Refusal of Continuance for New Counsel

Two days before trial, Bass sought permission of the court to dismiss his court-appointed counsel and for a continuance to permit his representation by new counsel from Alabama, counsel who knew nothing of the case and were just commencing a lengthy trial in Georgia. Bass's case had been set for trial for two months. His stated ground was a sudden loss of personal confidence in his appointed counsel and a desire for new ones specializing in "death cases." After hearing argument, the court refused these requests. Bass asserts that by so doing the court denied him effective assistance of counsel. We disagree, finding a complete answer to the contention in the language and authorities cited in United States v. Silva, 611 F.2d 78, 79 (5th Cir.1980):

On the day before trial defendant made an oral motion for continuance, informing the district court he wished to substitute retained counsel for court-appointed counsel. Denial of defendant's motion did not deny defendant his Sixth Amendment right to counsel, since there is no absolute and unqualified right to counsel of choice, even where counsel is retained. United States v. Brown, 591 F.2d 307, 310 (5th Cir.), cert. denied, 442 U.S. 913 , 99 S.Ct. 2831, 61 L.Ed.2d 280 (1979). The freedom to have counsel of one's own choosing may not be used for purposes of delay. United States v. Uptain, 531 F.2d 1281, 1290 (5th Cir.1976). Last minute requests are disfavored. United States v. Sexton, 473 F.2d 512 (5th Cir.1973). Denial of a continuance is within the discretion of the trial judge and will not be reversed absent a clear abuse of discretion. United States v. Harbin, 601 F.2d 773, 778 (5th Cir.), cert. denied, 444 U.S. 954 , 100 S.Ct. 433, 62 L.Ed.2d 327 (1979). There was no abuse of discretion here.

Nor was there any here.

The Motion to Dismiss without Prejudice

Rightly or wrongly, at present the review of cases in which capital sentences have been imposed customarily incorporates three full-dress proceedings: (1) direct appeal, with resort to the Supreme Court in the event of an affirmance; (2) habeas corpus proceedings through the state system, pursued both with a view to obtaining relief and the requisite exhaustion as well, with like attempted resort to the Supreme Court; and (3) statutory habeas proceedings through our hierarchy of federal courts. Understandably, most convicted defendants sentenced to death covet delay, if nothing better can be had; and the nine to eleven court proceedings permissible according to present arrangements provide it in generous measure--it is now well over three years since Bass murdered Officer Baker and we are only at the next-to-last stage of the third general proceeding.

Among the claims before us, one discussed below is that trial counsel was ineffective. Substituted appellate counsel now suggest that their predecessor appellate counsel was ineffective as well, ineffective in failing properly to present to the state courts (and so exhaust) all possible claims of trial counsel's ineffectiveness. So suggesting, Bass moves us to cause the present federal proceedings to be dismissed at their penultimate stage so that he may once more commence the second general stage of the proceedings. In support of his motion, he advances to us new claims for relief not presented to the state courts or our lower federal court, appends ex parte exhibits, advances hearsay declarations that a confession given by Bass (but not introduced at the trial) was coerced, and so on. Thus entire and novel vistas of delay come in prospect, delays to be added to those already noted.

It will not do. Much is due Bass, standing as he does under sentence of death, but something is due as well to justice and the judicial system, one that stands between us and anarchy and self defense. We decline to permit Bass to tie both concerns in knots by such last-minute maneuvers, maneuvers that would, if countenanced, entail commencing again and from the outset the entire panoply of state and federal habeas proceedings, perhaps only to face new contentions at some later stage in them that present appellate counsel failed in their obligations to him in some manner.

Somewhere, even in a capital case, there must be an end--especially, perhaps, in one such as this, where there can be no doubt of Bass's guilt. Since these contentions were not presented to the trial court, but only to us and for the first time on appeal, in accordance with our long-established precedent we decline to reach them. Spivey v. Zant, 661 F.2d 464 (5th Cir.1981) and authorities cited at 477. We deny the motion.Ineffective Assistance of Counsel?

We have declined to reach claims that were not presented to the state courts or to the court below. Certain claims that trial counsel was ineffective were exhausted in state courts and advanced in the court below, however, and therefore require our attention. These are, as presented, trial counsel's claimed ineffectiveness stemming from:

  (1) Counsel's failure to investigate the offense in question;

  (2) Counsel's failure to challenge, legal proffer, the initial stop, search and subsequent arrest of the defendant;

  (3) Counsel's failure to challenge the identification procedure of said defendant, legal proffer, and to show that said proceeding was tainted by an illegal confession herein and;

  (4) Counsel's failure to exercise the fundamental right of cross-examination in regards to Witherspoon jurors.

In addition to these, Bass presented and exhausted the claim that counsel was ineffective for failing to object to the dismissal of Mrs. Hall, the matter discussed above in the initial division of our opinion.

No hearing has ever been held in any court on these exhausted claims. Though some are sufficiently vague that it is difficult to view them as factual allegations, one at least--that regarding the failure to object to the discharge of Mrs. Hall from the venire--is clear and factual. Whether that failure may have resulted from a tactical decision or other justifiable circumstance cannot be determined from this record, and the court below made no factual findings in support of its order of dismissal. We remand the cause to the district court for a hearing on these exhausted claims. No others need be considered. In all other respects the decision below is affirmed. It is so

ORDERED.

*****

GOLDBERG, Circuit Judge, specially concurring:

I concur in the result in this case, but write with a regretful pen because I do not embrace the apologia juxtaposed to the remanding words. I cannot and do not endorse the concept suggested by the majority in its footnote two that no difference exists between a case in which a man's life is at issue and a case in which a fifty dollar fine is the maximum sanction. To the contrary, I submit that capital cases demand special consideration, both at trial and on appellate review, because of the exceptional and irrevocable nature of the penalty involved. In pronouncing the ultimate sentence, our enunciation must be positive, definite, unconditional, and without prefix, for once the words are pronounced there is no suffix. Surely, when a life hangs in the balance, extraordinary care and rigorous scrutiny are not too much to ask.

I wholeheartedly agree with Judge Gee's assessment that this cause must be remanded to the district court. Although judges' lights emanate at times from different judicial spectra, in this instance they focus upon the necessity for a plenary hearing on Bass's exhausted claims of ineffective assistance of trial counsel. As the Supreme Court observed in Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 756, 9 L.Ed.2d 770 (1963), unconstitutional detention is so insupportable that "the opportunity to be heard, to argue and present evidence, must never be totally foreclosed." In Townsend the Court emphasized the plenary nature of the federal courts' power of inquiry in habeas cases, substantially increasing the availability of evidentiary hearings in such proceedings. Outlining the situations in which hearings would be required, the Court made mandatory much that previously had been discretionary with the district courts. See Smith v. Yeager, 393 U.S. 122, 125, 89 S.Ct. 277, 279, 21 L.Ed.2d 246 (1968). The Court decreed:

Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts.

Townsend, 372 U.S. at 312-13, 83 S.Ct. at 756-57 (footnote omitted).

No court, state or federal, has ever held a hearing to ventilate Bass's claims that his legal assistance at trial was ineffective. Townsend requires the federal court to address the merits of these factual claims in a full and fair evidentiary hearing. Undeniably, a remand for such a hearing is the appropriate resolution of this matter, and with this resolution I concur.

Perhaps in underscoring the necessity for granting a hearing in Bass's case I belabor the point. I do so, however, because I fear that the ultimate result in this case--a remand for an evidentiary hearing--is overshadowed by other language in the majority opinion. I do not wish to see a habeas applicant's right to an evidentiary hearing denigrated by the apologetic fashion in which the majority grants a remand.

My concern for Bass's right to a hearing is magnified by the overriding fact that this is a death penalty case. As the Supreme Court has recognized and reiterated, "there is a significant constitutional difference between the death penalty and lesser punishments." Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980). "[D]eath is a punishment different from all other sanctions in kind rather than degree." Woodson v. North Carolina, 428 U.S. 280, 303-04, 96 S.Ct. 2978, 2990-91, 49 L.Ed.2d 944 (1976). See Furman v. Georgia, 408 U.S. 238, 286-91, 92 S.Ct. 2726, 2750-53, 33 L.Ed.2d 346 (1972) (Brennan, J., concurring); id. at 306, 92 S.Ct. at 2760 (Stewart, J., concurring). Because "death as a punishment is unique in its severity and irrevocability," Gregg v. Georgia, 428 U.S. 153, 187, 96 S.Ct. 2909, 2931, 49 L.Ed.2d 859 (1976), the Supreme Court has been especially sensitive to ensure that every possible safeguard is observed in capital cases. Id. Death cases truly and deservedly are in a class by themselves, see Furman, 408 U.S. at 287-88 & n. 34, 92 S.Ct. at 2751 & n. 34 (Brennan, J., concurring), for death has a uniqueness that no philosopher's stone has ever transmuted, no mill stone has ever crushed.

I view these pronunciamento as more homiletical than precatory. To me, the teachings of the Supreme Court admonish that fastidious trial procedures and meticulous scrutiny on posttrial review are mandated before the death penalty may be imposed. We do not demean the criminal law by suggesting a different treatment for capital cases; rather, we elevate life over death.

The majority opinion implies that the procedures, the penology, and the attitudes of the decisionmaker should be the same, whether the defendant is charged with speeding or subject to a capital offense. But all cases are not alike. The law is replete with discrepant standards for the application of many of its maxims and apothegms. For example, the proper scope of appellate review depends upon whether the factfinder was judge or jury; a recidivist may be punished more harshly for a particular crime than a first-time offender. These too are "double standards" in the law, but they shock neither the conscience nor the intelligence.

When the criminal justice system exacts the ultimate penalty, and an individual is executed, no constitutional wrong can ever be rectified. The penalty is irrevocable and inexorable. Therefore we must be certain, and I would underscore deadly certain, that no germ of constitutional error has infected the prosecutorial treatment. Two things must be indisputable: that the accused is in fact guilty, and that no facts or factors militate against putting the accused to death. There are no writs of habeas corpus from a casket.

1 Such, for example, as Justice Stevens' often-quoted expression in concurrence: "Because of the unique finality of the death penalty, its imposition must be the result of careful procedures and must survive close scrutiny on post-trial review." Coleman v. Balkcom, 451 U.S. 949 , 101 S.Ct. 2031, 68 L.Ed.2d 334 (1981)

2 In general response to the implicit suggestion, we note our disagreement with it. The various expressions of the Supreme Court quoted by Bass are not more than precatory ones, expressive of the sanctity with which all decent men view human life as endowed and the gravity with which they regard a decision--however measured it may be--to terminate it. Nor are these expressions novel or the sentiments which they avow newly-arisen; they go back to the Black Cap and beyond, stretching far into times when human life was shorter, more perilous, and less highly regarded than it is today. To be sure, they also refer to the many explicit safeguards that have now been enacted or deduced to express these concerns. But to suggest that a different general mode of review is required by them is to demean the criminal law generally, to imply that we might somehow view lightly such questions as whether a life sentence or one for a lengthy term of years was arrived at properly. There is one system of criminal appellate review, applicable to all cases and to this one

3 The Court's language, written in response to a contention that where the constitutional error asserted might have affected the truthfinding function an exception to the Sykes' waiver should be made, could scarcely be more sweeping: