The opinion of the court was delivered by: DITTER
It is well established in this circuit that what is required of counsel is "normal and not exceptional representation." Moore v. United States, 432 F.2d 730 (3d Cir. 1970). Furthermore, it should be remembered that "effective" counsel does not mean "errorless" counsel, and that the burden of establishing a claim of ineffective assistance is a heavy one. United States ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976).
Relator argues that the right to make closing argument is guaranteed by the Constitution, and that any decision to waive it must be participated in by the defendant. I have no difficulty agreeing that we are concerned here with a fundamental constitutional right. This court has expressly recognized "that the absolute right of counsel proclaimed in Douglas v. State of California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963), includes the right to have counsel be heard in summation before verdict." United States ex rel. Wilcox v. Pennsylvania, 273 F. Supp. 923, 924 (E.D. Pa. 1967). See also United States ex rel. Spears v. Johnson, 327 F. Supp. 1021, 1023 (E.D. Pa. 1971), rev'd., 463 F.2d 1024 (3d Cir. 1972). Any lingering doubt was effectively extinguished by the Supreme Court's recent declaration that "a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense." Herring v. New York, 422 U.S. 853, 859, 95 S. Ct. 2550, 2554, 45 L. Ed. 2d 593 (1975). However, these cases do not dictate a grant of habeas corpus relief when defense counsel has waived the right of summation without consulting his client.
In Herring, supra, the Supreme Court dealt with a section of the New York Criminal Procedure Law which permitted a judge in a nonjury criminal trial to deny an opportunity for summation. Similarly, in Wilcox, supra, the trial judge interrupted the defense attorney, who was just beginning his closing argument, in order to announce the verdict of guilty.
By contrast, in the instant case, a full opportunity for summation was presented to defense counsel and voluntarily declined.
This critical distinction renders the above-cited cases completely inapposite to the present controversy. The Supreme Court in Herring clearly confined its holding to the situation where the trial court affirmatively denies counsel the right to make a closing argument, stating "[There] can be no restrictions upon the function of counsel in defending a criminal prosecution . . .. The right to the assistance of counsel has thus been given a meaning that ensures to the defense in a criminal trial the opportunity to participate fully and fairly in the adversary factfinding process." 422 U.S. at 857-58, 95 S. Ct. at 2553 (emphasis supplied). This mandate was not violated at relator's trial. No "restrictions upon the function of counsel" were imposed and "the opportunity to participate fully and fairly" was extended.
The question presented here is whether counsel's voluntary decision to waive that opportunity must be made in consultation with his client. The Herring court did not address this issue and I must look elsewhere for its resolution.
In United States ex rel. Spears v. Johnson, 463 F.2d 1024 (3d Cir. 1972), the Court of Appeals considered a factual situation bearing some similarity to that posed in Wilcox, supra. The court's analysis and conclusion are particularly relevant here. Spears was tried for aggravated robbery in a Pennsylvania state court. At the conclusion of the Commonwealth's case, defense counsel renewed an earlier motion for withdrawal of a juror. The court responded by denying the motion and simultaneously announcing its verdict of guilty. 463 F.2d at 1025. The district court granted habeas corpus relief on the ground that defense counsel had been prevented from making a closing argument. 327 F. Supp. 1021, 1022 (E.D. Pa. 1971). The Court of Appeals reversed, holding that counsel could not have been denied the right of summation since he had never asked for it. Indeed, at no time did counsel suggest any desire to make a closing argument, and he did not object to the trial judge's procedure. Thus, the Spears panel felt that relief was not mandated since the right to summation had not been affirmatively denied. In the instant case, the absence of denial is even more clear since Turner's trial counsel was offered the opportunity for summation and declined it.
Moreover, the Spears panel speculated that counsel may have deliberately avoided closing argument for fear that it would do more harm than good. 463 F.2d at 1026. By suggesting this as a further ground for denying habeas relief, the panel seems to imply that it would be consistent with the defendant's constitutional rights for his attorney to waive summation in the interest of trial strategy.
Spears, however, is not dispositive of Turner's contention because the Court of Appeals restricted its opinion with the following disclaimer: "We do not believe it necessary in the instant appeal to decide what may be the parameters [sic] of the right of an accused to make a summation to the finder of fact . . ." 463 F.2d at 1026. Thus, the court did not reach the voluntary waiver question, and did not consider certain authority which bears significantly on the proper resolution of this issue.
My research has uncovered no case dealing directly with an attorney's voluntary waiver of the right to closing argument and none has been called to my attention. Considerable authority exists, however, on trial counsel's voluntary waiver of other constitutional rights.
In Wilson v. Gray, 345 F.2d 282 (9th Cir.), cert. denied, 382 U.S. 919, 86 S. Ct. 288, 15 L. Ed. 2d 234 (1965), the court considered a petition for habeas corpus relief where defense counsel, without consulting his client, consented to submission of the case on the transcript of the preliminary hearing, thereby waiving the right to confront and cross-examine prosecution witnesses. While acknowledging that it was "an essential ingredient of a fair trial," the court rejected the view that waiver of the right must, in all cases, be made by the defendant personally, rather than by his counsel. 345 F.2d at 286. On the contrary, the court stated that when a decision was made by trial counsel as a matter of deliberate tactics and strategy,
the defendant could not be said to have suffered any denial of due process. 345 F.2d at 287-88. The court went on to suggest that the question of whether the waiver of a given right must be participated in personally by the accused is to be decided on a case-by-case basis, with the concept of fundamental fairness as the critical factor. 345 F.2d at 290. The Ninth Circuit reaffirmed this concept in the recent decision of United States v. Goldstein, 532 F.2d 1305 (9th Cir. 1976), where it was held that defense counsel's stipulation to the admission of evidence without his client's stated waiver did not violate due process. 532 F.2d at 1315.
At an evidentiary hearing held in this court pursuant to Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), it was made clear that trial counsel's decision to waive closing argument was the product of deliberate choice, tempered by what he thought was necessary and appropriate under the circumstances.
Relator offers nothing to show that this decision deprived him of due process or fundamental fairness.
Analysis of this question would not be complete without some discussion of the Supreme Court's decision in Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963). There, the Court considered the habeas corpus petition of a prisoner whose felony murder conviction rested on a confession which had since been shown to be involuntary. The defendant had not taken a direct appeal to the higher state courts within the prescribed time limits, and it was argued that this barred him from federal habeas corpus relief on the ground that he had failed to exhaust his available state remedies. The Court rejected this contention and held that the requirement of exhaustion is applicable only to state remedies which are still open and available to the relator when he files his habeas petition in federal court.
372 U.S. at 435, 83 S. Ct. at 847. Recognizing this holding might lead to abuse in certain circumstances, however, the Court added the qualification that ". . . the federal habeas judge may in his discretion deny relief to an applicant who has deliberately bypassed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." 372 U.S. at 438, 83 S. Ct. 822, 9 L. Ed. 2d 837. Nevertheless, the Court hastened to add that this qualification or exception was limited to those cases where the defendant himself had made a conscious and informed decision to forfeit his rights. Recalling the definition of waiver announced in Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461,
the Court stated emphatically that "A choice made by counsel not participated in by the petitioner does not automatically bar [habeas corpus] relief." 372 U.S. at 439, 83 S. Ct. at 849.
Undeniably, this language is cause for hesitation in the instant case. The decision to waive closing argument in Turner's murder trial was plainly "a choice made by ...