Peter P. MACON, Petitioner-Appellant, v. Russell E. LASH, Warden, Respondent-Appellee
No. 18611
United States Court of Appeals, Seventh Circuit
April 6, 1972
Since the bank cannot take advantage of the seller‘s right of reclamation, we affirm the district court‘s judgment without reaching the other issues raised.8
Affirmed.
Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.
Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.1
STEVENS, Circuit Judge.
In his application for a writ of habeas corpus petitioner alleged that his right to appeal from his murder conviction was lost because of the “incompetence and fatal negligence” of his court-appointed counsel. The question for us is whether his federal claim had been “fairly presented” to the Indiana courts before it was denied by the district court.
I.
On December 9, 1961, after a jury trial, petitioner was convicted of second degree murder and was later sentenced to life imprisonment for that offense. As a matter of Indiana law, he could not appeal unless a motion for a new trial was filed within 30 days of his conviction;2 that time limitation was jurisdictional and could not be extended.3
On January 5, 1962, petitioner‘s court-appointed counsel filed a “Motion for Transcript to be Prepared at County Expense and for Extension of Time in Which to File Motion for New Trial.” This motion was denied on May 1, 1962, and a few days later petitioner‘s counsel withdrew.
On January 8, 1962, as a matter of Indiana law, petitioner‘s right to appeal expired. His allegations indicate that a timely appeal would have had arguable merit. He does not assert that any constitutional error was committed during the trial itself, or that any procedural defect is evident from matter dehors the record. He simply alleges that the evidence was insufficient to establish his guilt beyond a reasonable doubt,4 and that the court erred in denying him a continuance needed to obtain the testimony of an absent witness and in permitting the prosecutor to testify. These allegations provide proper grounds for a motion for a new trial and for a direct review of the merits of his conviction; they are plainly insufficient as a basis for a collateral attack as a matter of either Indiana or federal law.
Petitioner‘s attack on the “competency” of his counsel is not directed at the adequacy of his representation during the trial itself. It focuses on the lawyer‘s failure to protect his right to appeal by either (a) filing a timely motion for a new trial, or (b) advising petitioner of the need for such a timely motion to enable petitioner to take the necessary steps himself. It is evident, if the allegations are accepted as true, that an otherwise thoroughly competent lawyer overlooked a critical procedural point, possibly because it was his first criminal case and his office was over 50 miles away from a law library adequate for an appellate practitioner.5 Be that as it may, petitioner alleges that neither his lawyer nor the trial judge advised him of the crucial importance of filing a motion for a new trial in 30 days. For that reason, and that reason alone, an indigent defendant allegedly lost his right to appeal his conviction for murder.
Except for the inferences which the Indiana Supreme Court has drawn from the fact that trial counsel did not file a timely motion for a new trial, there is nothing in the record to indicate that either petitioner or any court has been advised, either orally or in writing, that an appeal would have been frivolous; that counsel evaluated the issues which might be raised on appeal;6 or that petitioner intended to waive his right to appeal.
In support of his claim predicated on the Fourteenth Amendment to the Federal Constitution, petitioner contends that he was denied (1) due process of
II.
The allegations contained in the application for a federal writ of habeas corpus had been included in a petition for permission to file a belated motion for a new trial which Macon had filed in the Circuit Court of Orange County on June 19, 1968. That petition was denied without a hearing. Petitioner did not take an appeal to the Indiana Supreme Court from that denial. It is that omission on which the Attorney General primarily relies in urging a failure to exhaust state remedies. We must evaluate that omission in the context of petitioner‘s other attempts to obtain relief from an Indiana court.
In the eight-year period between his conviction and the filing of this petition in the district court, petitioner filed five petitions in the Circuit Court of Orange County and seven applications in the Indiana Supreme Court. Since it is undisputed that his claims were adequately presented to the Circuit Court, we confine our review to the question whether the Indiana Supreme Court had a fair opportunity to allow petitioner to take an appeal from his conviction for the reasons set forth in support of his federal petition.
The Indiana Supreme Court has filed four written opinions explaining its reasons for rejecting petitioner‘s claim.7 In addition, it has denied petitions for rehearing and for an extraordinary writ without opinion.
On October 23, 1962, the Indiana Supreme Court held that the trial court had correctly denied the motion for an extension of time to file a motion for a new trial and the motion for a transcript. The ruling was made in response to a pleading prepared pro se entitled “Motion for Appointment of Counsel.” The court held that a transcript was not needed for the preparation of a motion for a new trial, and assumed that counsel‘s failure to file such a motion warranted the conclusion that no meritorious grounds for such a motion existed. The court did not comment on counsel‘s request for an extension of time to file such a motion. It refused to assume “without a showing [,] that a motion for a new trial should have been filed or that counsel was incompetent because such a motion was not filed.” 185 N.E.2d at 621.
From that decision petitioner applied for a writ of certiorari. The United States Supreme Court in Macon v. Indiana, 375 U.S. 258, 84 S.Ct. 362, 11 L.Ed.2d 311 (1964), granted the writ, vacated the judgment of the Indiana Supreme Court, and remanded for further consideration in light of Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963). In Lane the Court affirmed our holding that the Indiana coram nobis procedure was defective because an indigent‘s right to appeal could be entirely cut off at the unreviewable discretion of the public defender. See 302 F.2d 537, 539 (7th Cir. 1962); 372 U.S. 477, 481 (1963). The majority opinion rested on equal protection grounds, but Justices Harlan and Clark concurred on the ground that the requirements of due process were not met.
On January 17, 1964, the Indiana Supreme Court analyzed petitioner‘s claim in the light of Lane v. Brown. The court held as a matter of Indiana law that a
Having held that petitioner had no basis for direct review of his conviction, the court noted that it had adopted new rules which allowed a belated motion for a new trial based on matter dehors the record which had not come to the attention of counsel during the trial. It directed the trial court to appoint counsel to prepare such a motion, pointing out that there could be no necessity for ordering a transcript at public expense in view of the limited office of the belated motion.
On May 17, 1964, the Indiana Supreme Court denied rehearing and filed another opinion, explaining that counsel other than the public defender should be appointed. That opinion reflects a consideration of the fairness of the Indiana procedure as compared with federal practice and reiterated the court‘s holding that the failure to file a motion for a new trial established the absence of merit in any possible appeal.10
On November 29, 1966, the Indiana Supreme Court filed its fourth opinion, this time denying a petition for a writ of certiorari. The opinion indicates that at least two pleadings which had been filed in the Circuit Court were before the Supreme Court: (1) a belated motion for a new trial filed on November 19, 1965, and (2) a petition for appointment of co-counsel which was apparently filed on June 24, 1966.
The former set forth petitioner‘s grounds for a new trial, again reiterated the denial of an extension of time to file a motion for a new trial, and complained that the Supreme Court‘s refusal “to provide Appellate counsel for the defendant herein in subsequent proceedings was unconstitutional and in derogation of defendant‘s right to due process and equal protection of the law.”
The latter was an affidavit prepared by court-appointed counsel, who had also represented petitioner at the trial. He stated that he had no appellate experience; that the matter involved due process issues; that he did not have access to “an adequate legal library with which to prepare and perfect such an appeal“; that appellate practice in the State of Indiana involves specialization; and that “in order to properly protect the defendant‘s interest herein, the said defendant should be represented by co-counsel with appellate practice and experience.”
Both applications were denied by the trial court and by the Supreme Court.
On June 19, 1968, petitioner filed in the Circuit Court of Orange County his second petition for permission to file a belated motion for a new trial. This petition squarely attacked the competency of his trial counsel. It is the failure to appeal from the denial of this petition that is the principal basis for the Attorney General‘s exhaustion argument. It appears, however, that a copy of the June 19, 1968, petition was attached as an exhibit to a “Petition for Writ of Mandate” which was filed in the Supreme Court of Indiana on January 30, 1969. That petition asked the Supreme Court to assign the June 19, 1968, petition to a special judge for a decision, since the matter had been pending for over six months. On July 7, 1969, the Supreme Court denied that petition, and on August 20, 1969, it denied a motion to reconsider.
This habeas corpus litigation was thereafter commenced. In the court below, the Attorney General argued that the denial of counsel issue “has been resolved several times by both the Indiana Supreme Court and this Court.”13 In this court the Attorney General asserts:
“Petitioner has not presented the issue of his counsel‘s post-trial incompetence to the Indiana Supreme Court, as he failed to appeal from the denial of his petition for permission to file belated motion for new trial. He is precluded by
28 U.S.C. § 2254 from bringing this action in federal habeas corpus.”14
The Attorney General does not suggest that the Indiana courts would afford petitioner any relief. Indeed, he implies the contrary when he states that petitioner “may return to the District Court after he has exhausted his state court remedies.”15 The question here is whether he had done so on April 24, 1970, when the federal district court dismissed his petition.
III.
We have recited the history of the Indiana post-conviction litigation in some detail because the Supreme Court‘s express approval of our decision in United States ex rel. Kemp v. Pate, 359 F.2d 749 (1966)
In simple terms, as the Supreme Court has phrased it, the question is whether the federal claim has been fairly presented to the state courts.16 All of the facts upon which petitioner relies were before the Indiana Supreme Court, but that is not a sufficient answer to the exhaustion question. The claimant‘s legal theory, as well as his factual allegations, are relevant to the question whether that court had a fair opportunity to consider petitioner‘s claim.17
In Picard, the Supreme Court, apparently adopting the First Circuit‘s view that the equal protection ground for its decision presented a different legal question than the Fifth Amendment issue decided by the Massachusetts Supreme Court,18 held that the difference in legal theory precluded exhaustion.19 The Court expressly recognized, however, that there may be “variations in the legal theory or factual allegations urged in its support” which do not change the basic claim presented to the state court.20 Our question then is whether petitioner‘s emphasis on the incompetence of counsel in the federal courts is a mere variation of the legal theory presented to the Indiana Supreme Court or should be regarded as a different claim. In view of the holding in Picard, the question is not free of doubt, but in our judgment we are dealing with a variation of the same claim rather than a different legal ground.
This judgment is not predicated on the adequacy of the opportunity presented to the state court measured by the number of petitioner‘s filings. The multiplicity of post-conviction filings may actually tend to obscure a meritorious claim which may lurk in the record and make it more difficult, rather than easier, to focus on the issue. Moreover, any rule which rewarded the repetition of such filings would only tend to impede the orderly administration of our business.
Nor do we rely on the fact that the June 19, 1968, motion was attached as an exhibit to the petition for mandate asking the Indiana Supreme Court to appoint a special judge to rule on the belated motion which had been pending for some months in the Circuit Court; the Supreme Court cannot fairly be expected to have considered the contents of that exhibit for any purpose other than in
In our judgment petitioner did adequately present both the relevant facts and his basic theory to the Indiana Supreme Court. In essence, he contends that he should not be deprived of his right to appeal because his court-appointed counsel filed a futile motion for an extension of time instead of filing a timely motion for a new trial. The conclusory allegation that counsel was incompetent rests entirely on this critical error. The record adequately discloses that appropriate grounds for a motion for a new trial were available and that counsel‘s mistake resulted from his lack of appellate experience. The Indiana Supreme Court clearly expressed the opinion that these facts did not demonstrate incompetence because it repeatedly emphasized the inference which should be drawn from the fact that “competent counsel” had not filed a timely motion. We have no doubt that petitioner‘s case would not have been advanced in that court by expressly accusing his lawyer of incompetence. A petitioner acting pro se need not cite “book and verse on the federal constitution”21 or identify his theory with a hornbook heading. Wheth-
We therefore hold that the substance of petitioner‘s federal habeas corpus claim was presented to the state courts in compliance with our understanding of Picard.23
IV.
With due respect for the views of the Indiana Supreme Court, we are persuaded that petitioner‘s federal claim has merit. The Federal Constitution contains no requirement that a defendant be given appellate review of his conviction,24 but if such review is provided, appellate procedures and their availability to the indigent must satisfy the Fourteenth Amendment‘s basic standards of fairness. Since the Supreme Court has held that those standards require the states to waive even nominal filing fees,25 to provide free transcripts,26 to appoint
To paraphrase Mr. Justice Harlan‘s concurrence in Lane v. Brown, 372 U.S. at 485, 83 S.Ct. 768, 9 L.Ed.2d 892, we think it falls short of the requirements of due process for Indiana to foreclose indigents from appealing in a case such as this because of a critical mistake of court-appointed counsel by whom the indigent was represented at his trial. See Ferguson v. Georgia, 365 U.S. 570, 572, 596, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961);29 Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963);30 Nelson v. Payton, 415 F.2d 1154 (4th Cir. 1969), cert. denied, 397 U.S. 1007, 90 S.Ct. 1235, 25 L.Ed.2d 420 (1970); Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966). Cf. United States ex rel. Singleton v. Woods, 440 F.2d 835 (7th Cir. 1971); United States ex rel. Witt v. LaVallee, 424 F.2d 421 (2d Cir. 1970); United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105 (1970). Absent evidence of an intelligent waiver or an appraisal by counsel comparable to that required by Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, we believe the state was constitutionally required to protect petitioner‘s right to appeal, particularly since his motion for an extension of time was filed before the time to appeal had expired, and therefore evidenced a desire to appeal.
A brief comment on the remedy is appropriate. If petitioner had not exhausted his state remedies at the time his application for a federal writ was filed, he would now be required to invoke the new Indiana post-conviction procedures afforded by rules PC-1 and 2 adopted by the Indiana Supreme Court, effective August 1, 1969. Since we hold that he has met the exhaustion requirement, a normal procedure would be a remand to the district court for an evidentiary hearing on the allegations in his petition. In this case, however, there appears to be no need for such a hearing.
The facts which demonstrate that petitioner is entitled to a direct appeal from his conviction were not disputed by the Attorney General; indeed, he has provided us with a most helpful chronology of the relevant filings in his brief. Moreover, the relief which petitioner should obtain is perfectly clear. The transcript of his trial should be written up, counsel should be appointed to represent him, and he should be permitted to prosecute an appeal to the Indiana Supreme Court. In order to avoid further unnecessary expenditure of judicial energy and public funds, these steps should be taken promptly. Ironically, the desire to minimize expenses by saving the cost of preparing trial transcripts has no doubt resulted in post-conviction litigation expenses far greater
The appropriate relief is indicated by the Supreme Court‘s disposition of Lane v. Brown, 372 U.S. at 485, 83 S.Ct. 768, 9 L.Ed.2d 892. The judgment of the district court is vacated and the case is remanded to that court for the entry of an appropriate order discharging petitioner from custody unless within a reasonable time to be fixed by the district court the State of Indiana provides him an appeal on the merits to the Supreme Court of Indiana from his conviction.
It is so ordered.
HASTINGS, Senior Circuit Judge (concurring).
I concur in the result reached by the majority in this case solely on the ground that petitioner Macon was deprived of his right to due process under the Fourteenth Amendment of the Federal Constitution as a result of the continued denial of his fundamental right to a direct appeal of his conviction to the Supreme Court of Indiana. To cut through the long and tortuous maze of judicial proceedings now comprising the history of this case, it is clear to me, at least, that petitioner has been denied his right to appeal in the face of the failure of his otherwise competent court-appointed counsel to timely file a motion for a new trial following his conviction because of his lawyer‘s self-admitted lack of appellate experience in criminal matters. It further appears from counsel‘s affidavit that he intended to present legally sufficient questions in his intended belated appeal. I express no view as to how the Supreme Court of Indiana would rule in deciding such an appeal. I would only entertain the pious hope that it will consider the appeal and finally pass upon it.
UNITED STATES of America, Plaintiff-Appellee, v. Gary BOWDACH, Defendant-Appellant
No. 71-1378
United States Court of Appeals, Fifth Circuit
April 19, 1972
Rehearing and Rehearing En Banc Denied June 28, 1972