*2 Court, A. I yes, addressed to the Langford, pro Curtis se. sir. Nabers, Jr., Drayton appointed, Court Q. you Did appeal ask for an as a Samford, III, Cabaniss, Frank P. John- pauper ? ston, Clark, Birmingham, Gardner & No, just A. I sir. stated that I Ala., appellant. for would like to the conviction. Clark, Atty. David W. Asst. Gen. also lawyer stated it before to Ala., Gallion, Atty. Macdonald Gen. if I was convicted I would like to Ala., Ala., Montgomery, appellee. carry way. the case all the That was RIVES, Before COLEMAN and MOR- in the little room there on the side. GAN, Judges. Circuit Langford’s father, Curtis Langford, Ben responded under redirect examination as MORGAN, Judge: R. LEWIS Circuit follows: This is an from an order of the Q. Langford] Did say he [Curtis denying ap- United States District Court anything in court at that time to the pellant’s petition for writ of cor- habeas Judge? any Did he make state-

pus. exhausting comparable After all ment? remedies, appellant Yes, sir, A. he did. peti- filed November corpus tion for writ of Q. habeas Was it short statement peti- United District Court. States lengthy it a statement ? hearing; tion was dismissed without A. It was a short statement. Court hearing, Q. plenary manded for F.2d say statement did he hearing, anything wanting 647. After such the District again petition denied the writ conviction ? Judge, you asking were him. when And Yes, He sir. A. assumed, sure, talking him, I’m that. you in an interested were Eggleston, who Lee Mr. Robert lawyer you going hire a were present court when Curtis get didn’t it took. You whatever convicted, that he oath Judge you didn’t have all tell the express desire in appellant heard *3 any money (Emphasis at that time? appeal. The for courtroom supplied). point and quite on this lucid record is (Emphasis supplied). Langford’s A. No. doubt that there is no to appeal was communicated you THE And didn’t tell COURT: Judge. Judge Well, that time that. you really any discussion question not principal factual The other appeal? Hamm about with Mr. responsible of- a concerns whether cognizant of Curtis ficial was made you Yes, If want me A. he had. only The evi- to finish. communicated dence that such was right. Finish THE All COURT: Lang- Ben is the discussion the state it. concerning Judge a Trial with Well, Judge, I A. asked transcript. 16th After the December it, him he I about he told would have trial, that testified Ben get one. I told I didn’t have him following occurred: any money. said, you get He have * * * Well, Q. (Mr. Clark) do thirty days. it in I didn’t know noth- response you remember which ing about the six months at the time. Judge when he made [Curtis length I could have raised it that something him said about ford] time, nothing I but didn’t know any? if But, now, thirty days, it. Langford) Well, (Ben I don’t A. give up. that made me And — that’s the he told But what he told know him. only thing knowing. lacking, that, you I me to state If want me. (Emphasis supplied). will. petitioner to be enti “For a Judge told The THE COURT: relief, post-conviction it tled you what? indigency enough occa that to show go the Clerk A. That could inability to petitioner’s em sioned the get for and ask him $75.00 petitioner appeal; ploy or to transcript. do it for That he would deprived him must show that State get up me if I $75.00. rights. Amendment of his Fourteenth Judge Now, told THE COURT: action shown when State you this? justice system of official in the State’s right. A. That’s rejects or fails to for counsel you you would tell speak about $75.00. THE COURT: ^[******] A. He told could the Clerk me what go $75.00 me I could to the Clerk Judge ? and the Clerk Archer would go and cost, told get when take tains counsel ant’s the accused's of counsel client’s proper indigency may he has rights When an rely steps knowledge of the defend on the on lawyer on and desire appeal. But toward convicted accused original presumption that will appointment protect person re defendant trial, that pre sumption Judge Pate v. Hol is rebuttable.” THE COURT: What 1965); (5 Cir., man, Worts any- lawyer, say you if about a 1968); (5 Cir., Dutton, thing? Judge you had Mr. The knew Edge Wainwright, retained, pay you would Hamm 1965). question Cir., money. case, but There is no lack it is this Judge given brought thought notice the Trial clear this appeal. Judge. testimony The home to the desired to Trial The in its denied of Ben District Court contains a conti’adic- stating Langford’s petition point. directly tion When asked give Judge to a state official the District failed notice whether he stated Judge appeal. they to the Trial wished district didn’t any money, opined: Langford answered, Ben discussing “No.” when later 314(4) [318(4)], “Title Section on the what stand he told Trial (Recomp. Code Alabama Judge, Ben informed said he 1958), requires the cause money. any him that he didn’t have its be entered on minutes recital testimony is not certain notice No such notice point. testimony There is no other pears on minutes of this case.” *4 concerning indigency the record we in That Court was error conclude rely solely opposing cannot on these above no notice of Therefore, statements. as to the results given was mony to a state official. The testi- reached Court on this District in of individuals concurred three contention, we must affirm. the fact informed appeal. Curtis final Trial Court he wished quirement No conten tion is that was denied assistance of that the has been established during counsel his 1964 trial. of must The case notice be formal. On contrary, Beto, pellucid of a Howard v. the law is if pronouncement “knowledge” Cir., de- is the latest state official has of the point. of the law To this this sire to this is sufficient. Pate v. Court on Holman, Cir., 1965). It reiterate the in Court’s that case: view quite immaterial how the state offi- found, “The district court acquires knowledge. cial this upon the based admission of Howard confronting signal judge’s The issue and the state trial en- docket Court is a one “a factual as whether evidence, tries which were admitted in system official the state’s that Howard’s mother had retained justice” represent was made aware of counsel to Howard indigent appeal. did, fact, ford’s status on such counsel ques- District Court did not guilty pleas discuss this him when he entered is, course, tion. his first trial. There distinction to be made concerning appointment Most eases compe- lack effective assistance of for an who being tent counsel and denied attorney retained his at trial have been right to effective assistance concerned with whether a state official competent It is the latter appeal. knew the desire In opens judgment challenge bar, case at corpus. attorney’s habeas Here In wished this alleged incompetence imput- cannot be peal, part it is the second of the double omitted). (Cases ed to the state.” criterion of to a of- communication state viz., appears absent, ficial which to be thorough A con- discussion of the cases indigency. problem cerned with this is contained Beto, dictum of Breedlove v. 1968). However, Cir., dependent It fundamental. is not exacting most recent and case on magic the use of words such question, Howard, supra. we adhere “pauper” “indigent”; however, thought Accordingly, appellant’s petition contained terms must these conveyed authority, i.e., correctly corpus be a state writ habeas rejection judgment denied, state and the final expense pursuant public transcript at is affirmed. District Court showing Affirmed. RIVES, Judge (dissenting): (concur- Judge Circuit COLEMAN, Circuit ring) : (1) two issues: involves This case Morgan Judge agree I denied or not Whether Court, denying judgment the District appeal his convic- constitutional corpus, courts, should affirmed. habeas tion in the Alabama (2) uncon- or not he was denied whether thoroughly exhaustive In view of the stitutionally his to effective assist- admirably reasoned brothers, My af- Rives, of counsel. ance [Judges Holman firming court’s denial the district (1965), and Bell] Wisdom corpus, Langford’s petition for habeas elaborating upon necessity for I find negative. questions in the answer both applicable law. dissenting, respectfully submit that In my view, fac- are the decisive these questions both should be answered appeal: tors affirmative. fee, paid Regardless of who represented at his trial I. privately privately retained and *5 paid. Langford of contends that the State Upon the the return of verdict 2. right Alabama denied his constitutional Langford express appeal, to did judge of in that the trial court Indigency indigent. not an but appoint him not to not mentioned. appealing the This con- conviction. Lang- (1) At on four factors: The conversation tention is based 3. Langford conviction, judge trial the time of ford’s father and the his rejection request indigent afford and unable to to state of amount Langford expense. (2) transcript public appeal; wanted to at for a trial place the Apparently took his informed trial this conversation conviction and Lang- manner, judge’s judge appeal; (3) the of at his desire in an informal judge office, the trial asked what ford’s father informed in which the father judge not af- that he could transcript after the conviction would cost. preparing sponded ford the cost of information. this for appeal; (4) “have for neither didn’t his son’s father said then considerably of any money”. nor his father was informed This was Langford’s right his conviction with- that he was short an assertion indigent court-appointed property as an with or out resources any money counsel. could raised. defendant, indigency event, pursuant or- court The district father, Pre- real issue. not his was the Alabama, Court, this der judge sumably at the the trial time Cir., 1968), (5 conducted F.2d 647 387 impres- under the conversation was hearing or not on whether represented still that sion appeal his con- been denied Hence, by privately retained his denying district court viction. The the trial informal conference at Langford’s petition concluded: obligation judge assume was under the role counsel and advise finds court “From the evidence options father which could have judge notified trial that Holman, supra. exercised, Pate v. Langford, of defendant, indigent appeal as an desire to at the office This isolated incident * * person judge simply *. did not amount trial ' * * * * * * defendant and that wishes taking circumstances, appeal.1 “Under construed This has Holman, requiring only into consideration all record including case, testimony judge (or responsi the trial some other hearing, evidentiary official) knowledge at witnesses ble state of a would be unfair this court defendant’s desire position judge indigency.2 take the some official was My agree knowledge by brothers in- notified Mr. was an official, necessarily a state ex- digent person and that he wanted to press request by a defendant indigent appeal.” take an pointment counsel, es- represented defendant Where a finding required Pate. sential I am has this Court trial retained agreement full Mor- Brother no affirmative the state has gan’s held that finding the State trial court appoint unless judge knowledge de- responsi- judge, other or some agree sire and thus with his knowledge official, has ble state holding that the district court erred in (5 Holman, 341 F.2d Cir. Pate v. California, 353, las v. State of 372 U.S. (5 Cir. F.2d 546 814, (1963).” modified 83 S.Ct. 9 L.Ed.2d 811 Martin, 1965) ; Beto 1968); Reincke, United States ex rel. Maselli v. Dutton, (5 Goforth v. Cir. (2 1967). 383 F.2d 134 n. 7 Cir. 1969). (5 Cir. found Horsley circuit courts have a de Other Simpson, 400 F.2d defendant’s constitutional (5 nial of a 1968) ; Martin, Beto v. ap sought appeal where the defendant (5 1968) ; of peal Dutton, Worts v. was not informed 1968) ; Edge or his retained counsel Wainwright, v. 1965). ap court-appointed counsel on to obtain peal. Coiner, 392 F.2d 210 Williams v. construction, Even absent this Court’s 1968) ; Wynn Page, *6 duty see v. (fundamental 369 placed should not be on a defendant expressly to communicate his desire to concerning right counsel appeal to assistance of indigency and his condition of appeal adequately right not safe judge. Supreme of the trial court guarded). discussing appointment appellate of recently ques- circuit court has Another counsel has stated: in dictum the constitutional valid- tioned “We think the documents contained requirements: ity Pate v. Holman transcript of the in this demonstrate that re- though point arguable, the spondent “It also is did indicate to Missouri the appeal we raised on this wras not courts his desire counsel on it, drawing a decide that need not But even if such a had not been made, between cases in which the distinction we do not think its absence would appeal of on was respondent’s counsel amount to a waiver of requested State, g., expressly rights. of the e. It is now settled ‘that where Holman, Pate v. the assistance of counsel is a constitu- 1965), right those in no such're requisite, tional the fur- made, quest g., depend United States e. nished counsel does not on a Bjornsen LaVallee, request.’ Carnley ex rel. v. Cochran, 369 U.S. longer 1966), permis 506, is 884, 513 [82 S.Ct. 8 L.Ed.2d 70]. Supreme light indigency sible Court’s aWhen defendant whose emphasis appeal State of Ari Miranda desire to are manifest does not 1602, zona, 86 S.Ct. 384 U.S. have the of services his trial appeal, simply 974] A.L.R.3d [10 L.Ed.2d 694 cannot be inferred advising (1966) upon importance specifically the of from defendant’s failure they defendants, appear request appointment appellate all whether coun- poor, knowledgeable igno knowingly be rich or rant, or sel that he has and intelli- right gently appoint- of their constitutional to re waived his to the appellate ceive the assistance of counsel ment of from counsel.” accusatory stage Bosler, onset of the Swenson criminal 386 U.S. proceedings, extends, 996, 997-998, (1907). which also S.Ct. 18 L.Ed.2d 33 course, appellate stage, Doug- to the testimony dem- concluding does trial. that no notice of Langfords not af- that could given onstrate official. Knowledge transcript ford the fee. $75 the Pate to the second element As father3 not afford that could knowledge responsible by a criterion — transcript preparing cost of indigency of a official defendant’s state knowledge by the tantamount un- —my both find the record brothers judge trial needed assist- Therefore, conflicting. clear through court-ap- from the ance State — Langford’s pe- court’s district denial pointed counsel and a free —to opinion my It affirmed. is tition was perfect appeal. To hold that knowledge judge have requires Pate more Court’s decision Langford’s inability to afford form exalt over is to substance and must dissent right. protection aof vital constitutional holding my particular brothers. Further, reason, for another I am only above, requires Pate As requirements judge (or trial some Holman were satisfied. Under official) knowledge a de- (be- an Alabama statute enacted in my Brother fendant’s As Langford’s fore conviction states, Morgan “is judge initiate was under trial magic upon dependent use of Langford’s inquiry financial ‘indigent’; ‘pauper’ such as or words knowledge judge ability once the thought contained these Langford’s desire his convic- conveyed au- must be a state terms tion.4 The fact that notice thority, e., money.” I i. the lack of would (as not recited the minutes thought conveyed to a state add quired by statute) conclu- authority inability must be to afford notice, especially sive where evidence of lack of the total indicates, the record brothers Illinois, funds. Griffin v. 351 U.S. agree, did have 18-19, 76 S.Ct. L.Ed. knowledge Langford’s (1955). Langford, testimony of Ben peal. Langford’s (see p. Curtis father law, conflicting Therefore, Judge Morgan’s opinion), a trial Alabama inquiry judge Langfords have to initiate an whether not the would concerning any money at the defendant’s financial abili- conclusion of Curtis’ Although conviction, indigency his desire said inquiry, its crucial his father’s financial court shall cause to bo entered *7 inability appeal. to obtain a recital the trial minutes of notice appeal purposes ques- make relevant to The court shall then ascertain and Langford’s appeal findings con- tion of trial in reference to the judge cerning Langford in and knew that had been those items listed as jail during 318(1) preceding [1. in of this title. thirteen months section arranged 1964; has his trial indict- or defendant that since his Whether represented by and have the as- ment for this to be offense jail time; during 2. Whether or had been most of this sistance counsel. employed and not defendant desires the assistance father an had attorney represent to counsel. 3. Whether or defendant his son at the trial. financially to ob- These facts were is able or otherwise sufficient notice that entirely dependent upon counsel.] his tain the assistance of appears support. desires financial “If that defendant father’s financially appeal or to unable 318(4), Title of the Code of Section to obtain the otherwise (pocket supplement) reads, Alabama appeal ex- on and defendant counsel part: presses assistance of coun- the desire for a de- “In all criminal cases wherein appoint counsel sel the trial court shall has been of a serious fendant convicted represent assist defendant on to directly appeal in which offense an lies * * Supreme ap- to the Court or court of expresses peals, and if said defendant ty appellate to counsel once the obtain drawn no distinction between retained judge appointed trial knew that the defendant de- counsel and counsel in consid- appeal. ering adequacy-of-counsel an A defendant sired convicted question.5 decisions, informs differentiating an Alabama state court who Other appointed the trial court of his desire to and retained have de- penalized the re- should be nied the ineffective assistance-of-counsel quirements (i.e., grounds of Pate some contention on the that unless knowledge sponsible outwardly state official have prevent pri- officials failing indigency) vately inform of his performing retained counsel indigency, duties, should his of his but there is state action and statutory permitted rely upon thus no denial of fourteenth amendment duty judge inquire rights.6 ability his to obtain counsel on financial This Court’s standard whether unconstitutionally there was ineffective apparently judge judice established in Wil- In the case sub Beto, (5 liams knowledge Cir. desired an 1965) according However, .7 inquire into to a recent did not his abili- but Court, decision of position ty our coun- on the cost afford inquiry issue of Langford, having whether the is lim- satisfied the sel. court-appointed ited to required of Alabama counsel seems defendants supra. unclear. statute, Beto, com- to have Breedlove v. should be found This uncertainty apparently arises plied requirements because of with the conflicting decisions Court. Holman. Beto, (5 Howard (per curiam), II. controlling, brothers conclude is Langford’s re- The record shows that Court stated in effect that ineffective an knowledge of tained trial counsel may retained counsel’s actions not be convic- imputed to the state. Bell inability tion Alabama, family to afford counsel’s fee 1966) , Judge commenting Tuttle on the

peal. Langford contends that counsel’s effective assistance-of-counsel test stat- him failure advise of his “It applies ed: is clear that this test court-appointed cases in which counsel is retained denied constitutional effec- for an accused well cases tive assistance appointed which counsel is Beto, This Court in Furthermore, Breedlove v. defendant.” F.2d dictum dis- States, in Porter v. United cussed the contention that defendant’s 1962), Judge Brown stated: retained counsel was so ineffective as “The Constitution assures defendant representation amount unconstitutional denial effective majority counsel. The decisions have attorney whether the is one his choos- supra Beto, 1; F.Supp. *8 (N.D.Ga.1968); 5. Breedlove v. at 1020 n. 295 835 Weath Peyton, see ex F.Supp. United States rel. Maselli v. (W.D. erman v. 287 819 (2 ; Reincke, 1967) Va.1968). 383 F.2d 129 Cir. Phend, Cir., (7 Wilson v. 417 F.2d 1197 My 7. views that a more strict standard 28, 1969) Rose, ; Oct. Wilson v. 366 F.2d required expressed should be are in a (9 1966) ; Note, 611 Cir. Effective As dissenting opinion Daugherty Beto, v. Indigent sistance of Counsel for the De (5 1967); 388 F.2d 817 Cir. fendant, (1965). 78 Harv.L.Rev. 1434 Note, see also Effective Assistance Bomar, (6 Indigent 6. Defendant, Davis v. 344 F.2d 84 Cir. Counsel 78 1965) ; Hudspeth McDonald, 1434, (1965). v. Harv.L.Rev. 1435 ; (10 1941) Smith, 962 Johnson Cir. v. 768 8 may cogni Although take court-appointed.” Por- which the

ing or petition for has a to cor 2255 zance which it a section ter involved gainsaid post-conviction sentence It relief from a rect. cannot be statute, See, e.g., position proponents. its a federal has for violation Bomar, (6 Cir.), has 84 Porter v. Davis above statement 883, proposition denied, authority adopted 382 U.S. 86 S.Ct. for the cert. challenged (1965); 177, 15 L.Ed.2d 124 see Unit can be that a state conviction Darcy Handy, ed ex 203 States rel. v. because of ineffective 407, 1953). counsel, though (3 Other the counsel F.2d 427 Cir. even wisely Rose, courts, privately 366 have more fo retained. Wilson v. 1966). (9 their on the cused attention merits of F.2d 611 Cir. incompetency counsel, claim each holding reject Howard would g., see, ex Fazio v. e. United States rel. adopt Beto, supra, the views v. 418]; Fay, supra F.2d United [348 Second, Circuits. and Ninth Fourth Garguilo, supra v. F.2d [324 States Reincke, rel. Maselli v. United States ex (4 ; Smyth, v. Snead 273 795] supra; Rose, supra; Puckett Wilson v. McLeod, 1959) ; F.2d Cir. Riddle v. 240 (4 Carolina, 452 F.2d North 343 insuring thereby 206 1965). would allow These decisions that each defendant has received although represented re Langford, required by fundamental fairness trial, raise an his counsel at tained Fourteenth Amendment.” argu ineffective assistance-of-counsel Thus, in Masel ment. F.2d at the test should As stated 383 li: not be whether state denied effective counsel, assistance of but whether “Nevertheless, contends the State be- was denied his that collateral relief from a state con he effective cause may viction not be unless coun representation.9 incompetency may sel’s be attributed Langford was denied effective assist- State, citing Lana Farrell v. counsel, gan, (1 Cir.), ance of when his trial cert. de knowing nied, he 853, 1509, desired his 92 68 S.Ct. U.S. he (1948). conviction and that neither nor incompeten L.Ed. 1775 Such counsel, cy, urged, father could afford it is be of the sort of must Amendment, argument quoted approval Fourteenth 8. This statement there was stand because if cannot this Court in Randazzo United incompetent, States, 79, fact appointed Rose, standards also other courts. Wilson v. participation 1966) ; 611, in the trial state’s United F.2d fundamentally LaVallee, unfair because of ex rel. Williamson v. States incompetent (E.D.N.Y.1968); suffi- F.Supp. retained is Hol generally, Boles, F.Supp. 863, Wil- state action. See 865-866 cient land v. Action, liams, Twilight of State (N.D.W.Va.1963). The second 41 Texas L.Rev. 347. viewpoint minority supra, is rationale In Breedlove v. the Court Beto lawyer, defendant selected that since the differences articulated presumed acquiesce viewpoints: in all of two majori- attorney’s Yet, argument activities. [the “The first Howard reply ty’s viewpoint the Gideon is that the basis of there since Beto] compe- requirement action, man is there can is no —that at a criminal himself tent of the Fourteenth Amendment denial require the conclusion trial —seems to the ma- a fair trial. incompetent viewpoint’s light accu- jority reply evaluate is that lawyer ability rately Shelley Kraemer, before rationale of quality representation the trial or 92 L.Ed. 334 U.S. S.Ct. *9 partici- at the trial.” which held that State activity n. pation 404 F.2d at 1020 1. in an unconstitutional to invoke the was sufficient state action right inform him of his court-appointed counsel and a OF UNIVERSITY ILLINOIS FOUNDA provided Wil TION, Plaintiff and Counter Coiner, liams Defendant-Appellee, Cir.1968); Carolina, Puckett v. North supra. in Wil As stated the Court LABORATORIES, BLONDER-TONGUE : liams INC., Defendant and Counter Claimant-Appellant,

“Equal protection law is not appellate where the nature of satisfied presence or the absence of review CORPORATION, JFD ELECTRONICS person’s of a ‘de Counterclaim-Defendant-Appellee.

review conviction money pends on the amount of No. 17153. People of Il Griffin v. of State has.’ Appeals, United States Court of linois, S.Ct. U.S. Seventh Circuit. (1956). If 100 L.Ed. 891 Feb. investigation it is found that Williams Rehearing As Modified on Denial of sought that he desired April 2, 1970. lawyers because of refused indigence and not ad the state of his to have vised

provide requisite counsel and the tran

script, then the District should Court petitioner’s unless the

order release grant

state’s courts will

delayed appeal. State of Puckett v. (4th Carolina, North 1965); Peyton, F. Newsom Cir.1965).” (4th

2d reasons, am of

For above unconstitu- tionally denied and his

state conviction as to effective of counsel. respectfully

I therefore dissent.

ON PETITION FOR REHEARING

AND REHEAR- PETITION FOR EN BANC

ING

PER CURIAM: Rehearing

The Petition is DE- having polled

NIED and the Court

at the of one of the members majority and a Circuit regular Judges service are in active who it, having (Rule voted in favor of Procedure; Appellate Rules Federal Petition Local Fifth Circuit Rule Rehearing En denied. Banc is also

RIVES, Judge: Circuit rehearing I dissent from denial original panel.