651 F. 2d 429 - Caldwell v. United States

William E. Caldwell, Jr. was convicted of attempted bank robbery on February 11, 1976. The conviction was upheld by this court in an unpublished order in United States v. Caldwell, 549 F.2d 802 (6th Cir. 1976), cert. denied, 431 U.S. 919 (1977). Caldwell now petitions for habeas relief under 28 U.S.C. § 2255.1

On the morning of May 24, 1974, two armed men wearing ski masks attempted to rob the Community Bank of Erlanger, Kentucky, a federally insured institution. They did enter the bank building, but an alert bank employee activated a "silent alarm" before the would-be robbers could take away any money. The men hurriedly left the scene and on the way out shattered the bank's glass front door with .22 and .32 caliber bullets.

The crime was investigated by the Federal Bureau of Investigation. Within several months it developed a case against Caldwell, and on October 28, 1975, an indictment was returned charging Caldwell and Robert Howard with attempted bank robbery in violation of 18 U.S.C. § 2113(a) and (d).2

Caldwell's arraignment was set for December 8, 1975. A Deputy Federal Public Defender was appointed to represent him, and Caldwell entered a plea of not guilty. The federal defender was not present at the arraignment. However, he later sent Caldwell, who was then incarcerated pending trial, an information form to be filled in and returned. Caldwell returned the form, but on January 15, 1976, the federal defender advised him that it had filed a motion to withdraw as his attorney. The federal defender also represented Howard, and it believed that a conflict of interest would likely develop at trial as a result of its representation of both co-defendants.

The trial court granted the federal defender's motion to withdraw on January 15. That same day it appointed Douglas M. Stephens to represent Caldwell. Trial was set for February 9, 1976.

After receiving notice of his appointment, Stephens immediately sought to locate Caldwell. On February 4, he determined that Caldwell was being held in the Fayette County Jail. He telephoned the jail that day, identified himself, and asked to speak to Caldwell. The jail official who answered the phone, however, reported that Caldwell expressed in strongest terms his disinclination to talk to his court-appointed lawyer.

Stephens prepared for trial in spite of his client's apparent lack of cooperation. He consulted with the federal defender, the federal defender's investigator, the prosecuting attorney, the FBI, Caldwell's probation officer and other law enforcement officials. He then obtained discovery and formulated a tentative defense strategy. That strategy consisted solely of requiring the government to prove its case against Caldwell, a case that Stephens believed was weak.

On February 9, 1976, the day of trial, Caldwell and Stephens met for the first time. They talked for about thirty minutes immediately before the commencement of trial. The conversation took place in the jail lock-up. It was not private, but occurred in the presence of co-defendant Howard and his attorney. At this meeting, Caldwell told Stephens that he was innocent and that his wife's testimony would establish an alibi.3 Stephens then interviewed Mrs. Caldwell, but she claimed she knew nothing of the events related by her husband. Accordingly, Stephens elected to proceed with the defense as originally planned. Thus at trial he presented no proof in Caldwell's behalf, and sought only to raise a reasonable doubt about Caldwell's guilt through cross-examination of the government witnesses.

The government's case rested largely on the testimony of Eric Henslee, Robert Howard's brother-in-law. At trial, he testified that Caldwell and Howard visited his home on the day of the robbery. At that time, Howard had a deep cut on his hip. He told Henslee that he received the cut when he and Caldwell shot the glass out of the bank's front door. Henslee also testified that Caldwell brought two gym bags into the house, each of which contained a ski mask and a pistol. According to Henslee, the three of them then discussed having the pistols cleaned and reblued. They also discussed having the serial numbers removed.

On February 11, the jury returned a guilty verdict. The next day Caldwell was sentenced to 25 years in prison.

* The first issue presented for review is whether the petitioner's Sixth Amendment right to effective assistance of counsel was denied either before or during the trial. Caldwell alleges the following as constituting ineffective assistance of counsel: (1) the failure of his attorney to meet with him at an earlier time; (2) the failure of his attorney to meet with him in private; and (3) the failure of his attorney to interview four potential alibi witnesses. The petitioner also asserts that his attorney should have moved for a continuance so that there would have been time to explore the feasibility of structuring an alibi defense. For the reasons discussed below, we find these arguments without merit.

The Sixth Amendment guarantees that a criminal defendant shall enjoy the right "to have the Assistance of Counsel for his defence". Almost 50 years ago in Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932) the Supreme Court found this clause to mean that under the Constitution defendants are entitled to an attorney's "effective and substantial" assistance. Judge Celebrezze set out the Sixth Circuit standard for applying this rule in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). There he opined that "the assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render, and rendering reasonably effective assistance." The court held that: "(D)efense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client's interest, undeflected by conflicting considerations." However, if "action that appears erroneous from hindsight was taken for reasons that would appear sound to a competent criminal attorney, the assistance of counsel has not been constitutionally defective." Id. at 696. See also Isble v. United States, 611 F.2d 173 (6th Cir. 1979); United States v. Renfro, 600 F.2d 55 (6th Cir.), cert. denied, 444 U.S. 941, 100 S.Ct. 294, 62 L.Ed.2d 307 (1979); Canary v. Bland, 583 F.2d 887 (6th Cir. 1978); Wilson v. Cowan, 578 F.2d 166 (6th Cir. 1978).

Applying this standard to the facts before us, we hold that the actions of Caldwell's attorney did not deprive petitioner of his right to effective assistance of counsel. The district court made an evidentiary finding below that Stephens made conscientious efforts to confer with Caldwell. That finding is entitled to considerable weight, and we find it to be well-supported by the evidence. Upon a review of the record, we see little more that petitioner's counsel could have done to defend him. Petitioner's counsel sought to contact Caldwell. He only gave up these efforts when Caldwell refused to meet with him. He then put forth the best defense he thought that he could, based on the facts available to him. Under these circumstances, we cannot hold that Caldwell did not receive effective assistance of counsel.4

Beasley teaches that defense counsel "must investigate all apparently substantial defenses available to the defendant and must assert them in a proper and timely manner." 491 F.2d at 696. In our view, petitioner's attorney fulfilled this obligation. He only rejected the alibi defense after an interview with the petitioner's wife demonstrated that the defense was not maintainable. Caldwell does assert that there were three other potential alibi witnesses but the district court found as a matter of fact that putting on these witnesses would have been, in effect, "encouraging perjury". This finding is well supported.

Caldwell's contention that had his attorney met with him earlier there would have been time to interview other potential alibi witnesses is equally without merit. Upon a review of the record, we think that an attorney with "ordinary training and skill in the criminal law" would have rejected the potential alibi defense here once Mrs. Caldwell disputed the petitioner's explanation. Therefore, the petitioner's Sixth Amendment right to counsel claim must fail.

Caldwell also contends that his due process rights were violated below. He asserts that his attorney's failure to meet with him before the day of trial, the failure of the trial court to advise Caldwell's court-appointed attorney of "the geographical problem" in defending the petitioner,5 and the United States District Court for the Eastern District of Kentucky's prohibition of plea bargaining6 all constitute separate violations of due process protections. In addition, Caldwell maintains that the trial court unlawfully advanced the date of the trial from March 1, 1976, or some later date, to February 9, 1976. Petitioner maintains that this left his attorney with only six full weekdays to prepare for trial, and that under United States v. Blount, 479 F.2d 650, 652 (6th Cir. 1973) this constituted a violation of his due process rights.

A review of the record indicates that none of the foregoing due process claims was presented to the district court. Since they were not presented below, they are not properly before this court, and cannot be addressed on appeal. See Matlock v. United States, 391 F.2d 238 (6th Cir. 1968); Eisner v. United States, 351 F.2d 55, 58 (6th Cir. 1965); Bush v. United States, 347 F.2d 231 (6th Cir. 1965). See also Mustain v. Pearson, 592 F.2d 1018, 1020 (8th Cir. 1979); King v. United States, 565 F.2d 356, 358 (5th Cir. 1978); Smith v. United States, 413 F.2d 975 (10th Cir.), cert. denied, 396 U.S. 932, 90 S.Ct. 273, 24 L.Ed.2d 231 (1969). Accordingly, this court cannot consider the merits of Petitioner Caldwell's due process allegations.

Therefore, the judgment of Judge Hermansdorfer, United States District Court for the Eastern District of Kentucky, is affirmed.