Elliot Wayne White v. W. J. Estelle, Jr., Director, Texas Department of Corrections , 566 F.2d 500 ( 1978 )

THORNBERRY, Circuit Judge:

In November of 1972 petitioner-appellee, Elliot Wayne White, was charged by a Harris County Grand Jury with the theft of an automobile. Before action could be taken on that indictment, White was charged separately with the theft of some tools. Confusion between those two cases occasions this appellate review. White was convicted in the automobile case. On direct appeal to the Texas Court of Criminal Appeals he argued that he had been denied effective assistance of counsel because his attorney had justifiably believed that the tool case, rather than the automobile case was to be tried. The Texas Court of Criminal Appeals rejected that argument on the basis that his counsel’s oral motion for continuance did not meet Texas procedural standards, which require such a motion to be written and sworn.¹

White then brought a habeas action in federal district court. In that habeas action, the state argued primarily that White had engaged in chicanery to gain a nine month delay and that any lack of preparation on the part of counsel was White’s own fault. White argued that his counsel had “learned about the case as he tried it” and that the lack of preparation was due to the state’s action in leading counsel to believe that the tool case rather than the auto case would be tried. The district court granted White habeas relief on ineffective assistance grounds and the state appealed.

Both parties have consistently .characterized the problem in this case as one of ineffective assistance of counsel. For the reasons set out below, we affirm the district court’s grant of habeas relief because the peculiar sequence of events that lead to his trial on the “wrong” case amounted to a violation of the Due Process Clause of the Fourteenth Amendment. Because of our resolution of the case we need not address White’s complaints about improper prosecu-torial argument.

Between December 1972, when the two indictments were returned, and August 1973, when the automobile case was tried, White had four - different attorneys. He retained the first two, each of whom withdrew from the case. The state alleges that the attorneys withdrew because White failed to keep appointments with them. White argues, and the district court found, that he failed to keep those appointments because he could not possibly pay the attorneys and he knew that they would not do any investigation until he did. On appeal we are bound by that finding unless it is clearly erroneous. Jones v. Wainwright, 406 F.2d 1241 (5 Cir. 1969). In June of 1973 the court found that White was a pauper and appointed counsel to represent him. On August 1, that appointed counsel came to see White, who was by that time in jail, and told him that the tool case was going to trial on August 13. He advised White to plead guilty. White refused. He then convinced his wife to come up with the money to employ a fourth attorney, Charles Szekely-

The date of Szekely’s employment is a matter of some dispute. The state urges that the docket sheet reflects that Szekely was employed in the automobile case on August 2, 1976 and that he thus had over ten days to prepare for trial. Both White and Szekely argue that the entry is erroneous and the district court so found. That court accepted White’s argument that on August 2 he employed Szekely in the tool case only. We think that finding is not clear error. See Jones v. Wainwright, supra. White apparently believed that the tool case was coming up, that he could not pay Szekely for both cases, and was, therefore, attempting to cross each bridge as he came to it. On August 13, Szekely attended docket call with White in the tool case and for the first time discovered that the second case, involving the automobile, was also pending against White. Szekely left the courthouse on August 13 prepared to try the tool case and to provide later representation to White in the auto case. On August 15 when he was called to trial he entered the courtroom to find that it was the automobile case. He moved for continuance, arguing his recent employment. The visiting trial judge denied the motion and instructed his clerk to enter in the record that Szekely had been employed on August 2.

The district court’s fact finding in regard to the August 13 docket call is of some importance because it bears on the source of Szekely’s belief that the tool case would be called and on whether or not that belief was justified. The district court found that:

On August 13, (a Monday) petitioner’s cases were called . . .. Both Szekely and Stanley stood up to answer for petitioner. Szekely learned for the first time that the auto theft charge was pending against petitioner. After talking to petitioner, Szekely agreed to represent him in that case as well and Stanley was allowed to withdraw from both cases. The court denied the motion for continuance in the tool case. The court issued a bench warrant for the defense’s main witness in that case, who was in prison. Counsel were instructed to hold themselves ready for trial.

The docket sheets indicate that the two cases had continually been carried together and had received identical treatment prior to August 13. The district court’s finding demonstrates that all of the significant actions at the August 13 docket call had reference to the tool case rather than the automobile case. We have no doubt that the actions of the court at the docket call, in overruling motions related to the tool case and summoning witnesses for it, justifiably led Szekely to think that he was standing ready for trial in the case with which the court had dealt in the docket call — the tool case. Further the fact that court-appointed counsel appeared at the docket call and that his withdrawal from the case was subject to judicial approval mean that the docket call judge had reason to know of Szekely’s just-completed entry into the automobile case.

When Szekely appeared in court on August 15, things were otherwise. White’s case had been assigned to a visiting judge, who, of course, knew nothing of the August 13 events. Through some confusion, the automobile case was called. When the trial judge called for the trial to begin, Szekely protested his recent employment. The visiting judge, who had no way to discern what had transpired saw only two cases that had received identical treatment.² He then ordered the clerk to enter into the record that Szekely had been employed on August 2. Although this entry was made in good faith, it was erroneous.

Both the defendant and the State of Texas characterize this case as one of ineffective assistance of counsel. A prerequisite for such a claim involving retained counsel is that some responsible state official connected with the criminal proceedings who could have remedied the conduct failed in his duty to accord justice to the accused. Fitzgerald v. Estelle, 505 F.2d 1334 (5 Cir. 1975). As the court said in Fitzgerald:

Therefore, if the trial judge can be shown to have actually known that a particular defendant is receiving incompetent representation and takes no remedial action, the state action requirement is satisfied.

We are reluctant to apply that standard to this case for several reasons. First it would require us to cast blame on the visiting trial judge. We think that would be difficult to do in this case. The information that he had led him to believe reasonably that Szekely had been employed on August 2. He thought that counsel had had over ten days to prepare. It cannot, therefore, be said that the trial court knew that the defendant was receiving incompetent representation. We are also unwilling to cast this opinion in the ineffective counsel mold because we feel that White’s counsel was not blameworthy. Our primary reason for refusing to categorize this case as one of ineffective counsel stems, however, from the fact that it is only with hindsight that the prejudice to petitioner becomes apparent. To engraft a case turning on hindsight into our ineffective counsel cases, would, we feel, lead to future problems.

Nor does this case fall neatly into a pigeon hole labelled “trial-court's-abuse-of-discretion - in - failing - to - grant - a - continuance.”³ See Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1969); United States v. Uptain, 531 F.2d 1281 (5 Cir. 1976). In the cases involving abuse of discretion, however, we find our starting point for analyzing this problem. First we note that the approach to cases involving abuse of discretion in failure to grant a continuance are subject to no mechanical resolution, Ungar, supra, and depend for their answer on the circumstances present in every case, Uptain, supra. We also note that other circuits have, in deciding whether a denial of a motion for continuance amounted to a Due Process denial, considered both abuse of discretion and whether manifest injustice would result if the trial continued. Cf. United States v. Collins, 435 F.2d 698 (7 Cir. 1970).

We adopt a similar rationale in this case. Viewing White’s prosecution under a totality of circumstances theory, we find on the one hand an attorney who justifiably relied on the actions of a court at docket call which lead him to believe that he would try a case involving the theft of some tools and on the other hand a visiting judge who, despite the attorney’s attempt to convince him otherwise, in good faith believed that the attorney had had the case for ten days and was making a garden variety motion for continuance. We hold that on the facts and circumstances of this case, the continuation of White’s trial resulted in manifest injustice because of his attorney’s justifiable reliance on court actions which led him to believe that a wholly different case would be tried. The judgment of the district court is AFFIRMED.

1 . The Texas Rules of Criminal Procedure clearly set out requirements that a motion for continuance must be both written and sworn. Recent Supreme Court rulings indicate that a habeas petitioner must show both “cause” for failure to follow a state procedural rule and “prejudice” resulting to him from that state procedural default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977); Francis v. Henderson, 425 U.S. 536, 96 S.Ct. 1708, 48 L.Ed.2d 149 (1976). On the facts of this case we find that White has met those requirements. We assume that the state has a strong interest in requiring motions for continuance to be written and sworn in the normal course of events. Such requirements may tend to eliminate frivolous motions made solely as delaying tactics. That assumption is inapplicable in a case such as White’s in which the action of the state court itself made necessary the procedural default that occurred.

2 . Szekely’s motion for continuance may have played some part in the confusion. His oral motion mentioned both his recent employment and the fact that he had been out of town for ten days. The latter fact, of course, would have been no excuse since an attorney could not bolster a claim of lack of preparation by simply absenting himself.

3 . We recognize, of course, that we may review a state court’s refusal to grant a continuance only to determine whether that failure amounted to a denial of due process.