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August 20, 1992

ALTON HESSON, Acting Warden Turney Center Industrial Prison and Farm

The opinion of the court was delivered by: THOMAS A. HIGGINS

 The Court has before it the Report and Recommendation of the Magistrate Judge (entered January 14, 1992; Docket Entry No. 41), petitioner Edward R. Halton's objections and exceptions to the Report and Recommendation (filed January 24, 1992; Docket Entry No. 42), and the respondent's objections to the Report and Recommendation (filed January 28, 1992; Docket Entry No. 42). Also before the Court are both parties' responses to the other's objections to the Report and Recommendation (filed February 4 and 6, 1992; Docket Entry Nos. 44 and 45, respectively).

 After an extensive review of the file, and for the reasons stated below, the Court adopts in full the recommendations made by the Magistrate Judge in his Report and Recommendation. The objections of the parties are overruled.


 Edward R. Halton was employed as a guard at the Madison County Juvenile Detention Center in Jackson, Tennessee. In 1987, he was convicted of two counts of rape and six counts of sexual battery against seven female juvenile inmates of the detention center. At trial, the prosecution's only proof against Mr. Halton was the uncorroborated testimony of the juvenile inmates. Mr. Halton denied any sexual contact with the inmates. Therefore, the credibility of the inmates and of Mr. Halton were essential elements of each party's case.

 After he was convicted and sentenced, Mr. Halton moved for a new trial on the ground that he was denied the effective assistance of counsel guaranteed by the Sixth Amendment to the United States Constitution. The Criminal Court of Madison County disagreed and denied Mr. Halton's motion. The Tennessee Court of Criminal Appeals affirmed the trial court's denial of Mr. Halton's motion, and his application for permission to appeal to the Supreme Court of Tennessee was denied in a per curiam order.

 Mr. Halton filed this pro se petition for the writ of habeas corpus under 28 U.S.C. § 2254 on January 26, 1990 (Docket Entry No.2), alleging as grounds for the writ: ineffective assistance of counsel; insufficiency of the evidence; error by the trial judge in ordering consecutive sentences; and error by the trial judge in his jury charge. *fn1" The Court referred the petition to the Magistrate Judge for consideration of its frivolous nature by order entered May 1, 1990 (Docket Entry No. 18). In his memorandum entered March 8, 1991 (Docket Entry No. 22), the Magistrate Judge determined that the petition was not frivolous, and that further proceedings were necessary. In his accompanying order (Docket Entry No. 23), the Magistrate Judge ordered that counsel be appointed to represent Mr. Halton.

 Finding "nothing to show that the Trial Court or the Court of Criminal Appeals applied the correct legal standard in reaching their conclusions that [trial counsel] Hagwood provided petitioner [Mr. Halton] with effective assistance of counsel," the Magistrate Judge held an evidentiary hearing "to flesh out the facts." *fn2" Memorandum at 11-12. Subsequently, in his Report and Recommendation, the Magistrate Judge recommended: (a) granting Mr. Halton's petition as to all counts in the indictment against him due to the ineffective assistance of trial counsel; (b) in the alternative, granting Mr. Halton's petition only as to Count Three due to the ineffective assistance of trial counsel; (c) granting Mr. Halton's petition as to Counts Four and Five based on insufficiency of the evidence; and (d) dismissing Mr. Halton's remaining claims. Report and Recommendation at 30.


 A. Ineffective Assistance of Counsel

 In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the Supreme Court announced that

 [a] convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

 Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93 (emphasis added). This standard is applicable to federal collateral proceedings, as well as to direct appeals and motions for a new trial. Id. at 697, 104 S. Ct. at 2070, 80 L. Ed. 2d at 700.

 To prove the first component, deficient performance, the convicted defendant, here Mr. Halton, must show that his attorney's "representation fell below an objective standard of reasonableness." Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The inquiry for a reviewing court "must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. A reviewing court should recognize the strong presumption in favor of finding that the convicted defendant's counsel "rendered adequate assistance," id. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695, and that even seasoned trial attorneys would defend the same defendant in different ways. Id. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694.

 To prove the second component, prejudice, the convicted defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Although prejudice is presumed in some cases of egregious conduct by either the government or defense counsel, see id. at 692, 104 S. Ct. at 2067, 80 L. Ed. 2d at 696, in most cases the convicted defendant must prove prejudice. Mr. Halton does not allege any conduct by the State or his attorney which would lead to a presumption of prejudice, therefore, he must prove prejudice in order to prevail on this claim.

 The Magistrate Judge found several of these alleged errors and omissions to be serious enough, in the aggregate, to warrant recommending granting Mr. Halton's petition on all counts against him due to ineffective assistance of counsel. See id. at 30. The Court agrees with the Magistrate Judge. The proof of deficient performance and prejudice is especially strong surrounding the charge of the sexual battery of Missy Williams. However, the cumulative effect of Mr. Hagwood's errors so tainted the entire trial that the Court must grant Mr. Halton's petition as to all counts of the indictment based on his claim of ineffective assistance of counsel. The Court will now discuss the specific errors alleged by Mr. Halton in his petition.

 First, Mr. Hagwood failed to interview or even attempt to interview any of the victims before trial. Motion for new trial, October 29, 1987, transcript at 4 (filed March 6, 1990). This was a serious error, as the defense of Mr. Halton rested primarily on the credibility of Mr. Halton and the lack of credibility of the victims. Trial counsel has brood discretion to conduct pre-trial investigations as he sees fit based on the totality of the circumstances then known to him. See Strickland, 466 U.S. at 690-91, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Additionally, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S. Ct. ...

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