Oakes, Circuit Judge, dissenting from denial of rehearing en banc.
A petition for rehearing, 688 F.2d 816, containing a suggestion that the action be reheard in banc having been filed herein by counsel for the petitioner-appellant, Richard Langone,
Upon consideration by the panel that heard the appeal, it is
Ordered that said petition for rehearing is DENIED.
It is further noted that a poll of the judges in regular active service having been taken on the suggestion for rehearing in banc and there being no majority in favor thereof, rehearing in banc is DENIED, Judge Oakes dissenting in a separate opinion.
OAKES, Circuit Judge (dissenting from denial of rehearing en banc):
I dissent from the court's refusal to rehear en banc the summary affirmance by written order of a denial of habeas relief. This case squarely presents not one but two issues worthy of en banc consideration under any test I know: (1) the standard for reviewing claims of ineffective assistance of counsel and (2) the standard for reviewing alleged violations of Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979).
I. The Sixth Amendment Issue
The panel properly found that Langone's counsel did not make a "farce and mockery" of Langone's homicide trial. That extreme standard is not met even when counsel falls asleep during trial. United States v. Katz, 425 F.2d 928, 931 (2d Cir. 1970). But the defense attorney did, in my view, render assistance which fell measurably below the stricter Sixth Amendment standard of reasonable competence now embraced by every federal court of appeals but our own*fn1 and by at least half of the state courts. Although the Supreme Court has not faced the issue directly, the language of its latest Sixth Amendment cases indicates that the requirement that counsel provide effective assistance -- first propounded as a matter of due process in Powell v. Alabama, 287 U.S. 45, 68-71, 77 L. Ed. 158, 53 S. Ct. 55 (1932) -- is not shadow but substance. In Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), for instance, the Court said "[a] guilty plea is open to attack on the ground that counsel did not provide the defendant with 'reasonably competent advice'" (quoting McMann v. Richardson, 397 U.S. 759, 770-71, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). See also Tollett v. Henderson, 411 U.S. 258, 267, 36 L. Ed. 2d 235, 93 S. Ct. 1602 (1973).
The only reasonably unclear issue in Langone's state court criminal trial was whether Langone had the "intent to kill" necessary to convict him of second-degree murder rather than manslaughter. Counsel failed to present any of the available evidence to negate intent, including evidence -- established at the post-conviction proceedings -- of Langone's drug intoxication. The half-hearted defense pursued was that the shots fired by Langone ricocheted from the ground into the victim. The theory was flatly contradicted not only by all of the available evidence and testimony -- with which counsel had never familiarized himself before trial -- but also by Langone's own trial testimony. The reasons for the deficient performance were confirmed by the lawyer's testimony at the postconviction proceeding: his law firm believed it unnecessary to prepare a defense, having become convinced that a bargained plea to the lesser charge of manslaughter would be obtained;*fn2 moreover, Joseph Galiber, the firm's attorney with whom Langone had principally spoken, was not available when the negotiations fell through and the case was forced to trial. Thus, trial counsel had done little if any pretrial investigation or preparation by the time the case came to trial and the requests for an adjournment by defense counsel and the defendant were denied.
Nor can counsel's performance be deemed merely a choice of trial strategy. On his own theory of the case, counsel interviewed none of the prosecution witnesses, retained no forensic or ballistics expert, and conducted no scientific tests. On the accused's theory of the case, counsel interviewed not one of the people named by Langone who saw him ingest numerous drugs, including methadone and barbiturates. Moreover, there was no need to choose between the two defenses here, because Langone's drug intoxication could have been presented to the jury along with and entirely consistently with counsel's theory that Langone had not fired the shots directly.
Counsel's failure to prepare and present a defense based upon Langone's absence of intent to kill was a denial of effective assistance of counsel under the standards prevailing in all other circuits. Failure to prepare, followed by presentation of a "bizarre" or "implausible" defense, is surely incompetent conduct on the part of counsel. Beasley v. United States, 491 F.2d 687, 690-91 (6th Cir. 1974). Preparation is often more important than courtroom presentation. Moore v. United States, 432 F.2d 730, 735, 739 (3d Cir. 1970). See also Nelson v. Smith, 504 F. Supp. 1139 (E.D.N.Y.), aff'd without opinion, 659 F.2d 1061 (2d Cir. 1981). And where an accused admits committing the charged act (here shooting), failure to investigate a lack-of-competency defense is a failure to prepare of the highest order. See Note, a Functional Analysis of the Effective Assistance of Counsel, 80 Colum. L. Rev. 1053, 1082 (1980). Preparation is the sine qua non of effective assistance. Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 21 L. Ed. 2d 120, 89 S. Ct. 80 ...