Robert Glen Sutton and Paul S. Sutton v. Russell E. Lash, Warden, Indiana State Prison

CUMMINGS, Before PELL and SPRECHER, Judges. Circuit PER CURIAM. warden of the Indiana Prison Michigan City appeals an order petitions

granting the for writs of habeas corpus by Paul and Robert Sutton. District Robert Judge prison- Grant ordered two ers, brothers, who are released as a result of provide failure to a of their twenty-one years trial which occurred over ago.

Background In order understand the issues raised necessary by petitioners review the procedural history extended of the Suttons' litigation underlying case. The this habeas back to 1956. On corpus proceeding dates year, December twentieth of that Paul guilty kidnap- Robert Sutton were found banditry rape. Both were ping, auto represented indigents both attorney. court-appointed The Suttons imprisonment sentenced life for years auto kidnapping, banditry, years rape. The Suttons 2 to Their chai- for a new trial. motions moved jury composition, On June lenged judgment, the trial judge denied certain evidence. and the admission the Suttons’ request for trial transcript, citing the Court’s decision Robert Sutton re- January On in State ex Murray, rel. Fryer 236 Ind. with the Indiana Pub- quested an interview (1957), 141 N.E.2d 700 which reaf- The Suttons’ motions for a lic Defender. 1, firmed in May practice post- on 1957. Indiana’s that all new were denied On trial date, 90-day period prescribed by by indigents that the conviction proceedings filing time for notice of Indiana law at the their appeal rights expired direct had [em- appeal began. phasis added], trial records were available only upon the of the Indiana Public 28, 1957, timely May On filed Defender after he she or determined that paupership and pro a se affidavit of verified the prospective appeal trial transcript. motion to obtain their meritorious.2 motion, they their cited the then Based on precedent, verified this the trial judge Illinois, 12, v. recent 351 by case of Griffin advised the letter: 585, (1956),1 L.Ed. 891 100 and you appeal matter, If desire to this stated: will be necessary you that communicate desire file appeal Petitioners herein an witht the Public Defender who is [sic] conviction, having of their insuffi- employed by the Indiana for this their Transcript cient funds to secure purpose.3 their Trial file this motion within the Sutton, Paul 18, letter dated June court, requesting this sound discretion of 1957, requested the Public Defender’s as- upon their that this court intercede be- sistance in securing transcript, a expressly half order directed to the and issue an basing request, from, quoting prepare complete clerk of court to said letter of judge. the trial The stated, letter Transcript of the copy and certified in regard to transcript that he did “not entries, journal and that same be have sufficent same, funds to secure address, petitioners respective [sic] mailed to the matter represent of counsel to be me and that cost thereof assessed to the this matter of county appeal.” for same. He further states “I desire to reserve this until I have they stated that The Suttons further ” examined of the trial. . . pay necessary unable to cost to secure reading A of the letter clearly indicates trial, their their and without the Suttons wished to appeal their shall transcript petitioners said be unable convictions, that they wished to do so pro properly prepare their before se, and only desired the court, assistance thereby deprived and would of the Public Defender in obtaining a tran- cause, defend their properly script of their deprivation which thereof trial. Public would consti- Defender flagrant respond prior tute a of their constitu- to the running violation rights. period tional timely appeal.4 to file a required that, basically Fryer Murray, 704, ex rel. Griffin because states 236 Ind. indigents non-indigents (1957), applied must allow N.E.2d 700 law relied on convictions, post-conviction criminal same Apparently, remedies. the trial indigent state must insure that judge receives application either misunderstood adequate free trial record or otherwise erroneously period the law or believed that the means of review. filing already notice had run. practice 2. This later declared unconstitu- finally respond 4. The Public Defender did tional the United Court 6, September 1957. The letter stated that an 477, Brown, Lane interview was not at that time because (1963). L.Ed.2d 892 the Defendant’s could not act office until peal rights expired. apparent letter further ad- It is the record this “ad- remedy only privately vised that their was to vice” was erroneous. Indiana statute in purchase transcript. effect at the Burns Ind.Stat.Ann. § 13- (1956 Replacement) 13-1405 See State 26, 1957, shortly after their On August January On a Grant County direct of Circuit letter perfect revealed Sut- deadline that, tons convictions, filed in the some time in 1968 or the Suttons mat- record, ters essential to the trial pro including Court a se notes, stenographic destroyed from Grant Cir- Appeal “Belated entitled County order of the Grant Board of Com- They requested preparation cuit Court.” missioners. Apparently knowledge without appel- perfect “for use to letter, court, of this the district on March lants brief.” 11, 1974, denied the petitions for failure to rejected of Indiana remedies, exhaust noting that it ap- prima holding requisite that a petition, peared that he “will soon be able to order a showing proposed merit in the case facie copy transcript.” It invited Indiana State, lacking. Sutton to submit evidence that Paul Sutton had regard 145 N.E.2d 425 Ind. rejected the Public Defender’s assistance transcript, for their to a petitioned and that he either had not for or responded: transcript. had received his has created the office Since the State 1, 1974, April On Indiana advised the represent pauper of Public Defender district court that there was no transcript, regular after the time for prisoners that Paul petition but Sutton’s was never- must be expired, has their record peal theless defective because he had not ex- through the Public Defender as obtained hausted his state remedies. (Citations omit- by statute. prescribed 5, 1974, April again On Robert Sutton ted.) began post-conviction proceedings relief again contacted the 1964 the Suttons County Grant Circuit Court. petition who filed a Public Defender 17,1974, July On agreed district court erroneous sentence and motion correct an with petition, Indiana on Paul Sutton’s The trial court denied the a new trial. for holding that unexhausted state remedies the motion. The Indiana Su- petition and existed and that' reversed and corrected preme Court sentence,6 effect of the loss of the affirmed the denial but [t]he petitioner’s upon trial his claims should new trial. be decided in the first instance contacted the clerk of In 1970the Suttons state courts. they originally tried where the court point, proceedings At this federal ceased copy their purchase attempted pursued while the further Suttons 8, 1971, September transcript. On trial state remedies. relief post-conviction filed for Paul Sutton When action was state court. no 29, 1974, On October an Indiana Circuit petition filed a for a years for two he taken judge ruled that the entitled federal district corpus in the writ of habeas post-conviction relief because their 24, 1973, Robert October Sut- court. On timely-filed motion new trial had July was con- filed petition, by Judge ton’s been denied Caine and because Their petition. perfected, with his brother’s solidated had not and therefore waived, Indi- that the failure of in 1957. The appeal asserted a direct Indi- petitions proce- wa3 a denial that the proper them a ana also held ana to allow process appeal file a belated rights to due dure would be to of their constitutional Indiana Court. protection. equal State, 6. Sutton v. According the Suttons 248 Ind. N.E.2d 430 to affidavits filed (1966). rehearing petition for before the Indiana on a 8, 1977, they Court on June contents of this become aware of the 1963 or 1964. until file Suttons did another When waiver is in issue the state scheme December a belated must be viewed to point determine at what Supreme Court denied relief on The Indiana the right take place. will 7, 1977, holding that the Suttons’ April permit- Indiana statute a belated ted. complete have ever had a rec- (repl. failure to Ind.Anno.Stat. 9-3305 vol. 1956). of all the evidence in the case does ord Thus waiver of is not manda- directly to have the fault appear tory been for failure to file notice in Indiana long ago having in not fol- because the of both trial lowed directions granted permit the discretion to a belated actions, by Court. Their court and of this appeal. Indiana, at the a court seeking the services of the not could sustain motion for a belated Defender, effectively pre- Public if the defendant could show sufficient cause appel- the exhaustion of normal vented the delay noting excuse appeal. remedies. late rel. Casey Murray, State ex 231 Ind. 106 N.E.2d 911 moved the district court to The Suttons corpus petitions. their habeas reinstate On petitioned When the Su- 13,1977, June the district court preme Court to transcript, obtain a writs. This followed. petition was a statutory treated as motion for a belated pro With their se Appeal I. Waiver Of petition the Suttons filed the brief motion primary raised the State issue trial originally new filed in the trial ago long is that the Suttons waived Indiana court court-appointed attorney. right to a any to direct tran- That set general grounds motion forth two It script. is uncontroverted that there was for relief: timely appeal filed following notice of finding 1. The of the court is not sus- contends, conviction. Indiana the Suttons’ tained sufficient evidence. therefore, that waived their Suttons finding The contrary is acknowledged right appeal. argued to to law. right waived because that this was Without the transcript assistance a out that the pointed two courts had Pub- Indiana Court concluded there lic Defender of Indiana was available to insufficient merit the proposed ap- appeal, and prosecute a belated that peal. On this basis their request for a only the Public Defender statute could transcript was On the denied. basis of this transcript on appeal. obtain free for use decision steadfastly the Indiana courts con- The two courts referred to are Grant deny tinued to transcript for Circuit County Indiana twenty years. the next Court. Thus because the relied on County letter from Grant trial judge, direct advice of the trial appears it did contact advise the Suttons to that to an effective was fore- Defender, they which is what imme- Public point closed. On this the case of Macon v. response did. diately Yet no was received. Lash, 1972), partic- 458 F.2d 942 Cir. Griffin, supra, the Sut- ularly relevant in determining the issue of or, transcript to secure tons were entitled waiver. Macon was convicted of murder in obligated alternatively, the state was to review, filing After motions for an extension provide adequate appellate due to time in which to file motion a new indigency. Their for undenied letter trial7 for a apparent transcript, that free his made wished to trial peal, yet the to re- counsel withdrew. The notice period Public Defender failed within spond period. filing the notice expired. an insufficiency particular alleged and a the evidence failure to 7. The motion a contin- Lash, supra Macon as errors. v. at 944. uance

743 Patterson, Medberry inef- 188 alleged F.Supp. petition Macon his habeas to for failure (D.Col.1960), nom., of counsel fective assistance 557 aff’d sub Patterson notice to file him of the need advise (10th Cir.), Medberry, 290 F.2d 275 cert. in the was no indication There appeal. denied, 59, L.Ed.2d have been appeal would that record Macon, (1961), similar to no notice of to waive Macon intended or that frivolous but, appeal was filed to the instant similar federal Prior to the appeal. case, a request for a was made. petitions five Macon filed petition, Thereafter, The motion was denied. applica- and seven Circuit Court denial, briefs, along with abstract and Supreme Court. in the Indiana tions permitted to be docketed before the court, state reme- finding This That court Colorado Court. de exhausted,8 concluded that a had been dies petitioner’s nied could not defendant’s Significantly, and affirmed the conviction. inexperi- error of by the “critical forfeited only presented, peti five issues were failing counsel” court-appointed enced contending tioner that lack of a failing to motion and in proper file the arguing him other prevented errors timely no- regarding the defendant advise during Medberry peti trial. committed Macon, supra at 950. appeal. tice court, the federal but his tioned held that was denied for failure to exhaust his availa intelligent evidence of an [a]bsent ble state collateral remedies. After no ac comparable by counsel appraisal or an. courts, by the Colorado tion was taken California, by Anders required district court entertained Medber federal L.Ed.2d ry’s petition. constitutionally the state we believe right to petitioner’s protect required The state Colorado contended that since his motion particularly appeal, had to exhaust state reme- Medberry failed was filed before of time extension had waived full review. dies or therefore expired, time finding disagreed, district court Id. a desire evidenced transcript, Medberry lack of because of right of Analogously, the Suttons’ adequate appellate not accorded an counsel failure of their of the is the result of the requirements review within the as well as their them advise properly to Eskridge Washington and Griffin [v. pre- knowledge of how to lack obvious Paroles, Terms Board of Prison and Here the appeal. Sut- right serve their 1061, 214, 2 L.Ed.2d 1269 357 U.S. 78 S.Ct. and, in for a new trial a motion filed tons (1958)] F.Supp. 188 at 564. decisions. ap- a “desire addition, clearly evidenced to the trial timely letters in their peal” petition affirming granting In of the in Defender. As the Public judge and court Medberry the Tenth Circuit Court of in intelligent requisite Macon, of the evidence Appeals noted that lacking. If the state has refused to furnish the the Indiana required Macon this In transcript indigent to which de- free petitioner entitled, taking of an fendant is The appeal. to hear Macon’s transcript and on a record which is not sufficient peal waive their intelligently appellate review does not adequate to the petition their appeal, but rights to an right. 290 F.2d destroy as a transcript, treated for a Supreme Court directly applicable Suttons’ This is was denied. appeal, belated for a petition Supreme Court Indiana predicament. “be- whether the then arises question than the skimpy record considered a more Supreme Court the Indiana appeal” lated Medberry. And relied on in Colorado court review adequate appellate afforded Medberry in con- although district convictions. Suttons’ appeal. appellant in this is not to exhaust remedies raised 8. Failure 744 potential cases, merit of the

sidered 2254 28 U.S.C.A. The state asserts test is not important, applicable here. that assuming a right owed violated, the delay in asserting right Singleton In United ex rel. v. has caused irreparable prejudice to the Woods, (7th 1971), 440 F.2d 835 Cir. state. underlying court held that the merits of an bearing question have no Lapse of time alone will not warrant restoring rights fundamental the denial of the issuance a writ of wrongfully where' have been denied. corpus. habeas Cox, v. Hairston 459 F.2d Lane, v. overruling Victor 394 F.2d 268 (4th 1382 1972), Cir. denied, cert. 411 U.S. (7th 1968), adopted the court Cir. dis 986, 93 (1973) (26 36 L.Ed.2d 963 Judge senting Swygert wherein years); Bennett, Hawkins 423 F.2d 948 he reasoned that 1970) (44 years); Cir. Accord Palmer v. delay excuse sufficient is ad- [o]nce Ashe, 72 S.Ct. 96 L.Ed. vanced, protection equal clause of the (1951). urges nothing more prevent should a state Constitution from than this. As Court noted in imposing rigorous a more standard on Pennsylvania ex rel. Herman Claudy, seeking defendants belated than 116, 123, 100 L.Ed. seeking timely appeal. on those Id. at (1956), premise upon sound which these “[t]he having Such is Suttons’ case. After holdings rested is that men incarcerated requests made flagrant violation of their constitution- showing a their clear desire con- al rights have a remedy.” victions, the Indiana Court denied The Suttons have been denied their and affirmed their convictions to a and to adequate appel show because failed to merit review, late a right which the state was proposed State, appeal. Sutton constitutionally required to protect. Ma Ind. 145 N.E.2d con, addition, supra. such a denial is did not intelligently certainly commensurate with the violation knowingly waive of due process found in Claudy, supra, They so, demonstrated a clear desire to do petitioner wherein the had not been in motion evidenced formal letters formed appointment of coun to the trial and the Public Defender. such, delay, itself, sel. As does not Medberry Singleton the consid petition. warrant the denial given eration their case the Indiana Su preme Court did not afford them full and Evidentiary III. Hearing adequate review of convictions. Cf. Indiana next contends that even if Randolph, States v. 259 F.2d United there no was waiver and the trial court (7th 1958). Because Cir. the Suttons did properly jurisdiction, assumed the court not the to full adequate waive failing erred in to hold an evidentiary hear convictions, they review of their have suf ing. It not necessary is that a district court fered the facto of kind of de denial hold hearing, but only that it dispose need refusal of a found the of all questions, unresolved whether of fact Supreme Court result in Griffin to in a or law or mixed. United ex rel. equal protection denial of of the laws. Pate, Burage (7th 316 F.2d 582 1963). Cir. Prejudice

II. To The State is significant appellant argues of Indiana that even if an evidentiary hearing in there was no it so preju- court, waiver has been the district suggest nor does it any delay bringing diced Suttons’ this fact which was not known the district petition that should been dismissed court. The state of Indiana does not dis pursuant to Rule 9 of the Governing pute Rules the existence of the documents which Holman, the veri- decision in Pate as exhibits with 341 F.2d 764 were submitted (5th 1965). contends appellant What the Cir. The Fifth Circuit petition. Court of fied actually ques- mixed disputed Appeals facts are held it is are that where determined such, they require law. As of fact and the petitioner tions has been unconstitution- legal application of a standard ally deprived to adequate of re- determinations, not and are view, historical-fact where there has been considerable must the sense of the facts which facts in lapse (here of years), time and where hearing at a in order be ascertained available, is there no there was consti- a decision of the ultimate predicate way provide adequate no appellate re- Sain, Townsend question. See tutional view. Id. at 777. 745, 9 L.Ed.2d issue of contending that the Custody b. Release from disputes the dispute, the state final consideration then is whether principle to a of a constitutional application court, granted by the release the district fact, disputing the fact than rather historic court, on only conditioned this reasoning disputes, under the itself. Such appropriate. In the case of United Townsend, type of “issues of are not Randolph, States v. 259 F.2d 215 Cir. evi- require holding which fact” J., 1958) concurring; (Schnackenberg, Fin- context it was hearing. In this dentiary J., dissenting), this negan, court was faced evidentiary to hold error fail not awith situation where the district court hearing. granted a writ corpus

had of habeas based IV. Relief finding on a that the failure to allow the petitioner a original trial is whether remaining issue The sole deprived had him of a to full under the properly acted the district court review. The majority apparently agreed .by releasing circumstances petitioner that the had been deprived of only custody, conditioned right of dimension. constitutional But the prop that the Indiana contends this court. court found that unconditional release was to the court of should be to remand er relief inappropriate. It was determined that un- new trial or to allow the conviction circumstance, where there der trial record for to reconstruct petition- possibility appeal yet where the purposes repeatedly adequate er sought review entitled, a. Reconstruction or a new trial and so custody court should not district disturb that its courts should suggests Finding prisoner. Id. at 217-18. a tran- whether permitted determine ample authority there was to remand under Rule reconstructed script can be prisoner to the state court which tried Proce- Appellate 7.2(A)(3)(c),Ind.Rules originally judgment him to vacate the contemplates a situation This rule dure. trial, a new conviction and transcript is unavailable. Under where court determined that unconditional release rule, party may prepare a statement inappropriate. the best available the evidence from means, including recollection. remedy of remandment to the state trial court for a new trial in these instances judge is by the district

The relief supported by opinion is further the Pate In view of the sound discretion. within his Holman, There supra. Judge Wisdom well as the time since the trial as length of appropri- suggested that remandment was provide a state to of the failure circumstance, citing ate under a similar the opportunity, with the presented when Bomar, court in Coffman to to district of discretion fail an abuse was not 343, (M.D.Tenn.1963)wherein F.Supp. to the record of the state reconstruct allow is court had found that supported that trial. This conclusion the course to be taken proper (a) the this petitioner the was convicted following petitioner is to the Court award the maxi trial; an essentially fair that if mum relief he could have obtained (b) the judgment of conviction was re- had been properly perfected highest viewed by the court of the state and prosecuting and he been successful in affirmed; accomplishedby directing it. This can be (c) post-conviction remedies pur- petitioner the be accorded a new sued in the state system court without suc- trial, if the state desires to him retry cess; charged offense in the of first count indictment, (d) petitioner otherwise that he be represented custody. disposi released during from Such a counsel court; the trial in the state petitioner’s tion will vindicate the consti (e) leading the events to trial and the rights operate tutional to correct the trial itself nearly occurred pri- two decades against constitutional error committed or to the filing petitions; of the pointed him. As out in Dowd v. United (f) the crime petitioner of which the Cook, ex rel. [340 one; convicted was egregious 77, (1950)] power District Court has “[t]he (g) petitioner clearly guilty of the corpus proceeding ‘dispose in a habeas to convicted; crime of which he is justice require.’ of the matter as law and U.S.C., 2243.” 341 F.2d at 777. (h) witnesses who testified at the trial Beto, a lso Cline v. See 418 F.2d Cir. may be deceased or otherwise unavailable 1969). appropriate Such relief is here. But or, any event, be unable to resurrect long considering long and tortuous of maze knowledge dormant of the events as to judicial proceedings comprising now the his which testified. case, trial, of new tory a if there tois Nevertheless, irrespective of any aspects one, be should accorded within a reason comity, of the deprivation of a constitution- Therefore, able time. judg we affirm the al in the state court proceedings can except ment of district court as it re be determined to be to require sufficient lates unconditional of release granting of the Writ, Great and I do petitioners. That part judgment of the quarrel not with this fundamental principle. reversed and the cause remanded to the hand, theOn other I do not believe that court with district instructions that it re when a substantial number of the above petitioners mand the to the Circuit of factors are coexistent the federal court Indiana, County, Grant with directions to should be other than cautious in granting the latter judgment court vacate the relief, which, habeas particularly in the sit- grant petitioners, conviction long uation lapse may effec- Sutton, Robert and Paul new Upon a trial. tively frustrate pro- further state criminal the failure of the Circuit Court of Grant cedures. Indiana, County, judgment vacate the I regard present case as one in which to grant conviction and newa trial within habeas should not have granted. been It' six physical months the date actual appears that, obvious me notwithstand- petitioners delivery of custody ing request a directed to the Public Defend- court, the petitioners shall be final er for an interview and later ly discharged custody. securing office for assistance in a tran- PELL, Judge, dissenting. Circuit script, well within the time

amI not unmindful the case of knowledgeable regard with prisoner petitioning grant rights as reflected citing corpus writ habeas federal recent They Court case. never- system, may a federal very well theless refrained from taking steps to insti- relief, some form of habeas notwithstand- appeal. Further, tute a the long ing that: of period time that any followed without stenographic activity was such de- record were to the trial essential notes al., Marlene KOLZ et part of any on the Activity of sort stroyed. Plaintiffs-Appellants, during years the ten petitioners these way seeking of secure their conviction would to the initial trial as BOARD OF EDUCATION OF the CITY reached result now obviated the al., OF CHICAGO et itself majority because Defendants-Appellees. for deter- line basis have been first would No. 77-1894. been a denial mining there had whether rights. constitutional Appeals, United States Court of Seventh Circuit. case present majority district court’s refraining from the while Argued April given the state grant of habeas has outright Decided June releasing the alternative with all of the attendant retrying or them prosecution a successful difficulties any me that in appears It late date. have been that should the relief event than that be no more here should hearing in the district evidentiary me, further seems to held. should be however, doubt there sufficient the district required to have pleadings issue of waiver. hearing on the hold a Zerbst, 304 U.S. Johnson v. See (1938); Fay v. 1019, 82 L.Ed. 1461 S.Ct. 822, 9 Noia, 391, 439, 83 S.Ct. 372 U.S. Wainwright Sykes, (1963); L.Ed.2d 53 L.Ed.2d 594 pursue The failure inexcusa- for an through proper procedures ad- to take the failure length ble two different services of vantage of the resulting prejudice attorneys, interest in delay, the state’s state from judgments, finality its criminal of waiver determination Indiana, presumption all proceedings regularity of state favor require- at the least of in favor militate by a district court clarification ment hearing. evidentiary necessary sum, the facts is inquiry into intrude into before we my opinion Finally, involved. here procedures many in the situa- just gaps too there are at this relief credible for habeas to be tion respectfully dissent. therefore time. I

Case Details

Case Name: Robert Glen Sutton and Paul S. Sutton v. Russell E. Lash, Warden, Indiana State Prison

Court Name: Court of Appeals for the Seventh Circuit

Date Published: May 22, 1978

Citation: 576 F.2d 738

Docket Number: 77-1852

Court Abbreviation: 7th Cir.