted on both counts (Trial Transcript,

2, 1048, 1138-1141). After a sentencing

hearing was conducted, the Petitioner was

sentenced to die by electrocution (Trial

Transcript, 1138-1141).

Before, during, and for awhile after

the Petitioner's trial, the Petitioner was

represented by Robert I. Livingston, an

attorney licensed to practice in the State

of Tennessee (Tr. 363-364, 424-427,

490-491).

» 13 <

Mr. Livingston started practing law in

1955. His practice included some amount of

criminal law experience. Mr. Livingston

testified that he had handled 2 or 3 murder

cases as a solo practitioner (including Mr.

Austin's case) and that he tried some

murder cases when he was associated with

the public defender's office (Tr. 315-316,

431, 461-462). The evidence at the hearing

demonstrates that the United States Court

of Appeals for the Sixth Circuit had

determined in two separate instances

(United States v. Goodwin, 531 F.2d 347

(6th Cir. 1976): and United States vy.

Mr. Livingston had not rendered effective

assistance of counsel as required by the

_Constitution (Tr. 442-450).

Before the Petitioner was arrested for

the murder of Julian Watkins, the

Petitioner and his wife, Joanne Austin,

» 14 «

were being represented by Mr. Livingston on

gambling charges brought against both the

Petitioner and his wife (Tr. 451). Mr.

Livingston‘s representation of both the

Petitioner and his wife on the gambling

charges continued until sometime after’ the

Petitioner's trial for murder (Tr. 45l).

Mr. Livingston testified that the theory he

utilized at the Petitioner's trial was to

convince the jury that Joanne Austin and

Terry Casteel employed Jack Blankenship to

murder Julian Watkins (Tr. 465-466). Mr.

Livingston further testified that it never

occurred to him that there might be some

conflict of interest (Tr. 452).

On or about July 8, 1977, the

Petitioner was arrested at his sister's

home in Mississippi. After discussing his

situation with Mr. Livingston, it was

suggested that the Petitioner waive

extradition. Thereafter the Petitioner

» 16 «

| waived extradition, and was transferred to

the jail in Shelby County, Tennessee. The

Petitioner's health was the primary reason

for the waiver of extradition. On July ll,

1977, Petitioner appeared in General

Sessions Court of Shelby County, Tennessee.

During this appearance, the Petitioner's

bond was set at $100,000.00 and a

preliminary hearing was waived (Tr. 92-94,

463-465).

Some time shortly after the appearance

in the General Sessions Court, Mr.

Livingston, the Petitioner and members of

the Petitioner's family had a meeting in

the offices of a bail bonding conpens (Tr.

94-95). During this meeting the Petitioner

encouraged Mr. Livingston to go to the

Shelby County Jail and interview Terry

Casteel and Jack Blankenship (Tr. 96).

Shortly thereafter Mr. Livingston attempted

to see Casteel, but Casteel refused to talk

» 16 «

with him (Tr. 96-97). However, Mr.

Livingston did interview Jack Blankenship

and obtained a written statement (Tr.

96-97, 237, 240, 332). This interview took

‘place on or about July 14, 1977 (Tr. 332).

Prior thereto, on July 7, 1977, Jack

Blankenship had pled guilty to the murder

of Julian Watkins (Tr. 234-237). During

this interview, Blankenship was less than

truthful about certain aspects of the

events surrounding the murder of Julian

Watkins (Tr. 241-242). However,

Blankenship positively maintained at that

time, and at the hearing of this matter,

that the Petitioner had nothing to do with

Julian Watkins' murder (Tr. 242, 251,

Hearing Exhibits No. 9 and 10).

In testimony at the hearing, Mr.

Livingston's recollection was that he and

the Petitioner had several meetings in

person and that they discussed the case

°= 17 «

theese

over the telephone on other occasions (Tr.

474). However, he had no memoranda or

other paper writings whatever that would

suggest any time spent with the Petitioner

conferring about his case (Tr. 324-331).

Furthermore, Mr. Livingston stated that he

had not talked to his client about taking

the stand until after the State rested its

case (Tr. 399). Other than the statement

of Jack Blankenship dated July 14, 1977,

there was nothing in Mr. Livingston's file

to suggest he conducted any interview of

any witness related to the murder case (Tr.

332). In fact, Mr. Livingston testified

that there was never any intention to_ take

any witnesses’ statements (Tr. 413-414).

Additionally, Mr. Livingston testified that

there was no room in his defense theory for

Jack Blankenship (Tr. 482) and that _ he

would not believe Blankenship "on a stack

of Bibles.” (Tr. 404). Mr. Livingston

= 18 «

never called Jack Blankenship to testify

during the Petitioner's trial (Tr. 482).

At the hearing the Petitioner called,

as expert witnesses, Mr. Russell X.

Thompson and Marvin Ballin, two lawyers

experienced in criminal cases (Tr. 492-493;

536-537). Both witnesses testified that a

lawyer of ordinary skill and training would

have recognized the existence of a

“substantial defense in the testimony of

“Blankenship (Tr. 497-502; 538-542). They

falso testified that armed with the

knowledge that the State did mot have a

“statement from Blankenship, an attorney of

ordinary skill and training would be under

an obligation to further investigate, even

during the trial, the potential testimony

of Blankenship (Tr. 505-506; 545-546).

Further, Mr. Thompson, based upon the

testimony of Mr. Livingston that he heard

at the hearing, testified that Mr.

@ 19 «

| a

Ne ka ol me.

Livingston did not perform as an attorney

or ordinary skill and training in the

investigation of the Petitioner's case (Tr.

510).

Mr. Livingston did not offer a_ single

witness and did not attempt to introduce

one piece of evidence during the sentencing

stage of Mr. Austin's trial (Trial

Transcript, 1055-1110). Mr. Livingston

testified that he did not recall every

having an intention to call witnesses at

the sentencing stage (Tr. 360). The result

was that the State made an attempt to

demonstrate that at least three aggravating

circumstances existed, and Mr. Livingston

made little or no attempt to rebut the

existence of any of those aggravating

circumstances or to submit to the jury any

mitigating circumstances (Trial Transcript,

1055-1110). Mr. Livingston failed to

introduce any evidence during the

- 20 -

' sentencing stage despite the fact that the

- judge presiding over the murder trial

stated on the record that Mr. Livingston

would not be restricted to simply the

statutory mitigating circumstances (Trial

Transcript, 1051). Mr. Livingston's

tiene’ in this regard bear out his

inadequate preparation, at least during the

> sentencing stage of the trial.

Subsequent to the Petitioner's trial,

Mr. Livingston filed a Motion for New Trial

(Tr. 137-139). Immediately prior to the

filing of the Motion for New Trial, the

Petitioner's present counsel was employed

by members of the Petitioner's family to

ee OO!

5 hisentine Ge az batted

review the trial transcript and render an

Opinion as to whether reversible error

occurred during the course of the

“Petitioner's trial (Tr. 687-689, Hearing

SExhibit No. 22).

de ees is ri

The Petitioner's present counsel were

assured by Mr. Livingston that Mr.

Livingston would entertain a.d accept their

suggestions as to matters to be included in

either an amended or supplemental motion

for new trial while the transcript of the

| Petitioner's trial was being prepared and

reviewed (Te. 423, 424, 137-138).

| Thereafter, Mr. Livingston wrote to the

Petitioner and assured him that if he (Mr.

_ Livingston) did not have an opportunity to

study the trial transcript before the

“hearing on the Motion for New Trial, he

“would ask the court to reset the hearing

‘until he had an opportunity to study the

‘transcript (Tr. 421-422, Hearing Exhibit

Vee

a) Without having reviewed the

o, bi Vest al

stranscript, Mr. Livingston submitted the

‘Motion for New Trial, without argument, to

Sea

este 27k.

‘the court on January 27, 1978 (Tr. 422-423,

§425, 490, Hearing Exhibit 21), and an order

~—— > oe

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Ai, Bi Ae heb NBG NE OLN PSE OLE AP AGRI AN

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overruling the Motion for New Trial was

entered at that same time (Hearing Exhibit

No. 21).

While present in court on March 16,

1978, on a Motion to Rehear the Motion for

New Trial filed by the Petitioner's present

counsel, and while he was still counsel of

record, Mr. Livingston referred to the

Petitioner as a "“crook". (Tr. 409-411,

429-430). In addition, in a letter to the

Petitioner dated February 22, 1978 (a copy

of which was sent to Judge Beasley), Mr.

Livingston stated, "I have been receiving

obscene and threatening telephone calls

_ recently. You and your wife have not ‘let

ha contract’ on me have you?" (Tr. 144-147,

425-428, Hearing Exhibit No. 6).

iNet

~ 22 «=

esr tics | Ei hte

ARGUMENT

. ;

The Petition for Post-Conviction

; Relief Should Have Been Granted

It is contended that the evidence

\ demonstrated that Mr. Livingston failed to

' perform as well as a lawyer with ordinary

j training and skill in the criminal law

would have and that he failed to

conscientiously protect the Petitioner's

' interests and rights during the period of

jhis representation of the Petitioner.

-Accordingly, the Petitioner was deprived of

his rights under the Sixth Amendment to the

Constitution.

Range of Compentency Standard

ln 1975 the Tennessee Supreme Court in

Baxter v. Rose, 523 S.W.2d 930 (Tenn.

a alt ti a iit ha Nw taille all Ve,

1975), announced a new standard of

“competency to be applied in Tennessee for

‘determining the adequacy of representation

jin criminal cases. The standard is

e 24 «

"...-Simply whether the

advice given, or the services

rendered by the attorney, are

within the range of competency

demanded of attorneys in criminal

cases." Id.. at 936.

Woe Pine

;

' The court indicated that the measure of the

' "range of competency" for attorneys in

’ criminal cases was to be taken from United

' States ve. DeCoster, 487 F.2d 1197 (D.C.

| Cir. 1973); Beasley v. United States, 491

F.2d 687 (6th Cir. 1974); and the American

js Association Standards Relating to the

Administration of Criminai Justice. Id.,

Sat p.936.

Before the Baxter v. Rose decision

Snare had followed the “farce, sham, or

“mockery of justice" standard, State ex rel.

'Richmond v. Henderson, 439 S.W.2d 263

j (Tenn. 1969); but following the trend away

‘from that standard, Tennessee adopted the

‘more Stringent standard of competency for

‘counsel.

» 98 «

In Beasley v. United States, 491 F.2d

687 (6th Cir. 1974), the Court of Appeals

for the Sixth Circuit held that a defense

counsel must perform at least as well as a

lawyer with ordinary training and skill in

the criminal law and must conscientiously,

and unaffected by conflicting

- considerations, protect his client's

interest. Stated affirmatively, counsel is

required to render reasonably effective

assistance, and:

"It is a violation of this

Standard for defense counsel to

deprive a criminal defendant of a

substantial defense by his own

ineffectiveness or incompetence

eeee Defense counsel must

investigate all apparently

substantial defenses available to

the defendant and must assert

them in a proper and timely

manner." Id., at 696.

In the second federal opinion followed

by the Tennessee Supreme Court in Baxter v.

ose, United States v. DeCoster, 487 F.2d

197 (D.C. Cir. 1973), the Court of Appeals

for the District of Columbia Circuit

announced some of the duties owed by an

attorney to a client while making it clear

that the enumerated duties are only

starting points for other courts to develop

\ additional measurements on a case-by-case

basis:

"In General--Counsel should be

guided by the American Bar

Association Standards for the

Defense Function. They represent

the legal profession's own

articulation of guidelines for

the defense of criminal cases.

Specifically--(1) Counsel should

confer with his client without

delay and as often as necessary

to elicit matters of defense, or

to ascertain that potential

defenses are unavailable.

Counsel should discuss fully

potential strategies and tactical

choices with his client.

(2) Counsel should promptly

advise his client of his rights

and take all actions necessary to

preserve them.... Counsel should

also be concerned with the

accused's right to be released

from custody pending trial, and

be prepared, where appropriate,

to make motions for a pre-trial

psychiatric examination or for

the suppression of evidence.

oe 29 «

(3) Counsel must conduct

appropriate investigations, both

factual and legal, to determine

what matters of defense can be

developed. The Supreme Court has

noted that the adversary system

requires that ‘all available

defenses are raised‘ so that the

government is put to its. proof.

This means’ that in most cases a

defense attorney, or his agent,

should interview not only his own

witnesses but also those that the

government intends to call, when

they are accessible. The

investigation should always

include efforts to secure

information in the possession of

the prosecution and law

enforcement authorities. And, of

course, the duty to investigate

also requires adequate legal

research." Id., at pp.1203-1204.

In the case of Strickland, Vv.

| Washington, Bs cont OF Geee FS SIS:

104 8 Ct. 2052 (1984), this Court

considered a claim of ineffective

assistance of counsel. This case marked

the first time that the Court considered

such a eer in any generality. 80 L.Ed.2d

- at p. 690. Having noted that lower Federal

v merpehien , mre + id ok eu ai St diy ; " _

=» 28 -

Dia sec snissicsst

courts and State courts had previously

‘adopted various tests measuring’ the

“effectiveness of counsel in criminal cases,

‘the Court imposed a two-component test in

‘considering a convicted defendant's claim

‘that counsel's assistance was ineffective.

The Court stated that:

“First, the defendant must

show that counsel's performance

was deficient. This requires

showing that counsel made errors

so serious that counsel was not

functioning as the counsel

guaranteed the defendant by the

Sixth Amendment. Second, the

defendant must show that the

deficient performance prejudiced

the defense. This requires

showing that counsel's errors

were sO serious as to deprive the

defendant of a fair trial, a

trial whose result is reliable."

80 L.Ed.2d at p. 693 (Emphasis

added).

With respect to the first component of

| the test, the Court stated that "the proper

7 standard for attorney performance is that

' of reasonably effective assistance." 80

» L.Ed.2d at p.693. Although declining to

« 95 =

Sestablish specific guidelines by which to

| juage the performance of counsel in

~ criminal cases, the Court did emphasize

S certain "benchmarks" or principles by which

the courts should be guided. For example,

‘the Court stated that "the benchmark for

| judging any claim of ineffectiveness must

Bbe whether counsel's conduct so undermined

the proper functioning of the adversarial

) process that the trial cannot be relied

B upon as having produced a just result." 80

EL.Ed.2a4 at pp.692-293. In addition, the

Fcourt stated that in deciding an

i ineffectiveness claim a court “must judge

‘the reasonableness of counsel's challenged

) conduct on the facts of the particular

“case, viewed as of the time of counsel's

Sconduct." 80 L.Ed.2d at p. 695.

The test established by the Court in

Strickland v. Washington for judging the

Jeffectiveness required by the Sixth

» 36 <

Amendment requires not only that counsel's

; performance be deficient but also requires

that such deficient per formance be

prejudicial to the defense. The - Court

B piacea the burden of proving prejudice on

the convicted defendant. However, the

Court pointed out that in certain contexts,

TV prejudice is presumed 80 L.Ed.2d at p. 696.

7One such situation noted by the Court and

Ywhich, it is submitted, is applicable to

‘the case sub judice is when counsel is

burdened by a conflict of interest. The

proof adduced at the hearing demonstrated

that during a part of the time the

| attorney-client relationship existed

_ between the Petitioner and Mr. Livingston,

our. Livingston was burdened with

‘conflicting considerations.

With respect to preving prejudice,

where prejudice is not presumed, the Court

Sin Strickland v. Washington stated that:

- 31 -

"The defendant must show that

there is a reasonable probabilit

that, but for counsel's

Lt ae errors, the result

of the proceeding would have been

different. reasonable

probability is a probability

sufficient to undermine

confidence in the outcome. 80

L.Ed. 2d at p. 698 (Emphasis

| added).

. The Court further stated that in making the

determination of whether prejudice existe,

aa court “must consider the totality of the

, evidence before the judge or jury." 80

ib. Ba. 2d at p. 698.

Whether a defendant has received

effective assistance of counsel is a mixed

‘question of fact and law. Nealy v. Cabana,

764 P.24 1173, 1176 (Sth Cir. 1965).

Baccocdineiy, on appeal, a court must make

Ban independent investigation if determining

"whether a counsel's representation

§ satisties the standards dictated by the

7)Sixth and Fourteenth Amendments. Id.

» 32 «

It is the Petitioner's burden to prove

the allegations of incompetent

representation by a simple preponderance of

the evidence. Rogers v. Israel, 746 F.2d

1288, 1296, n.8 (7th Cir. 1984); Vela _ v.

stelle, 708 F.2d 954, 965 (Sth Cir. 1983);

Martin v. Maggio, 711 F.2d 1273, 1279 (8th

Cir. 1983); Hayes v. Maggio, 699 F.2d 198,

201-202 (Sth Cir. 1983).

Applying the standards set out by the

Court in Strickland v. Washington, it is

submitted that proof adduced at the hearing

demonstrated that the Petitioner was denied

the effective assistance of counsel.

The proof relating to Mr. Livingston's

failure to call Jack Blankenship as a

witness during the Petitioner's trial, to

the exclusion of any other evidence of Mr.

Livingston's ineffectiveness, demonstrates

that the Petitioner was denied effective

assistance of counsel. Viewing the

» 33 «

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circumstances thet: existed at the time the

Petitioner was tried, the result of the

Petitioner's trial would reasonably likely

have been different had the testimony of

Jack Blankenship been presented at the

Petitioner's trial.

The existence of not one but several

instances whereby Mr. Livingston's conduct

fell below that required of attorneys in

criminal cases leads one to the conclusion

that the Petitioner's trial cannot be

relied upon as having produced a just

Sresult. Mr. Livingston's ineffectiveness

was so serious that it rises to the level

of a constructive denial of counsel which

an constitute constitutional error without

the showing of any prejudice Strickland v.

ashington, 80 L.Ed.2d at mp. 704, n.2.

Coincidently, Strickland v. Washington

involved a situation where the Court was

resented with a claim that the defendant,

e 36

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who had pled guilty to first degree murder,

received ineffective assistance of counsel

in relation to the capital sentencing

proceedings. In this regard _ the Court

stated that a capital sentencing proceeding

"is sufficiently like a trial in

its adversarial format and in the

existence of standards of

decision, [citations omitted]

that counsel's role in the

proceeding is comparable to

counsel's role at trial - to

insure that the adversarial

testing process works to produce

a just result under the standards

governing decision." 80 L.Ed.2d

at p. 693.

This conclusion finds its rationale in the

Court's directive that capital proceedings

be policed at all stages by an especially

vigilant concern for procedural fairness

and for the accuracy of fact finding. 80

L.Ed.2d at p. 704 (Brennan, J., concurring

in part and dissenting in part).

In regard to the capital sentencing

proceedings the Court has insisted that the

» 3% «

sentencer must be permitted to consider any

‘relevant mitigating factor. Strickland v.

“Washington, 80 L.Ed.2d at p. 705; Eddings

ay. Oklahoma, 455 U.S. 104, 112, 102 S.Ct.

1869, L.Ed.2d 1 (1982).

. The facts of this case demonstrate

Uthat no evidence of any sort was presented

Jon behalf of the Petitioner during’ the

‘course of the sentencing phase of his

‘trial. In fact, Mr. Livingston indicated

‘that he never interviewed any potential

Switness for the sentencing phase of the

Tretitioner's trial and that he did not

‘recall even having the intention of calling

any witnesses during the sentencing phase

o(tr. 360-362). These facts conclusively

| prove that Mr. Livingston totally abrogated

his duty to investigate and prepare a

, defense during the sentencing phase of the

“Petitioner's trial. As a result there was

Jno "reliability" in the imposition of the

death penalty in the Petitioner's case.

=| a

Criteria for Measuring the Conduct of

Counsel

The courts have utilized measuring

criteria beyond simply "consultation,

advice and investigation." The courts have

utilized such additional criteria as the

"experience of counsel", "failure to seek

discovery by proper procedures",

"prefunctory examination of witnesses",

"conduct at trial exceeding the limits of

propriety", “improper trial tactics and

strategy" and “abandonment of appellate

rights". The Petitioner shall attempt’ to

examine evidence presented at the hearing

in the context of some of the measuring

criteria utilized by the courts.

Experience of Counsel

In United States v. Cronic, U.S.

, 80 L.Ed.2d 657, 104 S.Ct. (1984),

the Court indicated that the "experience of

counsel," though not providing a basis for

~ £3:

concluding that effective assistance of

counsel was afforded, is, nevertheless,

relevant to that evaluation. 80 L.Ed.2d at

pp. 663, 670.

During the hearing Mr. Livingston

testified that he started practicing law on

February 1, 1955 (Tr. 461), that he served

as an assistant public defender on two

occasions and that as a public defender he

had had more experience .A criminal matters

than he had every had as a private lawyer

(Tr. 462, 315-316). He also testified that

he had tried "two, maybe three” murder

cases in his private practice and more than

he can recall as a public defender (Tr.

315-316, 461-462).

As proof on the element of Mr.

Livingston's range of experience of

counsel, the trial judge allowed the

Petitioner to introduce evidence that on

two separate occasions Mr. Livingston had

» 38 «

been found by the Court of Appeals or the

Sixth Circuit to have rendered ineffective

assistance as required by the Constitution.

These cases were United States v. Goodwin,

531 F.2d 347 (6th Cir. 1976) and United

States v. Stewart, No. 73-2125 (February l,

1974). In his testimony to the trial judge

regarding the Goodwin case, Mr. Livingston

admitted that he had previously stated that

Judge Bailey Brown (who at that time was a

Judge of the United States District Court

for the Western District of Tennessee and

who is now a judge of Court of Appeals for

the Sixth Circuit) and his client, Mr.

Goodwin, were both incompetent (Tr.

441-442).

2. Failure to Seek Discovery

The record reflects that Mr.

Livingston made little or no effort to

pursue even the limited discovery rights

» 39 «

afforded to the defense in State

prosecutions. Failure to pursue discovery

rights prejudices a defendant, creates

uninformed trial tactics and leads to less

than effective cross-examination. In

Strickland v. Washington, supra, the Court

stated that “counsel has a duty to make

reasonable investigations or to make a

reasonable decision that makes particular

investigations unnecessary." 80 L.Ed.2d at

Pp. 695. "Pretrial investigation and

preparation are the keys to effective

representation of counsel.“ United States

v. Tucker, 716 F.2d 576, 581 (9th Cir.

1983).

Mr. Livingston did not prepare and

file any pre-trial discovery motions, and

he testified that he had no intention of

filing any pre-trial motions (Tr. 331-332).

Mr. Livingston also testified that he had

no recollection of ever reviewing the

e 48 <

physical evidence obtained by the State and

to be utilized in the Petitioner's trial

(Tr. 366-367).

3. Improper Trial Tactics and Strate

Trial tactics and strategy are not to

be reviewed by hind-sight but on the basis

of whether some other action, which would

have better protected the defendant, was

reasonably foreseeable at this time.

Beasley v. United States, 491 F.2d 687, 696

(6th Cir. 1974). In Strickland Vv.

Washington, supra, the Court stated that a

"fair assessment of attorney performance

requires that every effort be made _ to

eliminate the distorting effect of

hindsight, to reconstruct the circumstances

of counsel's challenged conduct, and to

evaluate the conduct from counsel's

perspective at the time." © L.Ed.2d at p.

694.

- 4] -

The failure to utilize the testimony

of Jack Blankenship and/or the failure to

leave open the option to call Jack

Blankenship to the stand to exculpate the

Petitioner was an improper strategy, and

this was clearly reasonably foreseeable by

an attorney with ordinary skill and

training and, as a result, was outside the

wide range of professionally competent

assistance. The result of the actions and

inactions of Mr. Livingston in this’ regard

denied the Petitioner a substantial defense

by excluding, from the jury's

consideration, the testimony of Jack

Blankenship, the confessed killer of Julian

Watkins.

On July 7, 1977, Blankenship pled

guilty to the murder(Tr., 234; Hearing

Exhibit No. 12). On July 14, 1977, Mr.

Livingston interviewed Blankenship and

obtained a statement (Tr., 400; Hearing

= @ «

Exhibit Nos. 9 and 10). In the course of

the statement Blankenship admitted

receiving money to kill Mr. Watkins, but

Blankenship stated that he was given the

money by “James Stevens" and that an

individual by the name of "David" (as

Opposed to Casteel) went to the body shop

with Blankenship when Mr. Watkins was

killed. Slankenship denied that the

Petitioner was involved. Mr. Livingston

met with Blankenship for just a_e short

period of time a week or so later (Tr.

403).

Mr. Livingston never succeeded in

interviewing Terry Casteel, who was

indicted along with the Petitioner (Tr.

463, 460-461, 403). In September, 1977,

Mr. Casteel's attorneys filed a motion to

sever the trial of Mr. Casteel and the

Petitioner. The State joined in the motion

to sever, and the motion was granted (Trial

» 43 «

Transcript, 2-5). Mr. Livingston testified

that he was fully expecting that Casteel

was going to turn State‘s evidence before

the trial (Tr. 463).

Being on notice of adverse testimony

from Casteel, Mr. Livingston made no

effort, either before or during the trial,

to reinterview Blankenship and discuss

Casteel's involvement in the offense (Tr.

403). Mr. Livingston opened his defense by

an attack, in his opening statement, on

Blankenship as a potential State witness

(Tr. 540-542; Trial Transcript, 274-275),

thereby foreclosing the option on his part

to call Blankenship as a defense witness.

Mr. Livingston knew or should have known

that the State had not obtained any

statement from Jack Blankenship (Tr.

414-415).

In support of the Petitioner's

position at the hearing that prejudicial

o 66 «

error was committed by Mr. Livingsto: in

regard to his failure to reinterview and

call Blankenship as a witness, the

Petitioner called, as expert witnesses, Mr.

Russell X. Thompson and Mr. Marvin Ballin,

two laywers experienced in criminal cases

(Tr. 492-493; 536-537). Both of these

witnesses testified that a lawyer of

ordinary skill and training would have

recognized the existence of a substantial

defense in the testimony of Blankenship

(Tr. 497-502; 538-542). They also

testified that armed with the knowledge

that the State did not have a statement

from Blankenship, an attorney of ordinary

skill and training would be under = an

obligation to further investigate, even

Guring the trial, the potential testimony

of Blankenship (Tr. 505-506; 545-546).

Further, Mr. Thompson, based upon. the

testimony of Mr. Livingston he heard at the

= 68 «

hearing, testified that Mr. Livingston did

not perform as an attorney of ordinary

skill and training in the investigation of

the Petitioner's case (Tr. 510).

In his testimony Mr. Livingston stated

that the reason he did not call Blankenship

was that he did not believe him and that he

would not put Blankenship on the stand

under any circumstances (Tr. 403, 432).

However, the key portion of Blankenship's

testimony, i.e. that the Petitioner,

Richard Austin, had not hired him to kill

Julian Watkins, was consistent with his

client's position and testimony. Although

Mr. Livingston had reason to believe that

Blankenship had, in his statement to Mr.

Livingston, not been truthful in all

particulars, Mr. Livingston, in keeping

with his client's position and sworn

testimony, was, under facts and

circumstances reasonably foreseeable,

e 46 «

required to call Blankenship as a witness

and properly ask "Did Richard Austin hire

you, Jack Blankenship, to murder Julian

Watkins?" and Blankenship would have

responded, "No" (Tr. 245-248).

This would have followed the

requirement to offer admissible evidence

his client desired and would want to have

presented without surrendering any fairly

held conviction by Mr. Livingston that

other details of Blankenship's statement to

him were not true. Mr. Livingston failed

in his duty to reinterview Mr. Blankenship

and obtain a statement from Blankenship as

to Casteel's involvement which would have

removed any concern Mr. Livingston had as

to the full scope of Blankenship's

statement.

= 67 «

4. Failure to Advise and/or Pursue

Appellate Rights

Clearly, the abandonment of a

defendant's appellate rights or failure to

pursue appellate rights (when instructed to

do so) constitutes ineffective assistance

of counsel. Martin v. State of Texas, 694

F.2d 423, 424-425 (5th Cir. 1982); Hollis

v. United States, 687 F.2d 257, 259 (8th

Cir. 1982); Moultrie v. State, 584 S.W.2d

217, 218 (Tenn.Cr.App. 1978). By his

failure to maintain his agreement with the

Glankler firm and his client to reschedule

the "Motion for New Trial" (Tr., 690-692)

until the transcript could be obtained and

reviewed, Mr. Livingston foreclosed and

abandoned certain of the Defendant's rights

on direct appeal, including, but not

limited to, the error in introduction of

prejudicial hearsay evidence and the error

in the introduction of improper evidence at

the sentencing hearing.

= 46 -

The issues on appeal of the

Petitioner's conviction were limited to the

sufficiency of the evidence and_ the

constitutionality of the death penalty

statute since only these issues were

presented to the trial court on the motion

for new trial (Tr. 654-655).

At the time Livingston submitted the

motion for new trial to the trial court,

and thereby limited the Defendant's

appellate issues, Livingston hud failed to

review the trial transcript that was

becoming available to determine what

additional appellate error should be

preserved (Tr. 422-424).

5. Conflicting Considerations

In Beasley v. United States, 491 F.2d

687 (6th Cir. 1974), the Sixth Circuit

Stated that an attorney

« 29 «

"..e-must conscientiously protect

his client's interest,

undeflected by conflicting

considerations." Id., at p.696.

(Emphasis supplied).

In Strickland v. Washington, supra, the

Court stated that "[c]ounsel's function is

to assist the defendant, and hence counsel

owes the client a duty of loyalty, a duty

to avoid conflict of interest." Id., 80

L.Ed.2d at p. 694.

In several instances, Mr. Livingston

has by his conduct and statements acted

because of considerations, personal and

professional, in actual conflict with his

client's fundamental rights and interests.

At the hearing Mr. Livingston

testified that he did not trust his client

(Tr. 415).

After the trial, Mr. Livingston

breached an agreement he had with the law

firm of Montedonico, Heiskell, Davis,

Glankler, Brown and Gilliland (the Glankler

» 86 «

firm), wherein Mr. Livingston agreed _ to

have any hearing on a motion for a new

trial postponed until the Glankler firm had

the opportunity to study the transcript of

evidence (Tr. 490-491, 421-424; Hearing

Exhibit 1). In addition, he breached the

written agreement made with his client on

January 18, 1978, wherein he agreed _ to

postpone a hearing on the motion for new

trial until he had an opportunity to study

the transcript (Tr. 421-424, 490-491;

Hearing Ex.2). Mr. Livingston testified

that the reason he breached these

agreements was that he “wanted to be out of

the case and let you [Mr. Glankler] get on

with your appeal just as soon as you

possibly could" and that he "wanted to be

shed of Richard Austin and his whole family

and...{the Glankler] firm." (Tr. 490-491).

Thereafter while still counsel of

record, in correspondence sent to his

o $2 «<

client and Judge Beasley, Mr. Livingston

states that "I have been receiving obscene

and threatening phone calls recently. You

and your wife have not ‘let a contract" on

me have you?" (Tr. 425-427; Hearing

Exhibit No. 6). In addition, during an

appearance by Mr. Livingston in Judge

Beasley's Court on the Petition to Rehear

Motion for New Trial filed by the Glankler

firm, Mr. Livingston referred to Mr. Austin

as “a crook". (Tr. 409-410).

So evident was the conflict between

Mr. Livingston and his client, Richard

Austin, that during this hearing Judge

Beasley (who had presided over the

Petitioner's trial for murder) testified

that he became concerned:

"Q. .-.eI'll ask, Your Honor, if

it did cause you concern to have

a motion before your Honor set

for March 16 on a petition to

rehear the overruling of that

motion for new trial, to be in

possession then of a letter from

trial counsel asking his client

» 82 «

if he had, quote, "let a

contract", close quote, on him,

when that was the subject matter

of the case, State versus Richard

Austin?

Did that concern you, sir,

whether Mr. Livingston was having

a conflict with the client or was

continuing to appear and

representing him the best he knew

how asa fact, not as an opinion

Or a conclusion or any of those

other things?

A. Yes, sir, I would say _ so,

Mr. Glankler, at that time when I

received it and subsequent

thereto, yes.

Q. Judge, realizing what he had

written on February 22nd, that

Exhibit 6, and realizing those

statements made in open court on

' March 16 that his client was a

crook, did Your Honor have

concern that there were

conflicting considerations

between Messrs. Austin and Mr.

Livingston?

A. I'd have to say yes." (Tr.

666-667, 669).

At the time Mr. Livingston agreed to

represent Mr. Austin on the murder charges,

Mr. Livingston was representing both Mr.

- 53 -

Austin and Mrs. Austin on pending gambling

charges (Tr. 451-453). Mr. Livingston

stated in his testimony that from the very

outset, it was his theory that Joanne

Austin was involved in the murder, and that

Richard Austin was involved, according to

his belief, as an accessory after the fact

(Tr. 407-408). in this regard, Mr.

Livingston testified during the hearing

that Joanne Austin and Jack Blankenship

were tiied “in absentia” (Tr. 467).

Approximately three weeks before the

trial, Mr. Livingston wrote a letter to Mr.

Austin wherein Mr. Livingston threatened to

withdraw as counsel if his fee was not paid

6. Beasley and DeCoster Criteria

If we return to the critera as set out

in United States v. DeCoster, 478 F.2d 1197

(D.C. Cir. 1973), one must view Mr.

o $4 «

Livingston's failure to adequately confer

with his client, give proper advice, and

investigate the case, both factually and

legally, as demonstrating ineffectiveness

in his representation of the Petitioner.

Prior to his client taking the stand

Mr. Livingston had little or no discussion

with his client regarding his client's

testimony (Tr. 399, 131-132). And, in

addition, until the trial, Mr. Livingston

never discussed with his client whether or

not his client should take the stand (Tr.

130). The only potential witness

interviewed by Mr. Livingston was Jack

Blankenship, and Mr. Livingston testified

that he did not plan to take any other

witnesses‘ statements (Tr. 332, 413-414).

Mr. Livingston's inadequate

preparation, factually and legally, is

dramatically demonstrated by his failure to

put on any evidence or to call even one

= §§ «

witness during the sentencing phase of the

Petitioner's trial. In fact, Mr.

Livingston indicated that he never

interviewed any potential witness for the

sentencing stage of the trial and that he

does not “recall ever having the intention

of calling any" witnesses during the

sentencing stage (Tr. 360-362). Mr.

Austin's sister, Midge Edwards, tried to

get Mr. Livingston to call her as a witness

during the sentencing phase, but Mr.

Livingston did not use her (Tr. 294).

In two cases recently decided by the

United States Court of Appeals’ for the

Eleventh Circuit, it was held that’ the

failure of an attorney to make any

preparations for the sentencing stage of a

capital murder trial deprives his client of

effective assistance of counsel. Blake v.

Kemp, 758 F.2d 523 (llth Cir. 1985), and

Tyler v. Kemp, 755 F.2d 741 (llth Cir.

1985).

» $6 «

ELK

mPa

In Blake the proof demonstrated that

the defendant's trial counsel made no

preparation chatanever for the sentencing

stage of the defendant's trial. The Court

stated that "an attorney who fails

altogether to make any preparations for the

penalty phase of a capital murder trial

deprives his client of reasonably effective

assistance of counsel by any objective

standard of reasonableness.” Id., at

p.533. In examining the question of

whether the defendant had been prejudiced

by the failure of his trial counsel to

follow the proper standard, the Court

indicated that failure to prepare for’ the

‘sentencing stage of a capital murder case

is almost tantamount to no defense at ali.

Id., at p. 535. Further, the Court stated

that the attorney's

"failure to seek out and prepare

any witnesses to testify as to

mitigating circumstances just as

effectively deprived him of such

« 89 @

an opportunity [to demonstrate

mitigating circumstances as if

the Court has not permitted him

to put on any mitigating

evidence]. This was not simply

the result of a tactical decision

not to utilize mitigation

witnesses once counsel was aware

of the overall character of their

testimony." Id., at p.535.

In Tyler the Court was reviewing a

case where trial counsel in a capital

murder prosecution failed to present any

evidence during the sentencing stage of the

trial. Taking into consideration proof of

mitigating circumstances that two family

members could have provided (if they had

been called to testify), as well as

mitigating evidence from outside the family

that was possibly available, the Court

concluded that there was a “reasonable

probability that the result of the

proceeding would have been different" and

that the defendant had been deprived of

effective assistance of counsel. la.e at

pp. 745-746.

- 88 -

The Black and Tyler cases demonstrate

that the failure of an attorney to put on

any evidence during the sentencing stage of

a capital murder case falls below the

standard of care required of such attorney.

These cases support the position that the

failure to put on any proof during the

sentencing phase is so close to being per

se prejudicial that almost any evidence

that was or could have been available to

the trial counsel will suffice to

demonstrate prejudice to a defendant.

The Petitioner's sister, Ms. Midge

Edwards, testified that she had told Mr.

Livingston her brother's whole life story

and that she tried to get him to let her

testify at the sentencing phase of the

trial. (Tr. 294). Ms. Edwards was willing

and prepared to testify to her brother's

good character as he had lived with her

most of his life.

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—

It is submitted that Mr. Livingston's

actions and inactions during the sentencing

phase of the Petitioner's trial fell below

the standard of care required by attorneys

in criminal cases and that the Petitioner

was prejudiced thereby. Accordingly, at

the very least, the Petitioner is entitled

to anew hearing in regard to the sentence

to be imposed.

Inadequate factual preparation and

improper trial strategy is further

evidenced by Mr. Livingston's failure to

object, during the State's proof in the

sentencing stage of the trial, to. the

introduction of a prior conviction of a

felony (larceny) not involving the use or

threat of violence (Trial Transcript, 1056;

Tr. 669-673). The State introduced the

record indictment and conviction of Richard

Austin of larceny and receiving stolen

property, the conviction date being

o €<

October 19, 1966 (Trial Transcript, 1056).

No objection was made to the introduction

ot such evidence (Trial Transcript,

1056-1057). Nor was any objection entered

concerning additional testimony as to

whether the conviction was by a plea of

guilty or by a jury verdict, what was the

outcome of a motion for new trial that was

prayed for in the case, or whether the

offense was subsequently appealed. The

State was permitted to show, without

objection, that the conviction was obtained

by a jury verdict, that a motion for a new

trial was prayed for, that it was heard and

overruled on the date of January 5, 1967,

in Division I of the Criminal Court of

Shelby County, that there was subsequently

an appeal and that the conviction was in

fact affirmed by the Supreme Court of

Tennessee by procedendo (Trial Transcript,

1056-1057). The introduction of such

e 6) -«

evidence was not in accordance with the

previous statutory requirement that such

felonies involve the use or threat of

violence to the person. T.C.A.

§39-2-203(1)(2); See also, State Vv.

Johnson, 661 S.W.2d 854 (Tenn. 1983).

Although the jury apparently did not base

its decision to impose the death penalty on

this particular aggravating circumstance,

the danger of allowing such irrelevant

evidence at this critical stage of the

trial and its probability of prejudice was

obvious.

During the Petitioner's trial the

State also introduced testimony from two

witnesses (Trial Transcript, 1065 1099) for

the proposition that the victim was a

special deputy sheriff. At page 1106 of the

trial transcript, when asked the conclusory

legal question of whether he (Julian

Watkins) was a peace officer, there was no

obtection by counsel and there was no

follow-up on the response of the witness,

to-wit:

"He was very definitely a

Sworn deputy sheriff of Shelby

County."

Mr. Livingston did not object to. the

introduction of such testimony and did not

throughout his cross~examination of these

witnesses attempt to establish whether or

not Mr. Watkins was actually engaged in the

per formance of his duties of a peace

officerc, if indeed he was a peace officer

(Trial Transcript, 1068-1071, 1100-1106),

required by the statute. T.C.A.

§39-2-203(i)(9). Mr. Livingston's failure

to recognize the requirements of the

Statute and to conduct his examination

accordingly was clearly error.

Mr. Livingston testified that it was

always one of his trial tactics to go to

trial when he was forced to do so (Tr.,

=» €2

eee

366). Apparently there was some confusion

as to the exact trial date. At one time

the trial was set to commence on

October 31, 1977. However, Mr. Livingston

testified that on October 7, 1977 (ten days

before the actual trial date), the trial

date was moved forward approximately two

weeks to October 17, 1977 (Tr., 381). The

Petitioner indicated that he was confused

as to the status of the matter on

October 17, 1977. He was under the

impression that the case was going to be

postponed (Tr. 120-121, 365-366). Mr.

Livingston testified at the hearing that he

probably thought the case would be

continued on October 17, 1977, since this

was the first setting, and he further

testified that he probably told the client

that the case would be continued (Tr.

365-366).

~ Oe

Inadequate investigation and

preparation on the part of Mr. Livingston

was also evidenced during the voir dire.

During the voir dire, Mr. Livingston

indicated a lack of a working familiarity

with the dictates of Witherspoon vv.

Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20

L.Ed.2d 776 (1968). Mr. Livingston made no

attempt to rehabilitate any witness which

was challenged by the State on Witherspoon

grounds (Trial Transcript, 16-264). In

fact, Mr. Livingston did not have a copy of

the Witherspoon opinion in his file for

study or for reference purposes, and he

indicated at the hearing that he made no

study of the Witherspoon line of cases in

preparation for the trial (Tr. 370-371).

Mr. Livingston had 15 preemptory challenges

available to him but used only six and used

these six all at one time without further

inguiry of the venire (Tr. 367-368).

= 65 -

II.

The Trial Judge Erred in Dismissing the

Petition for a Writ of Error Coram Nobis

At the hearing which commenced upon

December 6, 1983, the Petitioner was

prepared to introduce evidence in support

of a Petition for a Writ of Error Coram

Nobis. The Trial Court ruled, upon motion

of the State, that the Petition would be

dismissed because the Court felt that the

evidence sought to be introduced was

insufficient as a matter of law under the

design .. intent of T.C.A. §40-26-105 (Tr.

55-57). However, the Trial Court accepted

an offer of proof in the form of a

statement of Levi Aaron Haywood (Tr.

57-60).

Upon receiving knowledge of the

existence of a letter postmarked some time

in March, 1978 (some four or five months

after the Petitioner's trial) from Mr.

= 66 <«

Haywood and addressed to a relative of the

Petitioner, the Petitioner's present

counsel went to the State Penintentiary in

Nashville, Tennessee on March 14, 1978, to

take the statement previously referred to.

In this statement Mr. Haywood states that

in a conversation with Terry Casteel during

the period of time after the Petitioner's

trial, Casteel told him that he (Casteel)

had lied during the Petitioner's trial when

he told the jury that the Petitioner had

hired Jack Blankenship to kill Julian

Watkins.

The Petitioner, at the hearing, was

prepared to put Mr. Haywood on the stand to

testify in accordance with his statement.

The Petitioner also was prepared to call

Terry Casteel as a witness.

The writ of error coram nobis

developed at common law to relieve

litigants, both civil and criminal, from

» 67 «

judicial wrongs for which there is no

remedy. 18 Am.Jur.2d CORAM NOBIS, ETC. §l,

p.446. Generally, the writ of error coram

nobis is an extraordinary and residual

remedy to correct or vacate a judgment on

facts or grounds not appearing on the face

of the record and not available by appeal

or otherwise, and not discovered until

after rendition of the judgment, without

fault of the party seeking relief. 24

C.J.S. Criminal Law §1602(2), p.667. The

existence of the writ, and its application,

is designed to purify and keep pure the

administration of justice and is designed

ve enable a convicted person to establish

that the conviction was procured under

circumstances which offend fundamental

conceptions of justice and, as a result, it

is submitted that the writ constitutes part

of the protection afforded by the due

process of law clause of the

= 68 «

Constitution.4/ Id.

In many jurisdictions the writ of

error coram nobis, or some form thereof,

has been codified by statute. Id., at

p.449. Tennessee is such a jurisdiction.

T.C.A. §40-26-105 (formerly T.C.A.

§40-3411).

Tennessee Code Annotated §40-26-105

was originally enacted in 1955. Its

enactment was an obvious reaction to the

case of Green v. State, 187 Tenn. 545, 216

4/ The Court has previously held that the

constitutional requirements of due

process is not satisfied when a

conviction is obtained under

circumstances which would afford a

basis of relief under the petition for

writ of error coram nobis. Mooney v.

Holohan, 294 U.S. 103, 110-112, 55

S.Ct. 340, 79 L.EG.2d@ 791 (1935).

Although the relief available under

the Tennessee coram nobis statute may

go beyond the relief avilable at

common law, it is submitted that the

relief avilable under the statute is

commensurate with the protection

afforded by due process of law.

= 69 -

S.W.2d 305 (1948), wherein it was held that

a writ of error coram nobis was unavailable

in criminal cases because the statute

provided for the writ of coram nobis only

in civil cases.

As it currently exists, T.C.A.

§40-26-105 provides as follows:

"There is hereby made

available to convicted defendants

in criminal cases a proceeding in

the nature of a writ of error

coram nobis, to be governed by

the same rules and procedure

applicable to the writ of error

coram nobis in civil cases,

except insofar as_ inconsistent

herewith. Notice of the suing

out of the writ shall be served

on the district attorney general.

No judge shall have authority to

order the writ to operate as a

supersedeas. The court shall

have authority to order’ the

person having custody of the

petitioner to produce him in

court for the hearing of the

proceeding. The relief

obtainable by this proceeding

shall be confined to errors

dehors the record and to matters

that were not or could not have

been litigated on the trial of

the case, on a motion for a new

trial, on appeal in the nature of

a writ of error, on writ of

«= 970 «

error, or in a habeas corpus

proceeding. Upon a_ showing by

the defendant that he was without

fault in failing to present

certain evidence at :i€ proper

time, a writ of error coram nobis

will lie for subsequently Or

newly discovered evidence

relating to matters which were

litigated at the trial if the

judge determines that such

evidence may have resulted in a

different judgment, had it been

presented at the trial. The

issue shall be tried by the court

without the intervention of a

jury, and if the decision be in

favor of the petitioner’ the

judgment complained of shall be

set aside and he shall be granted

a new trial in that cause. In

the event a new trial is granted

the court may, in its discretion,

admit the petitioner to bail,

provided the offense be bailable.

If not admitted to bail the

petition shall be confined in the

county jail to await trial. The

petitioner or the state may pray

an appeal in the nature of a writ

of error to the Supreme Court

from the final judgment in this

proceeding." (Emphasis Added).

That portion of the’ statute which has been

underlined above is the 1978 amendment.

The Amendment did not change any of the

language of the statute as originally

enacted; it merely added to the statute.

“ae

eaten ¢ Se: >

ae hak ike ee.

Be 2

“tas 2 ores

* ae i Sard wna a aad inka

Prior to the time that T.C.A.

§40-26-105 was amended in 1978, the Supreme

Court of Tennesese indicated that a writ of

error coram nobis would not lie for false

testimony. Rowe v. State, 498 S.W.2d 322,

325-326 (Tenn. 1973). Since it is apparent

that subsequently, or newly discovered

evidence of perjured testimony at trial

relates to matters which were litigated at

trial (i.e. credibility of the particular

witness), it seemed that considering such

evidence was not proper in determining

whether to grant a writ or error coram

nobis.

It is apparent that the 1978 amendment

was designed either to expand the

availability of the writ or to clarify that

the writ did exist as to subsequently or

newly discovered evidence although it

relates to matters which were litigated at

the trial.

os 3% «

seh ive-

On third and final reading of the

amendments, the sponsor of the amendment

had this to say:

"...-(TJhis legislation came as

the result of the attorney in

Knoxville contacting me in regard

to a case which occurred where

after the time for, uh, properly

filing motion for a new trial it

was discovered that the witness,

who had in effect resulted in the

conviction cf a defendant, had

lied, and, uh, a man had been

falsely convicted and this, uh,

Bill provides language where a

Writ of Coram, uh, Error Coram

Nobis would be permitted, uh, if

the Judge determines that such

evidence may have resulted ina

different judgment and is

designed to correct the situation

where evidence comes up later on

after the time for properly

filing motion for, new trial,...."

(Senate . Debate on House Bill

No. 1835, March 22, 1978).

The floor debates on the statutes

being considered by the Tennessee

General Assembly are available through

cassette tapes on file with the

Tennessee State Library and Archives

in Nashville, Tennessee. The Supreme

Court of Tennessee has sanctioned the

use of the debates of the General

Assembly in determining legislative

intent. Watts v. Putnam County, 525

S.W.2d 488, 492, n.4.

» 93 «

Thus, it clearly appears that a writ of

error coram nobis will be available in a

Situation where it appears that a witness

at a petitioner's trial has _ perjured

himself.

It iS apparent that the Tennessee

Legislature, as a matter of public policy

of this state and in an effort to see that

due process is afforded to those convicted

of a crime, sought to assure that

subsequently or newly discovered evidence,

although relating to matters litigated at

trial, would be considered in determining

whether a writ of error coram nobis’ should

be granted. It is thus’ submitted that

subsequently or newly discovered evidence

demonstrating that Terry Casteel, the

witness essential to the State's case

against the Petitioner, had perjured

himself at the Petitioner's trial was

» 94 «

proper evidence in considering whether a

writ of error coram nobis should be issued.

The Attorney General and the Court of

Criminal Appeals took the position that the

testimony of Levi Haywood does not qualify

as a proper basis for coram nobis relief

under T.C.A. §40-26-105. It was asserted

that the testimony of Levi Haywood would

merely be impeachment evidence. The

characterization of the testimony of

Haywood as “impeachment” testimony does not

change the fact that it constitutes

evidence that Terry Casteel per jured

himself in testifying that the Petitioner

had hired Blankenship to commit the murder.

If such evidence is newly discovered, it is

clear that such evidence should have been

considered in determining whether a writ of

error coram should be issued.

Such evidence is admissible to

demonstrate perjury. The faisity of a

= 7§ «=

Such evidence is admissible to

demonstrate perjury. The falsity of a

statement made by one accused of perjury

may be shown by any competent evidence,

such as statements, either verbal or in

writing under oath or unsworn, which

conflict with the allegedly false

statement. 70 C.J.S. Perjury §59, p.530;