Troy Cooper v. C. J. Fitzharris

551 F.2d 1162 Troy COOPER, Petitioner-Appellant, v. C. J. FITZHARRIS, Respondent-Appellee. No. 74-2998. United States Court of Appeals, Ninth Circuit. April 11, 1977. Troy Cooper in pro per. Evelle J. Younger, Atty. Gen., Ann K. Jensen, Deputy Atty. Gen., San Francisco, Cal., for respondent-appellee. Appeal from the United States District Court For the Northern District of California. Before DUNIWAY and HUFSTEDLER, Circuit Judges, and EAST, District judge. * EAST, District Judge: Cooper, a State prisoner, appeals from the District Court's denial of his 28 U.S.C. § 2254 habeas petition. We note jurisdiction under 28 U.S.C. § 2253 , and reverse and remand. Cooper was indicted in 1964 by a State of California, San Francisco County grand jury, charging him with the crimes of burglary, assault, rape and robbery. A jury found Cooper guilty on all counts, and the court's judgment of conviction and sentence to custody followed in due course. No appeal to the appellate courts of California was taken. Cooper has exhausted state court habeas remedies without relief. In May, 1971, Cooper filed his pro per. habeas petition in the District Court substantially alleging, inter alia,…

Cooper, a State prisoner, appeals from the District Court’s denial of his 28 U.S.C. § 2254 habeas petition. We note jurisdiction under 28 U.S.C. § 2258 , and reverse and remand.

Cooper was indicted in 1964 by a State of California, San Francisco County grand jury, charging him with the crimes of burglary, assault, rape and robbery. A jury found Cooper guilty on all counts, and the court’s judgment of conviction and sentence to custody followed in due course. No appeal to the appellate courts of California was taken.

Cooper has exhausted state court habeas remedies without relief.

In May, 1971, Cooper filed his pro per. habeas petition in the District Court substantially alleging, inter alia, that he was denied the reasonably effective assistance of trial counsel in violation of his Sixth Amendment right. The District Court appointed counsel for Cooper and ordered the record augmented by a copy of the reporter’s transcript of Cooper’s state trial. The District Court, following two evidentiary hearings, entered a memorandum and order denying, the writ.

ISSUE

The controlling issue on review is:

Did the District Court err by concluding, after a de novo review based upon the…

(concurring):

I concur under the compulsion of our decision in Sanders v. Craven, 9 Cir., 1973, 488 F.2d 478 . I suggest, however, that we are getting ourselves on a semantic merry-go-round, with little prospect of real benefit to the law.

*1167 I suggest that there are two different kinds of “inadequate assistance of counsel” cages. One is the case in which the defendant has no lawyer at all (I classify Powell v. Alabama, 1932, 287 U.S. 45 , 53 S.Ct. 55 , 77 L.Ed. 158 , as such a case, even though the court did purport to appoint all the members of the bar to represent the defendants; in fact, no lawyer really represented them), or in which counsel’s performance is so bad or inept as to amount to no representation at all. The other is a case in which there has been .a lawyer, he has handled the trial, he has done most of it pretty well, but it is claimed that in certain respects his representation was ineffective. The latter is the kind of case that we have here.

The language of our decision in Sanders v. Craven, supra, requires that in such a ease the habeas corpus court must decide whether there has been “an impermissible deprivation of Sixth Amendment rights,” i. e.,…