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