Larry Gene Heath v. Charlie Jones, Warden , 941 F.2d 1126 ( 1991 )

EDMONDSON, Circuit Judge,

concurring in part and concurring in the judgment:

I join in the result and in most of what Judge Johnson has written. But I disagree with two points.

First, I cannot agree that the quality of counsel’s performance can be judged much by the length of briefs or the number of issues raised. Especially in the death penalty context, too many briefs are too long; and too many lawyers raise too many issues. Effective lawyering involves the ability to discern strong arguments from weak ones and the courage to eliminate the unnecessary so that the necessary may be seen most clearly. The Supreme Court — as today’s court recognizes — has never required counsel to raise every nonfrivolous argument to be effective. See Smith v. Murray, 477 U.S. 527, 536, 106 S.Ct. 2661, 2667, 91 L.Ed.2d 434 (1986). That the custom in death penalty cases is for lawyers to file long briefs with lots of issues means little to me. This kind of “custom” does not define the standard of objective reasonableness. See Gleason v. Title Guar. Co., 300 F.2d 813 (5th Cir.1962). While compliance with custom may generally shield a lawyer from a valid claim of ineffectiveness, noncompliance should not necessarily mean he is ineffective. Not all customs are good ones, and customs can obstruct the creation of better practices. Today’s court disposes of the ineffective assistance of counsel claims on lack of prejudice grounds. So, what the court says about counsel’s performance is dicta: language inessential to determining the case. Still, I worry that some of the dicta sends the wrong signal to lawyers.

Second, on the subject-matter jurisdiction question (part II.B.l. of the court’s opinion), I think Alabama spoke plainly enough to raise a procedural bar to federal review of the merits. The state court of appeals said this:

[Although the appellant raised this issue at trial, his failure to raise it on direct appeal will now bar our review of this issue. Summers v. State, 366 So.2d 336 (Ala.Cr.App.1978), writ denied, 366 So.2d 346 (Ala.1979); Dobard v. State, 455 So.2d 281 (Ala.Cr.App.1984); Dunkins v. State, 489 So.2d 603 (Ala.Cr.App.1985).

Nevertheless, we hold that Alabama did in fact have jurisdiction to prosecute this appellant for the capital offense of murder/kidnapping.

Heath v. State, 536 So.2d 142, 143 (Ala.Cr.App.1988).

The phrase “will now bar our review” seems plain to me. The state appellate court’s discussion of the merits on the question of jurisdiction is just an alternative holding. See Harris v. Reed, 489 U.S. 255, 264, 109 S.Ct. 1038, 1044 n. 10, 103 L.Ed.2d 308 (1989) (state court’s alternative holding on merits does not negate procedural bar as adequate and independent state ground as long as state court explicitly invokes state procedural bar rule as separate basis for decision).