APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA Civil Action No. 71-1980.
Aldisert, Hunter and Garth, Circuit Judges.
We have before us for the second time the petition of Freddie M. Johnson for a writ of habeas corpus. In 1973, we remanded this case to the district court for an evidentiary hearing on Johnson's claim that he was denied effective assistance of counsel at his state murder trial in 1968.*fn1 Following an evidentiary hearing devoted to trial counsel's efforts to locate a potential alibi witness, the district court, on January 29, 1975, denied Johnson's petition. Rehearing was sought and granted, and after a second evidentiary hearing concerning aspects of trial counsel's representation other than his efforts to locate the putative alibi witness, the district court, on April 22, 1975, vacated its earlier order and granted petitioner habeas corpus relief on the ground that he was denied effective assistance of counsel. For the reasons set forth below, we reverse.
At the first evidentiary hearing, Johnson testified that prior to trial he had informed his court-appointed counsel that one Willie Davis could provide him with an alibi.*fn2 Davis and Johnson were friends and resided in the same boarding house. According to petitioner, on the day of the crime, he and Davis spent the morning at a local bar and then returned to their respective rooms at approximately 1:00 or 2:00 p.m. Petitioner then slept until about 5:00 p.m., at which time he went to Davis's room and played cards with Davis for the rest of the evening. While this testimony does not establish a complete alibi since the murder occurred at 3:00 p.m. only five blocks from petitioner's rooming house, Johnson testified that the structure of the rooming house was such that had he left his room, Davis, who lived directly beneath Johnson, would have been virtually certain to have either seen or heard him leave.
Trial counsel considered Davis's potential testimony important, app. at 44a, but was unable to locate him. Counsel testified that he made repeated efforts to find Davis, including a "half dozen" visits to the neighborhood, but all those questioned by counsel did not know of Davis's whereabouts; he also visited a local bar and the unemployment office in search of Davis. Unbeknownst to trial counsel, the police had been able to locate Davis prior to trial and had obtained an unsworn statement in which Davis denied being with Johnson on the day of the murder. In addition, Davis was in the witness room during Johnson's trial as a potential Commonwealth witness, but trial counsel was unaware of Davis's presence.*fn3
In its first opinion on January 29, 1975, the district court concluded that trial counsel's efforts to locate Davis were below the level required of normally competent counsel. As indicative of trial counsel's inadequate efforts to locate Davis, the court noted counsel's failure to seek authority to retain a private investigator,*fn4 to issue a subpoena or ask for a bench warrant, or to enlist the aid of the police or district attorney's office. Nonetheless, the court denied Johnson habeas corpus relief because he had failed to demonstrate, by a preponderance of the evidence, that he had been prejudiced by his counsel's failure to locate Davis. The court stated that even if Davis had testified and had corroborated petitioner's story, the probative force of his testimony would have been seriously weakened by the statement he had previously given to the police.
The second evidentiary hearing was devoted to two newly asserted bases of incompetence: the variance between trial counsel's opening statement in which he implied that he would produce witnesses to prove that Johnson was in his room at the time of the murder*fn5 and the fact that no witnesses were called on behalf of the defense; and trial counsel's advice to petitioner not to testify at trial, which advice petitioner alleged was based on a misunderstanding of Pennsylvania's law of evidence. Trial counsel testified that he advised petitioner not to testify because he was concerned that Johnson's prior criminal record might be disclosed to the jury and because he did not believe that Johnson would be a good witness. Trial counsel could not remember why he had made the challenged remark in his opening statement. App. at 155a-63a.
On April 22, 1975, the district court vacated its earlier decision and granted the writ. The court held that trial counsel's representation had been ineffective in three respects and that petitioner's case had been prejudiced thereby. First, counsel had advised petitioner not to testify without knowing just what Johnson's actual criminal record was and without a knowledge or understanding of the Pennsylvania law on the admissibility of a defendant's prior criminal record. Second, counsel had made a remark in his opening statement in which he implied that he would produce witnesses to prove Johnson was at home at the time of the murder when in fact counsel had decided long before trial not to call petitioner as a witness and could not locate Davis, the only other person who could have placed Johnson in his room at the time of the crime. Third, counsel's steps to locate Davis were inadequate. Reversing its earlier position, the court found that petitioner had been prejudiced "in the sense that, had an adequate investigation been made, the glaring discrepancy between counsel's opening statement and his subsequent conduct of the trial would not have occurred."
The Commonwealth asserts that the district court erred in considering as bases for a finding of ineffective assistance of counsel (1) trial counsel's advice to petitioner not to testify at trial and (2) the variance between trial counsel's opening remarks and his conduct of the trial.
Initially, the Commonwealth argues that our remand order of January 16, 1973*fn6 limited the district court to consideration only of the adequacy of trial counsel's efforts to locate Willie Davis. We agree with the district court that the Commonwealth's interpretation of our mandate is "unduly narrow." We remanded for consideration of the alibi witness claim because that was the only contention that was presented to us. Our order was not intended to foreclose district court consideration of other instances of ineffective representation that might be disclosed by an evidentiary hearing;*fn7 indeed, our order left open the question whether trial counsel's representation in respects other than the location of alibi witnesses was adequate. While a lower court cannot reconsider issues laid to rest by an appellate court mandate, the lower court on remand is certainly free to consider issues left open by the appellate court. Sprague v. Ticonic National Bank, 307 U.S. 161, 168, 83 L. Ed. 1184, 59 S. Ct. 777 (1939); Banco Nacional de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967), cert. denied, 390 U.S. 956, 19 L. Ed. 2d 1151, 88 S. Ct. 1038 (1968).
The Commonwealth also argues that Johnson failed to present these theories of ineffective assistance of counsel to the state courts and that thus the district court was barred from considering them by the exhaustion doctrine. We disagree for two reasons. First, while the emphasis of Johnson's claims in the state courts may have been on the investigative aspects of trial counsel's representation, the general issue of counsel's trial representation was fairly presented to the state courts.*fn8 See Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); Moore v. DeYoung, 515 F.2d 437, 445 (3d Cir. 1975); United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 (3d Cir. 1975). Second, even if we were to conclude that these theories of ineffective assistance of counsel had not been adequately presented to the state court, Johnson could not now raise them in a new post-conviction proceeding in Pennsylvania.*fn9 Since petitioner has ...