James Ewing v. J. D. Williams, Warden, Metropolitan Correctional Center (United States of America, Real Party in Interest)

(dissenting):

I respectfully dissent. While I recorded my disagreement with the majority in Cooper v. Fitzharris by joining in my Sister *398 Hufstedler’s dissent, see 586 F.2d 1325,1334 (Hufstedler, J., dissenting), I recognize that Cooper controls “where . . . the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial . . . .” Cooper v. Fitzhar-ris, supra, at 1327; see also id. at 1331. The present claim of ineffective assistance of counsel does not, however, stem from specific acts or omissions of counsel at trial. Rather, the claim derives from counsel’s total lack of investigation and preparation. In the words of the District Court, “counsel’s lack of investigation and preparation as to Count Two . . . was so complete as to pervade the entire proceedings.” Unlike Cooper, wherein the prejudicial effect of the specific acts and omissions “can be evaluated from [the] record with reasonable certainty,” 586 F.2d at 1332 , the District Court here, faced with counsel’s complete lack of preparation throughout the entire proceedings, could only “speculate” as to what might have been. 1 It seems apparent, too, that the nature of this…

The government appeals from an order of the district court granting James Ewing’s petition for post-conviction relief, filed pursuant to 28 U.S.C. § 2255 , and vacating Ewing’s conviction for conspiracy to import marijuana on the ground that he was denied effective assistance of counsel. Two separate but closely-related issues are presented: (1) whether the record supports the district court’s findings of fact and conclusions of law; and (2) whether the district court’s findings of fact and conclusions of law sufficiently support the relief granted in light of our recent decision in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc), reversing Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977).

On February 3, 1966, Ewing was tried before a jury on two indictments, one charging him with conspiracy to smuggle and smuggling cocaine, the other charging him — in two counts — with conspiracy to smuggle heroin and cocaine and conspiracy to smuggle marijuana. February 3 was originally set as the trial date for only the cocaine indictment, but upon the urging of the government and in light of the eventual representation of Ewing’s counsel that he was prepared to proceed on the…

596 F.2d 391 James EWING, Petitioner-Appellee, v. J. D. WILLIAMS, Warden, Metropolitan Correctional Center (United States of America, Real Party in Interest), Respondents-Appellants. No. 76-2058. United States Court of Appeals, Ninth Circuit. May 7, 1979. 1 Stephen V. Petix and John J. Robinson, Asst. U.S. Attys. (on the brief), Terry J. Knoepp, U.S. Atty., John J. Robinson, Asst. U.S. Atty. (argued), San Diego, Cal., for respondents-appellants. 2 Gary Ellingson, San Diego, Cal., for petitioner-appellee. 3 Appeal from the United States District Court for the Southern District of California. 4 Before BARNES and ELY, Circuit Judges, and KELLEHER, District Judge. * KELLEHER, District Judge: 5 The government appeals from an order of the district court granting James Ewing's petition for post-conviction relief, filed pursuant to 28 U.S.C. § 2255 , and vacating Ewing's conviction for conspiracy to import marijuana on the ground that he was denied effective assistance of counsel. Two separate but closely-related issues are presented: (1) whether the record supports the district court's findings of fact and conclusions of law; and (2) whether the district court's findings of fact and…