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.

Gary Ellingson, San Diego, Cal., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of California.

Before BARNES and ELY, Circuit Judges, and KELLEHER, District Judge.*

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 two-count indictment as well, the trial court consolidated the two cases and the trial on both indictments began. Prior to his announcement that he was ready on the second case, Ewing's counsel had notified the court that he had received the second indictment with its marijuana count only several days prior and could not answer "ready" to that case. However, counsel changed his mind and, with the assurance from the court that necessary continuances would be granted, elected to proceed to trial immediately on both indictments.

After the court dismissed all counts except the marijuana charge, the case went to the jury, and after deliberation, a verdict of guilty was returned on the marijuana count. Ewing unsuccessfully pursued appellate relief and then jumped bail, remaining a fugitive at law until his apprehension in January of 1975. Some five months later, he filed a motion for § 2255 relief from his conviction for smuggling marijuana, maintaining that he had been denied effective assistance of counsel in violation of his Sixth Amendment rights. The district court conducted an evidentiary hearing on the claim and after hearing testimony and considering the documents and affidavits submitted on both sides, entered an order vacating Ewing's conviction on the ground that he had been deprived of his right to effective assistance of counsel.

The court, in ruling on the § 2255 motion, found that Ewing's trial counsel had proceeded to trial on the marijuana offense totally unprepared. The Court also found that the unpreparedness resulted in several serious omissions, including (1) failure to move for dismissal of arguably duplicitous counts; (2) failure to conduct a pretrial interview of the government's key witness or to interview any potential defense witnesses; (3) failure to move to suppress an in-court identification; (4) failure to cross-examine the key prosecution witness with respect to possible bias; (5) failure to adequately oppose the government's attempts to impeach its own witness after he testified favorably to Ewing; and (6) failure to present any witnesses on behalf of Ewing.1 The Court further found that Ewing's trial counsel made a "grossly inadequate" statement to the court at Ewing's sentencing.

We are obliged to hold, and approvingly assert, that appellate courts should respect and defer to the findings of district judges regarding trial counsel's lack of preparation and investigation. The court's finding that Ewing's counsel proceeded to trial totally unprepared is a finding of fact and cannot be upset on appeal unless "clearly erroneous." Fed.R.Civ.P. 52(a). Upon reviewing the record, we cannot say that this finding is clearly erroneous. While testimony at the § 2255 evidentiary hearing was conflicting on the issue of counsel's preparedness, the district judge, who was in a position to ascertain the demeanor and credibility of the witnesses, found the evidence supporting a finding of unpreparedness credible, and disbelieved the testimony indicating counsel was prepared for trial. Moreover, the court's finding that counsel failed to perform a number of duties that may reasonably be expected of competent counsel is amply supported by the evidence on the record. Accordingly, we accept the findings made by the district court. However, the issue here in light of Cooper v. Fitzharris is not whether we should disturb a district court's finding of lack of effective assistance. Rather, the issue is whether Cooper requires more than a finding of ineffective assistance before a conviction will be reversed and a new trial ordered, and it is to that issue we now turn.

In granting the post conviction relief, the district court failed to identify the prejudice resulting to petitioner from trial counsel's inadequacy. The court found instead that the trial counsel's lack of investigation and preparation was so complete as to render impossible a determination of actual prejudice. In the district court's words, "(t)he second determination is whether counsel's failure to adequately investigate and prepare prejudiced petitioner. In that regard, this case is somewhat difficult, because counsel's lack of investigation and preparation as to Count Two of No. 36097 was so complete as to pervade the entire proceedings." The district court stated that

ineffective assistance of counsel may have had so pervasive an effect on the process of guilt determination that it is impossible to determine accurately the presence or absence of prejudice. . . . In such instances a finding of departure from the standard of normal competence requires, without more, a new trial.

The district court cited McQueen v. Swenson, 498 F.2d 207, 219 (8th Cir. 1974), Quoting Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970). The district court concluded that it "would be anomalous to require proof by petitioner of specific instances of prejudice in the face of the complete unpreparedness of counsel and his subsequent grossly inadequate assertion of petitioner's rights."

The absence of specific findings on the issue of prejudice raises a substantial question. Judicial review of a claim of ineffective assistance of counsel generally requires a two-step investigation consisting of a determination of whether counsel's performance has fallen below an established standard of competence and, if so, "where . . . the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial, the accused must establish that counsel's errors prejudiced the defense." Cooper v. Fitzharris (en banc), supra, at 1327. Here, the trial court determined that counsel's performance did fall below the established standard of competence.2 Thus, the only issues for decision are whether the second trier of the Cooper analysis is applicable here, and, if so, whether the district court erred in failing to make specific findings of prejudice.

In Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977), a panel of this Court held that "once a petitioner has carried his burden of establishing ineffectiveness of counsel, his conviction must be reversed without regard to the presence or absence of prejudice." Id., at 1165. The petitioner in Cooper, seeking post conviction relief pursuant to 28 U.S.C. § 2254, complained of various instances of allegedly ineffective representation and inadequate trial preparation, including the most serious allegation that counsel failed to move for the exclusion of evidence obtained in a questionable search of petitioner and his residence. Upon a review of the state court record and after conducting its own evidentiary hearing, the district court concluded that even if the challenged evidence was tainted by an illegal search and seizure, its introduction and use at trial was harmless error in light of the overwhelming evidence of guilt otherwise presented by the prosecution. The court thus rejected petitioner's claim to ineffective assistance of counsel on the ground that no prejudice had resulted from defense counsel's failure to move for suppression. Reversing and remanding, the appellate court found error in the trial court's approach, holding that a denial of effective assistance of counsel cannot constitute harmless error. Remand was ordered for the purpose of a factual determination as to whether petitioner had been denied his Sixth Amendment right of effective assistance of counsel.

This Court, sitting En banc, reversed the original appellate decision in Cooper. Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (En banc ). We held that "(w)hen the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel at trial, . . . relief will be granted only if it appears that the defendant was prejudiced by counsel's conduct. Id. at 1331. In so holding, this Court distinguished cases like Geders v. United States, 425 U.S. 80, 96 S. Ct. 1330, 47 L. Ed. 2d 592 (1976) and Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), finding that they involved cases where "no counsel is provided, or counsel is prevented from discharging his normal functions."3 Cooper v. Fitzharris (en banc), supra, at 1332. The En banc opinion identified two reasons for applying the " harmless error" rule where specific acts give rise to allegations of ineffective assistance of counsel. First, because the allegations of ineffective assistance are premised on specific acts or omissions, the prejudicial effect of these acts and omissions can be evaluated from the record with reasonable certainty. Id. These underlying errors

could have been reviewed on direct appeal only as plain error and, therefore, only on a showing of prejudice. Moreover, they could be relied upon as in themselves justifying collateral attack, rather than as supporting an allegation of ineffective assistance of counsel, only on a showing of both actual prejudice from the error and good cause for the procedural default. If such errors may be successfully attacked where no prejudice appears simply by asserting them under the name of ineffective assistance of counsel, the requirement that prejudice be shown to challenge these errors on direct appeal or collateral attack would be empty form.

Id. at 1333 (footnotes omitted). We offered the cautionary comment that

(i)f counsel is charged with multiple errors at trial, absence of prejudice is not established by demonstrating that no single error considered alone significantly impaired the defense prejudice may result from the cumulative impact of multiple deficiencies.

Id. Thus, the law in this Circuit is clear that where an allegation of ineffective assistance by counsel is premised on specific acts or omissions of counsel, the allegation must be buttressed by a showing of injury or prejudice to the defendant.4 And even where, as here, several specific errors are found, it is the duty of the Court to make a finding as to prejudice, although this finding may either be "cumulative" or focus on one discrete blunder in itself prejudicial.

The district court found that it would be "anomalous" to require a showing of prejudice in light of counsel's complete unpreparedness. However, as Cooper v. Fitzharris (En banc ) pointed out, the mere fact that counsel's performance fell below a certain standard does not mean that it is impossible to evaluate the impact of this failure with reasonable certainty, albeit on a cumulative basis. Second, the errors identified by the court below could have been reviewed on direct appeal. See Cooper v. Fitzharris (en banc), supra, at 1333.

Indeed, the decision to proceed in an unprepared state may itself have been the tactical decision of a trial attorney confronted with overwhelming evidence.5 For all these reasons, the district court's insight into the prejudicial impact of trial counsel's actions is important, and should not be supplanted by an appellate court's conclusions derived from a necessarily-limited record on appeal. In fact, appellate courts have no means of effective review absent such findings. For these reasons, the instant case is controlled by Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (En banc ).

We recognize that some circuits allow a finding of ineffective assistance of counsel without a showing of prejudice in certain limited cases. In the instant case, the district court relied on McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974). However, this Circuit's recognition that prejudice may arise where counsel's multiple deficiencies have the cumulative effect of denying a fair trial to the petitioner displaces an analysis of ineffective assistance based on the impossibility of finding prejudice, in favor of an approach that requires the district court to examine multiple defalcations more closely. The touchstone here, as in all cases where ineffective assistance of counsel is alleged, is a fair trial. Where no single error or omission of counsel, standing alone, significantly impairs the defense, the district court may nonetheless find unfairness and thus, prejudice emanating from the totality of counsel's errors and omissions. Although findings of fairness or unfairness may, in some cases, present difficulties, the logic of Cooper v. Fitzharris and the need for effective appellate review requires a finding of prejudice as well as a finding that counsel's performance slipped below the acceptable standard.

To draw a distinction between "specific" errors and omissions, on the one hand, and "total" unpreparedness on the other, misses the mark. To do so would require findings of prejudice in the former case, but would presume prejudice in the latter. There are two reasons why this purported distinction should not be embraced. First, Cooper v. Fitzharris expressly considered situations where trial counsel would be "totally" unprepared, allowing a district judge to order a new trial where multiple errors or omissions result in prejudice to the defendant, even where no one error would, by itself, require a new trial.6 Cooper v. Fitzharris (en banc), supra, at 1333. Second, the right to a new trial should not and does not depend on the elusive, and perhaps chimerical, distinction between "total" and "specific" lack of preparation.7 It should and does depend on prejudice. Any distinction between "total" and "partial" lack of preparation would be to modify Cooper v. Fitzharris less than four months after its En banc decision. Even were we in favor of such modification, an appellate panel simply cannot modify an En banc decision. See Ellis v. Carter, 291 F.2d 270, 273 n.3 (9th Cir. 1961); Upton v. Commissioner, 283 F.2d 716, 723 (9th Cir. 1960), Cert. denied, 366 U.S. 911, 81 S. Ct. 1086, 6 L. Ed. 2d 236 (1961).

In reversing and remanding, we are not by any means unmindful of the careful work of the district judge. The anomaly here presented is not uncommon in the judicial process. It is this: on appeal, a careful trial judge is often held to the impossible task of applying the law, not as it was at the time of his decision, but rather, as the conglomerate wisdom of an En banc appellate court may thereafter determine that law to be.

Here, for example, the learned district judge had no way of knowing that a finding of prejudice was required; arguably, it then was not required. Therefore, he made no inquiry on the prejudice issue, and specifically, whether the gross inattention of counsel to the marijuana charge was a calculated strategy. Perhaps, in counsel's view, the best possible result for the defendant, in light of the government's evidence was an acquittal on all charges but the marijuana count. The defendant Was acquitted on the heroin and cocaine charges for which he was concurrently tried. What sort of prejudice arose when defense counsel achieved That result? On this record we don't know, and the trial judge quite properly considered it irrelevant to his duty of inquiry as the law then stood.

But the law now requires his consideration of whether, on the entire record, there was prejudice resulting from the total performance of counsel. We take particular note of the careful work of the district judge. However, it was undertaken at a time when the law of this Circuit was unclear. The law is no longer uncertain. Although the district judge was careful, he was not clairvoyant or prescient. The En banc opinion in Cooper v. Fitzharris, handed down after the district judge entered his order, requires a further finding of prejudice if the defendant is to receive a new trial.

We are therefore compelled to reverse the order of the district court, and remand the case for further proceedings in light of this opinion and Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (En banc ). So ordered.

I respectfully dissent. While I recorded my disagreement with the majority in Cooper v. Fitzharris by joining in my Sister 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. Fitzharris, 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 distinction lay at the very heart of the majority opinion in Cooper v. Fitzharris, 586 F.2d at 1332.2

I agree with the majority that "(t)he touchstone here, as in all cases where ineffective assistance of counsel is alleged, is a fair trial." Majority Opinion p. 396. From the record before us, I think it is absolutely clear that the District Court found that appellant was denied a fair trial because of counsel's abysmal lack of preparation and investigation and "his subsequent grossly inadequate assertion of petitioner's rights." These are the kinds of determinations by district judges to which we, at the appellate level, should accord some deference and respect. My Brothers gloss over the careful work of the district judge as if that work had never been done.

I am also perplexed, and even bewildered, by the majority's statement that "the decision to proceed in an unprepared state may itself have been the tactical decision of a trial attorney confronted with overwhelming evidence." Majority Opinion p. 396. It is the solemn duty of an attorney, especially an attorney undertaking to defend an individual accused of crime, to prepare and investigate every aspect of a case before proceeding to trial.3 In light of this duty, it defies my imagination to accept the majority's proposition that a complete lack of preparation and investigation, in any case or in any circumstances whatsoever, could be deemed to be a "tactical decision" made by the attorney.

I would affirm.