Jimmy Ray Bonds, Appellant-Petitioner v. Louie L. Wainwright, Secretary, Department of Offender Rehabilitation, Appellee-Respondent

579 F.2d 317, 1978 U.S. App. LEXIS 9300

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 30, 1978
• Docket: 75-3914
• Status: Published

Opinions

CHARLES CLARK, Circuit Judge:

This case calls upon us to determine by what standard we should judge whether an attorney appointed to defend an indigent defendant at trial has rendered adequate assistance of counsel with respect to advising the defendant concerning his right to appeal. Jimmy Ray Bonds, a prisoner of the State of Florida, appeals the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C.A. § 2254. Bonds contends that at his 1953 trial the failure of his trial counsel adequately to advise him and consult with him about his right to appeal denied him his sixth amendment right to effective assistance of counsel at trial. A panel of this court, following Bailey v. Ault, 490 F.2d 71 (5th Cir. 1974), applied present-day standards to gauge trial counsel’s actions and reversed the district court. On rehearing en banc, we vacate the decision of the panel, overrule Bailey, adopt the Fourth Circuit’s reasoning in Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971) (en banc), cert. denied, 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462 (1972), and hold that under the standards which applied at the time of Bonds’ trial, he was not denied adequate assistance of counsel.

In 1953, a jury in Florida state court found Bonds, then sixteen years old, guilty of rape and the court sentenced him to thirty years in prison. He did not appeal. In 1974, after exhausting his state remedies, Bonds petitioned for habeas relief in United States district court. The district court denied relief. On appeal, Bonds challenged only that portion of the district court’s opinion denying his contention that his trial counsel failed to render him constitutionally effective assistance in connection with the decision whether or not to pursue a direct appeal of his conviction.¹

The panel’s opinion in the case at bar discussed the district court’s findings of fact at length and upheld them as not clearly erroneous. We agree and differ with the panel only as to the legal conclusions to be drawn from these findings. In brief, the district court found that in Bonds’ presence hi's attorneys discussed and considered the possibility of appealing, that Bonds neither pressed for an appeal nor affirmatively consented to forego an appeal, ánd that Bonds explicitly left the decision whether or not to appeal to his attorneys.

Under Bailey, Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971), supplies the standards by which to judge the effectiveness of appointed counsel even where trial took place before the Lumpkin decision itself. Therefore, the panel in the case at bar, bound by Bailey, held that Bonds would be entitled to habeas r-elief for failure of his court-appointed attorney expressly to advise him of specified elements of his right to appeal: existence of the right, the procedure and time limits involved, and of his right to appointed counsel on appeal. 439 F.2d at 1085. Now, en banc, we overrule Bailey and hold that Lumpkin does not apply retroactively.

Bailey viewed Lumpkin as a restatement of law already existing in this circuit rather than as a decision embodying a new standard. Lumpkin held:

an indigent accused is denied effective assistance of counsel at a critical stage of the criminal process when his court-appointed attorney fails to advise him of his right to appeal, the procedure and time limits involved, and of his right to appointed counsel on appeal. Relying upon Edge v. Wainwright, 347 F.2d 190 (5th Cir. 1965), cert. denied, 385 U.S. 953, 87 S.Ct. 335, 17 L.Ed.2d 231 (1966), Bailey held “there is no valid issue of retro-activity of the rule stated in Edge, Byrd, Lumpkin,2 and numerous other cases of this Court and the Supreme Court.” 490 F.2d at 71.

The panel opinion in Bonds stated unequivocally that Bailey held Lumpkin applied retroactively. The matter is not so plain to us. Bailey may be read as holding Lumpkin established no new principle of law. A reexamination of the cases relied upon in Lumpkin and Bailey shows that this view is incorrect. If Bailey is to be interpreted as holding that Lumpkin, even if new law, should apply retroactively, it also lacks substance because this circuit has never subjected the Lumpkin rule to the analysis provided in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Lumpkin itself spawned the problem we now face in Bailey by introducing its holding with the phrase “[i]t is well established.” In specifying what an appointed attorney must tell a defendant about his right to appeal in order to provide minimum effective assistance under the sixth amendment, Lumpkin cited our decisions in Thomas v. Beto, 423 F.2d 642 (5th Cir. 1970), and Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966). Unlike Lumpkin, neither Thomas nor Simpson places upon appointed counsel the affirmative obligation to impart to a defendant specified information about his right to appeal beyond the fact that a right to appeal exists. Thomas, which relied on Simpson, held that a defendant did not receive adequate assistance of counsel because his attorney “had no authority, without consulting with or obtaining the consent of his client, deliberately to forego [petitioner’s] right * * * to appeal.” 423 F.2d at 643, quoting Wain wright v. Simpson, supra, 360 F.2d at 309. Under Thomas and Simpson, an appointed attorney cannot fail to advise his client that he has a right to appeal and then, by unilateral action, deprive his client of the opportunity to mount a direct challenge to his conviction. Although Thomas and Simpson recognize that appointed trial counsel has an obligation to bring to his client’s attention that a right to appeal exists, neither case in any sense requires the remaining parts of the Lumpkin litany of counsel duties.

Bailey implied that the rule in Lumpkin also appeared in this circuit’s earlier decisions in Edge and in Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969). These cases too fail to show that in this circuit the full Lumpkin rule predated the Lumpkin decision; rather, they support the contrary conclusion. In Edge, the petitioner alleged that his counsel refused to prosecute an appeal because he saw no prospect of remuneration and that petitioner informed the trial judge both of his desire to appeal and of his need for assistance. The panel remanded the case to the district court with these directions:

If Edge can prove that he was deprived of his right to appeal and to have the assistance of counsel on appeal due to his indigency and that the trial judge, or some other responsible official, knew of his plight and failed to aid him, he will have shown enough to entitle him to a writ of habeas corpus.

347 F.2d at 192. The standard in Edge differs considerably from that in Lumpkin, which requires specific affirmative advice by counsel to ensure that the defendant knows every significant factor relevant to his appellate rights.

Neither does Byrd set a specific standard for the elements of advice that trial counsel must give a defendant to discharge the minimum obligation of effective assistance under the sixth amendment. In Byrd, the defendant stated to his counsel that he wanted to appeal and counsel told the defendant and his family that an appeal would be taken. No appeal was taken. Byrd’s request to appeal triggered the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), that specify the components of the obligation of appointed counsel on appeal. Byrd did not lay down specific requirements for the information that trial counsel must give to a defendant prior to a decision on whether to appeal in order to meet the minimum obligations to a client. Rather, Byrd dealt with a default by appellate counsel which took place after the defendant made a decision to appeal and expressed his decision to counsel.

An examination of the decisions of this circuit shows that Lumpkin adopted standards for effective assistance of counsel not previously applied in this circuit. Therefore, we must confront the question that Bailey did not reach: whether, under the analysis of Stovall, the rule in Lumpkin applies retroactively. Upon reconsideration en banc, we overrule Bailey and adopt the reasoning of the Fourth Circuit in Shiflett v. Virginia, 447 F.2d 50 (4th Cir. 1971) (en banc), cert. denied, 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462 (1972), which refused retroactive application of a set of requirements similar to our Lumpkin rule which had been adopted in Nelson v. Peyton, 415 F.2d 1154 (4th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970).

Having determined, under the reasoning in Shiflett, that Lumpkin does not apply retroactively and, hence, that Bonds cannot rely upon a failure to perform duties first specified in that case, we now consider whether Bonds’ counsel rendered constitutionally effective assistance with respect to Bonds’ appellate rights according to the norms of representation prevailing at the time of counsel’s actions. Cf. Burston v. Caldwell, 506 F.2d 24 (5th Cir.), cert. denied, 421 U.S. 990, 95 S.Ct. 1995, 44 L.Ed.2d 480 (1975). At the time of Bonds’ 1953 trial, the prevailing standards for adequate representation by trial counsel in this circuit accorded substantially with those identified in Shiflett as prevailing in the Fourth Circuit prior to its decision in Nelson :

A lawyer retained or appointed to represent a defendant ordinarily was prepared to advise his client to appeal, and to assist him on appeal, if he believed there was a reasonable prospect of success. In the absence of such a belief, he considered his duty done at the conclusion of a trial unless he was informed by his client, or otherwise had reason to believe, that he wished to appeal nonetheless. Our former cases recognized and upheld this practice. Repeatedly we declined to attach constitutional significance to an attorney’s failure to take steps leading to appellate review where the defendant had made no contemporaneous expression of dissatisfaction with the trial’s result and had failed to indicate any affirmative desire for an appeal.

Shiflett v. Virginia, supra, 447 F.2d at 53. Our pre-Lumpkin cases differ somewhat from this description by the recognition in Thomas and Simpson that trial counsel has a duty to advise his client that a right to appeal exists. We need not reconstruct the precise standards applying at the time of Bonds’ 1953 trial, however, because we determine that without Lumpkin, Bonds’ contentions fail.

Under the facts as found by the district court, it is implicit that Bonds’ attorneys made his right to appeal known to him because Bonds left to counsel the decision whether to prosecute an appeal. Under then-prevailing Florida law, a court could have sentenced Bonds to death in a new trial. Given this sobering consequence, counsel’s decision to forego appeal does not suggest they were unworthy of the trust Bonds imposed upon them.

The decisions prior to Lumpkin which are most favorable to Bonds, Thomas and Simpson, establish that rendering adequate assistance at trial requires that appointed trial counsel advise his client that a right to appeal exists and that counsel not act unilaterally to forego a client’s right to appeal without consent or consultation. Neither of these bases for relief apply here. The additional elements of advice required by Lumpkin, which affect a range of cases far broader than those in which the evil aimed at has in fact occurred, do not apply retroactively to render a trial attorney’s performance constitutionally ineffective when trial counsel’s advice about the right to appeal met the standard which applied prior to Lumpkin.

After reviewing the district court’s findings under standards for effectiveness which applied prior to Lumpkin, we conclude that Bonds received adequate assistance of counsel with regard to his right to appeal his state court' conviction. Accordingly, the decision of the panel is VACATED and the judgment of the district court is

AFFIRMED.

1 . In the case at bar, we deal with the obligations that the sixth amendment imposes upon trial counsel with respect to notifying the defendant concerning a right to appeal. Lumpkin states those elements of that duty which would apply today. The right to appointed counsel at trial and on appeal applies retroactively. See, e. g., Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963). We do not deal with retroactivity of that right, a question now settled by the Supreme Court; rather, we deal with the retroactivity of elements of the standard by which we judge whether appointed trial counsel rendered constitutionally effective assistance. Similarly, we are not concerned here with the standards by which to determine the effectiveness of counsel appointed for the purpose of appeal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), supplies those standards. Rather, in the case at bar, we deal only with that advice trial counsel must give a defendant concerning a right to appeal in order to render effective assistance as trial counsel.

2 . Edge v. Wainwright, 347 F.2d 190 (5th Cir. 1965), cert. denied, 385 U.S. 953, 87 S.Ct. 335, 17 L.Ed.2d 231 (1966); Byrd v. Smith, 407 F.2d 363 (5th Cir. 1969); Lumpkin v. Smith, 439 F.2d 1084 (5th Cir. 1971).