Full opinion text
MEMORANDUM AND ORDER GRANTING HABEAS CORPUS RELIEF JOHN W. OLIVER, District Judge. I. This is the third time this state prisoner habeas corpus case has been before this Court. In Garton v. Swenson (W.D.Mo.1967), 266 F.Supp. 726, we granted federal habeas corpus relief because petitioner had been denied his right to counsel on direct appeal and because he had been denied a postconviction evidentiary hearing required by federal standards, enunciated in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). Seven years later, in Garton v. Swenson (W.D.Mo.1973), 367 F.Supp. 1355, we felt compelled to deny petitioner habeas relief in his alleged Sixth Amendment claim of ineffective assistance of counsel because “we are quite confident that should the Court of Appeals apply its ‘farce or mockery’ test to the circumstances of this case, it would conclude that any finding this Court may make in regard to ineffective assistance would implicitly be found to be clearly erroneous and petitioner would be denied relief on the theory that the Supreme Court of Missouri had properly articulated and applied the Eighth Circuit’s ‘farce and mockery’ standard.” [367 F.Supp. at 1364]. When this case was last before this Court in 1973, the petitioner was then serving a life sentence imposed under the Missouri Habitual Criminal Act. Approximately a month after the Court of Appeals concluded that we had read the Eighth Circuit’s “decisions too narrowly” and had therefore remanded this case “for an evidentiary hearing wherein the district court shall determine whether Garton’s attorneys conducted an inadequate investigation which amounted to ineffective assistance of counsel,” see Garton v. Swenson (8th Cir. 1974), 497 F.2d 1137, 1140, petitioner was released on parole. The Federal Public Defender who had been appointed to represent petitioner both in this Court and in the Court of Appeals did not hear from petitioner until January, 1975. Inquiry developed that petitioner, because of conditions of health, would have been satisfied with being relieved of his obligations of parole. The Attorney General’s office agreed that application should be made to the Missouri Board of Parole and Probation for its consideration of whether it would recommend commutation of sentence to the Governor in order that this case, as a practical matter, would be mooted. The Assistant Attorney General in charge of the case thereafter reported that the Board of Parole and Probation wanted to review available medical data. The Board was furnished that data as it related to petitioner’s recent open-heart surgery performed at the University of Missouri Medical Center and a more recent and current report of petitioner’s physician in Odessa, Texas, where petitioner is presently living. The Missouri Board of Parole and Probation finally determined, on January 23, 1976, however, that it would not make any exception to what it stated was a long-established policy of requiring a minimum period of five years supervision before considering recommendation to the Governor for commutation of a life sentence. On March 2, 1976 the Assistant Attorney General advised this Court that the Board of Parole and Probation would not reconsider its position. Counsel were agreed that the Court of Appeals’ remand for an evidentiary hearing to “determine whether Garton’s attorneys conducted an inadequate investigation which amounted to ineffective assistance of counsel” must be read in light of the Court of Appeals’ quotation of this Court’s opinion in which we outlined the type of hearing this Court would have conducted had it been free to do so. As we attempted to explain, we did not believe that we could properly conduct such a hearing in the face of the Supreme Court of Missouri’s application of the Eighth Circuit’s “farce and mockery” rule, as stated in Cardarella v. United States (8 Cir. 1967), 375 F.2d 222, 230, in a manner in which we believed our Court of Appeals had consistently applied that rule over the years. After noting that “there is nothing in the record to show that counsel was familiar with the provisions of § 491.420, V.A.M.S., whereby out-of-state witnesses could have been subpoenaed” and that “§ 491.420, V.A. M.S., provides for the compulsory attendance of out-of-state witnesses,” the Court of Appeals quoted the following portion of this Court’s opinion: If we were free to apply any standard other than the “farce and mockery” rule, we would, as we have indicated, deem it necessary to conduct a further evidentiary hearing to ascertain whether defendant’s counsel or anyone else involved in the case, were familiar with the fact that all of the witnesses who testified at the two extradition hearings in New Mexico could have been compelled to testify in Missouri pursuant to V.A.M.S. § 491.420, Missouri’s version of the Uniform Law to Secure Attendance of Witnesses from Within or Without the State in Criminal Proceedings. Judicial notice requires recognition of the fact that New Mexico has also adopted the Uniform Act. We would also make further inquiry into the circumstances surrounding the refusal of the trial court to grant a continuance. [497 F.2d 1139] When it became apparent in March of this year that the Board of Parole and Probation was not going to take any administrative action to moot this case, counsel advised the Court that they were confident that they would be able to stipulate the material and relevant factual circumstances relating to the questions presented by the Court of Appeals’ order of remand. The following stipulation was filed March 29, 1976: COME NOW the petitioner and the respondent and hereby agree and stipulate that if Mr. Commodore M. Combs, Jr., were called as a witness at an evidentiary hearing in this case to supplement the testimony he gave on February 18, 1969 in the case of Charles W. Garton v. State of Missouri, No. E-1S572, in the Circuit Court of Andrew County, Missouri, he would state as follows: That Combs cannot recall whether he and Harrington ever discussed the possibility of subpoenaing Garton’s alibi witnesses in New Mexico to testify in Missouri. That Combs and Harrington did not pay the expenses of Garton’s wife and Tommie Louise Lee Owen for the trip from New Mexico to Missouri. That, however, Harrington did provide Tommie Louise Lee Owen with expense money for the trip back to New Mexico. That Combs does not recall ever having utilized Missouri’s out-of-state subpoena statute, Mo.Rev.Stat. Section 491.420 (1969) (enacted in 1959), and would have to say that he was unaware of the statute at the time of the Garton trial. That Combs does not know if Harrington knew of that statute at that time or if Harrington had ever used that statute before or afterwards. That Combs cannot recall whether an oral motion for a continuance was made at the beginning of the Garton trial and, if such a motion was made, cannot remember any of the circumstances surrounding it. That the statements contained herein are true and correct to the best of Combs’ knowledge and recollection. Petitioner and respondent also hereby agree and stipulate that neither of them have additional evidence he wishes to adduce, and that the ease may be considered on the basis of the data already in the files and records, together with the above stipulation to Mr. Combs’ testimony. Both sides thereafter filed proposed findings of fact and proposed conclusions of law. Both sides have suggested that we reiterate as an introductory finding the same finding we made when the case was last here. Accordingly, we again find that on September 1, 1961, two men robbed the Farley State Bank in Farley, Missouri. Petitioner was arrested for that crime on October 28, 1961 in Hobbs, New Mexico, and was held for extradition to Missouri. At an extradition hearing held November 22, 1961, the District Court of Lea County, New Mexico, after hearing four witnesses-testify as to petitioner’s presence in Hobbs on the date of the robbery, released him and refused extradition. Later, on January 5, 1962, a second extradition hearing was held at which the State presented three eye-witnesses to the robbery who identified petitioner as one of the participants. The same four alibi witnesses again testified for the petitioner, but extradition was granted. None of the remaining findings proposed by the parties are in such complete and total agreement. However, the findings proposed by each side do not present any substantial conflict in the underlying factual circumstances of this case. Generally speaking, the parties disagree only in regard to what inferences should be drawn from the undisputed factual circumstances. We shall therefore state our findings in language proposed by the parties, making such modifications as we believe are required by the record, and shall draw the inferences we are convinced must be drawn from the virtually undisputed circumstances of the case. The four alibi witnesses mentioned above were Mr. R. E. Holliday, Mr. R. E. Jones, Mr. Jack Lewis, and Mr. A. W. Rash. None of those four witnesses testified at petitioner’s state trial. On May 25,1971, as a part of federal habeas corpus discovery, the depositions of those witnesses, with the exception of Rash who had died, were taken and filed as part of the record in this case. Had the four witnesses been subpoenaed and called to testify at the petitioner’s state trial and had they testified as they did at the two earlier extradition hearings and in their depositions, their trial testimony would have been helpful to the petitioner in that such testimony would have substantially supported the petitioner’s alibi defense in that such testimony would have placed the petitioner in Hobbs, New Mexico on August 31 and September 1, 1961, rather than at the site of the bank robbery in Farley, Missouri. The four alibi witnesses were not subpoenaed to appear and testify at the petitioner’s state trial, although his trial counsel, Mr. Joseph Harrington, now deceased, and Mr. Commodore M. Combs, Jr., whose testimony is stipulated, both knew of the witnesses and considered their testimony “very vital to the defense” of the petitioner [Trial Tr. at 4]. The record demonstrates that it was not a decision of defense tactics or trial strategy not to put on the testimony of the four aforementioned alibi witnesses. [See Trial Tr. at 4-6]. In fact, the defense asserted at trial by the petitioner through his counsel was the defense of alibi [Trial Tr. at 336-359]. The State concedes that Roe Holliday testified by way of federal habeas deposition that if he had been called as a trial witness, he would have placed petitioner in Hobbs, New Mexico, on September 1, 1961, by way of recalling actually having seen petitioner there on that date. If he had testified at trial, his testimony would have been that he saw petitioner at the Wayside Inn, where Holliday worked, when petitioner arrived there between 10:30 and 11:00 p. m. [Dep. Tr. 21-24]. R. E. Jones testified by way of federal habeas deposition that petitioner was his employee at the Mirror Room in Hobbs, New Mexico, during August and September, 1961. While his testimony at trial would have been that he did not know the exact location of petitioner on September 1, 1961, and that petitioner could have been gone for several days around that time and may not have been noticed [Dep. Tr. 71, 73], Jones’ testimony would have corroborated the fact of petitioner’s employment in Hobbs, New Mexico and, when taken with the testimony of the other alibi witnesses, would have been helpful to the defendant. Deposition testimony taken of Jack Lewis showed that he would have testified at petitioner’s trial that while he had not seen petitioner on the date of the bank robbery, September 1,1961 [Dep. Tr. 51-52] he could place petitioner in Hobbs, New Mexico, on August 31,1961, by referring to the date on a receipt [Dep. Tr. 64]. Mr. Rash had been stricken with a heart attack at the time of petitioner’s state trial [27.26 Tr. 158 and Dep. Tr. 54] and was dead at the time the federal habeas corpus depositions were taken on May 25, 1971. The four aforementioned alibi witnesses all resided in the State of New Mexico. At the time of petitioner’s state trial, there existed a state statutory procedure for summoning witnesses from another state to testify in Missouri. Mo.Rev.Stat. Section 491.-420 (1969) (enacted in 1959). It is clear from the record that defense counsel made no attempt to utilize that statute to summon the four alibi witnesses to testify at petitioner’s trial. Mr. Combs, the only survivor of the two defense counsel, has stated in stipulated testimony that he was unaware of Section 491.420 at the time of petitioner’s trial. [Stipulation filed March 29, 1976] Although Mr. Combs did not know whether Mr. Harrington was aware of that statute at the time of the trial, the inferences which must be drawn from Combs’ stipulated testimony and all of the circumstances of the case, all establish beyond reasonable doubt, Mr. Harrington’s lack of familiarity with Section 491.420. We expressly reject the State’s proposed finding that the alibi witnesses were absent from petitioner’s trial as a result of illness or accident and not as a result of a lack of subpoena from petitioner's trial attorneys. We make the determinative findings in the preceding paragraph in full recognition of our Court of Appeals’ statement in Gar-ton that it has never used the words “mockery of justice” in any “talismanic” sense, but that State and district court judges in the Eighth Circuit are to understand that the Eighth Circuit has in the past and now employs those words “to encompass the principle that a petitioner or appellant bears the heavy burden of proving unfairness.” [497 F.2d at 1139] The State properly recognizes that the Court of Appeals significantly stated that “there is nothing in the record to show that counsel was familiar with the provisions of § 491.420, V.A.M.S., whereby out-of-state witnesses could have been subpoenaed.” [Id. at 1139] Faced with the stipulated fact that Mr. Combs, with commendable frankness, conceded he did not know of the existence of § 491.420, the State suggests in regard to Mr. Harrington that “the mere fact that an attorney did not use an available procedure does not mean that he did not know about it” [State’s brief, p. 10]. The State also suggests that petitioner’s trial counsel “may have reasonably determined that requesting [the alibi witnesses’] appearances informally would be just as effective as issuing a subpoena” [State’s brief, p. 11]. With commendable candor, however, the State directs attention to the examination of a defense witness at trial which reflects only one of the circumstances which establishes that, in our considered judgment, the petitioner has carried the heavy burden stated by our Court of Appeals of proving that neither Mr. Harrington nor Mr. Combs had any knowledge of § 491.420 at the time of trial. The trial examination to which the State directs attention on page 346 of the trial transcript reads as follows: Q. Mrs. Owens, you come from Hobbs, New Mexico, to testify in this Court, how did you get here? A. I pulled doubles last week. I worked a double shift all week long to come up here. ****** Q. [By Mr. Combs] You weren’t subpoenaed? A. I understand you can’t subpoena out of state. ****** THE COURT: Are you asking the witness if she is under subpoena here? MR. COMBS: I was about to do that. Q. [By Mr. Combs] Are you under subpoena? A. They told me they couldn’t subpoena out of State. No, I am not subpoenaed here. [Emphasis ours] The State also suggests that this Court may properly infer that Mr. Harrington, because he had practised criminal law for some time in Kansas City, may have had some previous occasion to research the law in regard to obtaining out-of-state witnesses and that he “might reasonably have determined that obtaining promises of their attendance would be sufficient to guarantee their presence.” [State’s brief, p. 10] The notion that a witness could and would travel at his own expense rather than at the State’s is untenable on its face, to say nothing of the risk involved in failing to have an important witness under subpoena. In regard to what research a criminal lawyer may have engaged in in the past, no experienced federal trial judge is in the least surprised to learn that any number of lawyers who try many criminal cases for years have never heard of, for example, Section 3500, Title 18, United States Code. We expressly reject the State’s suggestion that we draw the inferences it has proposed. Indeed, if such inferences could be drawn, we would, under the circumstances of this case, be required to make a finding that counsel’s failure to use § 491.420 would have breached the duty owed petitioner under the Sixth Amendment. Section 491.420 is a part of the Uniform Law to Secure Attendance of Witnesses from Within or Without State in Criminal Proceedings. The Uniform Law is applicable only in those states which have adopted it. At the time of petitioner’s trial, the State of New Mexico, the resident state of the four alibi witnesses, had adopted the Uniform Law. 1953 Comp. Sections 41-12-13 to 41-12-18. Although we indicated when this case was last here that if we had believed we were free to do so we would have made further inquiry into the circumstances surrounding the refusal of the trial court to grant a continuance, it is not necessary to state the factual circumstances in that regard or to reach that substantial question because the only issue briefed by the parties is the Sixth Amendment question of whether petitioner was denied the effective assistance of counsel because of petitioner’s counsels’ failure to learn of and utilize § 491.420. II. The order of remand directed that this Court consider this case in light of the Court of Appeals’ holding in McQueen v. Swenson (8 Cir. 1974), 498 F.2d 207. As we shall suggest in the appendix attached to this opinion, the question of what the holding of McQueen may be has not been answered in the same manner by both appellate and trial judges who have been required to make that determination. We have therefore concluded that justice will be served in connection with our compliance with the remand order of the Court of Appeals in this case by our acceptance of the view of McQueen’s holding agreed to by both sides. Petitioner’s counsel does not disagree with the State’s view of McQueen’s holding and we independently conclude that both side’s view of McQueen is consistent with at least one of the views expressed by at least some Eighth Circuit appellate and trial judges who have-been required to consider the holding of that case. The State’s view of McQueen’s holding is stated on pages 8 and 9 of its brief as follows: “McQueen held that there is a two-step analysis approach to claims of ineffective assistance of counsel. First, petitioner must establish whether there has been a failure to perform a duty owed by the defense attorney to his client. Second, he has the burden of establishing whether that failure prejudiced him in obtaining a fair trial. If prejudice is found to exist, it can be declared harmless only if it is found to be so beyond a reasonable doubt. McQueen at 218, 220. Furthermore, when the claim of ineffective assistance of counsel relates to the investigation of or obtaining the presence of witnesses, the petitioner must show existence of admissible evidence which could have been presented at the trial and which would have proved ‘helpful’ to the defendant either on cross-examination or in his case in chief. Once petitioner has shown that his attorneys’ breach of duty has caused the absence of admissible testimony which would have been ‘helpful’ to his ease, he must be granted a new trial unless a court can hold the belief that the omission of the evidence was harmless beyond a reasonable doubt. The burden of proving prejudice is initially on petitioner unless he can show such changed circumstances as would justify placing the burden of proving an absence of prejudice on the state.” In its application of that analysis, the State conceded that “the conducting of legal research on issues essential or important to a case is a duty owed by an attorney to a client,” and stated that, under that circumstance, “petitioner must show, first, that both of his trial attorneys, Combs and Harrington, were ignorant of the legal provisions for obtaining compulsory service on out-of-state witnesses as provided in § 491.-420, R.S.Mo.1969.” In regard to that first step of the State’s analysis, we reiterate our factual finding that both of petitioner’s trial attorneys were ignorant of § 491.420 and therefore conclude that petitioner has carried Garten’s heavy burden of proving that the duty which the State concedes was owed petitioner was breached under the circumstances of this case. The State continued its application of its analysis of McQueen by stating that “Second, if such a lack of knowledge is shown, petitioner must show in addition that there are witnesses who had admissible testimony which would have been helpful to his case and whose failure to testify is attributable to the fact that no subpoenaes were issued for them.” We reiterate our finding that the petitioner has carried the heavy burden required by Garton of establishing beyond reasonable doubt that the witnesses’ testimony would have been helpful to his case and that the failure of those witnesses to be called as witnesses and to testify resulted from counsel’s failure to know of and to utilize § 491.420. And, finally, the State stated as part of its analysis of McQueen’s holding that “Third, if petitioner has borne his burden of proof on the first two points, he must be granted a new trial unless the state can show that the prejudicial effect of the lack of such testimony on petitioner’s trial was harmless beyond a reasonable doubt.” We reiterate our finding that the petitioner has carried the heavy burden of proving unfairness in accordance with Garton, and conclude, in accordance with both parties’ understanding of McQueen’s holding, that the petitioner is entitled to a new trial for the reason that the State has not shown that the prejudicial effect of the lack of the alibi witnesses’ testimony was harmless beyond a reasonable doubt. We further assume, for purposes of this opinion only, that a violation of the Sixth Amendment guarantee of effective assistance of counsel is subject to a harmless rule. Accordingly, we find and conclude, in the language of Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), that the State, as the beneficiary of the constitutional error involved in this case, has not “prove[d] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” III. Our consideration of the case on remand in accordance with the parties’ agreed reading of the Eighth Circuit’s holding in McQueen makes it clear that petitioner is entitled to federal habeas corpus relief. An appropriate order will therefore be entered in this case. We believe, however, that we should add that this case, once again, vividly illustrates the need for guidance from the Court of Appeals in regard to the manner State court ¡judges and federal trial judges are to consider a Sixth Amendment ineffective assistance of counsel claim. When this case was last before us, we set forth various of the numerous rules of decision, sometimes defined in the cases as “standards,” which had been articulated in various Eighth Circuit cases over the years. Those rules included, but were by no means limited to, thé Cardarella “farce and mockery” rule. See 367 F.Supp. at 1360-1362. We noted that in a state prisoner habeas corpus cáse: “If different standards are articulated in various Eighth Circuit cases, the various State courts are afforded a multiple choice as to which standard is to be applied in regard to the federal question presented.” Because one of those multiple choices included the Eighth Circuit’s “farce and mockery” rule, and because the Supreme Court of Missouri had based its decision.in Garton solely on that rule, we concluded that we were under judicial duty as a federal trial judge, regardless of what we may have thought about that rule, to approve the Supreme Court of Missouri’s application of the “ ‘farce and mockery’ rule . . [and to] make the same application of that rule which we believe the Court of Appeals would make under the circumstances.” Id. at 1365. We frankly expressed our belief that the articulation and routine application of the “farce and mockery” rule by the Supreme Court of Missouri as a federal constitutional standard almost automatically required the denial of relief in all Sixth Amendment ineffective assistance cases. For, as we stated three years, ago when the case was last before us, “we. know of no case in the Eighth Circuit or elsewhere which has ever concluded that the ‘farce and mockery’ rule has ever been violated in a particular cáse.” Id. at 1364. Under the juridical circumstances presented in Garton, we expressed the hope that the Eighth Circuit would reconsider the “farce and mockery” rule and, in accordance with principles stated in numerous Supreme Court decisions since Powell v. Alabama, [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932)) was decided in 1932, follow the lead of other Circuits and establish a single definitive Sixth Amendment standard in this difficult area of the law for the guidance of the various State court judges and the federal district judges in the Eighth Circuit. The Court of Appeals obviously did not believe that it was appropriate to reconsider the Eighth Circuit “farce and mockery” rule in Garton. It did, of course, take a half-way step toward a reconsideration of that rule when it decided McQueen. As will be developed later in detail, we believe that it is apparent that McQueen’s admonition that the “farce and mockery” language in the Eighth Circuit’s rule should not be “taken literally” was borrowed directly from the 1967 decision of the Court of Appeals for the District of Columbia, as stated in Bruce v. United States (1967), 126 U.S.App.D.C. 336, 379 F.2d 113. Bruce, of course, was dealing with the earlier District of Columbia case, Jones v. Huff (1945), 80 U.S.App.D.C. 254, 152 F.2d 14, which articulated the traditional “farce and mockery” rule as it formerly existed in the District of Columbia Circuit. Huff stated the former District of Columbia’s “farce and mockery” rule in language almost identical to that used by the Eighth Circuit in Cardarella. When the District of Columbia reconsidered and rejected Bruce’s modification of Jones v. Huff in its 1973 decision in United States v. DeCoster (1973), 159 U.S.App.D.C. 326, 487 F.2d 1197, it recognized that the District of Columbia Circuit’s opinions “leave uncertain the correct standard to be applied when the question of ineffectiveness is raised.” DeCoster noted, however, that “several important developments since Bruce” required a fundamental reconsideration of Bruce which required, as apparently does McQueen, “a heavy burden” to show “unfairness” for the reason such a test suggested in Bruce “appears to rest on the theory that an ineffectiveness claim is grounded in the due process clause” rather than on the Sixth Amendment to the Constitution of the United States. We are convinced that, as was true in the District of Columbia Circuit in 1973 when Bruce’s half-way step away from the traditional “farce and mockery” rule of that Circuit was completed by DeCostePs reconsideration of Bruce, there have been similar important developments in this Circuit which support this Court’s second expression of hope that the Court of Appeals for the Eighth Circuit undertake the same fundamental reconsideration which was suggested when Garton was last here in 1973. We respectfully suggest, for reasons we shall state in infinitely more detail than we stated the first time, that it is our considered judgment that State court judges and federal district judges in the Eighth Circuit are more in need of a definitive single Sixth Amendment standard at the present time than they were when we made our original suggestion for reconsideration in Garton in 1973. Those reasons are stated in the appendix which we attach to this opinion and which we incorporate herein by this reference. IV. For the reasons stated, it is ORDERED (1) that petitioner should and will be granted appropriate federal habeas corpus relief. It is further ORDERED (2) that petitioner’s conviction should be and the same is declared to be null and void, the same having been obtained in violation of the rights guaranteed by the Sixth Amendment to the Constitution of the United States and that petitioner is entitled to a new trial under the circumstances of this case. It is further ORDERED (3) that execution of this Court’s writ of habeas corpus shall be stayed for a period of thirty (30) days within which time, or such additional time as may be granted for good cause shown in writing before the expiration of the time stated, the State of Missouri may grant petitioner a new trial and commence such new trial for the offense involved in this case. It is further ORDERED (4) that in the event the State of Missouri does not elect to grant petitioner a new trial and to try him within the time stated above, or within such extended time as may be granted for written good cause shown, the Missouri Board of Parole and Probation shall promptly take all appropriate and necessary steps to advise the petitioner and all persons within or without the State of Missouri who are presently supervising petitioner on parole of this decision of this Court which has determined that petitioner’s conviction is null and void and that any and all further supervision on parole shall be immediately terminated under the circumstances. APPENDIX INEFFECTIVE ASSISTANCE OF COUNSEL: The Multiple Rules of the Eighth Circuit And the Increasing Need for Reconsideration And Guidance by the Court of Appeals en Banc I. We were prompted to write this appendix by what Judge Henley had to say in his dissenting opinion in Thomas v. Wyrick (8 Cir. 1976), 535 F.2d 407, the latest controlling decision of the Eighth Circuit. Judge Henley stated that he felt it desirable to go somewhat beyond the case before him “in view of the recurrence of póst-conviction contentions of inadequate representation by counsel at original trials, the advancing of which has become a standard operating procedure for convicts, and which are most troublesome to judges and embarrassing to the attorneys involved.” [p. 419] We respectfully express our agreement with Judge Henley’s suggestion that “a district judge called upon to decide a case of this kind should have some guidelines to follow, and some assurance as to how his decision will be. reviewed on appeal.” As will be apparent, we obviously do not agree with Judge Henley’s alternative suggestion that Cardarella’s “farce and mockery” rule as amplified to some extent in Scalf v. Bennett (8 Cir. 1969), 408 F.2d 325, cert. den., 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969), should be adopted as a Sixth Amendment constitutional standard for the Eighth Circuit. We are in total agreement, however, with his suggestion that the Eighth Circuit should determine and definitively announce its adherence to what it concludes is the applicable Sixth Amendment standard and that the State courts and the district courts in this Circuit be called upon to apply the constitutional standard as articulated. The majority opinion in Thomas v. Wyrick definitively stated that “McQueen reaffirmed the traditional ‘farce or mockery’ standard.” But the State courts and the district courts in this Circuit were advised by the Thomas v. Wyrick majority that they are also under “obligation to proceed on an ‘ad hoc’ basis,” apparently in disregard of whatever standard which may have been articulated and applied by the State courts that had denied relief, and to adopt a “flexible approach” to the determination of the federal constitutional question presented by a Sixth Amendment claim of ineffective assistance of counsel in all State prisoner federal habeas corpus cases. The majority in Thomas concluded that Judge Nangle of the Eastern District of Missouri had not read or applied McQueen correctly when he refused to disturb the Supreme Court of Missouri’s articulation and application of the Eighth Circuit traditional Cardarella “farce or mockery” rule. The majority opinion conceded, however, that “there has been some variance in the language of our opinions and because the proper standard is important in determining this close case, we think it advisable for us to review the applicable law of this circuit.” The majority’s six-page explanation of McQueen’s holding, however, did not satisfy dissenting Judge Henley. Among other things, Judge Henley stated in his dissent; Post-McQueen cases mentioned by the district court [which the majority opinion had not cited but which Judge Henley did cite] and in the majority opinion of this court indicate that we may have returned to the “farce and mockery of justice” standard of the older cases if, indeed, we ever departed from it, and that we are at least paying lip service to that standard. I fear, however, that what we may really be doing is deciding cases of this kind by hindsight, on a purely ad hoc basis, and without any real reference to any particular standard of the quality of representation constitutionally required or relating to the extent of prejudice that will require a reversal if representation has been inadequate constitutionally. Such an approach, if it is being taken, is in my view undesirable and unfair to district judges, to state courts, and to lawyers who represent defendants in criminal cases. [Id. at 419] We respectfully suggest that there are at least four different lines of authority presently existing in the Eighth Circuit which a State court judge or a federal district court judge must consider when called upon to determine a Sixth Amendment claim of ineffective assistance of counsel. The multiple choice afforded is indeed a difficult and unpredictable choice because three of the four lines of authority are apparently based upon due process considerations of fairness rather than Sixth Amendment standards articulated by the Supreme Court and other Circuits. Particular lines of Eighth Circuit authority are clearly grounded upon due process considerations. One line of authority, however, indicates that Sixth Amendment, rather than due process, standards should be applied. The result which will be reached in a particular case is largely predetermined and controlled by whether due process or Sixth Amendment standards are to be applied in the particular case before the State or Federal court. Both the federal district judges in this Circuit, and more important, the State court judges within this judicial district, are now apparently free to select one or the other of the obviously inconsistent standards in determining a particular State prisoner case. For both State and federal judges were advised in McQueen that “We need not now resolve the issue of whether the right to effective assistance of counsel derives solely from the due process clause or also from the sixth amendment’s ‘more stringent requirements.’ See Moore v. United States, 432 F.2d 730, 737 (3d Cir. 1970); . . ,.” What will happen in the Court of Appeals when the district judge’s decision is reviewed is presently dependent upon whether a majority of the particular appellate judges believes due process or Sixth Amendment standards are to be applied to a particular case. The choice of conflicting rules is even more difficult for a federal district judge because the State appellate judges in the Eighth Circuit remain generally unconvinced by the rationale of the Eighth Circuit’s decisions in this area of the law and either ignore or disregard them. Under the Supreme Court’s habeas corpus trilogy, Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); and Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), that practical circumstance creates additional difficulties for the federal judicial system. For a federal district judge is under duty in his application of the Supreme Court’s habeas trilogy not to disturb a State court determination of a federal constitutional question by the State courts, if the State courts have reliably found the facts, properly articulated an applicable federal standard, and have properly applied that federal standard to the reliably found factual circumstances of a particular case. The federal district judge’s determination of all those federal questions is, of course, subject to appropriate review by his Court of Appeals and eventually by the Supreme Court. But McQueen advises the federal district judges in the Eighth Circuit that “the Supreme Court, however, has never enunciated any clear standards for courts to follow in passing on claims of ineffective assistance of counsel” and that “as a constitutional error, ineffective assistance of counsel is sui generis.” There are any number of examples of recent cases in the Eighth Circuit which demonstrate that a particular federal district judge has been reversed for refusing to grant federal habeas relief in a Sixth Amendment ineffective assistance of counsel case even though his refusal was based upon a State court’s articulation and application of one of the multiple lines of Eighth Circuit authority which particular Eighth Circuit opinions have stated are the applicable federal standards to be applied in a Sixth Amendment ineffectiveness case. Judge Henley recited his experience as a district judge in his Thomas dissent in regard to his decision in Frazier v. Roberts (E.D.Ark.1970), 310 F.Supp. 504. We will discuss other like examples later in this appendix. We respectfully suggest that particular lines of Eighth Circuit cases may reasonably be read by both State court judges and federal district judges in the Eighth Circuit as supporting the four following apparently co-existing but inconsistent lines of authority: (1) that Cardarella’s traditional “farce and mockery” rule is still alive and well in the Eighth Circuit; (2) that while Cardarella is still alive and states the applicable rule, that the traditional Cardarella rule must be applied in accordance with McQueen’s “flexible” ad hoc approach, as most recently explained in Thomas; (3) that while Cardarella is still alive, that rule must not be considered as a “magic formula,” but that the due process considerations upon which both (a) the traditional Cardarella “farce and mockery” rule and (b) the McQueen-Thomas “flexible” ad hoc application of traditional Cardarella are based should be stated in language which does not include the use of the words “farce and mockery; ” and (4) a quite different line of cases which suggest, we believe properly, that McQueen and Garton represented but a growing Eighth Circuit recognition that articulation of Sixth Amendment standards must commence with the*Supreme Court’s-seminal decision in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), and that a definite standard relating to claimed violations of the Sixth Amendment’s guarantee of effective assistance of counsel cannot properly be based upon or articulated in terms of due process deprivation. In spite of all that has been said by various Court of Appeals’ panels about McQueen, we believe that McQueen showed on its face that it did not intend to take more than a half-way step toward a reconsideration of whether the Eighth Circuit should continue to apply due process considerations to a Sixth Amendment claim of ineffectiveness. The language in McQueen which has provoked the most appellate discussion and apparently conflicting views is that portion of McQueen which, after quoting the traditional rules stated in Gardarella and Brown, stated: Stringent as the “mockery of justice” standard may seem, we have never intended it to be used as a shibboleth to avoid a searching evaluation of possible constitutional violations; nor has it been so used in this circuit. It was not intended that the “mockery of justice” standard be taken literally, but rather that it be employed as an embodiment of the principle that a petitioner must shoulder a heavy burden in proving unfairness. [498 F.2d at 214] McQueen, however, gave a “Cf.” citation to Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967) immediately following that statement. Bruce, of course, on its face, reflected but a half-way step on the part of the Court of Appeals of the District of Columbia in its eventual rejection of the “farce and mockery” rule as originally stated in Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945). Bruce's half-way rule, as it was announced in 1945, stated that “farce and mockery” language [of Jones’ traditional rule] are “not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness.” [379 F.2d 116] The language of Bruce, of course, was expressly adopted in Garton. See 497 F.2d at 1139, and the citation of Bruce immediately after Garton’s citation of McQueen at 1140. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197, 1202 (1973), cited with apparent approval in both McQueen and Garton, expressly rejected the 1945 Bruce rule in 1973 in recognition that Bruce’s rule rested on “the theory that an ineffectiveness claim is grounded in the due process clause” rather than on “the more stringent requirements” of the Sixth Amendment, quoting Moore v. United States (3rd Cir. en banc 1970), 432 F.2d 730, 737, which was also cited with apparent approval in McQueen. DeCoster’s rejection of the Bruce rule (which is presently reincarnated in the Eighth Circuit’s McQueen-Thomas line of Eighth Circuit authority) followed the lead of other circuits which have concluded that a Sixth Amendment claim must be judged under Sixth Amendment, rather than due process, standards. McQueen made clear, however, that it was not taking the full step taken by DeCoster, for McQueen expressly stated that “we [need not] decide whether at this time to follow the trend set by the Third, Fourth, Fifth, and District of Columbia Circuits and adopt a standard of ‘reasonably competent’ representation, ^ee McMann v. Richardson, supra, 397 U.S. [759] at 770-771 [90 S.Ct. 1441, 25 L.Ed.2d 763].” We respectfully suggest that the time has come for the Eighth Circuit, en banc, to answer Judge Henley’s call for a fundamental reexamination of Eighth Circuit applicable Sixth Amendment guidelines. No federal district judge in the Eighth Circuit, and more importantly, no State court judge and no state or federal prisoner can have any assurance as to how a district court decision of a Sixth Amendment claim of ineffective assistance of counsel will be reviewed on appeal until that call is heeded. For, under present juridical circumstances, we respectfully suggest that no one can predict whether any particular panel of the Court of Appeals would agree that the district judge had selected out of the multiple and co-existing lines of conflicting Eighth Circuit authority that single line of authority which a majority of the particular Eighth Circuit appellate panel may determine to be the proper line of authority applicable to that particular case. Our suggestion that the Court of Appeals en Banc reconsider and determine a definitive Sixth Amendment ineffectiveness standard, and further direct the procedures to be followed by federal district courts in connection with the application of that standard, is based upon Western District of Missouri experience in dealing with similar questions in connection with State prisoner habeas corpus proceedings. All of the present judges of the Western District of Missouri were appointed either before or shortly after the Supreme Court decided the now famous trilogy of Townsend v. Sain, Fay v. Noia, and Sanders v. United States. When it became apparent that problems of federal and State court friction could and would likely develop in regard to the implementation of the principles enunciated in the Supreme Court’s habeas trilogy, all of the active judges of this Court concluded that this Court should avoid at all costs the additional problems of judicial administration that would be created by inconsistent, and perhaps even conflicting, expressions of opinion from the individual judges of this Court. Those judges therefore decided that in light of the volume and complexity of the massive litigation to be anticipated that they should speak with one voice. Accordingly, and after appropriate conferences with the Supreme Court of Missouri and with the Attorney General of Missouri and members of his staff, this Court rendered a memorandum opinion of its Court en Bqnc and entered an order which stated as clearly as then possible the principles and policies which all judges of this Court would follow in the determination of State prisoner habeas corpus cases. See White v. Swenson (W.D.Mo. en banc 1966), 261 F.Supp. 42. That Court en Banc opinion was received by the Supreme Court of Missouri in the spirit in which it was written, and in a highly commendable manner the Supreme Court of Missouri amended its Rule 27.26 in order to provide the State courts of Missouri with the best post-conviction procedures in the nation. The background and history of those developments aré stated in detail by Chief Judge Becker in his article “Collateral Post-Conviction Review of State and Federal Criminal Judgments On Habeas Corpus And On Section 2255 Motions—View of A District Judge,” 33 F.R.D. 452 (1963), and in two articles by the author of this appendix, entitled “Post-Conviction Applications. Viewed By A Federal Judge,” 39 F.R.D. 281 (1965), and “Post-Conviction Applications Viewed By A Federal Judge—Revisited,” 45 F.R.D. 199 (1968). We are confident that all judges of the Court of Appeals share the concern of all federal district judges sitting in Missouri in regard to an apparently increasing tendeney on the part of the Supreme Court of Missouri either to. ignore or to expressly refuse to follow particular Eighth Circuit decisions which must be followed by all federal district judges in this Circuit. We have directed attention to that problem elsewhere in this appendix. We respectfully suggest that a Court of Appeals en Banc opinion in this difficult area of State prisoner habeas corpus litigation would enable the Eighth Circuit to speak with one voice, with anticipated results which may become comparable to this Court’s experience following its Court en Banc opinion in White v. Swenson. As the citations of our en Banc in White v. Swenson by all Western District of Missouri judges over the years establish, the added benefit of conservation of judicial time supports the use of en Banc determination of particular questions which will foreseeably arise in a large volume of cases. This Court’s en banc decision and order in White v. ¡¡Swenson has been qn the books for ten years. White v. Swenson was written in recognition “of the anticipated number of cases that undoubtedly will be filed in this Court,” 261 P.Supp. at 60, and was prompted by the fact that “all courts, both state and federal, share the common concern to devise improved and more efficient techniques of judicial administration.” Id. at 54. We believe that federal and State court experience in the State of Missouri over the past ten years supports the suggestion that the Statement of Policy this Court made in 1966 has enabled both State and federal courts in Missouri to avoid many of the difficulties encountered elsewhere throughout the country. We believe that it can fairly be said that the judicial time expended in the preparation of this Court’s en Banc decision in White v. Swenson has eventually saved untold hours of judicial time which would have been otherwise required, had the questions presented and the policies determined been developed by the individual, rather than the collective, efforts of each member of this Court. There are, of course, still a few exceptional examples of judicial breast-beating and the sounding of judicial Rebel yells in Missouri in regard to the proper processing of State prisoner cases, as is illustrated by Agee v. State, (Mo.App.Springfield Dist. 1976) 512 S.W.2d 401, 403, and by the other State cases cited in that opinion. Those now exceptional cases rest, however, upon the unsupportable notion that all State trial courts fully comply with all requirements of Missouri’s Rule 27.26 and with the command of the Supreme Court’s habeas corpus trilogy in all State prisoner post-conviction cases. Such a notion must, we suggest, be viewed in light of the specific Rule 27.26 performance of a particular State trial judge in the particular case before that court and, perhaps even more important, in light of the manner in which that compliance effort was treated when the decision of the State trial judge was reviewed by the particular Missouri appellate court under the circumstances. We quite agree, of course, that when a State trial court does in fact fully comply with Rule 27.26, the case may be processed through the State appellate courts, and thereafter, through the federal system, without difficulty from that point on. See, for only one reported example, Robinson v. Swenson (W.D.Mo.1971), 331 F.Supp. 483. Experience over the years shows, however, that the cases which have been properly processed in the State courts with full Rule 27.26 compliance are not the cases in which federal district courts are required, under the Supreme Court’s habeas trilogy, to conduct any further plenary evidentiary hearing. Nor are those generally the cases in which either federal trial or appellate court judges are required to grant federal habeas corpus relief under the circumstances. The cases in which federal courts are most frequently forced to act are those cases in which they are required to consider factual circumstances which are revealed for the first time by an adequate evidentiary hearing which has been conducted in the federal district court, rather than in the State trial court, solely because the State trial court had refused to conduct an adequate evidentiary hearing in compliance with Rule 27.26. We do not believe that the federal courts can reasonably be accused of endangering “the delicate federal-state relationship in the criminal law enforcement field” by the exercise of “omniscient hindsight,” as was suggested in Agee, when federal courts base their decisions upon factual circumstances ■ which are revealed for the first time in federal evidentiary hearings which the State courts, by their refusal to comply adequately with Rule 27.26, have forced federal courts to conduct. We respectfully suggest that Sixth Amendment ineffectiveness cases are among the most difficult of .all State prisoner post-conviction claims to process in both the State courts and federal courts. And, as Judge Henley pointed out in his Thomas dissent, an ineffectiveness claim may be anticipated as “a standard operating procedure for convicts” in many more cases to come. We express the hope that the Court of Appeals will give appropriate consideration to the experience which the Western District of Missouri has had in the past ten years as a result of its utilization of the readily available judicial tool of Court en Banc decisions. II. This very case is as good an example as any to illustrate how a district judge may be reversed for failing to apply a particular line of the various co-existing lines of Eighth Circuit authority. When this case was first here, we refused to disturb the Supreme Court of Missouri’s articulation and application of Cardarella’s “farce and mockery” rule, because, after all, that rule reflected one of the lines of authority which had been expressly articulated and many times approved and applied by our controlling court. While the Court of Appeals in Garton expressly declined “to depart from its standards for measuring ineffective assistance of counsel,” which obviously included Cardarella, this Court was nevertheless reversed. In reversing in Garton, the Court of Appeals concluded that “the district court has read our [‘farce and mockery’] decisions too narrowly.” It stated that the Eighth Circuit had never intended in any of its prior opinions to use the “mockery of justice” words in any “talismanic” sense and that this and other State and federal courts in the Eighth Circuit should have known and understood that “we have employed [those words] to encompass the principle that a petitioner . . . bears the heavy burden of proving unfairness.” Id. at 1139. As we have above noted, that explanation of the meaning of the words “farce and mockery” is a direct paraphrase of the almost identical language of the Bruce half-step rule adopted in the District of Columbia Circuit in 1967, only to "be expressly rejected by that Circuit in 1973 by its decision in DeCoster, a case which, unlike McQueen, did follow the lead of other circuits in refusing to apply due process considerations to Sixth Amendment claims of ineffectiveness. This Court’s experience in Garton, however, suggests that State court judges and the federal district court judges in the Eighth Circuit are more in need of a definitively articulated constitutional standard to apply in Sixth Amendment ineffective assistance of counsel cases at the present time than they were when this case was first before this Court in 1973. For at that time, and until McQueen and Garton were decided, no State or federal judge in the Eighth Circuit had ever been advised that the Eighth Circuit did not mean exactly what it had always said when it had, over the years, articulated and applied Cardarella’s “farce and mockery” rule. Whatever gloss Thomas may have put on McQueen, we respectfully suggest, is not likely to clarify the current juridical situation. Indeed, if appellate treatment of McQueen is any guide, the decision of Thomas is likely to further complicate the predictions which each district court in the Eighth Circuit must make when considering a Section 2255 motion or a State prisoner habeas corpus claim based on Sixth Amendment ineffectiveness, in regard to what co-existing line of Eighth Circuit authority it should apply to the particular case under consideration. For further example, this Court learned back in 1971, or at least it thought it had learned from State of Missouri v. Turley (8th Cir. 1971), 443 F.2d 1313, 1317, that the single and only “standard” recognized by the Eighth Circuit was the “farce and mockery” standard articulated in Cardarella v. United States (8th Cir. 1967), 375 F.2d 222. For it was by the Court of Appeals’ articulation and application of that single “standard” that our grant of habeas corpus in Turley v. Swenson (W.D.Mo.1970), 314 F.Supp. 1304, was reversed. The Court of Appeals concluded in Turley that this Court erred when it failed to make the literal application of C&rd&rell&’s “farce and mockery” rule as had the Supreme Court of Missouri and that we had erroneously concluded that “the recent decisions of the Supreme Court of the United States in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, decided May 4, 1970, and Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747, decided on the same day, articulate and reiterate the principles applied in the earlier Supreme Court of the United States cases cited and discussed in Pedicord and Goodwin.” In short, Turley made it clear in 1971, at least to this Court, that the district judges in the Eighth Circuit were under duty to apply Cardarella’s “farce and mockery” rule in the most literal manner and that they further were to conclude as a matter of federal constitutional law that if the State appellate court had articulated and applied a “farce and mockery” rule in denying relief, a federal district court was to conclude that it had properly stated the applicable federal standard. Another problem exists, of course, in regard to the approval of any “farce and mockery” rule as a Sixth Amendment ineffectiveness standard. For farce and mockery rules have a way of being as different as the size of the Chancellor’s foot, as described over three hundred years ago in John Selden’s Table Talk. In footnote 2 of Garton, we set forth Missouri’s version of the “farce and mockery” rule. That footnote, 367 F.Supp. at 1359, stated: Missouri apparently continues to accept the standard set forth in State v. Dreher, 137 Mo. 11, 38 S.W. 567 (1897), which concluded that “the neglect of an attorney is the neglect of his client” and that “neither ignorance, blunders, nor misapprehension of counsel, not occasioned by his adversary, is ground for setting aside a judgment or awarding a new trial.” That case added that such a rule “is founded upon the wisest public policy.” This language from State v. Dreher is quoted with approval and followed in several recent Supreme Court of Missouri cases involving ineffective assistance questions. See, e. g., State v. Worley, 371 S.W.2d 221 (Mo.1963). State v. Worley, cited in that footnote, has been cited with approval by a Missouri appellate court most recently in support of Missouri’s ineffectiveness rule and its narrow scope of post-conviction evidentiary hearing in a Sixth Amendment case in Shepherd v. State (Mo.App.1975), 529 S.W.2d 943, 948. More significantly, Worley was again cited and relied upon by the Supreme Court of Missouri in Coney v. State (Mo.1973), 491 S.W.2d 501, 510. Contrary to its holding in Thomas, decided a few weeks after Coney v. Wyrick, 1976, 532 F.2d 94, the Eighth Circuit concluded in the latter case that the Eastern District of Missouri had properly refused to disturb the Supreme Court of Missouri’s application of the “farce and mockery” rule. It should be added, however, that, in spite of the possibility that a real difference exists between the Eighth Circuit’s Cardarella, rule and Missouri’s particular brand of still another “farce and mockery” rule, it is clear that under the impact of Western District of Missouri cases such as Goodwin, Pedicord, and other Western District of Missouri cases based on Sixth Amendment rather than due process standards, particular Missouri appellate courts have frequently departed from application of any “farce and mockery” rule, Eighth Circuit or otherwise, and have been applying Sixth Amendment standards to ineffective assistance of counsel cases. See, for example, Judge Swofford’s opinion in Thomas v. State (Mo. App., K.C. District 1974), 516 S.W.2d 761, which is an excellent example of how some Missouri appellate courts have been dealing with ineffective assistance of counsel questions since Goodwin and its progeny were decided by this Court. Our initial determination in Garton was thus controlled by the Court of Appeals’ holding in Turley that we must not refuse to apply “farce and mockery” in a talismanic sense. When we wrote Garton the first time around, we were convinced that we were under judicial duty to follow our controlling court’s decision in Turley and that if the record established that the Supreme Court of Missouri had articulated and applied the traditional “farce and mockery” rule, as it clearly did, then this Court was under duty to decide tha