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Quoted verbatim 3×
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cited 2× by 2 distinct cases, last quoted 2001 ·
…eaningful discussion with one's client" is one of the "cornerstones of effective assistance of counsel.
at p. 1150
⚠ not in text
Treatment trajectory · 1978 → 2026 · click a year to view as-of
1978
2002
2026
Top citers, strongest first. 40 distinct citers.
How cited ↗
discussed
Cited as authority (verbatim quote)
Robert Leroy Bryan v. Gary Gibson, Warden, Oklahoma State Penitentiary
(2×)
also: Cited as authority (rule)
eaningful discussion with one's client" is one of the "cornerstones of effective assistance of counsel.
discussed
Cited as authority (verbatim quote)
Bryan v. Mullin
eaningful discussion with one's client" is one of the "cornerstones of effective assistance of counsel.
discussed
Cited as authority (verbatim quote)
Charlie Lee Mitchell v. Warden Gerald Mason
(2×)
also: Cited as authority (rule)
informed evaluation of potential defenses to criminal charges and meaningful discussion with one's client of the realities of his case are cornerstones of effective assistance of counsel.
discussed
Cited as authority (rule)
Bower v. Quarterman
Although this court has yet to consider to what extent counsel must investigate before selecting a trial strategy, we have held that “[i]n-formed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir.1981) (citing Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978)).
discussed
Cited as authority (rule)
Edmund Zagorski v. State of Tennessee
Certainly, a meaningful discussion with the client is the “cornerstone of effective assistance of counsel.” Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir. 1983) (citing Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978)).
discussed
Cited as authority (rule)
Quitman County v. State
The County also cites several cases decided by this Court such as State v. Tokman, 564 So.2d 1339, 1343 (Miss. 1990) (citing Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir.1978)), which held that meaningful discussions regarding the realities of a case are the "cornerstones of effective assistance of counsel." Tokman also held that counsel has, at a minimum, "a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case." State v. Tokman, 564 So.2d at 1342 . ¶ 15.
cited
Cited as authority (rule)
Soffar v. Dretke
See Anderson, 338 F.3d at 391-92 ; Bryant, 28 F.3d at 1418 (citing Kemp v. Leggett, 635 F.2d 453, 454 (5th Cir. 1981)); Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 1978).
discussed
Cited as authority (rule)
Max Alexander Soffar v. Doug Dretke, Director, Texas Department of Criminal Justice, Institutional Division
(2×)
See Anderson, 338 F.3d at 391-92 ; Bryant, 28 F.3d at 1418 (citing Kemp v. Leggett, 635 F.2d 453, 454 (5th Cir.1981)); Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir.1978). 185 The Supreme Court recently determined that "[i]n assessing the reasonableness of an attorney's investigation ... a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further." Wiggins v. Smith, 539 U.S. 510 , 123 S.Ct. 2527, 2538 , 156 L.Ed.2d 471 (2003).
discussed
Cited as authority (rule)
Quitman County, Mississippi v. State of Mississippi
The County also cites several cases decided by this Court such as State v. Tokman, 564 So. 2d 1339, 1343 (Miss. 1990) (citing Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir. 1978)), which held that meaningful discussions regarding the realities of a case are the “cornerstones of effective assistance of counsel.” Tokman also held that counsel has, at a minimum, “a duty to interview potential witnesses and to make an independent investigation of the facts and circumstances of the case.” State v. Tokman, 564 So. 2d at 1342 . ¶15.
discussed
Cited as authority (rule)
Robert Leroy Bryan v. Mike Mullin, Warden, Oklahoma State Penitentiary
(2×)
See also Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir.1986) (“The reason lawyers may not blindly follow [a client’s] commands is that although the decision whether to use such evidence in court is for the client ... the lawyer first must evaluate potential avenues and advise the client of those offering possible merit.”) (internal quotation marks and citation omitted); see also Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir.1983) (noting that defendant’s “instruction that his lawyers obtain an acquittal or the death penalty did not justify his lawyers’ failure to investiga…
discussed
Cited as authority (rule)
Clark v. Johnson
Furthermore, Clark himself testified that he made the decision not to call any witnesses after talking with his attorneys the day before. “ ‘[MJeaningful discussion with one’s client’ is one of the ‘cornerstones of effective assistance of counsel.’ ” Martin, 711 F.2d at 1280 (citing Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978)).
discussed
Cited as authority (rule)
Bryant v. Scott
See Kemp v. Leggett, 635 F.2d 453, 454 (5th Cir.1981) (granting habeas relief where counsel failed to interview single eyewitness or character witnesses); Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir.1978) (affirming ha-beas relief where, inter alia, counsel failed to interview eyewitnesses).
cited
Cited as authority (rule)
James Ray Young v. James A. Lynaugh, Interim Director Texas Department of Corrections
Citing Gaines v. Hopper, 575 F.2d 1147, 1150 (5th Cir.1978); Baty v. Balkcom, 661 F.2d 391, 395 (5th Cir.1981), cert. denied, 456 U.S. 1011 , 102 S.Ct. 2307 , 73 L.Ed.2d 1308 (1982).
cited
Cited as authority (rule)
United States ex rel. Cross v. DeRobertis
Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir.1982), cert. denied, 460 U.S. 1098 , 103 S.Ct. 1798 , 76 L.Ed.2d 364 (1983); Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
Joseph Mulligan v. Ralph Kemp, Warden, Georgia Diagnostic and Classification Center, Respondent
This circuit has held that “[i]nformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
William \Billy\" Mitchell v. Ralph Kemp
Nonetheless, “[i]nformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978); see Strickland v. Washington, — *890 U.S. at-, 104 S.Ct. at 2065, 80 L.Ed.2d at 694 .
discussed
Cited as authority (rule)
McCleskey v. Zant
(2×)
It is well established in this circuit that a criminal defendant is entitled to effective assistance of counsel — that is, “counsel reasonably likely to render and rendering reasonably effective assistance.” See, e.g., Washington v. Strickland, 693 F.2d 1243, 1250 (5th Cir. Unit B, 1982) (en banc), cert. granted, — U.S. -, 103 S.Ct. 2451 , 77 L.Ed.2d 1332 (1983); Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 1978); Herring v. Estelle, 491 F.2d 125, 127 (5th Cir.1974); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), cert. denied, 368 U.S. 877 , 82 S.Ct. 121 , 7 L.Ed.2d 78 (1961).
discussed
Cited as authority (rule)
Stevens v. Johnson
“Informed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
David Dene Martin v. Ross Maggio, Jr., Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General of the State of Louisiana
Uncounselled jailhouse bravado, without more, should not deprive a defendant of his right to counsel’s better-informed advice. “[M]eaningful discussion with one’s client” is one of the “cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
Fleming v. Zant
Thus, ‘[a]n attorney does not provide effective assistance if he fails to investigate sources of evidence which may be helpful to the defense.’ Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir.1979), vacated as moot, 446 U.S. 903 , 100 S.Ct. 1827 , 64 L.Ed.2d 256 (1980). ‘[T]he cornerstones of effective assistance of counsel’ are the ‘[ijnformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case.’ Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
Potts v. Zant
The evidence shows that the petitioner was remarkably uncooperative and uncommunicative with counsel, thus rendering difficult an “Informed evaluation of potential defenses to criminal charges and a meaningful discussion with one’s client of the realities of his case____” as mandated in Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978), rendering evidence and information adduced from others more important.
discussed
Cited as authority (rule)
Washington v. Strickland
See, e.g., Washington v. Watkins, 655 F.2d 1346, 1355-56 (5th Cir.1981), cert. denied, - U.S. -, 102 S.Ct. 2021 , 72 L.Ed.2d 474 (1982); Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir.1979), vacated as moot, 446 U.S. 903 , 100 S.Ct. 1827 , 64 L.Ed.2d 256 (1980); Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir.1979); Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
Washington v. Strickland
See, e.g., Washington v. Watkins, 655 F.2d 1346, 1355-56 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 2021 , 72 L.Ed.2d 474 (1982); Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir.1979), vacated as moot, 446 U.S. 903 , 100 S.Ct. 1827 , 64 L.Ed.2d 256 (1980); Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir.1979); Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978).
discussed
Cited as authority (rule)
Otis Adams v. Charles Balkcom, Warden, and Arthur K. Bolton, State Attorney General
“Informed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).
discussed
Cited as authority (rule)
Terry Lee Goodwin v. Charles Balkcom, Warden
(2×)
also: Cited "see"
Thus, “[a]n attorney does not provide effective assistance if he fails to investigate sources of evidence which may be helpful to the defense.” Davis v. Alabama, 596 F.2d 1214, 1217 (5th Cir. 1979), vacated as moot, 446 U.S. 903 , 100 S.Ct. 1827 , 64 L.Ed.2d 256 (1980). “[T]he cornerstones of effective assistance of counsel” are the “[i]nformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).
discussed
Cited as authority (rule)
Charlie Young, Jr., Cross-Appellant v. Walter Zant, Warden, Georgia Diagnostic & Classification Center, Cross-Appellee
Cf. Gaines v. Hopper, 575 F.2d at 1149 (counsel was not competent where, as the result of his failure to prepare, he was in no better position than his jailed client to evaluate the legal realities of the case or make informed evaluation of potential defenses).
discussed
Cited as authority (rule)
David Leroy Washington v. Charles E. Strickland, Superintendent, Florida State Prison, and Jim Smith, Attorney General of the State of Florida
(2×)
In the absence of such an independent investigation, counsel is unprepared to make an informed assessment of the defenses available to his client or to intelligently discuss the realities of the case with his client; such evaluations and frank discussions are, we have held, the “ ‘cornerstones of effective assistance of counsel.’ ” Beavers v. Balkcom, 636 F.2d 114, 116 (5th Cir. 1981) (quoting Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978)).
discussed
Cited as authority (rule)
Ronald K. Spivey v. Walter Zant, Warden, Georgia Diagnostic and Classification Center
(2×)
Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 1978), quoting Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974).
discussed
Cited as authority (rule)
John Lewis Washington v. John C. Watkins, Commissioner, Mississippi Department of Corrections
(2×)
“Informed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978) (affirming grant of habeas relief on grounds that attorney’s failure to conduct adequate investigation, including failure to interview known witnesses, deprived defendant of viable defense that he might otherwise have asserted).
discussed
Cited as authority (rule)
Timothy George Baldwin v. Frank C. Blackburn, Warden, Louisiana State Penitentiary, and William J. Guste, Jr., Attorney General, State of Louisiana
“Informed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).
discussed
Cited as authority (rule)
Foster v. Strickland
“Informed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of *603 his case are cornerstones of effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-1150 (5th Cir. 1978).
discussed
Cited as authority (rule)
Herman Everett Beavers v. Charles R. Balkcom, Warden
This court recently concluded that, “[i]nformed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are [the] cornerstones of [the] effective assistance of counsel.” Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).
cited
Cited as authority (rule)
Rummel v. Estelle
Gaines v. Hopper, 575 F.2d 1147, 1148 (5th Cir. 1978).
discussed
Cited as authority (rule)
Billy Clay Clark v. Frank Blackburn, Warden, Louisiana State Penitentiary
(2×)
also: Cited "see"
Gaines v. Hopper, 575 F.2d 1147, 1149 (5th Cir. 1978); Venable v. Neil, 463 F.2d 1167, 1168 (5th Cir. 1972); see also note, 93 Harv.
discussed
Cited as authority (rule)
Voyles v. Watkins
See Rummell v. Estelle, 590 F.2d 103, 104 (5 Cir. 1979); Mendenhall v. Hopper, 453 F.Supp. 977, 987 (S.D.Ga.1978), aff’d mem., 591 F.2d 1342 (5 Cir. 1979); Gaines v. Hopper, 575 F.2d 1147, 1150 (5 Cir. 1978); King v. Beto, 429 F.2d 221, 224 (5 Cir. 1970), cert. denied, 401 U.S. 936 , 91 S.Ct. 921 , 28 L.Ed.2d 216 (1971). 6 .
cited
Cited as authority (rule)
Bobby Dixon v. Charles R. Balkcom, Harry S. Dixon v. Charles R. Balkcom
Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir. 1978).
discussed
Cited "see"
Jelinek v. Costello
See Gaines v. Hopper, 575 F.2d 1147, 1149-50 (5th Cir.1978) (“Informed evaluation of potential defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel.”); Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.1968) (“Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are available.”).
cited
Cited "see"
Colon O. Ward v. United States
See Gaines v. Hopper, 575 F.2d 1147, 1148-50 (5th Cir.1978) (per curiam); Gomez v. Beto, 462 F.2d at 596-597 .
discussed
Cited "see"
United States v. Fletcher Williams
(2×)
See Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978) (per curiam).
discussed
Cited "see, e.g."
United States v. Robert Conway
See, e. g., Gaines v. Hopper, 575 F.2d 1147 (5th Cir. 1978) (failure of a court-appointed attorney to investigate the defendant’s case deprived defendant effective assistance of counsel); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), modified, 289 F.2d 928 , cert. denied, 368 U.S. 877 , 82 S.Ct. 121 , 7 L.Ed.2d 78 (1961) (failure of a court-appointed attorney to, inter alia, interrogate witnesses, and assure presence of witnesses at trial deprived defendant effective assistance of counsel).
Retrieving the full opinion text from the archive…
Robert Allen GAINES, Petitioner-Appellee,
v.
Joe S. HOPPER, Respondent-Appellant
v.
Joe S. HOPPER, Respondent-Appellant
77-2284.
Court of Appeals for the Fifth Circuit.
Jun 30, 1978.
Arthur K. Bolton, Atty. Gen., Robert S. Stubbs, II, Exec. Asst. Atty. Gen., Richard L. Chambers, First Asst. Atty. Gen., John C. Walden, Sr., G. Stephen Parker, Asst. At-tys. Gen., Atlanta, Ga., for respondent-appellant., Lawrence W. Roberts, Cordele, Ga., for petitioner-appellee.
Goldberg, Godbold, Simpson.
Cited by 78 opinions | Published
PER CURIAM:
Petitioner Robert Allen Gaines was convicted of murder in the Sumter County, Georgia, Superior Court on October 9, 1973 and sentenced to life imprisonment. After exhausting his state remedies, petitioner brought this habeas corpus petition in federal district court alleging, inter alia, that he was denied his constitutionally guaranteed right to effective assistance of counsel. Following an evidentiary hearing, the district court granted relief, finding that the failure of petitioner’s appointed counsel to conduct an adequate pre-trial investigation deprived petitioner of constitutionally effective assistance of counsel. We affirm.
The facts of this case are comprehensively set forth in Judge Owens’ careful and scholarly opinion, reported at 430 F.Supp. 1173 (M.D.Ga.1977). For present purposes, it is sufficient to note that at Gaines’ trial for the murder of Samuel Merritt, the prosecution presented the jury with “the impression of a totally unprovoked shooting”, id. at 1177, founded in large part on the testimony of eyewitnesses Neely and Battle. Petitioner’s trial counsel cross-examined the prosecution witnesses, but called neither Gaines nor any other witness to the stand. Defense counsel rested his case without producing any evidence.
Judge Owens found that although “Gaines’ trial counsel had a relatively full understanding and awareness of the state’s case ... he had no such perception of his client’s position and did not attempt to develop one.” Id. at 1176 (emphasis in original). The district court recognized that the petitioner had met with his attorney several times, had denied on each occasion that he had shot the victim, and had asserted an alibi for which he could name no witnesses. But more significant to the able district judge was the fact that the petitioner
told his attorney that on the night in question he had been involved in several confrontations with the victim Merritt and/or the witnesses Neely and Battle [;]
. that . ’ . .he had been in an argument with Merritt at which Merritt had displayed a shotgun; that he had been assaulted and robbed by Merritt and Neely and later again assaulted by Merritt; and that Merritt and Battle at one point threatened to kill him. Id. 1
Trial counsel, while aware of this version of the events, limited his pre-trial investigation to discussions with the prosecuting attorney and law enforcement officers. Although the names of thirteen potential witnesses were listed on the grand jury indictment and counsel was aware that the shooting took place in front of a crowd, counsel[*1149] did not interview any of those persons named on the indictment [2] or conduct an independent search for witnesses.
Judge Owens found that
Had the factual situation as suggested by the petitioner and the affidavit of Georgia Mae Jones been fully investigated and developed, a jury might well have been convinced that Gaines acted “solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation,” Ga.Code Ann. § 26-1102, which would have reduced the degree of his offense from murder to manslaughter. Less likely, but nevertheless plausible, a self-defense claim might have been believed. In any event, the importance to Gaines’ case of full presentation of the events leading up to the killing of Merritt cannot seriously be disputed: rather than having the impression of a totally unprovoked shooting, the jury would have been aware, at the least, that some reason existed for the incident and accordingly, might have returned a manslaughter rather than a murder verdict or conceivably, might have acquitted on the basis of a finding of self-defense.
Id. at 1176-77 (note omitted). This factual situation was not presented to the jury at least in part for the reason that “trial counsel was unaware of the possibilities because he had an inadequate knowledge of the totality of the facts surrounding the incident.” Id. at 1177. The district judge found that “counsel would have had a proper understanding of his client’s case if he had interviewed the known witnesses listed on the grand jury indictment instead of relying completely on the prosecuting attorney and law enforcement officers . . .” Id.
Judge Owens crystallized his careful analysis of this case in the following terms:
“Gaines’ trial counsel did not fully consider the possibilities of his client’s case and could not have done so because he had not set about to learn the facts from witnesses. As a result, he was in no better position than his jailed client to evaluate the legal and factual realities of the case, especially Gaines’ incredible denial of the shooting which was contro-, verted by two eyewitnesses. After a thorough investigation, on the other hand, counsel would have been able to explore further with Gaines his assertions, explaining fully that other evidence contradicted his contentions and that the best defense might be to assert mitigating claims. If Gaines had continued to deny his involvement, counsel’s investigation similarly would have enabled him to discuss with Gaines prior to trial the implications of that position; counsel could have advised Gaines about testifying and prepared him to do so as effectively as possible. Instead, petitioner’s counsel made no effort to assist his client by finding out what really happened other than by talking to the prosecuting attorney and law enforcement officials. Further, even with the knowledge presumably gained from them that eyewitness testimony in the state’s case clearly identified petitioner as the one who shot the victim, he neither pursued the facts further nor discussed with his client the possible approaches that could be taken to the case. As a consequence, Gaines was left with no defense. The Constitution demands more than this.
Id. at 1179. The standard for constitutionally effective assistance of counsel in this circuit is
not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.
Herring v. Estelle, 491 F.2d 125, 127 (5th Cir. 1974), quoting MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). Accord, Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir.) (en banc), cert. denied, 422 U.S. 1011, 95 S.Ct. 2636, 45 L.Ed.2d 675 (1975). Informed evaluation of potential[*1150] defenses to criminal charges and meaningful discussion with one’s client of the realities of his case are cornerstones of effective assistance of counsel. We agree with Judge Owens that in the circumstances of this case, trial counsel’s failure to conduct an investigation adequate for the performance of these functions deprived petitioner of constitutionally effective assistance of counsel. Judge Owens’ findings of fact are amply supported by the record and his application of the governing legal standard is correct. We affirm the grant of habeas relief on the basis of his fine opinion.
AFFIRMED.