Charles W. Brinkley v. Eugene S. Lefevre, 621 F.2d 45, 2d Cir. (1980)

621 F.
2d 45
Charles W. BRINKLEY, Appellant,

v.
Eugene S. LEFEVRE, Appellee.
No. 740, Docket 79-2179.
United States Court of Appeals,

Second Circuit.
Argued Feb. 5, 1980.
Decided Feb. 11, 1980.
Opinion April 8, 1980.
Ronnie Menor, Student Counsel, Georgetown University Law Center,

Washington, D. C. (Michael E. Geltner, Georgetown University Law
Center, Appellate Litigation Clinic, Washington, D. C., of counsel), for
appellant.
Richard A. Finkel, Asst. Dist. Atty., Brooklyn, N. Y. (Eugene Gold, Dist.
Atty. of Kings County, Brooklyn, N. Y., of counsel), for appellee.
Before WATERMAN and MANSFIELD, Circuit Judges and
WEINSTEIN, District Judge.*
PER CURIAM:
Charles W. Brinkley, a state prisoner convicted on August 5, 1975, by the

Supreme Court of the State of New York, County of Kings, of felony murder,
N.Y.Penal Law 125.25(3), Laws of 1965, as amended 1967, appeals from an
order of the District Court for the Eastern District of New York entered by
Judge Thomas C. Platt on July 25, 1979, denying without hearing his petition
for a writ of habeas corpus seeking his release on the ground that the State
deprived him of due process because of (1) insufficiency of evidence to support
his conviction, and (2) denial of effective assistance of counsel at his state trial.
The petition was based on the undisputed record of the state court proceedings
and it is not contended that a hearing before the district court was required to
receive any additional evidence.
The record reveals both claims to be meritless. The proof of Brinkley's guilt of
felony murder, as the Appellate Division, Second Judicial Department, of the
State of New York, unanimously found, was overwhelming. See 57 A.D.2d
964, 395 N.Y.S.2d 68 (2d Dept. 1977). A witness testified to seeing two black
persons break into a 1972 brown Buick Electra 225 in which the victim was
located, grab him by the throat, and take him to a point close to where the
victim's body was later found. Brinkley, later the same day, was stopped by the
police as he, with co-defendant Murray, was in a car fitting the description of
that seen by the witness and, when asked for the registration, turned over
papers of the victim, claiming the victim was his uncle. Brinkley the next day
admitted to a witness that he and Murray had stolen the car, beaten up and
killed the victim, from whom they had taken $10 and some whiskey.
Bloodstains were found in the car and on the clothing of the two defendants.
Under the test laid down by the Supreme Court in Jackson v. Virginia, 443 U.S.
307, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979), upon the record evidence a
rational trier of the fact could clearly have found guilt beyond a reasonable
doubt; indeed it would be difficult not to do so.
Turning to appellant's Sixth Amendment claim of inadequate representation,

although his counsel had not spent much time with him prior to the case being
called for trial, the trial was postponed 5 days to enable counsel to prepare and
there is no showing he did not do so during that period. Infrequency of
visitation is not alone enough to demonstrate ineffectiveness of counsel. United
States ex rel. Testamark v. Vincent, 496 F.2d 641, 643 (2d Cir. 1974), cert.
denied, 421 U.S. 951, 95 S.Ct. 1685, 44 L.Ed.2d 105 (1975). The failure of
petitioner's attorney to cross-examine more vigorously the witness Leslie Haile
who testified to his admissions does not show ineffectiveness here. The witness
had been fully cross-examined by counsel for the co-defendant Murray with
respect to the conversations between the three in which the involvement of
Brinkley in the murder was discussed. There was no incompetence under these
circumstances in relying on co-counsel's presentation. United States v.
Williams, 575 F.2d 388, 393 (2d Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 134,
58 L.Ed.2d 141 (1978). Moreover, a fishing expedition with such an
incriminating witness was hardly advisable. Nor was it a sign of incompetency
not to object to the admissibility of admissions made by co-defendant Murray to
the witness Leslie Haile in Brinkley's presence, especially since Brinkley had in
the same conversation admitted stealing the car and beating the victim. Since
the failure to give a Bruton -type instruction regarding Murray's admissions
would be harmless error, the failure to request it was hardly ineffective
assistance.
On this record it is therefore unnecessary for us to review this Circuit's "shock

the conscience farce and mockery of justice" standard for determining whether
there was a denial of effective assistance of counsel, since it is clear beyond any
doubt that not only under that test but under the standards adopted by other
Circuits (e. g., reasonably effective assistance) there was no violation of
appellant's Sixth Amendment rights. See Indiviglio v. United States, 612 F.2d
624, 632 (2d Cir. 1979), and Bellavia v. Fogg, 613 F.2d 369 (2d Cir. 1979), for
a list of decisions discussing these standards.
The order is affirmed.

WEINSTEIN, District Judge (Dissenting):
On the day his client was to face trial for murder in the first degree counsel had
not spoken to the defendant "other than five minutes at a time over the last three
months" (Record p. 37) and he had "not reviewed the Charles Brinkley files in
excess of three months" (Id. at 36). An adjournment was sought by defense
counsel not to permit him to prepare more adequately, but because he had been
forced to neglect his other professional business during a series of arduous trials
and, as he put it, an immediate trial of defendant "is a physical and economic
hardship upon me," (Id. at 35) and "I have been to my office one day in the last
nine days" (Id. at 38). The court relented and agreed to hold a Huntley hearing
at 10:00 A.M. on the next day, a Thursday, and to adjourn the trial at 1:00 P.M.
until the following Monday at 10:00. The record is silent on how much, if any,
of the three and one-half day respite was spent in preparing this case and how
much on counsel's necessary recuperation and attention to other professional
commitments.
While the probability may seem small that any constitutional right to counsel
was violated, application of the proper standard might have led the district
judge to conduct a more searching inquiry. Litigants are entitled to a
determination by a trial court applying the proper rule of law before an
appellate court reviews the case.
The Second Circuit test of constitutional adequacy is whether the trial lawyer's
activity was "of such a kind as to shock the conscience of the Court and make
the proceedings a farce and mockery of justice." Twitty v. Smith, 614 F.2d 325
(2d Cir. 1979), quoting United States v. Wight, 176 F.2d 376, 379 (2d Cir.
1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950). But cf.
Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976), cert. denied, 434 U.S.
826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977) (modification of the test not necessary
because the alleged deficiencies did not amount to ineffectiveness even under
the standard of "reasonable competency.").
10
The farce and mockery standard has been rejected in all other circuits in favor
of a requirement that counsel for the defense act in a reasonably competent and
skillful professional manner: see, e. g., District of Columbia: United States v.
De Coster, 487 F.2d 1197 (D.C.Cir.1973); First Circuit: United States v. Bosch,
584 F.2d 1113 (1st Cir. 1978); Third Circuit: Moore v. United States, 432 F.2d
730 (3d Cir. 1970); Fourth Circuit: Coles v. Peyton, 389 F.2d 224 (4th Cir.
1968), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120; Fifth Circuit:
MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified, 289 F.2d 928 (5th
Cir. 1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; Sixth
Circuit: Beasley v. United States, 491 F.2d 687 (6th Cir. 1974); Seventh
Circuit: United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.
1975) ("goes beyond" sham or mockery standard by requiring the "expected
professional standard of competent counsel"); Eighth Circuit: United States v.
Easter, 539 F.2d 663, 666 (8th Cir. 1976) ("customary skills and diligence that
a reasonably competent attorney would perform under similar circumstances"
required under mockery test); Ninth Circuit: Cooper v. Fitzharris, 586 F.2d
1325 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793
(1979); Tenth Circuit: Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980); in the most
recent better reasoned state decisions: see, e. g., People v. Pope, 23 Cal.3d 412,
152 Cal.Rptr. 732, 590 P.2d 859 (1979); Fernandez v. United States, 375 A.2d
484 (D.C.1977); State v. Tucker, 97 Idaho 4, 539 P.2d 556 (1975);
Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878 (1974); Risher v.
State, 523 P.2d 421 (Alaska 1974); State v. Thomas, 203 S.E.2d 445
(W.Va.1974); State v. Harper, 57 Wis.2d 543, 205 N.W.2d 1 (1973); and by the
commentators: see, e. g., Kadish and Paulsen, Criminal Law and Its Process
806-816 (3d ed. 1975), id. 178-201 (1979 Supp.); Kamisar, LaFave and Israel,
Modern Criminal Procedure 60-61 (4th ed. 1974), id. 16-18 (1979 Supp.);
Bazelon, The Defective Assistance of Counsel, 42 U.Cinn.L.Rev. 1, 28 (1973)
(the mockery of justice test "requires such a minimal level of performance from
counsel that it is itself a mockery of the Sixth Amendment."); Finer, Ineffective
Assistance of Counsel, 59 Cornell L.Rev. 1077 (1973); Tague, The Attempt to
Improve Criminal Defense Representation, 15 Am.Crim.L.Rev. 109 (1977);
Stone, Ineffective Assistance of Counsel and Post-Conviction Relief in
Criminal Cases, 7 Colum.Human Rights L.Rev. 427 (1975); Note, Identifying
and Remedying Ineffective Assistance of Criminal Defense Counsel: A New
Look After United States v. DeCoster, 93 Harv.L.Rev. 752 (1980).
11
The Second Circuit's test demeans the Sixth Amendment's guarantee of

meaningful counsel, the guarantee of equality before the law embodied in
Article III and the Fifth and Fourteenth Amendments to the Constitution, and
the fundamental credo of the American Republic announced in our Declaration
of Independence "All Men are Created Equal." It is a standard that falls far
below this Circuit's steady insistence on the realities of fundamental fairness
and due process. Surely the state bars of Connecticut, New York and Vermont
are no less capable than the rest of the American legal profession; this court
does not compliment them by assigning a standard of competence in criminal
cases each member of the court would indignantly reject were it to be used to
test his or her own professional work.
12
Based upon extensive studies indicating dissatisfaction by federal judges with

the inadequate representation in some cases, the Second Circuit Council has
recently recommended that the district courts take steps to ensure against
miscarriages of justice because of poor preparation and courtroom performance
by lawyers. See Second Circuit 1979 Annual Report, pp. 20-21. Are the judges
of this court confident that the level of representation in all state criminal trials
is satisfactory? Are they satisfied that the articulation of a proper constitutional
standard would not give greater assurance of a more effective criminal justice
system?
13
There is a compelling need to inform the bench and bar of an effective

representation requirement compatible with the Second Circuit's other due
process standards. This case should be remanded so the trial judge can apply
the proper test.
Of the United States District Court for the Eastern District of New York, sitting
by designation

Charles W. Brinkley v. Eugene S. Lefevre, 621 F.2d 45, 2d Cir. (1980)

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621 F.

Charles W. BRINKLEY, Appellant,

United States Court of Appeals,

Ronnie Menor, Student Counsel, Georgetown University Law Center,

Charles W. Brinkley, a state prisoner convicted on August 5, 1975, by the

Turning to appellant's Sixth Amendment claim of inadequate representation,

On this record it is therefore unnecessary for us to review this Circuit's "shock

The order is affirmed.

The Second Circuit's test demeans the Sixth Amendment's guarantee of

Based upon extensive studies indicating dissatisfaction by federal judges with

There is a compelling need to inform the bench and bar of an effective

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