Bullock v. Whitley

United States Court of Appeals,

Fifth Circuit.

No. 93-5526.

James Lee BULLOCK, Plaintiff-Appellant,

v.

John P. WHITLEY, Warden, Louisiana State Penitentiary, Defendant-
Appellee.

June 2, 1995.

Appeal from the United States District Court for the Western
District of Louisiana.

Before WISDOM, WIENER, and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

James Lee Bullock, a Louisiana state prisoner, appeals the

district court's dismissal of his petition for habeas relief.1

Finding no error, we affirm.

I. FACTS

On January 27, 1976, at a bar in Morgan City, Louisiana,

Plaintiff Bullock, his girlfriend Cindy Scarborough, and his friend

Joseph Moreno, met Joseph Mincey. Although previously unknown to

the plaintiff and his friends, Mincey prevailed upon them to take

him dancing. The four drove from Morgan City down Highway 70

toward Belle River. The car ostensibly stalled in a desolate area

of St. Martin Parish.

Bullock, Moreno, and Mincey exited the car and began efforts

to repair it. A short time later, a fight broke out between

Bullock and Mincey. There was conflicting testimony regarding who

1
28 U.S.C. § 2254.

1
instigated the fight, but it was undisputed that the fight ended

with Bullock beating Mincey with an eighteen-inch billy club. The

petitioner's girlfriend, Cindy Scarborough, testified that she

heard Mincey pleading for the beating to stop. She also testified

that Bullock and Moreno searched Mincey's boots for money after

they discovered that there was nothing in his wallet.

Bullock testified that as he was attempting to repair the car,

Mincey, who was much larger than Bullock, threatened him and shoved

him to the ground. Bullock claimed that he used the billy club to

protect himself. Bullock also testified that he took Mincey's

money to pay for towing costs, although he and his friends were

able to drive away in the car after the fight.

Mincey apparently crawled away from the road to a levee where

his body was found three days later. The coroner testified that

Mincey died as a result of an acute cerebral hemorrhage caused by

a forceful blow to the head. Mincey's boots were later found in a

trailer belonging to Bullock's father.

Bullock was arrested on February 4, 1976. On February 4 and

5, Bullock gave statements to the authorities detailing the events

of the evening of January 27. On February 25, 1976, Bullock was

indicted for first degree murder. Beginning May 10, 1976, Bullock

was tried before a jury in St. Martinville, Louisiana. The jury

returned a verdict of guilty of second degree murder. Bullock was

sentenced to life imprisonment at hard labor without benefit of

probation, parole, or suspension of sentence for 40 years.

In 1983, Bullock was granted permission to file an out-of-time

2
appeal.2 The Louisiana Court of Appeals for the Third Circuit

affirmed his conviction and sentence.3 The Louisiana Supreme Court

denied Bullock's petition for review.4

Bullock sought state post-conviction relief. November 22,

1989, the state district court denied Bullock's petition. The

Louisiana Supreme Court denied Bullock's petition for

post-conviction relief on May 17, 1991.5

Bullock filed the present habeas petition in the U.S. District

Court for the Western District of Louisiana on September 8, 1992.

Bullock raised three grounds for habeas relief: (1) ineffective

assistance of counsel based on his trial attorney's addition of a

not guilty by reason of insanity plea on the morning of trial

without adequate preparation to present that defense; (2) conflict

of interest in that petitioner's appointed counsel was the elected

mayor of the city in which the case was tried; and (3) conflict of

interest in that Paul DeMahy, appointed counsel for co-defendant

Joseph Moreno, obtained statement's from him that were allegedly

used against petitioner at trial.

The petition was referred to a magistrate judge. The

magistrate concluded that an evidentiary hearing was unnecessary

2
State v. Bullock, 435 So.2d 446 (La.1983).
3
State v. Bullock, 476 So.2d 1008 (La.Ct.App.1985).
4
State v. Bullock, 481 So.2d 628 (La.1986).
5
Although there appears to be no record of a petition for
post-conviction relief being filed in the Louisiana Court of
Appeals, The State of Louisiana has waived any procedural
objections to Bullock's federal habeas petition.

3
because there were no contested issues of fact. The magistrate

filed a report and recommendation on September 21, 1993,

recommending that the petition be denied. Bullock filed

objections, which the district court implicitly overruled when it

adopted the magistrate's report and dismissed Bullock's petition on

October 15, 1993. Bullock filed a notice of appeal, and a request

for a certificate of probable cause to appeal. The district court

denied Bullock's request for a certificate of probable cause. We

granted Bullock's motion for a certificate of probable cause to

allow him an opportunity to address the merits of his appeal.

II. DISCUSSION

We agree with the magistrate's finding that there are no

contested issues of fact relevant to Bullock's petition. Thus, we

decline to remand to the district court for an evidentiary hearing

as petitioner requests, and we review each of the grounds presented

by the petition de novo.

A.

Bullock first contends that he received ineffective assistance

of counsel because Earl H. Willis, his trial counsel, failed to

take the steps necessary to support the alternate defense of not

guilty by reason of insanity. Specifically, Bullock contends that

Willis was deficient because he did not request the appointment of

a sanity commission or request a continuance to gather evidence.

A claim that counsel's assistance was so defective as to

require reversal of a conviction has two components. First, the

petitioner must show that counsel's performance was deficient.

4
This requires a showing that counsel's errors were "so serious that

counsel was not functioning as the "counsel' guaranteed by the

Sixth Amendment."6 Second, the petitioner must show that the

deficient performance prejudiced his defense. This requires a

showing that counsel's errors were so serious that they rendered

the proceedings unfair or the result unreliable.7

At his arraignment, Bullock, represented by Willis, entered a

plea of "not guilty." From the record, including the defendant's

statements, it is apparent that Bullock's primary defense was that

of self defense. On the morning of May 10, just prior to jury

selection, Willis moved to add the plea of not guilty by reason of

insanity. Because the motion came on the morning of trial, Bullock

was required to show cause for the change.

A hearing was held outside the presence of the jury regarding

the change in plea. Bullock testified about his various family

problems, his prior problems with the law, and psychiatric

treatment received while previously incarcerated. Willis did not

offer any documentary evidence of prior psychiatric evaluations or

treatment, although he stated that he "intend[ed] to bring the

[Angola] psychiatrist if [the defense could] get hold of him."

When the state trial judge asked if Willis desired the

appointment of a sanity commission, Willis declined, stating that

6
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 2064, 80 L.Ed.2d 674 (1984).
7
Lockhart v. Fretwell, --- U.S. ----, ----, 113 S.Ct. 838,
844, 122 L.Ed.2d 180 (1993); Strickland, 466 U.S. at 687, 104
S.Ct. at 2064.

5
he was prepared to go to trial. Willis stated that he had been

trying to gather information regarding the insanity defense for

only about 72 hours, but did not need a continuance to investigate

further and/or to gather additional evidence or to obtain the

Angola psychiatrist's presence at trial. The trial judge granted

the defense motion, and changed Bullock's plea to not guilty and

not guilty by reason of insanity, without ordering a continuance.

Bullock testified at trial regarding his personal problems,

troubled past, unhappy existence, and prior psychiatric treatment.

On cross-examination, Bullock admitted he had never been committed

to any mental institutions, but stated he had talked to two

different psychiatrists a total of six times while incarcerated at

Angola. He also testified that he had been prescribed

tranquilizers and other pills which he could not identify. Willis

offered only Bullock's testimony regarding Bullock's psychiatric

history and personal difficulties. Willis did not offer any expert

testimony, documentary evidence, psychiatric records or

evaluations, or any other evidence to attempt to establish

Bullock's insanity.

The proper standard for evaluating counsel's effectiveness

under the Sixth Amendment is that of "reasonably effective

assistance."8 This standard requires that we consider the

reasonableness of counsel's assistance under all the circumstances.

However, we must show great deference to counsel's judgment and

observe a strong presumption that counsel exercised reasonable

8
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.

6
professional judgment.9 In Strickland v. Washington, the Supreme

Court set forth the appropriate standard:

A fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's
perspective at the time. Because of the difficulties inherent
in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range
of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances,
the challenged action "might be considered sound trial
strategy."10

In reviewing Willis' performance, we note first that his

efforts indicate general preparedness and familiarity with the

case. Prior to trial, Willis filed appropriate motions on

Bullock's behalf, including a motion to suppress Bullock's

statements and physical evidence seized without a warrant, a motion

to reduce bond, a motion for discovery of written statements, and

a motion for a bill of particulars. Although the motions to

suppress and reduce bond were unsuccessful, Mr. Willis called

appropriate witnesses in support of his motions and actively

cross-examined all state witnesses. Willis did obtain copies of

the transcribed statements given by the defendant. Willis was also

successful in forcing the State to reveal the type of weapon used

and that the State did not know the exact date of the victim's

death.

Willis asked prospective jurors pertinent questions during

voir dire regarding their views on insanity, their understanding of

9
Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065.
10
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

7
reasonable doubts, their attitudes toward people with criminal

records, and other issues. During the course of the trial, Willis

asked relevant questions of the state's witnesses, put the

defendant on the stand, and forced the State to call three rebuttal

police witnesses it had not anticipated calling. At the close of

trial, Willis made an effective closing argument in which he

emphasized to the jury that Bullock had acted in self defense and

that the defendant had psychological problems. The trial court

instructed the jury on both self defense and insanity.

Mr. Willis is now deceased. Bullock correctly asserts that

Willis' reasons for failing to investigate Bullock's mental state

more thoroughly are now forever indeterminable. However, trial

counsel's testimony is not necessary to our determination that a

particular decision might be considered sound trial strategy.

Bullock was charged with first degree murder and could have

been sentenced to the death penalty if found guilty of that

offense. Upon evaluating Bullock's past, it is probable that

Willis determined that arguing the insanity defense would be in his

client's best interest even if he had almost no chance of carrying

the burden of proof. As a practical matter, adding the plea of not

guilty by reason of insanity made evidence of Bullock's prior

mental and emotional problems admissible and allowed Willis the

opportunity to gain as much sympathy as possible with the jury in

order to obtain a favorable result for his client.11 It is also

11
Although there was no opportunity to obtain Mr. Willis'
testimony regarding his motivations, our review of the record has
left us with the distinct impression that Willis did the best he

8
probable that Willis concluded that further investigation or

psychological evaluation would only serve to undermine the insanity

defense.

However, we need not conclude that Willis actually made his

strategic decisions for these reasons. Instead, we are required to

presume that the challenged actions were within the wide range of

reasonable professional conduct if, under the circumstances, it

"might have been sound trial strategy."12 It was Bullock's burden

to overcome that presumption. The district court concluded that

Bullock could not meet this burden. We agree.

Bullock's claim of ineffectiveness is based on Willis'

decision not to investigate more fully Bullock's psychological

condition. "[S]trategic choices made after less than complete

investigation are reasonable precisely to the extent that

reasonable professional judgments support the limitations on

investigation."13 As discussed above, under the circumstances,

Willis' decision not to investigate further likely was based on

reasonable professional judgments regarding Bullock's defense.

Bullock has offered no basis for concluding that Willis'

could with what he had. It seems likely that the information
available to Mr. Willis made it appear that there was virtually
no chance of establishing the insanity defense. At the same
time, establishing an arguable basis for the defense and arguing
it to the jury allowed Willis the opportunity to foster sympathy,
at least to some extent, for a client who was otherwise very
unsympathetic.
12
Strickland, 466 U.S. at 689, 104 S.Ct. at 2065 (citing
Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100
L.Ed. 83 (1955)).
13
Strickland, 466 U.S. at 690-91, 104 S.Ct. at 2066.

9
judgments were unreasonable, and the record does not allow the

conclusion that Willis' judgments were unreasonable as a matter of

law. Because we find that Bullock failed to establish the first

prong of his ineffective assistance claim under Strickland, we do

not address Bullock's allegations of prejudice.

B.

Bullock also contends that he is entitled to habeas relief

because of conflicts of interest suffered by counsel. First, he

claims that his trial counsel, Willis, suffered from a conflict of

interest because he was the elected mayor of the city in which the

case was tried. Second, he claims a conflict of interest in that

Paul DeMahy, appointed counsel for co-defendant Joseph Moreno,

obtained statement's from him that were allegedly used against

petitioner at trial. To establish a claim of ineffective

assistance based on conflict of interest, a defendant who raised no

objection at trial "must demonstrate that an actual conflict of

interest adversely affected his lawyer's performance."14

With regard to Willis' service as mayor of St. Martinville,

Bullock claims Willis had a duty to see that he was convicted.

However, in that small community, mayor was a part-time position

and the mayor was allowed to continue his full-time profession.

Bullock has not alleged that Willis was actually involved in the

investigation or prosecution of this case as the mayor of the town.

There is no indication in the record that Willis was hampered in

14
Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708,
1718, 64 L.Ed.2d 333 (1980).

10
his representation of Bullock by his elected position. Under the

circumstances, this claim must be deemed frivolous.

Bullock's second claim of conflict of interest is based on

the fact that DeMahy, counsel for co-defendant Moreno, conducted

the majority of the interviews with petitioner and conveyed that

information to Willis. Bullock contends, without alleging specific

details and admitting that there is no support in the record, that

DeMahy was instrumental in the authorities obtaining confessions

from Bullock. However, the record indicates that Bullock's

statements to the authorities were given voluntarily after he was

advised of his rights.

The record does not indicate that Willis' representation was

adversely effected by DeMahy's involvement in conducting interviews

or investigation. In addition, it is undisputed that DeMahy did

not participate in Bullock's trial, Bullock was tried alone, and

co-defendant Moreno did not testify at Bullock's trial. Bullock

has not demonstrated an actual conflict of interest or that any

conflict of interest adversely affected Willis' performance.

III. CONCLUSION

For the reasons given above, the judgment of the district

court dismissing Bullock's petition for habeas relief is AFFIRMED.

11