know the attackers were the police. He concludes that this
"court induced" ineffective assistance prejudiced him in the
outcome of the trial.
Respondent argues that the trial court did not abuse its
discretion when it denied petitioner's request for a
continuance, in light of the fact that it was the twenty-third
continuance in a two-year-old case. In addition, respondent
contends that the petitioner cannot show that Blumenthal's
actions fell outside the range of reasonable competence for an
attorney. To support this contention, respondent points to
Blumenthal's association with Adam and Levin, who had handled
the case for two years.
Respondent also notes that Blumenthal knew of the existence
of the family witnesses and therefore chose not to call them at
trial. In support of this contention, respondent points to
Blumenthal's agreement to "second chair" the case one week
before he filed his substitution notice as petitioner's
attorney. Finally, respondent argues that any potential counsel
error would not, with reasonable probability, have affected the
outcome of the state criminal trial.
Due to the broad discretion that a trial court must exercise
in scheduling trials, the grant or denial of a continuance is
subject to appellate review only for an abuse of discretion.
Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610
(1983); United States v. Davis, 604 F.2d 474, 480 (7th Cir.
1979). Moreover, in order to establish this abuse of
discretion, a party normally must make some showing of actual
prejudice resulting from the trial court's ruling. See United
States v. Aviles, 623 F.2d 1192, 1196 (7th Cir. 1980); United
States v. Miller, 573 F.2d 388, 395 (7th Cir. 1978).
A defendant appealing from the denial of a continuance in a
criminal case typically will claim prejudice in the form of
ineffective assistance of counsel. See, e.g. United States v.
Cronic, ___ U.S. ___, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984);
Morris v. Slappy, 103 S.Ct. at 1610; United States v. Phillips,
640 F.2d 87 (7th Cir.), cert. denied, 451 U.S. 991, 101 S.Ct.
2331, 68 L.Ed.2d 851 (1981). In evaluating such a claim, an
appellate court generally must inquire into counsel's actual
performance at trial. United States v. Cronic, 104 S.Ct. at
2047-48; Strickland v. Washington, 104 S.Ct. 2052, 2064-65
(1984). In rare cases, the refusal to allow counsel additional
time to prepare might occur in circumstances so egregious that
"the likelihood that any lawyer, even a fully competent one,
could provide effective assistance is so small that a
presumption of prejudice is appropriate without inquiry into
the actual conduct of the trial." See Cronic, 104 S.Ct. at
2047. In essence, the denial of a continuance can sometimes be
tantamount to the denial of counsel.
A recent decision from the Seventh Circuit Court of Appeals
addressed the question of whether a denial of continuance
constituted court-induced ineffective assistance of counsel
without a determination of actual prejudice. United States v.
Rodgers, 755 F.2d 533 (7th Cir. 1985). In Rodgers, the defense
attorney had "preparation time of only two days for jury
selection and two more days for the beginning of the trial."
Id. at 540. The Seventh Circuit concluded that this preparation
time was not so restrictive to warrant an assumption of
unfairness without considering whether there was actual
prejudice. In support of its conclusion, the Rodgers court
noted that the defense attorney had been prepared by previous
counsel, had only to read and familiarize himself with the case
file, and had to prepare notes for trial. In addition, the
court noted that the case was not so complicated that counsel
required a great amount of time or expert assistance to
understand the pertinent issues.
Since the facts in Rodgers are factually inapposite, the
result in Rodgers controls here. In this case, Blumenthal met
with petitioner on February 23, 1977, and on February 24,
petitioner agreed to have Blumenthal represent him. On February
25, Blumenthal filed his motion to substitute, but stated that
while he was representing petitioner, he was "not prepared to
go to trial" because he had not been "involved in
this case in any way prior to one week ago." He stated that
Levin had prepared the case and "presumably was prepared to go
to trial last week." Blumenthal stated that he had reviewed the
case file during the previous week because he planned to
"second chair" the trial with Levin. Blumenthal moved for a
continuance, arguing that his trial strategy would differ from
Levin's and that he disagreed with the petitioner's jury
waiver. He also wished to obtain unspecified physical evidence
Judge Wexler denied Blumenthal's motion for a continuance,
Let the record show that this case has dragged on
in this court almost two years. There were
approximately thirty [sic] continuances. That the
last six or seven continuances were with subpoenas
for trial. There has been an appearance in the
file in the name of Levin who denies that is his
signature. When Mr. Levin . . . appeared in this
court, he indicated to the Court he is not the
attorney, that he would have cleared it with Mr.
Adam  who is the attorney of record. That the
court inquired of the defendant as to whom he
retained and he indicated Mr. Adam , and the
Court endeavored to get Mr. Adam  to begin since
the 15th of February when the case was set here
with subpoenaes, and Mr. Adam  chose not to come
That Mr. Blumenthal indicated he was willing to
file an appearance in the case and the Court
suggested that the only way he would accept the
appearance would be with a substitution of
attorneys, and that substitution of attorneys was
presented to this Court this morning, and that the
Court granted defendant leave to withdraw his
waiver of trial by jury and agreed to give the
defendant a trial by jury.
Because of numerous delays in this case, the Court
refuses to grant any further continuances and the
Court is holding this case for trial now. There is
a jury out there. Let the record show Mr.
Blumenthal is out of the same offices with Mr.
Adam  and Mr. Levin.
Blumenthal renewed his motion for a continuance of 21 days,
which Judge Wexler denied but agreed to a continuance until
Monday, February 28, 1977. Blumenthal agreed that starting on
Monday would be "more advantageous," as he "believe[d] [he]
would be much more prepared given two days on the weekend than
[he] [would] be [that]  day."
On Tuesday, March 1, Blumenthal filed motions to suppress
physical evidence and statements made after petitioner's
arrest, but Judge Wexler denied them as untimely. During the
trial, from Monday, February 28 through Tuesday, March 8, by
petitioner's own concession, Blumenthal was an able and zealous
In light of the above facts, the Court, as the Seventh
Circuit did in Rodgers, does not find the circumstances
surrounding Judge Wexler's denial of the continuance on the eve
of trial to be so horrendous as to raise a presumption of
prejudice to the petitioner. In addition, the Court finds that
the trial court did not abuse its discretion when it denied the
continuance and that the denial did not prejudice the
petitioner in any way.
In making its determination of no actual prejudice to the
petitioner from the denial of Blumenthal's motion for a
continuance, the Court follows the analysis of actual prejudice
set forth in Rodgers. The Seventh Circuit in Rodgers first held
that "the denial of the continuance had no significant adverse
impact on counsel's performance at trial." 755 F.2d at 540. In
support of this first holding, the Seventh Circuit cited the
defense attorney's motion to suppress at the beginning of
trial, incisive cross-examination of government witnesses, and
timely objections to the government's direct examination as
evidence of his professional and zealous representation during
In the present case, Blumenthal made a motion to suppress
physical evidence as well as the petitioner's statement taken
after his arrest. In addition, Blumenthal's attempts to impeach
Officers Bokowski and Patterson through the use of prior police
reports and the complaint sworn by Patterson in the case
against Edwin Anderson illustrate Blumenthal's familiarity with
the details of defense counsel's theory and investigation, as
well as with the facts of the case. Therefore, the Court finds
that Judge Wexler's denial of the continuance had no
significant adverse impact on counsel's performance at trial.
Finally, the Seventh Circuit in Rodgers addressed the
petitioner's contention that denial of the continuance
prejudiced him by denying him the opportunity to subpoena and
interview potential witnesses. The Seventh Circuit adopted the
general test set forth by the Fifth Circuit Court of Appeals:
A movant [for a continuance] must show that due
diligence has been exercised to obtain the
attendance of the witness, that substantial
favorable evidence would be tendered by the
witness, that the witness is available and willing
to testify, and that the denial of a continuance
would materially prejudice the defendant.
United States v. Miller, 513 F.2d 791, 793 (5th
Id. at 541. The Seventh Circuit noted that the strict
requirements of this test reflect the policy against the
petitioner delaying trial indefinitely on the speculation that
some distant witness might provide favorable evidence. Id.
The Court holds that the petitioner has failed to meet his
burden under the Rodgers test for two reasons. First, while the
petitioner submits affidavits of witnesses who would offer
favorable testimony and who would be willing and available to
testify, he fails to show that due diligence was exercised to
obtain the attendance of these witnesses, even though six of
the nine witnesses were relatives living in his house at the
time of the incident and therefore were known to the
petitioner. In support of its finding, the Court notes that
this case was pending from May 8, 1975 to February 28, 1977,
during which time either the petitioner did not notify his
defense attorneys of the existence of these family witnesses or
the attorneys knew of the witnesses and decided not to call
them at trial. In either event, the petitioner has failed to
show due diligence was exercised to obtain the attendance of
Second, the Court finds that the petitioner has failed to
show that the failure to call the witnesses prejudiced him. In
support of its finding, the Court notes that the witnesses'
testimony is cumulative, that his mother testified to the same
facts and theory of defense as the family witnesses now
presented, and that Blumenthal, and his predecessors, probably
knew of the witnesses' existence from the petitioner after a
year and one half of trial investigation and preparation. If
Blumenthal knew about these witnesses and did not call them, he
could have done so to avoid cumulative, identical testimony and
to focus instead on thorough cross-examination of the
government's witnesses, which he did do. In light of the fact
that Blumenthal had the benefit of prior investigation and
preparation by Levin and Adam, his decision not to call these
witnesses was sound trial strategy, as opposed to a failure to
Since petitioner has failed to "overcome the presumption
that, under the circumstances, the challenged action `might be
considered sound trial strategy.'" United States v. Curtis,
742 F.2d 1070, 1074 (7th Cir. 1984) (quoting Strickland v.
Washington, supra, 104 S.Ct. at 2066), he has failed to prove
that he was prejudiced by Blumenthal's failure to call these
witnesses at trial. While this analysis overlaps the Rodgers
and Strickland tests, the Court believes that a determination
of Blumenthal's sound trial strategy under the Strickland test
is relevant to and weakens petitioner's claim of prejudice
based on the denial of a continuance under the Rodgers test.
Therefore, petitioner has failed to show court-induced
ineffective assistance of counsel under the Rodgers test.
Since the petitioner has failed to show ineffective
assistance of counsel under the
Rodgers and Strickland tests, his petition for a writ of habeas
corpus must be denied.
IT IS SO ORDERED.
© 1992-2003 VersusLaw Inc.