*1 At an conference in-chambers a number additional Meyers makes to sentenc- prior with appellant’s that evidence of a namely, contentions: provided ing appellant was at which counsel and himself drug sale between Calvin references, inadmissible; some made court with character by Debbie statements counsel of hearsay; Judge advised and the District were inadmissible Feddick Thereafter, in proposed sentence. Judge improperly appel- sentenced District Judge specifically courtroom the District years imprisonment. We have to five lant claims, speak behalf. appellant invited in his own each of these carefully considered be, Meyers persuade did not both The fact that them individual- and have found lesser is not a impose basis on court to sentence no which ly collectively, and right to Nor was denial of the allocution. Court’s reverse District judicial imposed the sentence abuse this case. sentence, im- years That five discretion. as to the December 1978 Testimony statutory prisonment, was well within the occurred in Florida drug transaction which years of 15 for violation maximum Calvin, Feddick appel Debbie between 841(a)(1). U.S.C. § admissible evidence properly lant was is af- Accordingly, appellant’s conviction relationship and ongoing conspiratorial firmed. contends, not, appellant improper evi prior of a dence crime. the contention Miss
Similarly, are inadmissible hear
Feddick’s statements
say Judge The District condi meritless.
tionally
Feddick’s
admitted Miss
statements
required
government
prove
preponderance
they
the evidence that
GILBERT,
Duane
Daniel
co-conspirator
dur
were made
her as a
Petitioner-Appellee,
ing the
in the
of a
course and
furtherance
v.
finding
conspiracy. The court’s
its
government
proof
had carried
burden of
SOWDERS,
Dewey
Superintendent,
by the
amply supported
was
record
Penitentiary,
State
properly
thus the statements were
admitted
Respondent-Appellant.
104(a).
under Federal Rule of Evidence
No. 79-3597.
Enright,
United States v.
witness, unworthy was of belief that he Argued April violator, testify was an admitted law April Decided imprisonment, ing to save himself from impeached. this Court instructed, it is repeatedly jury for the has given determine should what credit be
witness. less true when the This is no government
witness is a informer and ad
mitted user with a criminal rec narcotics Cooper,
ord. United
v.
States
Finally, appellant not denied provided allocution as in Rule United Fed.R.Crim.P., Green v.
32(a)(1),
States, 5 L.Ed.2d *2 performed
Counsel had every require- Kentucky appellate rules, ment of the ex- cept petitioned one. He had for exten- an filing 60 days sion of for the record on appeal while there was time for the exten- granted. to be The rules sion allowed such 60-day Actually, extension. the extension granted order, had been but had not been clerk of entered court. Gil- counsel’s1 bert’s technical violation was that he failed to insure that the order was required entered as is Ken- tucky case law. has, course,
Kentucky to en- procedure, force its own rules including requirement lawyer the unusual that performs see to it that public the clerk obligation. cannot, however,
We avoid the conclusion failure Kentucky Supreme of the grant appellant’s Court to counsel’smotions for reconsideration appeal capricious, arbitrary and an law, process abuse of due protected by Clauss, By United States Constitution. these Henry, C. David and Gerald Asst. the Supreme motions Court had Gen., Frankfort, fully been Attys. Ky., respondent- for obviously advised attempt sincere appellant. appeal an and the miniscule na- Murrell, Advocate, David E. Public Kevin Appellant ture of the defect. had been Advocate, McNally, Michael Asst. Public sentenced to totaling years. sentences Frankfort, Ky. (Court-appointed), peti- for Kentucky’s grants per- Constitution such a tioner-appellee. appeal Supreme son a direct Court of Kentucky. 110(2)(b). Ky.Const. § EDWARDS, Before Judge, Chief JONES, Judges. ENGEL and Circuit judgment of the District Court granting the writ affirmed. PER CURIAM. appeals this case Warden Sowders JONES, NATHANIEL Judge, R. Circuit Judge’s granting
from a District
decision
concurring.
petition
defendant
for
ha-
writ of
I concur in the
beas
after the District Court deter-
incarceration of
Duane
vio-
Daniel
Gilbert
mined
had
that he
been denied
constitu-
lates the United
I
States Constitution.
tional
effective assistance of coun-
separately
I
write
because believe that the
during
sel
con-
of his
majority
presented
misconceives
issue
kidnapping.
viction for
case.
this
proceeding
This
from
arises
a situation
I.
where retained counsel violated a highly
technical
rule which
in
attempted
resulted
Gilbert was convicted of
kid-
being
napping,
endangerment
Gilbert’s case
dismissed.
wanton
first
juncture
compensation.
Gilbert’s counsel at this
Court
His
without
coun-
Kentucky’s public
who had
for his trial
been retained
sel on
defender.
federal
and who undertook the
first-degree
an
robbery,
and order
for
extension.
This motion
counts of
degree,
two
was filed on Feb-
first-degree
De-
for
time
rape. On
kidnapping, and
expiration
ruary
before the
he was sentenced to
cember
required
Rule
sixty-day period
initial
A notice of
imprisonment.
years
order of the trial
Gilbert,
73.08.
10,1976.
CR
December
was filed on
granting
the extension of time
pauperis
indigent,
appealing
forma
*3
filing
appeal
the
on
was not
record
assistance of trial coun-
with
volunteer
the
docketed,
lodged
though
by counsel
even
sel.
22, 1977,
February
the
On
the
with
clerk.4
procedure
require
Kentucky’s
rules of
pro
a
order
trial court entered
nunc
tunc
appeal be
within
that
record on
filed
the
filing
for
the record.
extending the deadline
sixty
filing
the
of the notice of
days of
filed on March
The record was
the
court
ex-
appeal,
by
trial
order
unless
April
state moved for
On
the
sixty days.1
an additional
tends the time
appeal because the
dismissal of Gilbert’s
Though
trial
and the
the clerk of the
court
extending
filing
trial
court's
order
the
actually prepare the tran-
reporter
court
Thus,
argued
was void.
the state
deadline
evidence2,
script
respec-
of record and of
untimely
appeal
that
the record on
tively,
appellate counsel has the
Gilbert’s
filed. The
Court dis
responsibility to file the record.3 When it
18, 1977.
appeal May
A
missed Gilbert’s
on
the trial court clerk
became obvious that
motion
reconsider was denied.
to
prepare
could
and transmit
the record
not
appellate
by February
court
Gilbert filed a motion in the trial court to
appeal.
February
a
appellate
Gilbert’s
counsel filed
motion
reinstate his
On
Appeal
by
Filing
appellant
points
the
of
on
1. “Rule
73.08
Record on
statement
which
the
CR
provided
appeal
rely.
copy
for
The record on
as
to
A
of
he intends
certified
appel-
may
assigned
75 and 76
filed
Rules
shall be
with
be
the civil docket
provided
to the action
days
original.
within
the date of
late court
after
in lieu of the
filing
appeal except
(2)
notice
that when
transcript
of
parts
as
The
or
thereof filed
appeal
one
is taken
by
more than
from same
provided in Rule
be
75.02 shall
certified
may
prescribe
the trial court
part
appeal.
a
record
clerk as
of the
on
filing,
be
time for
which in no event shall
less
(3)
exhibit,
original
designated,
An
when
days
filing
the date of
the first
than 60
notice of
in
after
part
as
of the
shall be certified
the clerk
trial
In all cases the
court
appeal,
physical
record on
but
exhibits other
or
its discretion and with without motion
to
than documents shall not be transmitted
may
filing
or notice
extend the time for
requested
appellate court
its
the
own
unless
appeal,
record on
made before the
filing
by
if its order for extension is
any party.
or on
of
motion
the motion
expiration
period
of the
for
(4)
provi-
The matter certified under the
originally prescribed
as
or
extended
(2)
(3)
(1),
this
sions of
and
of
subsections
order,
previous
a
but
trial court shall
Rule shall
record on
constitute the
day
not extend the time to a
more than 120
and shall be transmitted
appellate
the clerk to the
days
filing
after the date of
the first notice of
responsibility
court. It
of the
appeal.
may upon proper
good
court in
discretion
its
appellant to cause the record to be filed with-
showing
and
motion
specified.”
in the time
filing
the time
cause extend
for
record on
is made before the
if the motion for extension
Perfecting Appeals
3. “Rule 1.070
period
expiration
of the
(a)
appellant
To
filing
originally prescribed
for
or as ex-
shall:
(1)
by previous
(Effective July
tended
order.”
appeal to be filed.”
Cause the record on
1, 1976.)
(Effective July
1976.)
Prepared
2. “Rule 75.07 Record to be
In
it is
Gilbert’s
brief
stated
Transmitted
Clerk
may
have
to have the order
failed
(1)
pre-
The clerk of the trial
shall
signed
granting the
the Jefferson
certify
pare and
on file
the entire record
in
read in
judge.
the district
Circuit Court
office,
depositions
other
his
than
not
counsel failed to en-
court stated
evidence,
require-
in accordance with the
properly
sure that the order was
docketed
original
RAP
1.120.
ments of
1.110to
Such
view,
my
fact
the clerk of courts.
either
designations
stipu-
shall
or
record
include
right
his
assist-
denies
of effective
Gilbert
parties
pro-
to
lations of the
evidence
ance of counsel.
reported
ceedings stenographically
any
his
granted.
deny
motion
Gilbert refiled
to
motions
has
reconsid-
thoroughly
both
er
sides
the dismissal. The
notice
denial
motion
Again,
Su-
case.
reconsider makes final the
briefed
dismissal. To
the appeal
Court dismissed
and Gil-
label
preme
appellate counsel’s failure
comply
de-
Kentucky’s
motion for reconsideration was
with
procedure
bert’s
rules of
as “min-
iscule”
not alter
nied.
does
this conclusion. For
reasons,
these
I
would resolve
case as it
Thereafter,
petition
filed a
Gilbert
presented
in the
briefs
at oral
in the
Dis-
habeas
Western
writ
argument.
alleged
He
Kentucky.
trict
that his
with
comply
counsel’s failure
III.
appellate procedure,
rules of
Gilbert,
It is well
causing
appeal,
indigent,
of his
settled that
violated
denied
assistance
cannot be
assistance
counsel on
*4
effective
of counsel.
an
right.
Moffitt,
appeal of
Ross v.
granted
The district court
Ken-
417
writ.
U.S.
600,
2437,
tucky appeals.
(1974);
94
Douglas
353,
v.
372 U.S.
83 S.Ct.
II.
814,
Thus,
(1962).
1150 other- L.Ed.2d 493 To hold defendant, argues rulings of
by the well-recognized the wise would undermine arguments to and makes direct court an gratuitously, albeit persuade purpose granting, them seeking jury right. guilt. of the defendant’s at Ross, 417 U.S. at in this Circuit that trial It is well settled required under the assistance is a an counsel’s failure reasonably “counsel Cowan, Amendment v. process. Boyd Sixth denial of due rendering reasonably Neil, likely 1975); to render (6th Woodall v. F.2d 182 Cir. assistance,” Beasley v. United 1971). Similarly, ap- effective Cir. F.2d 92 1974). If States, 491 F.2d proce- perform failure to counsel’s improperly exercises necessary a trial an prosecute dural duties discretion, Benoit, of counsel ren- See, assistance process. peal is a denial of due Thus, constitutionally defective. dered is Thus, failure to supra. appellate counsel’s all investigate apparently attorney must a record obtain extension of time to file defenses, prop- advise his client substantial law. process Gilbert due denied law, develop erly points on clear bur- unduly will not have an ruling Such lawyers of ordi- strategy and tactics which on the densome effect administration training competent. consider nary and skill state courts. Private as well Louisiana, also, v. 350 U.S. Id. Michel ef- professional disciplinary procedures are *5 91, 7, 100 83 n. 76 L.Ed. 101 S.Ct. police repetitive fective tools errors (1950). “Basic are also procedural ruling provide misconduct. Nor does such a determining whether assist- encourage considered less appellants any incentive to constitutionally ance of counsel has been rules compliance than full with F.2d at Most adequate.” Beasley, 491 habeas appeals. The writ of significantly, Beasley holds trial coun- if granted only appellate the state in a proper and sel “must assert defenses not to hear the decides (emphasis timely manner.” Id. at 696 add- applicable is not harmless error rule ed). where a denial of effective assistance require that precedent Both reason and Beasley, counsel is found. 491 F.2d at counsel to effective extend 458, Rose, Compare, McKeldin v. 631 F.2d right. Though signif- “there appeals of are 8, 1980) (per No. 80-1198 Cir. October the trial and icant differences between curiam). merits of Gil- Consequently, stages proceeding,” criminal of a need not be bert’s state 610, 2444, Ross, 417 94 S.Ct. at U.S. at examined. integral become appellate review has For I concur in the above stated reasons finally adjudicating part system district AFFIRMING the guilt or of a innocence defendant. Grif- court. Illinois, 18, 585, 12, fin v. 76 351 U.S. S.Ct. In an L.Ed. 891 right, issue is “whether there critical adjudication guilt
has been correct Ross, at
every case.” 417 U.S. 2446. Effective counsel is nec-
at
essary if are to perform courts Therefore, assigned
their function. rea-
Beasley standard that render
sonably applicable effective assistance right. Wingo,
appeals of Benoit v. 423 F.2d also, 1970); Anders v.
California, S.Ct.