Petition — Alabama v. Cantrell

IN THE

OCTOBER TERM, 1976

Supreme Court of the United States

= £6" 1394

STATE OF ALABAMA,

PETITIONER

VERSUS

KENNETH CANTRELL,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH COURT

AND APPENDICES

WILLIAM J. BAXLEY

Attorney General of Alabama

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36104

JOSEPH G. L. MARSTON, III

Assistant Attorney General of Alabama

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36104

COUNSEL FOR PETITIONER

i

SUBJECT INDEX

TABLE OF CASES CITED ......

TABLE OF CONSTITUTIONAL

PROVISIONS CITED

TABLE OF STATUTES CITED

e

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS INVOLVED

STATUTORY PROVISIONS INVOLVED

STATEMENT OF THE CASE

I. SUMMARY OF THE STATEMENT |

II. STATEMENT

III. PROSPECTS FOR AN

OUT-OF-TIME APPEE Al

SUMMARY OF THE ARGUMENT |.

ARGUMENT

I. -INTRODUCTION W

Page

ees

A. THE STRANGE PARADOXES OF THE

COURT OF APPEALS’ DECISION ....0...11

Page

B. WHAT IS NOT AT ISSUE IN THIS CASE 12

C. THE OPINION OF THE

COURT OF APPEALS ......... eee 13

II. REASONS FOR GRANTING THE WRIT . 14

CONFLICTS WITH THE PRIOR DECISIONS OF

THIS COURT:

A. THERE IS A DISTINCTION BETWEEN

THE RIGHT TO COUNSEL AT TRIAL

AND ON APPEAL ....... STAR Sao NE

B. FEDERAL HABEAS CORPUS IS NOT

AVAILABLE TO REVIEW THE UNIFORM

APPLICATION BY STATE APPELLATE

COURTS OF STATE RULES OF APPEL-

LATE PROCEDURE TO STATE CASES ....... 17

C. A STATE PROSECUTOR IS UNDER NO

OBLIGATION TO RECTIFY APPARENT

ERRORS OF DEFENSE COUNSEL .....0.. 19

A NOVEL QUESTION :

D. THE FEDERAL WRIT OF HABEAS

CORPUS SHCULD NOT BE AVAILABLE TO

STATE PRISONERS TO REVIEW MERE

ERRORS BY DEFENSE ATTORNE TS 22

CONCLUSION aN NN Had PEN ee Fe 3 25

APPENDIX “A”, Cantrell v. State

283 Ala 225, 215 So 2d 440 (1968) 28

APPENDIX “B”, Cantrell v. Alabama

No. Dist. Ala, C.A. 76-A-0203-J_ .......

APPENDIX “C”, Cantreli v. Alabama

(5th Cir. 1977) 546 F 2d 652

APPENDIX “D”, 28 United States Code 2254

CERTIFICATE OF SERVICE

Page

42

45

iv

Page

TABLE OF CASES

Albert v. State

274 Ala 579, 150 So 2d 198 (1963) 7

Arrastia v. United Stutes

(te eS Ie

Atilus v. United States

IIIA

Bland v. State

272 Ala 215, 130 So 2d 385 (1961) — ne 9

Cantrell v. Alabama

394 U.S. 950,22 L. Ed 2d 485, 80 S. Ct. 1290 (1969) 2, 7

Cantrell v. Alabama

(5th Cir. 1977 546 F 2d 6562 2, 6, 8, 19, 20, 21

Cantrell v. Alabama

(No. Dist. Ala) C. A. 76-A-0203-J Mane „

Cantrell v. State

283 Ala 225, 215 So 2d 140 (1968) — eam 2, 6, 7

Draper v. Washington

372 U.S. 487, 9 L. Ed 2d 899, 83 S. Ct. 744 (1963) 10, 18

Estelle v. Dorrough

420 U.S. 534, 43 L. Ed 2d 377 95 S. Ct. 1173 (1975) 10, 18

Estelle v. Gamble

__U.S.___, 50 L. Ed 2d 251,

97 S. Ct. (197) 11, 24

Page

Estelle v. Williams

... 48 L. Ed 2d 126, 96 8. Ct.

EE TTT Se

Fitzgerald v. Estelle

(5th Cir. 1975) 505 F 2d 1334 1 13, 24

Flanagan v. Henderson

(Seh Cir. 1974) 406 F 2d 127 138

Gideon v. Wainwright

372 U.S. 335, 9 L. Ed 2d 799, 83 S. Ct. 792, 93,

sternal

Griffin v. Illinois

351 U.S. 12, 100 L. Ed 891, 76 S. Ct. 585 (1956) 18

Kallie v. Estelle

423 U.S. 1019, 46 L. Ed 2d 391, 96 S. Ct. 455 (1975)...13

Kallie v. Estelle

(5th Cir. 1975) 515 F 2d 588 13, 24

Kent v. United States

(5th Cir. 1970) 423 F 2d 1050 Ce

Kohl v. Lehlback

160 U.S. 293, 40 L. Ed 432, 16 S. Ct. 304 (1895) 18

Malone v. Alabama

423 U.S. 990, 46 L. Ed 2d 309, 96 S. Ct. 430 (1975) — 13

Malone v. Alabama

(Sth Cir. 1975) 514 F 2d 77 1 r

vi

Page

McKazne v. Durston

153 U.S. 684, 38 L. Ed 867, 14 S. Ct. 913 (1894) 15, 18

Meyer v. Hawaii

333 U.S. 860, 92 L. Ed 1139, 68 S. Ct. 738 (1948) 18

Meyer v. Hawaii

(9th Cir. 1947) 164 F 2d 845 18

Oshkosh Water Works Co. v. Oshkosh

187 U.S. 437, 47 L. Ed 249, 23 S. Ct 234 (1903) 18

Relf v. State

267 Ala 3, 99 So 2d 216 (1957) a oe ae

Ross v. Moffitt

417 U.S. 600, 41 L. Ed 2d 341, 94 S. Ct. 2437

(1974) ; ’ — 1

St. John v. State, 54 Ala App 672, 312 So 2d 77 (1975) 9

Stone v. Powell

.S. 49 L. Ed 2d 1067, 96 S. Ct.

— (976) — c i 1

Taylor v. Alabama

416 U.S. 945, 40 L. Ed 2d 298, 94 S. Ct. 1955 (1974) 23

Taylor v. State

291 Ala 756, 287 So 2d 901 (1973) a

vii

TABLE OF CONSTITUTIONAL

PROVISIONS

Page

The Sixth Amendment to the

Constitution of the United States — F F

The Fourteenth Amendment to the

Constitution of the United States 3, 10, 25

TABLE OF STATUTES

Title 28, United States Code,

Section 1254 „„ ˙ hassel 2

Section 2254 eas J, 11, 16, 17, 22, 24, 25

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO.

STATE OF ALABAMA,

PETITIONER

*

KENNETH CANTRELL,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner, the State of Alabama, respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United State Court of Appeals for the Fifth

Circuit entered in this proceeding on February 4, 1977, re-

hearing having been denied on February 28, 1977.

PRIOR OPINIONS

The decision of the Supreme Court of Alabama dismissing

the respondent convict’s appeal from his conviction for

2

murder is reported as: Cantreli v. State, 283 Ala 225, 215 So

2d 440 (1968). (Appendix “A”)

The order of this court denying certiorari to review the

above decision is reported as: Cantrell v. Alabama 394 U.S.

950, 22 L. Ed 2d 485, 89 S. Ct. 1290 (1969).

The order of the District Court denying the writ of

habeas corpus is not reported but was styled:

Cantrell v. Alabama, No. Dist. Ala., C.A. 76-A-0203-J

(Appendix B“)

The decision and opinion of the United States Court of

Appeals for the Fifth Circuit reversing the above order of

the District Court is reported as:

Cantrell v. Alabuma (5th Cir., 1977) 546 F. 2d 652

(Appendix “C’’)

JURISDICTION

The decision, opinion and judgment of the United States

Court of Appeals for the Fifth Circuit was issued on Feb-

ruary 4, 1977. A timely application for rehearing was de-

nied by the said Court of Appeals on February 28, 1977, and

this petition is filed within ninety (90) days of said date.

This Honorable Court’s jurisdiction is invoked under 28

U.S.C. 1254 (1).

QUESTIONS PRESENTED

1. Are the standards for judging the effective assistance

of counsel the same for trials and appeals?

—————eeS ww

3

2. Does the Federal Writ of Habeas Corpus lie to re-

view the application by State Courts of uniform state rules

of appellate procedure to appeals of state convictions?

3. Assuming that a State prosecutor has a constitutional

duty to advise the Court and defense counsel of a procedural

error by the said defense counsel, does this duty extend to

the prosecutor's checking up on defense counsel to see if he

is rectifying the error and, if he is not, to the prosecutor's

rectifying the error himself?

4. Does the Federal Writ of habeas corpus lie to review

a claim of ineffective assistance of counsel by a state convict,

where such claim is based on a procegdural error by a compe-

tent and otherwise diligent attorney?

CONSTITUTIONAL PROVISIONS INVOLVED

A.

The Sixth Amendment to the Constitution of the United

States, in particular the provision relating to the right to

counsel:

“In all criminal prosecutions, the accused shall

enjoy the right . . . to have the assistance of counsel

for his defense.”

B.

The Fourteenth Amendment to the Constitution of the

United States, Section One:

„All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

4

citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state de-

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATUTORY PROVISIONS INVOLVED

28 United States Code, Section 2254, the same being

submitted as Appendix D“ to this petition.

STATEMENT OF THE CASE

I.

SUMMARY OF THE STATEMENT

In 1968, the Alabama Supreme Court in accordance

with its rules dismissed the appeal of the respondent convict

from his conviction for Murder in the first degree on the

grounds that the respondent convict’s retained attorneys had

not caused an adequate record on appeal to be filed in the

Supreme Court. In 1969, this Honorable Court declined to

review the action of the Supreme Court of Alabama. In 1976,

the United States District Court denied the respondent con-

vict a writ of habeas corpus on the grounds that the error

of the convict’s retained attorneys did not constitute State

Action.

In 1977 the United States Court of Appeals reversed the

District Court's order. The Court of Appeals held that the

5

respondent convict’s constitutional right to the effective

assistance of counsel on appeal had been violated by his re-

tained attorneys. The Court further held that the fact that

the State Attorney General had advised the appellate Court

and the convict’s retained attorneys of the defects in the

record at a time when they could have been corrected made

the retained attorneys’ subsequent failure to correct the

defects State Action. Finally, the Court of Appeals ordered

the convict released absolutely unless the Alabama Supreme

Court grants him an out-of-time appeal.

The prospects for an out-of-time appeal, should the writ

issue, are not good.

II.

STATEMENT

This statement of the case is based entirely on the three

decisions which are appended hereto as Appendices A“, B“

and “C”.

The Respondent Convict, Kenneth Cantrell, was convicted

of Murder in the first degree and appealed to the Supreme

Court of Alabama. He was not an indigent and was represent-

ed at trial and on appeal by retained counsel.' The record on

appeal was filed in the Supreme Court of Alabama on May 26,

1966. On August 15, 1966, the Attorney General moved to

dismiss the appeal on three different grounds:

The respondent was represented by the firm of Beddow, Embry

and Beddow of Birmingham, Alabama. They were and are out-

standing and highly respected criminal defense attorneys.

6

1. The tardiness of the filing of the transcript of the

evidence in the trial court.

2. The tardiness of the filing of the record in the

Supreme Court.

3. The failure of the record to contain the requisite

clerk’s certificate.

On the same day, the Attorney General served a copy of the

motion on the respondent’s retained attorneys by mail. The

case was argued and submitted on December 8, 1966. Cantrell

v. State 283 Ala 225, 226, 215 So 2d 440, 441-442 (1968)

Appendix A“.

On March 8, 1968, the respondent’s retained attorneys

moved to set aside submission of the case. The Alabama

Supreme Court addressed this motion thusly:

“The motion to set aside the submission, as we

understand it, concedes that the record is defective

and contains this statement: ‘Knowledge of the im-

perfection was not known to the appellant until the

filing of the supplementary brief by the appellee on

to-wit January 26, 1968.“

“We cannot accept this statement as justifying

an order setting aside the submission. Where an

appeal is taken the appellant becomes responsible for

the record on appeal to the extent of seeing that it is

2 This quotation of an allegation in a pleading provides the basis for

the Fifth Circuit’s footnote 2. (Mns. Op. 1358, appendix “C”, 546

F 2d 652, 653)

7

a correct record.” (283 Ala 225, 226, 215 So 2d 440,

442, Appendix A“)

The Supreme Court of Alabama pretermitted considera-

tion of the first two grounds of the State’s Motion, i.e. those

relating to the tardiness of the filing of the transcript and

the record.* The court ordered the record stricken and the

appeal dismissed on March 14, 1968. Cantrell v. State 283

Ala. 225, 215 So 2d 440 (1968), Appendix A“.

A petition for a writ of certiorari was denied by this

Honorable Court in Cantrell v. Alabuma (394 U.S. 950, 22

L. Ed 2d 485, 89 S. Ct. 1290 [1969]).

The instant proceedings commenced with a petition for

a writ of habeas corpus in the United States District Court

for the Northern District of Alabama, which was filed by

the respondent on February 23, 1976.‘ The respondent claimed

that he was denied effective assistance of counsel on appeal

as a result of his retained attorneys’ failure to have the

record on appeal properly certified. The District Court de-

nied the writ on April 12, 1976, after finding that the error

of defense counsel did not involve State Action within the

meaning of the decisions of the United States Court of Ap-

peals for the Fifth Circuit.5 Cantrell v. Alabama (No. Dist.

Ala) C. A. 76-A-0203-J, Appendix B

% The defects represented by these grounds were fatal to the appeal.

Albert v. State 274 Ala 579, 150 So 2d 198 (1963); Reif v. State

267 Ala 3, 99 So 2d 216 (1957) Unlike the lack of a Clerk’s Certifi-

cate, they could not have been remedied.

This is not to suggest that there had been no activity in the case

during the intervening seven years. The respondent sought and

received review of various alleged trial errors by state coram nobis

and federal habeas corpus proceedings.

8

Appeal was taken to the United States Court of Appeals

for the Fifth Circuit. On February 4, 1977, the Court of

Appeals reversed the denial of the writ by the District Court

and ordered that the writ be issued to provide the respondent

convict with an out-of-time appeal or release. The opinion

of the Court of Appeals reached this conclusion by holding

that the error of the respondent convict’s retained attorneys

was of Constitutional dimension and that the fact that the

State’s attorney knew about the error and advised the court

and the retained attorneys about it at a time when it could

have been corrected, made the failure of the retained defense

attorneys to correct the error “State Action”. Cantrell v. Ala-

bama (5th Cir. 1977) 546 F 2d 652. Appendix C“. The State

of Alabama’s application for rehearing was overruled on Feb-

ruary 28, 1977. Appendix C“.

III.

PROSPECTS FOR AN OUT-OF-TIME APPEAL

Should the writ issue, the State of Alabama would, of

course, request the Alabama Supreme Court to grant the

respondent convict an out-of-time appeal. The prospects for

such a proceeding are, however, extremely dim. The problem

is not the lack of a Clerk’s Certificate, which is probably

waivable, but the tardy filing of the transcript and the record.

The Alabama Supreme Court pretermitted these points in

5 The State of Alabama’s response to the petition was an alterna-

tive motion to dismiss or for summary judgment raising: (1) Lack

of a Federal Question and (2) the fact that this claim had already

been addressed in earlier habeas corpus proceedings. The District

Court, while acknowledging the factual correctness of (2), declined

to dispose of the petition on grounds of repetitiveness.

— U — me

9

1968. Under the Rules which prevailed in 1968 and which

would be applicable to the instant case, the timely filing of

the transcript and record were considered jurisdictional. See,

for example, Bland v. State 272 Ala. 215, 130 So 2d 385 (1961)

and St. John v. State 54 Ala App 672, 312 So 2d 77 (1975).

Thus, the petitioner state believes that the Alabama Supreme

Court will probably hold that it has no jurisdiction to consider

the appeal. This would result in the convict respondent being

released absolutely. He could not be re-tried, since there is no

defect in his conviction it would bar a subsequent prosecution.

SUMMARY OF THE ARGUMENT

I. The decision of the Court of Appeals would result

in numerous strange paradoxes, the strangest being that by

mishandling the convict’s appeal his retained lawyers may

well have rendered the convict’s sentence unenforcable, some-

thing which they could not have accomplished by handling the

appeal properly.

II. The convict makes no claim in this case that he has

been denied equal treatment nor review of any alleged errors

in his trial. His claim relates solely to a particular mode of

review-appea!.

II. In reaching its decision the Court of Appeals made

no distinction between the right to the effective assistance

of counsel in Federal appeals or State trials on the one hand

and State appeals on the other.

IV. Reasons for granting the writ:

A. The decision of the Court of Appeals conflicts

with the decisions of this Honorable Court holding that,

10

while the right to counsel at trial is a due process right

under the Sixth and Fourteenth Amendments, the right

to counsel on appeal is an equal protection right only.

Ross v. Moffitt 417 U.S. 600, 41 L. Ed 2d 341, 94 S. Ct.

2437 (1974)

B. In deciding this case under the doctrine of the

effective assistance of Counsel on appeal the Court of

Appeals evaded the issue. The real issue is whether or

not Federal Habeas Corpus is available to review State

court applications of State rules of appellate procedure

to State cases. This Honorable Court has held that there

is no U.S. Constitutional right to appeal. E.g. Fstelle v.

Dorrough 420 U.S. 534, 43 L. Ed 2d 377, 95 S. Ct. 1173

(1975) The States may regulate State appeals so long as

the regulations do not work invidious discrimination.

E.g. Draper v. Washington 372 U.S. 487, 499, 9 L. Ed.

2d 899, 907, 83 S. Ct. 744 (1963). Therefore, in ordering

the writ issued in a habeas corpus action by a state con-

vict complaining about the loss of appeal rights but not

suggesting discrimination, the Court of Appeals ruled

contrary to the prior decisions of this Honorable Court.

C. In holding that a State prosecutor has a duty to

rectify errors of his opposing counsel, the Court of Ap-

peals ruled contrary to the prior decisions of this Honor-

able Court. Estelle v. Williams, _..._— U.S. , 48

L. Ed 2d 126, 135, 96 S. Ct. (1976)

D. This Honorabie Court has never directly ruled

on the question of whether Federal Habeas Corpus is

available to consider claims of the ineffective assistance

of Counsel by State prisoners based on alleged errors of

defense attorneys. There are practical problems with

11

using habeas corpus to review such claims. These include

identifying errors of counsel and differentiating the er-

rors from strategic decisions by counsel and the defendant

himself. The fact that there is no time limit on habeas

corpus makes it an inappropriate remedy from a practi-

cal point of view. The legal problems of using Federal

Habeas Corpus to review such claims relate to the prob-

lem of State Action. The question here is whether a

party’s constitutional rights can be violated by his attor-

ney’s negligence. See 28 U.S.C. 2254(a) and Estelle v.

Gamble. U. S. 50 L. Ed. 2d 251, 97 S. Ct.

— (4976).

ARGUMENT

I.

INTRODUCTION

A.

THE STRANGE PARADOXES OF THE COURT

OF APPEALS’ DECISION

The decision of the United States Court of Appeals gives

rise to numerous strange paradoxes. On the basis of an error

by the respondent convict’s retained attorneys, the Court of

Appeals has ordered the writ issued. Yet, it is not these re-

tained attorneys who will suffer the burdens of their error.

The State’s attorney will have to seek the out-of-time appeal

for the respondent; the State’s Supreme Court will have to

reconsider a case which it has considered closed for nearly a

decade, and the people of Alabama will have to pay for the

12

proceedings. But, this is nothing. If the Alabama Supreme

Court determines for the reasons set out on page 8, above,

that it cannot grant an out-of-time appeal, the convict res-

pondent will be released absolutely. This will not be the result

of the failure of the people of Alabama nor its Government

to accord the convict respondent due process of law. The

convict will not be released because of an act or omission by

State officials but because of an omission by the attorneys

selected and hired by the convict respondent.

The strangest paradox of all is this: If the convict res-

pondent’s retained attorneys had complied with the rules of

appellate procedure, if they had caused the timely filing of

a properly certified record, their client’s appeal would not

have been dismissed but would have proceeded to judgment.

In such an event, the most that his retained attorneys could

have obtained for the convict would have been a new trial.

Yet, since the attorneys failed to comply with the rules, their

client will probably be released. in other words, the mis-

handling of the respondent convict’s appeal was the greatest

service these retained attorneys could have rendered the con-

vict.

This is strange, paradoxical, unreasonable and grossly

unjust.

B.

WHAT IS NOT AT ISSUE IN THIS CASE

Before addressing the matters raised in this petition it

is necessary to point out what is not at issue. There is no

claim of unequal treatment of the convict respondent; his

appeal was dismissed pursuant to a uniform application of

13

well established appellate rules. Nor, is there any claim in

this case that the convict respondent has a substantive claim

of which he has been denied review; the convict has sought

and obtained review of various alleged trial errors by State

coram nobis proceedings, in which the trial transcript was

entered as an exhibit, and by Federal habeas corpus proceed-

ings. The convict’s claim relates solely to a particular mode

of review-appeal.

C.

THE OPINION OF THE COURT OF APPEALS

In reaching its decision the Court of Appeals relied on

seven of its prior decisions. These decisions included cases

involving effective assistance of counsel in Federal appeals

of Federal convictions,“ in State trials; as well as in appeals

of State convictions to State Courts.“ Obviously, the Court

of Appeals drew no distinction between the question of the

effective assistance of counsel under statutes and rules ap-

plicable to Federal appeals and the same question under the

Constitution as it applies to State appeals. Nor, did the Court

of Appeals distinguish between the question of the effective

assistance of counsel as it applies to criminal trials as opposed

to appeals. In failing to make these vital distinctions, the

6 Arrastia v. United States (5th Cir. 1972) 456 F.2d 736; Kent .

United States (5th Cir, 1970) 423 F.2d 1050; Atilus v. United States

(5th Cir. 1969) 406 F.2d 694 Relief was granted in each case.

7 Fitzgerald v. Estelle (5th Cir., 1975) 505 F.2d 1334 Relief denied.

Flanagan v. Henderson (5th Cir., 1974) 496 F.2d 1274 Relief granted

Kallie v. Estelle (5th Cir., 1975) 515 F.2d 588; cert. den 423 U.S.

1019, 46 L.Ed 2d 391, 96 S. Ct. 455; Malone v. Alabama (5th Cir.,

1975) 514 F.2d 77 cert. den. 423 U.S. 990, 46 L.Ed 2d 309, 96 S.

Ct. 430. Relief denied on the basis of the in bank decision in

Fitzgerald v. Estelle (5th Cir., 1975) 505 F.2d 1334, supra.

14

Court of Appeals ruled contrary to the letter and spirit of

the prior decisions of this Honorable Court.

II.

REASONS FOR GRANTING THE WRIT

A.

There is a Distinction Between The Right To

Counsel At Trial and on Appeal

CONFLICT WITH THE PRIOR DECISIONS OF

THIS COURT

This point and the one argued under II, B immediately

below, are related. This question is discussed first because

the Court of Appeals cited the alleged ineffective assistance

of counsel as its specific reason for ordering an out-of-time

appeal or release for the convict respondent.

There are fundamental differences between the right to

counsel at trial and on appeal. This Honorable Court has

recognized these differences in Ross v. Moffitt (417 U.S. 600,

41 L. Ed 2d 341, 94 S. Ct. 2437 [1974]). No better analysis

of these differences is possible than the following quotation

from that case:

At the trial stage of a criminal proceeding, the

right of an ina: u, defendant to counsel is funda-

mental and binding upon the States by virtue of the

Sixth and Fourt-cnth Amendments, Gideon v. Wain-

wright, 372 US 335, 9 L Ed 2d 799, 83 S. Ct 792,

15

\

93 ALR2d 733 (1963). But there are significant

differences between the trial and appellate stages

of a criminal proceeding. The purpose of the trial

stage from the State’s point of view is to convert a

criminal defendant from a person presumed innocent

to one found guilty beyond a reasonable doubt. To

accomplish this purpose, the State employs a prose-

cuting attorney who presents evidence to the court,

challenges any witnesses offered by the defendant,

argues rulings of the court, and makes direct argu-

ments to the court and jury seeking to persuade

them of the defendant’s guilt. Under these circum-

stances reason and reflection require us to recognize

that in our adversary system of criminal justice, any

person haled into court, who is too poor to hire a

lawyer, cannot be assured a fair trial unless counsel

is provided for him. Id. at 344, 9 LEd 2d 799, 93

ALR2d 733

“By contrast, it is ordinarily the defendant, rather

than the State, who initiates the appellate process,

seeking not to fend off the efforts of the State’s

prosecutor but rather to overturn a finding of guilt

made by a judge or jury below. The defendant needs

an attorney on appeal not as a shield to protect him

against being ‘haled into court’ by the State and

stripped of his presumption of innocence, but rather

as a sword to upset the prior determination of guilt.

This difference is significant for, while no one would

agree that the State may simply dispense with the

trial stage of proceedings without a criminal defend-

ant’s consent, it is clear that the State need not pro-

vide any appeal at all. McKane v. Durston, 153 US

684, 38 L Ed 867, 14 S. Ct 913 (1894). The fact

16

that an appeal has been provided does not automatic-

ally mean that a State then acts unfairly by refusing

to provide counsel to indigent defendants at every

stage of the way. Douglas v. California, supra. Un-

fairness results only if indigents are singled out by

the State and denied meaningful access to the appel-

late system because of their poverty. That question

is more profitably considered under an equal protec-

tion analysis.” 417 U.S. 600, 610-611, 41 L. Ed 2d

341, 351.

Of course, the respondent convict in this case was not

an indigent at the time of his appeal; he was represented

by retained counsel. However, if an indigent’s right to

counsel on appeal is to be measured by an Equal Protection

Standard, equal protection itself demands that a non-indi-

gent’s rights be measured by the same standard. If this is

the case, then a claim of ineffective assistance of counsel

on appeal by a state prisoner presents no Federal Question

under 28 U.S.C. 2254° unless it is accompanied by a claim

of discrimination. There is, of course, no such claim in this

case, but a claim of discrimination in habeus cases claiming

a denial of appeal rights would be jurisdictional.

The Fifth Circuit in failing to distinguish between the

right to counsel at trial and on appeal and in ordering the writ

issued in a case in which there was no claim nor evidence

suggesting discrimination, ruled contrary to the prior deci-

sions of this Honorable Court.

* 28 U.S.C. 2254 (a):

“(a) The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for a writ of

habeas corpus in behalf of a person in custody pursuant to

the judgment of @ State court only on the ground that he is

in custody in violation of the Constitution or laws or treaties

of the United States”

17

B.

FEDERAL HABEAS CORPUS IS NOT AVAILABLE TO

REVIEW THE UNIFORM APPLICATION BY STATE

APPELLATE COURTS OF STATE RULES OF APPELLATE

PROCEDURE TO STATE CASES

CONFLICT WITH THE PRIOR DECISIONS OF

THIS COURT

The Fifth Circuit’s deciding this case on the basis of

the effective assistance of counsel was, with all due respect

to the Honorable Court, an evasion of the real issue in this

case. Appeals of criminal convictions must be brought by

the persons convicted. As a practical matter, it is the appel-

lant’s attorney who must perfect the appeal. If there is a

failure to comply with the rules of appellate procedure this

will ordinarily be the result of an act or, more likely, an

omission on the part of the appellant’s attorney. In the Fifth

Circuit's view, if such an error by a criminal appellant’s

attorney results in a loss of the appeal, there is a basis for

a Federal claim of the denial of the effective assistance of

counsel on appeal. Thus, a claim of the denial of the effec-

tive assistance of counsel becomes a probe by which the entire

State appellate process can be examined and a lever by which

State Court applications of State rules of appellate procedure

can be set aside. But does Federal habeas corpus lie to review

uniform applications of State rules of appellate procedure

to State cases?

The Federal writ of habeas corpus is to be issued on

behalf of State prisoners only to prevent continued incar-

ceration of such prisoners in violation of their rights under

the Constitution, laws and treaties of the United States. 28

U.S.C. 2254 (a) The question here is whether or not there

18

is a constitutional right to appeal, and, of course, there is

none. McKane v. Durstun 153 U.S. 684, 38 L. Ed 867, 14 8.

Ct. 913 (1894); Ross v. Moffitt 417 U.S. 600, 41 L. Ed 2d

341, 94 S. Ct. 2437 (1974) ; Estelle v. Dorrough, 420 U.S. 534,

43 L. Ed 2d 377, 95 S. Ct. 1173 (1975). Therefore, appeal

is a creature of State law. A State may, but need not, provide

for appeal and, having created appeal, may abolish it. It

follows, therefore, that having created appeal, a State may

regulate it. Appeal may be limited, for example, to certain

types of cases, or different modes of review may be provided

for different types of cases or questions. Rohl v. Lehiback,

160 U.S. 293, 40 L. Ed 432, 16 S. Ct. 304 (1895) Time limits

may be placed on appeal. Oshkush Water Works Co. v. Osh-

kosh, 187 U.S. 437, 443, 47 L. Ed 249, 252, 23 S. Ct. 234

(1903). And, the right to appeal may be made dependent

on compliance with appellate rules. Meyer v. Huwaii (9th

Cir., 1947) 164 F2d 845, cert. den. 333 U.S. 860, 92 L. Ed

1139, 68 S. Ct. 738. The only constitutional restraint placed

on the States in limiting the right to appeal is that the re-

straints must not work invidious discrimination. Griffin v.

Illinois 351 U.S. 12, 100 L.Ed 891, 76 S. Ct. 585 (1956).

Draper v. Washington 372 U.S. 487, 9 L.Ed 2d 899, 83 S. Ct.

744 (1963)."" Therefore, the Federal writ of habeas corpus

is not available to review the uniform application of State

rules of appellate procedure such as caused the dismissal of

10 “It is true that a State is not required by the Federal Constitution

to provide appellate courts or a right to appellate review at all.

See, e.g., McKane v. Durston, 153 US 684, 687, 688, 38 L Ed 867,

869, 15 S. Ct. 913. But that is not to say that a State that does

grant appellate review can do so in a way that discriminates

against some convicted defendants on account of their poverty.”

351 U.S. 12, 18, 100 L.Ed 891, 898. (Emphasis Supplied).

11“. . . Moreover, since nothing we say today [about the need to

provide equal appellate review to indigents and non-indigents]

militates against a State’s formulation and application of opera-

tively nondiscriminatory rules to both indigents and nonindigents

in order to guard against frivolous appeals, the affording of a

19

the respondent convict’s appeal. In order to confer jurisdic-

tion on the District Court to inquire into allegations arising

out of a State apneal process the habeas petition must allege

discrimination.

In ordering the writ of habeas corpus issued to set aside

a uniform application of State rules of appellate procedure

by the Alabama Supreme Court, the Court of Appeals ruled

contrary to the prior decisions of this Honorable Court.

C.

A STATE PROSECUTOR IS UNDER NO

OBLIGATION TO RECTIFY APPARANT

ERRORS OF DEFENSE COUNSEL

CONFLICT WITH THE PRIOR DECISION OF THIS COURT

The Fifth Circuit ruled that the writ must issue, because

the convict respondent’s retained attorney failed to rectify

the defects in the record after. . [t]he highest legal officer

of the state, by written motion, called to the attention of the

Supreme Court [of Alabama] and the appellant's retained

counsel a defect which ., if unremedied, would require that

the appeal be dismissed . . . (Mns. Op. P. 1359, Appendix

„C“, 546 F. 2d 652, 654).

record of sufficient completeness to indigents would ensure that,

if the appeals of both indigents and nonindigents are to be tested

for frivolity, they will be tested on the same basis by the review-

ing court.” 372 U.S. 487, 499, 9 L.Ed 2d 899, 907 (Emphasis Sup-

plied).

12 This line of reasoning assumes that the defects were correctable.

Assuming, for the sake of argument that the lack of a clerk’s

certificate was correctable, clearly the tardiness of the filing of

the transcript and record could not have been corrected, unless,

of course, counsel had access to a time-machine.

20

This raises the question of what duties a state prosecu-

tor has after he realizes that his opposing counsel has erred,

beyond calling the error to the attorney’s attention.“ The

Fifth Circuit obviously holds that a state prosecutor's duties

go far beyond merely calling the error to the attention of

the defense attorney. Presumably, that court holds that the

State’s Attorney in this case should have checked back with

the defense attorneys to see if they were correcting the de-

fects. If the State’s Attorney had done this and learned that

the convict respondent’s retained lawyers were not correct-

ing the defects, what then? Should the State’s Attorney have

tried to correct the defects himself? There are obvious prob-

lems with this; two of the three defects in the record could

not have been corrected. To correct the third defect, the lack

of the clerk’s certificate, the State’s Attorney would have

had to make a showing of excusable neglect on the part of

his opposing counsel. See Rule 18 of the Rules of the Ala-

bama Supreme Court, quoted in note 6 of the Court of Ap-

peals’ decision, Mns. Op.p. 1359, Appendix “C”, 546 F2d

652, 654. Of course, the State’s Attorney had no way of

knowing why the record was not certified.

In Estelle v. Williams ( U.S. ____, 48 L.Ed 2d 126,

96 S. Ct. ____[1976]) this Court wrote:

„. .. Under our adversary system, once a defendant

has the assistance of counsel the vast array of trial

decisions, strategic and tactical, which must be made

before and during trial rests with the accused and

his attorney. Any other approach would rewrite

the duties of trial judges and counsel in our legal

system .. .” 48 L.Ed 2d 126, 135

8 As will be discussed more fully below, merely identifying an error

by opposing counsel is most often impossible.

21

The question in Estelle related to counsel at the trial

level, where as discussed above at page 14 the right to

counsel is a Sixth Amendment right. The Court of Appeals

in the instant case did what this court refused to do Estelle,

rewrite the duties of counsel. Under the opinion of the Fifth

Circuit it becomes incumbent on prosecutors to not only

advise their opposing counsel of the latter’s errors but to be

sure that these are corrected as well.

There is another problem here. The last three para-

graphs of the Court of Appeals’ opinion make it clear that

the decision went off on the fact that the convict respondent’s

retained attorney failed to correct the defects in the record,

after the State’s Attorney gave notice of the defects. The

third to last paragraph in the opinion reads:

“For almost four months, from around August

15, 1966, to oral argument and submission on Dec-

ember 8, 1966, the deficiency was remediable under

the rules of practice then existent. [Footnote

omitted!“ Mn. Op. P. 1359, Appendix C“, 546

F2d 652, 654.

In other words, if the State’s Attorney had delayed until

oral argument to file his motion, the petitioner state would

not be here now, since the defect would not have been re-

mediable on or after the date of submission. Why? It would

seem to make more sense to encourage prosecutors to point

out errors to the defense, while they are remediable.

In any event, on this point, again, the Fifth Circuit has

ruled contrary to the prior decisions of this Honorable Court.

14 The petitioner does not suggest that this statement is necessarily

accurate.

22

THE FEDERAL WRIT OF HABEAS CORPUS SHOULD

NOT BE AVAILABLE TO STATE PRISONERS TO

REVIEW MERE ERRORS BY DEFENSE ATTORNEYS

A NOVEL QUESTION

This Honorable Court has never directly addressed the

question of whether Federal Habeas Corpus, under 28 U.S.C.

2254, is available to State prisoners whose claims of ineffec-

tive assistance of counsel are based on mere errors of their

attorneys.

The problems of using Habeas Corpus to review mere

errors of defense attorneys fall into two categories: practical

and legal.

First, there are the practical problems. The main diffi-

culty here is in identifying an error of counsel at a time

when something can be done about it. What appears to be

an error of counsel] may be the result of a strategy decision

or the result of a decision by the accused or it may be a

blunder.

This Honorable Court has recognized that what may

appear tu be errors, may reflect strategic decisions. Estelle v.

Williams, US. , 48 L. Ed 2d 126, 135, 96 S. Ct.

(1976) The examples of this abound. For example, a failure

of defense counsel to object to a confession may be an error,

or it may be the result of a strategic decision based on the

facts that: (1) The accused has chosen not to testify; (2)

the confession, while incriminating, puts the accused in a

better light than the rest of the state’s evidence. and (3) the

confession is the accused’s only opportunity to get his “story”

23

before the Jury."

The case of Taylor v. State (291 Ala. 756, 287 So. 2d 901

[1973]; cert. den. 416 U.S. 945, 40 L. Ed 2d 298, 94 S. Ct.

1955) presents the classic example of what appeared to be

an error by defense counsel but was in fact a defense thwart-

ed by a decision of the accused. In that case, the defense

counsel in a murder prosecution failed to introduce evidence

which would have supported a claim of self-defense, because

his client rejected his attorney’s advice and refused to make

such a claim.

It is most difficult for trial judges and prosecutors to

detect defense errors and sort them out from strategy and the

demands of the accused. There are, of course, no time limits

on habeas corpus. When a petition is filed years after the

event, the defense attorney himself may not recall why he did

or did not do something. For this reason, the petitioner

respectfully submits that questions relating to errors of coun-

sel ought to be litigated at or near the time of trial by motions,

hearings, motions for new trial, appeals and certiorari to

this Court.

This Honorable Court has recognized that there are

Federal Questions for which habeas corpus is an inappropriate

remedy. Stone v. Powell U. S. , 49 L. Ed 2d 1067,

96 S. Ct. (1976) The petitioner respectfully submits

that questions relating to alleged errors of defense attorneys,

assuming that these are Federal Questions, are among the

issues for which habeas corpus is not an appropriate remedy.

The legal problems with using habeas corpus to review

alleged errors of defense counsel in state cases relate to the

15 This writer once handled a case where the defense successfully

objected to a confession, then introduced as the only defense

evidence the very confession which had been excluded during the

state’s case!

24

question of State Action. The Fifth Circuit itself has recog-

nized that an error of counsel is not actionable under 28

U.S.C. 2254 unless there is some state action involved.

Fitzgerald v. Estelle (5th Cir. 1975) 505 F 2d 1334; Malone

v. Alabama (5th Cir. 1975) 514 F 2d 77; Kallie v. Estelle

(5th Cir. 1975) 515 F 2d 588.

A private attorney is not a state official. He is not

under the direct supervision of state officials. To provide

such supervision it would be necessary for the State to some-

how enter the confidential attorney-client relationship and to

place restraints and mandates on private attorneys. This,

even if it could somehow be made to pass constitutional

muster, would totally undermine our adversary system of

justice.

The Court of Appeals found State Action in the instant

case in the fact that the State Attorney General knew about

the defects in the appeal record after it was filed in the

Supreme Court of Alabama. But, State Action must involve

more than mere knowledge. If mere knowledge is sufficient

then every time state or local officials learn of a crime which

is in progress, the crime would become State Action. Clearly,

State Action requires as a condition precedent that the state

or its officials be in a position to contro] events, otherwise

the state would be at the mercy of persons and things beyond

its control.

In a recent decision, this Court held that the prohibi-

tion against cruel and unusual punishment could not be

violated by mere negligence of State Officials. Estelle v.

Gamble, U.S. 50 L. Ed 2d 251, 97 S. Ct.

Ct. , (1976) The question in the instant case is

whether or not the requirement of the effective assistance

of counsel can be violated by the negligence of a private

—

— renee

25

attorney, merely because state officials at some point learn

of the negligence. Your petitioner respectfully submits that

mere negligence by a retained attorney is simply not State

Action and, therefore, presents no Federal Question within

the meaning of 28 U.S.C. 2254.

For the Criminal Law to achieve its desired effect of

suppressing crime, Criminal Justice must be both swift and

certain. In enforcing criminal laws the states must accord

accused persons due process of law within the meaning of the

Fourteenth Amendment. Therefore, if Criminal Justice is to

be certain, the requirements of due process must be such that

state officials can, by exercising reasonable diligence, follow

them in every case. If an error of a defense attorney can

deprive his client of due process, then the state is placed at

the mercy of defense attorneys in meeting due process re-

quirements. The State, because of the nature of our adversary

system, can not exercise more than the most general control

over defense attorneys, yet, in the Court of Appeals’ view,

a single bit of negligence by a defense attorney can wipe out

the diligent efforts of the State Legislature, Judiciary and

prosecutoral officials to meet the due process requirements.

It is the duty of a defense attorney to avcid having a final

conviction entered against his client. Why should a defense

attorney work with diligence to protect his client’s rights,

when he can serve his client better by being negligent?

For all of these reasons, the S.ate of Alabama respect

fully submits that Federal Habeas Corpus under 28 U.S.C.

2254 should not be available to state prisoners to review

claims of mere errors of counsel.

CONCLUSION

In conclusion, the Petitioner, the State of Alabama res-

pectfully submits that the decision and opinion of the Honor-

26

able United States Court of Appeals for the Fifth Circuit con-

flicts with the prior decisions of this Honorable Court and that

this case presents an important question which has not been

but ought to be addressed by this Honorable Court. For these

reasons the State of Alabama prays this Honorable Court to

issue a writ of certiorari to review the opinion, decision and

judgment of the Honorable United States Court of Appeals

for the Fifth Circuit.

Respectfully submitted,

WILLIAM J. BAXLEY |

Attorney General] of Alabama APPENDICIES

_

JOSEPH G. L. MARSTON, III

Assistant Attorney General of

Alabama

—— —

28

APPENDIX A

CANTRELL v. STATE

Cite as 283 Ala. 225

215 S. 2d 440

Kenneth CANTRELL

v.

STATE OF Alabama,

6 Div. 345,

Supreme Court of Alabama

March 14, 1968.

Rehearing Denied Nov. 21, 1968

Defendant was convicted in Circuit Court, Marion Coun-

ty, Bob Moore, Jr., J., and he appealed and the State moved

to dismiss. The Supreme Court, Lawson, J., held that where

record filed on appeal contained no certificate of clerk as to

completeness and correctness of transcript as required by

statute and Supreme Court rule, motion to strike transcript

of record on appeal, transcript of evidence, and to dismiss

appeal would be granted.

Beddow, Embry & Beddow, Birmingham, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner,

Asst. Atty. Gen., for the State.

—=

LAWSON, Justice

The record in this case was filed in this court on May 26,

1966. On August 15, 1966, the Attorney General filed a

“Motion to Strike the Transcript of the Record on Appeal,

Transcript of the Evidence, and to Dismiss the Appeal.” The

motion bears a certificate signed by an Assistant Attorney

General to the effect that a copy of the motion was mailed

to counsel for appellant on August 15, 1966.

The motion was based on three grounds; (1) For that

the transcript of the evidence was not filed with the Circuit

29

Clerk within the time allowed by law; (2) for that the trans-

cript of the record was not filed with the Clerk of this court

within the time allowed by law; and (3) for that there is

no certificated authentication of the record by the Clerk

below as required by law.

{1} The cause was “Argued and Submitted on Motion

and on Merits” on December 8, 1966. At the time of sub-

mission the Attorney General did not file a brief in support

of the motion and appellant did not file a brief in opposition

to the motion. Such briefs were, of course, not necessary

to a lawful submission.

The writer of this opinion subsequently requested the

Attorney General to file a brief in support of the motion.

Such a brief was filed on January 26, 1968, and it appears

by certificate that a copy of the brief was mailed to counsel

for appellant on January 26, 1968. |

On March 8, 1968, counsel for appellant filed two motions

in this court; one seeks to have us strike the brief filed by

the Attorney General on January 26, 1968, the other seeks

an order setting aside the submission.

[2-4] The motion to strike the brief filed by the Attor-

ney General on January 26, 1968, is, of course, denied. That

brief was filed at our request. Such a request is not unusual.

And, of course, counsel for appellant had the right to file a

reply brief. The failure of the Attorney General to file a

brief in support of the motion at time of submission did not

constitute a waiver of the motion.

[5] The motion to set aside the submission is also denied.

Counsel for appellant, according to the certificate attached

to the motion, was advised on or about August 15, 1966, that

the State through its Attorney General was contending that

there were defects in the record which would require a dis-

missal of the appeal. But apparently no action was taken by

counsel for appellant prior to submission to check the record

30

to determine if such defects did, in fact, exist and, if so, to

take corrective action if such was available.

The motion to set aside the submission, as we under-

stand it, concedes that the record is defective and contains

this statement: Knowledge of the imperfection was not

known to the appellant until the filing of the supplemental

brief by the appellee on to-writ January 26, 1968.“

[6,7] We cannot accept this statement as justifying an

order setting aside the submission. Where an appeal is taken

the appellant becomes responsible for the record on appeal

to the extent of seeing that it is a correct record. Henry v.

Jackson, 279 Ala. 225, 184 So.2d 133; Northwestern Mutual

Life Ins. Co. v. Mrs. Vivian W. Workman, 283 Ala. 127, 214

So.2d 690.

We pretermit consideration of the first two grounds of

the Attorney General’s motion, inasmuch as the third ground

is well taken and disposes of this appeal.

Section 767, Title 7, Code 1940, provides in part that the

transcript shall include the clerk’s “certificate that * is

a complete transcript of all the proceedings in the —

Supreme Court Rule 24 incorporates this requirement of

§ 767, Title 7, supra, since it calls for inclusion in the trans-

cript of “the certificate of the clerk to the correctness of the

transcript.”

— 227 —

It has been held that an appeal will be dismissed if the

transcript does not contain a certificate of the clerk of the

Court from which the appeal is taken that it is a complete

and correct transcript. James v. State, 42 Ala.App. 665, 177

So.2d 922, and cases cited ; cert. denied, 278 Ala. 409, 177 So.2d

924.

[8] We have been unable to find in this record a certi-

ficate as is required by 8 767, Title 7, supra, and by Supreme

Court Rule 24. It follows that the Attorney General's motion

31

is well taken.

Motion granted; record stricken; appeal dismissed.

LIVINGSTON, C. J., and GOODWYN and COLEMAN,

JJ., concur.

—— —Ä—U— p ———ͤ «4% %

32

APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF ALABAMA

JASPER DIVISION

KENNETH CANTRELL, j

Petitioner ]

v. 1 CA-76-A-0203-J

STATE OF ALABAMA, J

Respondent j

ORDER

Kenneth Cantrell, Petitioner, is an inmate of the Alex-

ander City Work Release Center, Alexander City, Alabama.

Petitioner is serving a sentence of life imprisonment imposed

upon him in the Circuit Court of Marion County, Alabama, on

November 11, 1965. Petitioner has submitted this his third

petition for habeas corpus in which he alleges that his present

confinement resulted from the denial of effective assistance

of counsel to Petitioner in connection with an appeal from

his conviction.

The State of Alabama has responded to a show cause

Order and Petitioner has filed a Traverse thereto.

It is interesting to note that the petition in this case was

filed by Petitioner with an indication that the petition was

filed with the assistance of the Prison Research Council,

University of Pennsylvania Law School. The participation

in this case by members of the aforesaid research council,

who are apparently law students, raises interesting questions

which are not necessary for this Court to pass upon in this

action.

In its response to the show cause Order, the State of

Alabama suggests that this Court has heretofore ruled upon

this contention by its failure to grant habeas relief in the

previous petitions filed by Petitioner. The State of Alabama

33

is correct in its conclusion that in the previous cases filed

by this Petitioner, this Court was of the opinion that the

[1]

position of Petitioner, as presented in the instant case, did

not present a federal constitutional question. However, since

this issue was not specifically treated by this Court in its

previous Orders, the case will not be disposed of for the reason

that it is repetitious.

_ Petitioner’s appeal from his conviction was dismissed

because of the failure of Petitioner's attorneys to comply

with Title 7, Code of Alabama, Section 767, and Supreme

Court Rule 24.

Based upon all the pleadings and exhibits in this case,

the issue is clear and there is no factual dispute. In perfect-

ing the appeal from Petitioner’s conviction, the attorneys for

Petitioner failed to secure from the Clerk of Marion County,

Alabama, a certificate that the record on appeal was complete

and correct. This, under the law of the State of Alabama,

is an obligation of an appellant’s attorney. The Supreme

Court of Alabama has consistently held that the failure to

obtain such a certificate will require the dismissal of an

appeal on motion of the state. This was done. Cantrell v.

State, 283 Ala. 225, 215 So.2d 440 (1968). The Supreme

Court of the United States denied certiorari. Cantrell v. Alu-

bama, 394 U.S. 950 (1969).

Petitioner’s advocates have cited numerous authorities

to this Court, none of which are controlling. Petitioner’s

advocates place great stress on the case of Flanigan v. Hen-

derson, 496 F.2d 1274, 5th Cir. (1974). Reliance on this

case is misplaced. In Flanigan, supra, the Court of Appeals

for the Fifth Circuit remanded the case to the District Court

for further proceedings. Several possible constitutional

errors were noticed by the appellate court in Flanigan, supra

which required a remand; the issue of adequate representa-

ee ee

34

tion by counsel was merely one of the issues that the District

Court was directed to consider. In Flanigan, supra, no de-

cision was made by the U.S. Court of Appeals for the Fifth

Circuit on the issue presented by Petitioner's advocates in

the instant case.

—

The authorities which are binding upon this Court un-

questionably hold that the factual situation in the instant

case, based upon an alleged mistake by retained counsel, does

not encompass the necessary state action to justify habeas

relief by this Court. Fitzgerald v. Estelle, 505 F.2d 1334,

5th Cir. (1975); Kallie v. Estelle, 515 F.2d 585, 5th Cir.

(1975); Malone v. Alabama, 514 F.2d 77, 5th Cir. (1975).

Based upon the aforementioned authorities, this Court holds

that the issue raised by Petitioner does not present a federal

constitutional question.

It is therefore ORDERED that the petition for habeas

corpus filed by Kenneth Cantrell be and the same hereby is

DENIED.

The Clerk will furnish Petitioner, the Prison Research

Council, University of Pennsylvania Law School, 3400 Chest-

nut Street, Philadelphia, Pennsylvania, 19174, and the Hon-

orable William Baxley, Attorney General of the State of

Alabama, with a copy of this Order.

DONE this 12th day of April, 1976.

C. W. ALLGOOD

United States Distriet Judge

35

APPENDIX C

CANTRELL v. STATE OF ALA. 1357

Kenneth CANTRELL,

Petitioner-Appellant,

v.

STATE OF ALABAMA,

Respondent-Appellee

No. 76-2163

Summary Calendar.*

United States Court of Appeals,

Fifth Circuit.

Feb. 4, 1977.

Alabama state prisoner filed a petition for a writ of

habeas corpus. The United States District Court for the

Northern District of Alabama, Clarence W. Allgood, J.,

denied the writ and petitioner appealed. The Court of Ap-

peals, Godbold, Circuit Judge, held that where the Alabama

Attorney General moved to dismiss petitioner’s appeal of his

conviction because a transcript was not certified by the

trial court clerk as required by Alabama law and the defect

was remediable for almost four months until oral arguments

and submission, retained defense counsel's failure to have

transcript certified, resulting in dismissal of appeal, coupled

with responsible state officer’s knowledge of deficiency at

time when it could have been corrected, resulted in denial to

petitioner of his right to effective assistance of counsel.

Reversed and remanded.

Appeal from the United States District Court for the

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co.

of New York, et al., 5 Cir. 1970, 431 F.2d 409, Part I.

Synopses, Syllabi and Key Number Classification

COPYRIGHT © 1977, by WEST PUBLISHING CO.

The Synopses, Syllabi and Key Number Classification constitute

no part of the opinion of the court.

36

Northern District of Alabama.

Before GODBOLD, HILL and FAY, Circuit Judges.

GODBOLD, Circuit Judge:

This appeal requires application of the constitutional

standards governing adequacy of representation by retained

counsel, set out in Fitzycrald v. Estelle, 505 F.2d 1334 (CA5)

(en banc), cert. denied, 422 U.S. 1011, 95 S.Ct. 236, 45 L. Ed

2d 675 (1975). The district court denied the writ of habeas

corpus to appellant, a state prisoner. We reverse.

Appellant, represented by privately retained counsel, was

convicted by an Ala-1358-bama jury of first degree murder

and was sentenced to life imprisonment in November 1965.

The events of his merits appeal are described in Cantrell v.

State, 283 Ala. 225, 215 So.2d 440 (1968), cert. denied, 394

U.S. 950, 89 S.Ct. 1290, 22 L.Ed.2d 485 (1969). The record was

filed in the Alabama Supreme Court on May 26, 1966. On Aug-

ust 15, 1966, the Attorney General of Alabama filed a motion

to strike the transcript of the record and to dismiss the appeal

because the transcript was not certified by the clerk of the

trial court as complete and correct.“ The motion bore the

signed certificate of an Assistant Attorney General that he

had mailed a copy of the motion to Cantrell’s counsel.”

The case was orally argued and submitted to the Ala-

bama Supreme Court for decision on December 8, 1966. Neith-

er the Attorney General nor counsel for Cantrell had filed a

brief relating to the motion to dismiss. So far as the record

before the Alabama Supreme Court revealed, Cantrell’s coun-

sel took no action prior to submission to check the transcript

to see if the alleged defect was present and, if sc, to take cor-

rective action. After submission the Supreme Court, on its

own volition, asked the Attorney General to file a brief on

1 As required by Tit. 7, § 767, Code of Alabama (1940).

2 Defense counsel told the Alabama Supreme Court that he did not

receive a copy of the motion. This does not affect the outcome of

the case before us.

37

the motion to dismiss. The first action by Cantrell’s counsel

concerning the alleged defective transcript was in March 1967

when he filed motions to strike the Attorney General’s brief

on the motion to dismiss and to set aside the submission.

The court denied Cantrell’s motion to set aside the submission.

It gave weight to the certificate of the Assistant Attorney

General that on August 15 he had mailed to Cantrell’s counsel

a copy of the motion to strike and dismiss, which pointed

out the fatal defect in the record. Adhering to its previous

decisions, the court granted the motion to strike and dis-

missed the appeal.“

Under Fitzgerald there are two types of constitutionally

ineffective assistance of privately retained counsel. The first

occurs when the proceeding is “fundamentally unfair, that

is, the criminal justice system has so grossly malfunctioned

that the state’s subsequent imprisonment or fine of the de-

fendant is a violation of due process. 505 F.2d 1336. Four-

teenth Amendment state action is present, not because a state

official knew or should have known the particulars of the

unfairness but because the system has failed. We do not need

to address this prong in the present case.

The critical language of Fitzgerald with respect to the

second type of ineffectiveness of retained counsel is this:

To find state involvement in retained counsel’s

conduct which is adjudged to be less than reason-

ably effective, yet not so grossly deficient as to

render the proceedings fundamentally unfair, it must

be shown that some responsible state official con-

a James v. Alabama, 42 Ala.App. 665, 177 So.2d 922 (1965); Thomas

v. Alabama, 43 Ala.App. 487, 192 So.2d 746 (1966); Tidwell v. State,

41 Ala. App. 296, 130 So.2d 206 (1961); Davis v. State, 13 Ala.App.

309, 69 So. 338 (1915).

* Cantrell has exhausted his state remedies. The Alabama court

denied collateral relief by decisions handed down prior to Fitz-

gerald.

38

nected with the criminal proceeding who could have

remedied the conduct ſailed in his duty to accord —

justice to the 1359-accused. That the trial judge and

the prosecutor have such a capacity and duty is un-

questionable. Therefore, if the trial judge or the pros-

ecutor can be shown to have actually known that a

particular defendant is receiving incompetent repre-

sentation and takes no remedigal action, the state

action requirement is satisfied. If they directly par-

ticipate in the incompetency, it is even more so.

Furthermore, if the incompetency of u retained al-

torney’s representation is so apparent that a rcason-

ably attentive official of the state should have been

aware of and could have corrected it then again the

State action requirement is satisfied.

Id at 1337 (emphasis added).

{1] Failure of counsel to perfect an appeal is a denial

of consitutionally effective counsel, e. g., Arrastia v. U.S.

455 F.2d 736 (CA5, 1972), Kent v. U. S., 423 F.2d 1050 (CA5,

1970) (failure to file notice), Atilus v. U.S., 406 F.2d

694 (CA 5, 1969). Malone v. Alabama, 514 F2d 77 (CA5),

cert. denied, 423 U.S. 990, 96 S.Ct. 403, 46 L.Ed.2d 309

(1975), and Kallie v. Estelle, 515 F.2d 588 (CA5),

cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed2d

391 (1975), are post-Fitzgerald case which recognized the

duties of retained counsel with respect to appeals but denied

relief because no responsible state officer either knew or

should have known of counsel’s derelictions.

In Flanagan v. Henderson, 496 F.2d 1274 (CA5, 1974),

counsel failed to take an appeal based on bills of exceptions

at trial, with the effect that the appeal record was limited

to the minute entries made by the trial court clerk. We held

that counsel’s failure had substantially harmed, if not, effec-

tively thwarted, petitioner’s appeal, and we reversed for de-

39

termination of whether petitioner had waived the appeal on

the full record.

[2, 3] Concerning the Fitzgerald-required proof of

knowledge, the present case is as clear a case as one could

have of knowledge by a responsible state official. The high-

est legal officer of the state, by a written motion, called to

the attention of the Supreme Court and the appellant’s re-

tained counsel a defect which under Alabama law, if unreme-

died, would require that the appeal be dismissed without con-

sideration of its merits. The Attorney General asked for and

secured dismissal of the appeal because of the mistake."

For almost four months, from around August 15, 1966,

to oral argument and submission on December 8, 1966, the

deficiency was remediable under the rules of practice then

existent.®

Even if defense counsel did not receive a copy of the Attorney

General’s August 15 motion, his failure to secure a certified tran-

script that would permit review of the case was in itself inef-

fectiveness of counsel. It is appellant’s duty to see that the record

on appeal is correct. See, e. g., Orum v. State, 286 Ala. 679, 245

So.2d 831 (1971); Shadle v. State, 280 Ala. 379, 194 So.2d 556 (1967);

Henry v. Jackson, 279 Ala. 225, 184 So.2d 133 (1966); Hopkins v.

State, 51 Ala. App. 510, 286 So.2d 920 (1973); Rushing v. State,

40 Ala. App. 361, 113 So.2d 527 (1959). See also, Flanagan v. Hen-

derson, supra. The Attorney General had knowledge of the defi-

ciency whether or not his awareness was called to the attention

of the defendant’s lawyer.

6 Rule 18 of the Supreme Court Rules of Alabama, in effect at the

time, provided:

“A certiorari to perfect or bring up a complete record may

be awardea, on motion of either party, at any time before the

submission of the cause, if its object be to sustain a judgment,

without a showing; but if to reverse a judgment, a sufficient

showing must be made.”

See Morris v. State, 268 Ala. 60, 104 So.2d 810 (1958); Lane v.

State, 46 Ala. App. 637, 247 So.2d 679 (1971); see also Adams v.

State, 291 Ala. 224, 279 So.2d 488 (1973); Bowlin v. Bowlin, 267

Ala. 655, 104 So.2d 630 (1958); Jackson v. Lowe, 48 Ala.App. 633,

266 So.2d 891 (1972): Baker v. State, 39 Ala.App. 221, 96 So.2d

821 (1957).

40

— 1360 — i

CANTRELL v. STATE OF ALA.

Thus, counsel’s ineffectiveness was of constitutional

dimension, and a responsible state officer had actual knowl-

edge of the deficiency at a time when it could have been cor-

rected. Fitzgerald requires relief. 7

The decision of the district court denying habeas corpus

is reversed and the case is remanded with instructions to grant

the writ and require that Cantrell be permitted ‘an out of time

appeal or released.

REVERSED and REMANDED.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-2163

Summary Calendar

D. C. Docket No. CA-76-A-0203-J

KENNETH CANTRELL, Petitioner-Appellant,

versus :

STATE OF ALABAMA, Respondent-Appelle “

Appeal from the United States District Court for the

Northern District of Alabama

Before GODBOLD, HILL and FAY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the North-

ern District of Alabama, and was taken under submission

by the Court upon the record and briefs on file, pursuant to

Rule 18:

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is here-

by, reversed; and that this cause be, and the same is hereby

remanded to the said District Court with instructions in ac-

41

cordance with the opinion of this Court.

ISSUED AS MANDATE: Feb. 4, 1977

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

FEBRUARY 28, 1977

EDWARD W. WADSWORTH TEL. 504-589-6514

Clerk 600 CAMP STREET

NEW ORLEANS, LA. 70130

TO ALL COUNSEL OF RECORD

No. 76-2163—Kenneth Cantrell v. State of Alabama

Dear Counsel:

This is to advise that an order has this day been entered

denying the petition () for rehearing, and no member of

the panel nor Judge in regular active service on the Court

having requested that the Court be polled on rehearing en

banc (Rule 35, Federal Rules of Appellate Procedure; Local

Fifth Circuit Rule 12) the petition () for rehearing en banc

has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for issu-

ance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By Susan M. Gravis

Deputy Clerk

ec: Mr. Kenneth Cantrell

Mr. Joseph G. Marston, III

42

APPENDIX D

UNITED STATES CODE TITLE 28

§ 2254. State custody; remedies in Federal courts

(a) The Supreme Court, a Justice thereof, a circuit

judge, or a district court shall entertain an application for

a writ of habeas corpus in behalf of a person in custody pur-

suant to the judgment of a State court only on the grounds

that he is in custody in violation of the Constitution or laws

or treaties of the United States.

(b) An application for a writ of habeas corpus in be-

half of a person in custody pursuant to the judgment of a

State court shall not be granted unless it appears that the

applicant has exhausted the remedies available in the courts

of the State, or that there is either an absence of available

State corrective process or the existence of circumstances

rendering such process ineffective to protect the rights of

the prisoner.

(c) An applicant shall not be deemed to have exhausted

the remedies available in the courts of the State, within the

meaning of this section, if he has the right under the law of

the State to raise, by any available procedure, the question

presented.

(d) In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court, a deter-

mination after a hearing on the merits of a factual issue,

made by a State court of competent jurisdiction in a pro-

ceeding to which the applicant for the writ and the State or

an officer or agent thereof were parties, evidenced by a writ-

ten finding, written opinion, or other reliable and adequate

written indicia, shall be presumed to be correct, unless the

applicant shall establish or it shall otherwise appear, or the

re. dent shall admit—

43

(1) that the merits of the factual dispute were

not resolved in the State court hearing;

(2) that the factfinding procedure employed

by the State court was not adequate to afford a full

and fair hearing;

(3) that the material facts were not adequately

developed at the State court hearing;

(4) that the State court lacked jurisdiction of

the subject matter or over the person of the applicant

in the State court proceeding;

(5) that the applicant was an indigent and the

State court, in deprivation of his constitutional right,

failed to appoint counsel to prepresent him in the

State court proceeding ;

(6) that the applicant did not receive a full,

fair, and adequate hearing in the State court pro-

ceeding; or

(7) that the applicant was otherwise denied

due process of law in the State court proceeding;

(8) or unless that part of the record of the

State court proceeding in which the determination

of such factual issue was made, pertinent to a deter-

mination of the sufficiency of the evidence to support

such factual determination, is produced as provided

for hereinafter, and the federal court on a consid-

eration of such part of the record as a whole con-

cludes that such factual determination is not fairly

supported by the record:

And in an evidentiary hearing in the proceeding in the Fed-

eral court, when due proof of such factual determination has

been made, unless the existence of one or more of the circum-

stances respectively set forth in paragraphs numbered (1)

to (7), inclusive, is shown by the applicant, otherwise ap-

pears, or is admitted by the respondent, or unless the court

44

concludes pursuant to the provisions of paragraph numbered

(8) that the record in the State court proceeding, considered

as a whole, does not fairly support such factual determination,

the burden shall rest upon the applicant to establish by con-

vincing evidence that the factual determination by the State

was erroneous.

(e) If the applicant challenges the sufficiency of the

evidence adduced in such State court proceeding to support

the State court’s determination of a factual issue made there-

in, the applicant, if able, shall produce that part of the record

pertinent to a determination of the sufficiency of the evidence

to support such determination. If the applicant, because of

indigency or other reason is unable to produce such part of

the record, then the State shall produce such part of the

record and the Federal court shall direct the State to do so

by order directed to an appropriate State official. If the

State cannot provide such pertinent part of the record, then

the court shall determine under the existing facts and cir-

cumstances what weight shall be given to the State court's

factual determination.

(f) A copy of the official records of the State court,

duly certified by the clerk of such court to be a true and cor-

rect copy of a finding, judicial opinion, or other reliable

written indicia showing such a factual determination by the

State court shall be admissible in the Federal court pro-

ceeding.

45

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, one of the attorneys for

the Petitioner and a member of the Bar of the Supreme Court

of the United States, hereby certify that on this day

of April, 1977, I did serve the requisite number of copies

of the foregoing Petition for a Writ of Certiorari and Ap-

pendices on the Respondent, who is not represented by coun-

sel, by mailing said copies to him, First Class postage prepaid,

and addressed as follows:

Mr. Kenneth Cantrell

Prison No. 91688

Post Office Box 705

Alexander City, Alabama 35010

JOSEPH G. L. MARSTON, III

Assistant Attorney General

State of Alabama

Address of Counsel:

Attorney General’s Office

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36104