Roosevelt Mitchell v. United States , 259 F.2d 787 ( 1958 )

PRETTYMAN, Circuit Judge.

-tj.tj.-j j Mitchell was indicted, tried and convicted for carnal knowledge of a seven-year-old girl. He was sentenced on October 22, 1953. He was defended by counsel appointed by the District Court. On December 17, 1956, he filed a motion under Section 2255, Title 28, United States Code, to vacate his sentence, The District Court denied the motion without a hearing. It also denied leave to appeal without prepayment of costs. Petition for such an appeal was filed in this court and was allowed. Counsel was appointed. The cause is now before us upon the appeal from the denial of the Section 2255 motion.

, , . The point made by Mitchell here is that he was without the effective as-«stance of counsel at his trial; that the representation by his court-appointed counsel was inadequate. He specifies that counsel failed to move for acquittal, failed to cross-examine, failed to object to hearsay evidence, and failed to object to a patently erroneous charge to the jury. His present counsel urges that Mitchell sufficiently _ alleged a de-mal of a constitutional right. He says the Sixth Amendment guarantees the effective assistance of counsel.

It is well established that the acts of counsel specified by Mitchell do not, in and of themselves, entitle him to relief under Section 2255. A j’udgment of conviction cannot successfully be attacked collaterally on such grounds, and a motion under Section 2255 is a •collateral attack. Therefore, in order to get standing upon such a motion, Mitchell has bundled these alleged failures together and contends that, taken together and in sum total, they constitute ineffective assistance of counsel violative of the Sixth Amendment and therefore raisable under a collateral motion. Similar motions and petitions have become so numerous, and the present one was so thoroughly and brilliantly presented to us, that we take occasion to examine the problem and to state our views upon it in some detail.

We must first delimlt our inquiry, Wg are not considering a case of alle¡?ed Physical or mental disability on the Part of counsel, or of intoxication, fraud or misrepresentation, dual intenest> insufficient time for preparation, or inadequate notice. Such situations have sPecial features. We are here concerned with allegations directed solely to.the ski11- the relative competence, of trial counsel in matters as to which counsei made decisions, or would have to make decisions, in the course of the trial.

The question before us is not the bare question of the right to counsel. MitcheU had counsel; and tbig lawyer wag pregent and participating. We note that thig Iawyer wag a weI1_known, experienced) and able member of our trial bar. Mitchell says he did not have the effective assistance of counsel; the agsigtance rendered him was not effec-tjve> What ig meant by «effective as_ gigtance„ in the application of the re_ quirement of the gixth Amendment for „the Aggigtance of Counsel for his de. fence” ?

Of course, as a matter of literal semantics assistance is never effective unless it has the effect sought, that is, unless it is successful. If we were to ascribe that meaning to the term “effective assistance of counsel” in the representation of persons accused of crime, we would produce a rule which said that an alleged criminal is entitled, as a constitutional right, to counsel whose efforts are successful. We need not iabor tbe point. “Effective” assistanee of counsel obviously means something other than successful assistance,

A bit of history helps us here. The Congtitution itself says notbing about “effective” assistance; it merely says “Assistance”. The adj'ective “effective” came into the law in Powell v. State of Alabama¹ and was used by the Supreme Court to describe a procedural requirement. In a particularly heinous crime the trial court appointed the whole bar of the county to defend. But what was everybody’s business was nobody’s business, and the Court used the word “effective” twice — regarding “an effective appointment” and an assignment at such a time or under such circumstances as to preclude “effective aid” in preparation and trial.

The Supreme Court has also discussed the matter and made rulings in respect to it in Von Moltke v. Gillies,² Glasser v. United States,³ Johnson v. Zerbst,⁴ Betts v. Brady,⁵ Avery v. State of Alabama,⁶ Ex parte Hawk,⁷ White v. Ragen,⁸ and Hawk v. Olson.⁹ It is clear from these opinions that the term “effective” has been used by the Supreme Court to describe a procedural requirement, as contrasted with a standard of skill. The Court has never held that an accused is entitled to representation by a lawyer meeting a designated aptitude test. It has never used the term to refer to the quality of the service rendered by a lawyer. The Court has clearly established that an indigent accused is entitled to counsel, if he wants one, despite his inability to pay for the service; that appointed counsel must have reasonable opportunity to prepare for his task of defense 5 and that the lawyer s° aPpomted mugt have no divergent mterest; But the Court has not itself undertaken, nor has it imposed upon inferior federal courts, the duty of appraising the quality of a defense.

The federal circuit courts of appeals have written many opinions in this field, Some of those cases are cited in the margin.¹⁰ Through these opinions run some unanimous views. It has been repeated so many times as to become axiomatic that convicted felons almost unanimously relish the prospect of putting to public judicial test the competence of their erstwhile defenders; that almost any judge or lawyer can point to potential mistakes in reviewing the record of a lost cause; and that even trial counsel, having lost, can almost invariably enumerate what in the hindsight of disaster appear to have been errors.

We find no case in which another federal court has gone as far in granting relief upon allegations of incompetence of counsel as we went in Jones v. Huff.¹¹ There it was alleged that counsel failed to object to a coerced confession, failed to subpoena known witnesses for the defense, failed to call a handwriting expert on a charge of forgery, and failed to offer a sample of handwriting although^ a juror requested it. We held that if counsel ha in fact failed in all those respects the accused had not had a trial in any real sense. We adhere to the rule we^there laid down. We think the term effective assistance” in the constitutional sense cannot be expanded beyond the meaning given it in that case.

We find no case in which a federal court has granted a writ upon a plea that counsel was incompetent in his method or course in presenting the de- „ T . _ „ ,, fense. Judge Denman of the Ninth ...... , „ Circuit, acting alone on a petition for a writ on allegations of incompetent and unprofessional counsel, ordered the release of the accused,¹² but his brethren of the full bench unanimously reversed.¹³

We in this court have examined the problem several times¹⁴ before and after Jones v. Huff, supra. We have been consistent in our views upon the problem and adhere to them now.

The rule that matters open upon appeal cannot be raised collaterally rests upon ^ a solid foundation; it is not a technicality. Justice must have order; it cann°t exist in chaos. In fairness an accused is given an opportunity to present to a reviewing court his allegations of error upon his trial. But the essence of justice is the application of Iaw to duly established facts. Normal-]y> review must come while the matter js fresh, while witnesses, judges and lawyers are available, while memories are accurate. Hence the Rules of Procedure establish time limits for the tak¡ng 0f gUch a review. Those Rules have foeen adopted both by the Supreme Court and by the Congress. To permit a convjcted person to wait months, or even yearg as is frequently the case, after the actors have gone and recollections cannot be refreshed, and then to secure review consideration of alleged errors open upon the normal processes of appeal, is to damage, if not destroy, an essential element in the rule of law, the element of accurate impartiality. Of course- and we emphasize it, if an accused has not. had a and a one m the jurisprudential sense of that , ... , . word, the courts will supply a remedy. We do gQ upon oceasion_ But it ig an extraordinary remedy. Courts ought no£ — must not' — forget that our vaunted ru¡e 0[ ¡aw jg a structure of rules; it js not an amorphous jelly of judicial pleasure. The rule of law is government by rules properly adopted. The precise opposite of that prized system is a practice of disposing of each case without regard to rules and according to the individual and perhaps ephemeral pleasure — or opinion — of a judge. The rule that questions open upon appeal must be raised by appeal is a rule of law, and it is a sound and solid rule, Much has been written in law journals on the subject of the assistance of counsel. Even a summary examination of the material would unduly prolong this discussion. Able articles appear in the U.C.L.A. Law Review,¹⁵ the University of Chicago Law Review,¹⁶ the Columbia Law Review,¹⁷ and the Texas Law Review,¹⁸ among others.

But, it is argued to us, all Mitchell now wants is a hearing on his petition and that surely he should have a hearing. There is the crux of the difficulty, What would the hearing concern? It would concern the professional competence of Mitchell’s trial counsel. Mitchell, of course, if granted such a hearing, would have a right to put on evidence; he would endeavor to demonstrate his counsel was incompetent. The lawyer involved would have a right to put on evidence; he would try to show te competence of his advocacy. The issues would be those specified by Mitchell in his petition. The proceeding would be public, of course. The judge would decide whether the lawyer’s conduct was ineffective or effective, incompetent or competent. Obviously such a proceeding, if permitted generally, would ensue upon almost every guilty verdict; almost every convicted person can think up several points in his trial where the course taken by his lawyer could have been different; and he has nothing to lose by a few extravagant claims.

Trial counsel must make many decisions of an almost infinite variety in the course of a criminal trial: whether to advise a plea to a lesser offense; whether to object; whether to offer a witness of possibly doubtful credibility or with a criminal record; whether to risk crystallizing the view of the judge at that point by a motion for directed verdict before the defense testimony is in; whether to advise the defendant to take the stand and subject himself to cross examination; how to argue the case to the jury; whether to advise the defendant not to go to trial at all but rather to rely upon the mercy of the court. All these and more are practical questions and very real questions. Bad judgment, or even good but erroneous judgment, may result in adverse effects. These are simple facts of trial; they ara n°t justiciable issues.

Common understanding among criminals has it, so we are told, that a smart lawyer can “walk his man out”, guilty or not guilty. But such underworid romancing has no place in the serious consideration of any court. A lawyer, employed or appointed, is under obligation to defend with all his skill an(! energy, but he also has moral and ethical obligations to the court, embodied in the canons of ethics of the profession. Mere failure to achieve ac~ quittal is no part of a court’s consideration of the work of a trial lawyer. His-obligation is to achieve a fair trial, not. to see that his client is acquitted regard^ess °f the merits.

There are a number of reasons-why a hearing on a motion based upon alleged incompetence of counsel cannot, be had unless the specifications of the-motion are sufficient to indicate a lack of fair trial in the real sense of that, abused term; moreover the specifications, even if impressive upon their face,, must withstand initial checking for verity or, at the least, probability of verity.

In the first place the suggested process would disrupt the established funetion of trial judges. The trial of a. case has different parts. The part of: the lawyer is adversary advocacy. The part of the judge is to insure fairness, to speak upon the law, perhaps to find what the evidence proves. It is no part of the judge’s function to evaluate the relative efficacy of trial tactics. If a trial judge were to understand that after the trial he would in all probability be called upon to determine whether each or any of the trial steps taken by the defense was or was not “ineffective”, his whole attitude toward and conduct of the trial would change. We think this would destroy the concept of an impartial judge, a concept basic to our system.

If the trial judge were required, after a trial has been concluded, to judge the validity of the trial by appraising defense decisions, he would also be under an obligation to protect those rights of an accused as the trial progressed; in other words, from point to point throughout a trial the judge, under such a system, would be compelled to assure himself that the various tactical steps being taken by the defense were not “ineffective” or “incompetent”, Any such procedure is, of course, impossible.

Moreover the constitutional right of an accused to the assistance of counsel might well be destroyed if counsel’s selections upon tactical problems were supervised by a judge. The accused is entitled to the trial judgment of his counsel, not the tactical opinions of the judge. Surely a judge should not share the confidences shared by client and counsel. An accused bound to tactical decisions approved by a judge would not get the due process of law we have heretofore known. And how absurd it would be for a trial judge to opine that such- and-such a course was ineffective or incompetent because it persuaded him (the judge) to decide thus-and-so adversely to the accused.

And this brings to attention another feature of a court proceeding which contemplated a later adjudication of the competence of the defense. Defense counsel, having made an error in judgment which rendered the defense demonstrably “ineffective”, would necessarily be afforded an opportunity to correct his own error. He would surely be entitled to protect his client on the spot by trying another route. Every time counsel concluded he had made a mistake he would be entitled to a hearing on the point, and if he had indeed made an error a mistrial would be ordered, The impossibility of any such system seems clear enough,

Furthermore a retrospective evaluation of trial tactics is, generally speak-jng; impossible. Whether a certain course was “ineffective” or “incompetent” must be judged by the result, one would suppose. But in a vast majority of instances it is impossible to say that another course would have produced a different result.

Another imperative reason against permitting the procedure sought here is that it would destroy the representation of indigent criminals by the bar. No reputable member of the bar would, nor indeed should, undertake as a pub-lie duty the defense of an accused, if the courts were to permit the client thereafter to institute, by allegations as trial tactics, a public inquiry into the professional competence of the lawyer, This would surely be the end of the lawyers duty to accept assignments by ^e courts. One of the great protections the unfortunate would be gone, destroyed not by the bar but by the courts,

We think the term “effective assistance” — the courts’ construction of the constitutional requirement for the assistance of counsel — does not relate to the quality of the service rendered by a trial lawyer or to the decisions he makes in the normal course of a criminal case; except that, if his conduct is so incompetent as to deprive his client of a trial in any real sense — render the trial a mockery and a farce is one descriptive expression, — the accused must have another trial, or rather, more accurately, is still entitled to a trial,

A convicted person cannot bring about a judicial hearing upon and determination of the trial competence of defense counsel by making allegations which, either on their face or after mi-tial testing for verity, fail to indicate a lack of skill so great that the accused in realistic fact had not a fair trial An accused cannot bring about a judicial evaluation of the quality of a defense, he is entitled only to allege and show that the proceeding was not a fair trial,

The statute rests the right to a hearing upon an examination of the motion and the records and files of the case. A motion which shows no ground for granting it conclusively shows it will be denied; conclusively shows no relief will be granted. This conclusion rests upon a simple elementary basis. If such a movant proved all the facts he alleges, he would get no relief; the conclusion flows as readily from the face of the allegations as from their proof. The necessity for the allegation of facts was pointed out by the Supreme Court in Walker v. Johnston.¹⁹ It is not only a sound rule; it is a necessary one. The basic problem was befoi’e us in WJR, The Goodwill Station v. Federal Communications Comm.,²⁰ and the Supreme ^ Court, reversing this court,²¹ established the rule for that type of ease. The rule is more definitely required in the type of motion now before us, as well appears from all we have said. If a movant under Section 2255 makes no allegations of ineffectiveness or incompetence °f counsel, save m matters normally within the realm of counsel’s judgment, he is not entitled to a hearing. Under such circumstances a hearing would be useless, an inexcusable waste of time, energy and money, because even if the movant proved what he alleged he would not be entitled to relief. The substantial considerations we have discussed forbid that a useless formality, fraught with serious consequences to the administration of law, be indulged to no purpose.

A11 of Mitchell’s allegations fajj wej] within the area of trial decigiong> He says his counsel was incompe. tent becauge the child involved did not identify him on the witness stand. But her failure to do g0 wag in hig favor; certainly be would not have gained if gbe bad identified him. Mitchell says tbe testimony of the mother and the grandmother was hearsay. But, if it was, its admission was a simple error of law and the point cannot be raised on a motion under Section 2255. As far as it bears on competence, objections to the testimony of the mother and grandmother of a seven-year-old child allegedly raped are well within the estimate of trial counsel in the atmosphere of the courtroom. This is a difficult decision; a correct answer to it one way or the other in different circumstances is of the very essence of skillful trial conduct.

What has been said about a hearing applies in this case in respect transcript. For purposes of the hearing vel non we assume that the transcript would prove what the petition recites as having occurred in the trial. Even upon that assumption no hearing was warranted. A transcript -would show no more. We find no purp0ge be serVed by furnishing free of charge a transcript. A transcript is not necessary to a decision upon the mo-yon

Thg order of the District Court ig

Affirmed.

1 . 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

2 . 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).

3 . 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942).

4 . 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

5 . 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942)

6 . 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940).

7 . 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572 ^9441

8 . 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945>-

9 . 326 U.S. 271, 66 S.Ct. 116, 90 L.Ed. 61 (1945).

10 . United States v. Wight, 176 F.2d 376 (2 Cir., 1949), certiorari denied 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); United States v. Mitchell, 138 F.2d 831 (2 Cir., 1943), certiorari denied 321 U.S. 794, 64 S.Ct. 785, 88 L.Ed. 1083 (1944); United States v. Handy, 203 F.2d 407 (3 Cir., 1953), certiorari denied 346 U.S. 865, 74 S.Ct. 103, 98 L.Ed. 375 (1953); United States v. Helwig, 159 F.2d 616 (3 Cir., 1947); Carvell v. United States, 173 F.2d 348 (4 Cir., 1949); Burkett v. Mayo, 173 F.2d 574 (5 Cir., 1949); Andrews v. Robertson, 145 F.2d 101 (5 Cir., 1944), certiorari denied 324 U.S. 874, 65 S.Ct. 1013, 89 L.Ed. 1427 (1945); Norman v. United States, 100 F.2d 905 (6 Cir., 1939), certiorari denied 306 U.S. 660, 59 S.Ct. 790, 83 L.Ed. 1057 (1939); Pelley v United States, 214 F.2d 597 (7 Cir., 1954), certiorari denied 348 U.S. 915, 75 S.Ct. 296, 99 L.Ed. 718 (1955); United States v. Hack, 205 F.2d 723 (7 Cir., 1953), certiorari denied 346 U.S. 875, 74 S.Ct. 127, 98 L.Ed. 383(1953) ; United States v. Ragen, 178 F.2d 379 (7 Cir., 1949), certiorari denied 339 U.S. 905, 70 S.Ct. 515, 94 L.Ed. 1334 (1950); United States v. Ragen, 176 F.2d 579 (7 Cir., 1949), petition for certiorari dismissed 338 U.S. 809, 70 S.Ct. 49, 94 L.Ed. 489 (1949); United States v. Ragen, 166 F.2d 976 (7 Cir., 1948); Sweet v. Howard, 155 F.2d 715 (7 Cir., 1946), leave to file petition for certiorari denied 336 U.S. 950, 69 S.Ct. 877, 93 L.Ed. 1105 (1949); Achtien v. Dowd, 117 F.2d 989 (7 Cir., 1941); Maye v. Pescor, 162 F.2d 641 (8 Cir., 1947) ; Conley v. Cox, 138 F.2d 786 (8 Cir., 1943); Hagan v. United States, 9 F.2d 562 (8 Cir., 1925); Mays v. United States, 216 F.2d 186 (10 Cir., 1954); Wheatley v. United States, 198 F.2d 325 (10 Cir., 1952) ; Moss v. Hunter, 167 F.2d 683 (10 Cir., 1948), certiorari denied 334 U.S. 860, 68 S.Ct. 1519, 92 L.Ed. 1780 (1948); Willis v. Hunter, 166 F.2d 721 (10 Cir., 1948), certiorari denied 334 U.S. 848, 68 S.Ct. 1499, 92 L.Ed. 1772 (1948); Thomas v. Hunter, 153 F.2d 834 (10 Cir., 1946); McDonald v. Hudspeth, 113 F.2d 984 (10 Cir., 1940) certiorari denied 311 U.S. 683, 61 S.Ct. 64, 85 L.Ed. 441 (1940).

11 . 80 U.S.App.D.C. 254, 152 F.2d 14 (1954).

12 . McDonald v. Swope, 9 F.Supp. 30 (D.C.1948).

13 . Swope v. McDonald, 173 F.2d 852 (1949), certiorari denied 337 U.S. 960, 69 S.Ct. 1522, 93 L.Ed. 1759 (1949).

14 . E. g., Diggs v. Welch, 80 U.S.App.D.C. 5, 148 F.2d 667 (1945), certiorari denied 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945); Burton v. United States, 80 U.S.App.D.C. 208, 151 F.2d 17 (1945), certiorari denied 326 U.S. 789, 66 S.Ct. 473, 90 L.Ed. 479 (1946) ; Felton v. United States, 83 U.S.App.D.C. 277, 170 F.2d 133 (1948), certiorari denied 335 U.S. 831, 69 S.Ct. 18, 93 L.Ed. 385 (1948) ; Strong v. Huff, 80 U.S.App.D.C. 89, 148 F.2d 692 (1945), certiorari denied 326 U.S. 768, 66 S.Ct. 165, 90 L.Ed. 463 (1945); Johnson v. United States, 71 App.D.C. 400, 110 F.2d 562 (1940).

15 . Comment, 4 U.C.L.A.L.Rev. 400 (1957).

16 . Comment, 17 U.Chi.L.Rev. 718 (1950).

17 . Note, 47 Colum.L.Rev. 115 (1947).

18 . Potts, Right to Counsel in Criminal 0ases: Legal Aid or Public Defender, 28 Texas L.Rev. 491 (1950).

19 . 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941).

20 . 84 U.S.App.D.C. 1, 174 F.2d 226 (1948).

21 . Federal Communications Comm. v. WJR, The Goodwill Station, 337 U.S. 265, 69 S.Ct. 1097, 93 L.Ed. 1353 (1949).