Edward G. Garland v. J. D. Cox, Superintendent Virginia State Penitentiary, 472 F.2d 875, 4th Cir. (1973)
Edward G. Garland v. J. D. Cox, Superintendent Virginia State Penitentiary, 472 F.2d 875, 4th Cir. (1973)
2d 875
It is uncontested that counsel was not appointed to represent Garland until the
day of his trial. In the past, we have held that such late appointment of counsel
is inherently prejudicial, and "constitutes a prima facie case of denial of
effective assistance of counsel, so that the burden of proving lack of prejudice
is shifted to the state." Twiford v. Peyton, 372 F.2d 670, 673 (4 Cir. 1967).
Stokes v. Peyton, 437 F.2d 131 (4 Cir. 1970); Fields v. Peyton, 375 F.2d 624 (4
Cir. 1970). The State of Virginia, however, urges this court to retreat from this
rule of presumptive prejudice wherever there has been a showing of late
appointment of counsel, and to look instead to the "totality of the
circumstances." See Moore v. United States, 432 F.2d 730 (3 Cir. 1970);
Rastrom v. Robbins, 440 F.2d 1251 (1 Cir. 1971). The state also contends that
Garland appeared for trial on November 14, 1955, in the Circuit Court of the
City of Waynesboro, Virginia, charged with six counts of forgery. Counsel was
then appointed and conferred with the defendant for fifteen to twenty minutes.
He advised Garland to plead not guilty to one count, guilty to the other five,
and to waive his right to a jury trial; all of which the defendant did. As a
consequence, Garland was convicted of five counts of forgery on his guilty
pleas and sentenced to five consecutive two-year terms of imprisonment.
Petitioner fully served the sentences imposed on him for the forgery
convictions, which, together with two other convictions not now in issue,
formed the basis of a 1963 recidivist conviction-the cause of his present
confinement. He was sentenced to ten years' imprisonment, nine of which were
suspended.
After being discharged from prison in 1964, Garland was convicted of yet
another charge in 1965, and the suspension of nine years on the recidivist
conviction was revoked. On May 28, 1968, he filed a petition for a writ of
habeas corpus in the Circuit Court for the City of Waynesboro, attacking the
1955 forgery convictions, alleging ineffective assistance from his counsel due
to the attorney's appointment on the day of trial. Subsequently, in August, 1968,
prior to the initial habeas hearing, the counsel who had represented Garland in
1955 died at the age of forty-nine, thus rendering it an impossible task to detail
the attorney's participation. After exhausting all state remedies, Garland filed a
federal petition for a writ of habeas corpus on March 6, 1970.
The District Court, per Judge Dalton, while recognizing the applicability of
Twiford and Fields, nonetheless dismissed the petition, stating:
All parties agree that the lower court's reliance on Wade v. Peyton was
misplaced as that case was decided on the issue of exhaustion. See Appellee's
Brief at p. 4. Nevertheless, the state argues that Garland unreasonably delayed
for thirteen years raising the issue of late appointment of counsel, and that now
as a result of trial counsel's death, it will be unable to rebut the presumption
that ineffective assistance of counsel was rendered. Under these limited
circumstances, the state contends the burden of persuasion on the issue of
prejudice should remain with the defendant.
10
II.
11
The state makes a broader attack against the rule prevailing in this circuit that
where the record reveals inadequate preparation time due to late appointment of
counsel, the burden of proving that the defendant was not thereby prejudiced
shifts to the state. The suggestion is proffered that we rethink the TwifordFields doctrine in light of recent judicial developments. See Chambers v.
Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Moore v. United
States, 432 F.2d 730 (3 Cir. 1970); Rastrom v. Robbins, 440 F.2d 1251 (1 Cir.
1971).
Reviewing these decisions we are not inclined to alter the rule we promulgated
12
Reviewing these decisions we are not inclined to alter the rule we promulgated
in Twiford and Fields. The Supreme Court in Chambers v. Maroney, 399 U.S.
42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), left undisturbed a Third Circuit rule
similar to the one we follow. In the course of the lengthy opinion, the Court
declared:
13
Unquestionably,
the courts should make every effort to effect early appointments of
counsel in all cases. But we are not disposed to fashion a per se rule requiring
reversal of every conviction following tardy appointment of counsel or to hold that,
whenever a habeas petition alleges a belated appointment, an evidentiary hearing
must be held to determine whether the defendant has been denied his constitutional
right to counsel. 399 U.S. at 54, 90 S.Ct. at 1982.
14
15
services rendered to the client. But this type of inquiry accompanied by the
presumption of regularity that is accorded prior judicial proceedings works a
hardship on a class of petitioners, such as Garland, who, through no fault of
their own, are prevented from rebutting the presumption established by the
Third Circuit. Where counsel and records are no longer available, as in
Garland's case, the defendant, as a practical matter, would be foreclosed from
challenging the adequacy of the representation received, regardless of shortness
of preparation time.
16
Most recently, the First Circuit also adopted a totality of the circumstances test.
Rastrom v. Robbins, 440 F.2d 1251 (1971). In Rastrom, Judge Coffin pointed
out that Fields and Twiford both involved evidence of prejudice beyond the
mere shortage of preparation time. Thus, he minimized the substantive
difference between the approaches of circuits. Any remaining variance in these
theories, he wrote, "may best be described as attitudinal," there being "a lower
threshold of tolerance toward stringently limited preparation time" in the Fourth
Circuit. Rastrom, supra, at 1253.
17
18
the bats of the law, flitting in the twilight, but disappearing in the sunshine of
actual facts." Stumpf v. Montgomery, 101 Okl. 257, 226 P. 65 (1924).
19
The primary input of the attorney to his client's case is that of professional
expertise. Even in a simple criminal case, meticulous investigation and
thoughtful legal analysis will often reveal a panoply of issues-to which the
defendant, a layman, will be oblivious. Both our approach and that of the Third
and First Circuits require an inquiry into whether counsel has adequately
considered the facts of the case and explored the various avenues of defense.
Usually the result of the two approaches will coincide. The value of our own
rule is in those relatively rare situations where because of passage of time or the
unavailability of material witnesses, a defendant can show late appointment and
no more. In such cases, it comports with notions of fair play to expect the state,
with its greater resources, to bear the burden of demonstrating regularity,
especially since a court of the state, not the defendant, produced the unhappy
situation by originally making the late appointment.
20
21
Reversed.