Reply Brief — Alabama v. Cantrell

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MAY 7; 1077

IN THE |

Supreme Court of the United States —

OCTOBER TERM, 1976

NO. 76-1394

—

STATE OF ALABAMA,

PETITIONER

VERSUS

KENNETH CANTRELL,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT -

PETITIONER’S REPLY BRIEF

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

COUNCIL FOR PETITIONER

i

TABLE OF CONTENTS

Page

TABLE OF CASES ii

TABLE OF CONSTITUTIONAL PROVISIONS iii

REPLY ARGUMENT | : l

I. “MANDATORY APPEAL”? 1

Il. ON THE MERITS pals 2

Ill. THIS CASE PRESENTS MATTERS OF

EXTREME IMPORTANCE 4

CONCLUSION 6

CERTIFICATE OF SERVICE

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ii

TABLE OF CASES

Anders v. California

386 U.S. 738, 18 L. Ed 2d 493,

87 S. Ct. 1896 (1967) ........ .........

Blanchard v. Brewer

(Sth Cir. 1970) 429 F 2d 9

Boyd v. Cowan

(6th Cir. 1974) 494 F 2d 338 .....

Chaffin v. Stynchcombe

412 U.S. 17, 36 L. Ed 2d 714,

ee

Clark v. Alabama

423 U.S. 937, 46 L. Ed 2d 270,

Oe ee

Clark v. State

294 Ala 485, 318 So 2d 805 (1974) 0... eee panes

Douglas v. California

372 U.S. 353, 9 L Ed 2d 811,

83 S. Ct. 814 (1963) 0... senebiaisataijiiles taameen

Fitzgerald v. Estelle

(5th Cir. 1975) 505 F 2d 1334 2000. |

O’Brien v. Maroney (3rd Cir. 1970)

Randazzo v. Follette

(2nd Cir. 1971) 444 F 2d 625

Page

9

. 2

iii

Ross v. Moffitt

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

94 S. Ct. 2437 (1974)

Santobello v. New York

404 U.S. 257, 30 L. Ed 2d 427,

92 S. Ct. 495 (1971)

Shiflett v. Virginia

(4th Cir. 1970) 433 F 2d 124 ...

TABLE OF CONSTITUTIONAL PROVISIONS

The Sixth Amendment to the Constitution

of the United States

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i)

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

NO. 76-1394

STATE OF ALABAMA,

PETITIONER

VS.

KENNETH CANTRELL,

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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PETITIONER’S REPLY BRIEF

REPLY ARGUMENT

I

“MANDATORY APPEAL”?

The respondent argues at length about what he refers

to as a “mandatory appeal”. Counsel for the petitioner is

at a loss to know what a “mandatory appeal” is. Apparently,

“mandatory appeal” is the Respondent’s term for an appeal

as a matter of right under state law, but the respondent

apparently sees such appeals as a necessary part of the pro-

cedure in every criminal case. At page 3 of the opposition

brief “mandatory appeal” is referred to as being of “. . .

2

crucial importance to the complete adjudication of the crimi-

nal defendant’s guilt. . . .” Of course, Alabama does not

require convicts to appeal. Appeal is provided as of right,

but no convict is required to appeal his conviction. In any

event, such a mandatory appeal would present serious con-

stitutional problems. A convict, such as the respondent,

whose sentence is set by the Jury, faces the possibility of

a heavier sentence if his conviction is set aside on appeal.

Chaffin v. Stynchcombe 412 U.S. 17, 36 L. Ed 2d 714, 93

S. Ct. 1977 (1973) Where a guilty plea to a lesser included

offense is set aside on appeal, the accused faces trial on the

original charge. Santobello v. New York 404 U.S. 257 (Note

2 at 263), 30 L. Ed 2d 427, 433, 92 S. Ct. 495 (1971); Clark

v. State 294 Ala 485, 318 So 2d 805 (1974); cert. den. 423

U.S. 937, 46 L. Ed 2d 270, 96 S. Ct. 298. Obviously, a state

could not require a convicted person to appeal. The appeal

at issue in this case is an appeal as of right under state law

not a “mandatory appeal”.

II

ON THE MERITS

The petition relies heavily on the decisions of this Hon-

orable Court. In opposition, numerous cases from various

circuits are cited. Of these, Boyd v. Cowan ([6th Cir., 1974]

494 F 2d 338) is the latest. Boyd was decided three (3)

months before this Honorable Court’s decision in Ross v.

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

{1974]), which re-affirmed the rule that appeal is a creature

'The others include Randazzo v. Follette (2nd Cir. 1971) 444 F 2d

625, Shiflett v. Virginia (4th Cir. 1970) 433 F 2d 124; Blanchard v.

Brewer (8th Cir. 1970) 429 F 2d 89, and O’Brien v. Maroney (3rd

Cir. 1970) 423 F 2d 865.

‘*_—_

3

of state law only. For this reason, if no other, these cases

are utterly inapplicable. The petition does not question the

extent to which the Fifth Circuit conformed its holding to

the rules of other circuits but the extent to which it con-

formed its decision to the rules and policies of this Honorable

Court. It is in the latter that the Honorable Court of Ap-

peals utterly missed the mark.

The remainder of the opposition argument relates pri-

marily to the non-existent mandatory appeal discussed above.

Douglas v. California (372 U.S. 353, 9 L. Ed 2d 811,

83 S. Ct. 814 [1963]) and Anders v. California (386 U.S.

738, 18 L. Ed 2d 493, 87 S. Ct. 1396 [1967]) hold only that

the states may not discriminate against indigents. These

cases do not require the states to give criminal appellants

anything, save equal treatment. There is in this case no

question of indigency nor discrimination.

This Honorable Court has specifically held that there

is no Sixth Amendment right to counsel on appeal. Ross

v. Moffitt, 417 U.S. 600, 41 L. Ed 2d 341. 94 8S. Ct. 2437

(1974) The Sixth Amendment reads in pertinent part as

follows:

“In all criminal prosecutions, the accused shall

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

for his defense.”

An appeal is not a “criminal prosecution” but a proceeding

to review the results of a criminal prosecution. Therefore,

by its very terms the Sixth Amendment does not apply to

appeals.

It is evident that in applying the Sixth Amendment to

4

the question of counsel on appeal and in ordering the writ

of habeas corpus issued to set aside a uniform application

of a state rule of appellate procedure the Honorable Court

of Appeals ruled contrary to the prior decisions of this Hon-

orable Court.

Finally the respondent sees no problem with requiring

a State prosecutor to work both sides of a case handling

the state’s case and correcting the errors of defense counsel.

(Opposition Brief pages 4-5) As pointed out in the petition,

such a requirement is untenable both legally and practically.

Ill

THIS CASE PRESENTS MATTERS

OF EXTREME IMPORTANCE

It is argued by the Respondent that even if the Fifth

Circuit’s decision is in error, this case presents no issue

of “overriding” importance. This case is, however, of ex-

treme importance for at least three different reasons, be-

sides the fact that it results in the erroneous absolute re-

lease of a man who murdered a policeman in cold blood.

First: Dismissal of appeals is the most common way

of enforcing rules of appellate procedure. At issue there-

fore, are potentially hundreds of Alabama convictions which

may be invalidated because of various errors of retained

lawyers.” In addition, the state and federal courts will be

placed under a huge burden of additional litigation to deter-

2It is very difficult to determine how many of these cases there

are. Numerous dismissals are reported in the books, but most dis-

missals are by unreported memorandum order. The Fifth Circuit's

rule in this case would probably also apply to failures of attorneys

to preserve specific errors for review on appeal, and this situation

probably exists in most cases.

5

mine in each of these cases if the error of the defense at-

torney reached Constitutional proportions and if the state

learned of it at a time when it could have been corrected.

Second: The failure of the Honorable Court of Appeals

for the Fifth Circuit to come to terms with the precise con-

stitutional nature of appeal rights and to distinguish, as

this Court has, between the right to counsel at trial and on

appeal has led to a chaos of contradictory holdings in the

Fifth Circuit. In Fitzgerald v. Estelle ([5th Cir. 1975] 505

F 2d 1334), the Fifth Circuit attempted to resolve this chaos

with an en banc decision. However, in deciding the instant

case the Court cited Fitzgerald and pre-Fitzgerald and post-

Fitzgerald cases without distinction. Obviously, the instant

decision represents a return of the chaos of the pre-Fitzgerald

period. This confusion will have to be resolved and, since

the Fifth Circuit apparently cannot do it, it is respectfully

submitted that this Honorable Court should do it. |

Third: Most important of all, there is the matter of

the Honorable Court of Appeals disregarding the policies

and decisions of this court. In the Court of Appeals the

State of Alabama presented arguments, substantially iden-

tical to those presented in the petition. These arguments

relied heavily on the decisions of this Honorable Court. Yet,

the Court of Appeals’ decision makes no reference whatso-

ever to any holding of this court. Reading the Honorable

Court of Appeals decision in this case by itself would lead

one to believe that the Supreme Court of the United States

has never addressed the questions of the right to appeal, in

general, nor the right to counsel on appeal, in particular.

Yet, this Honorable Court has issued numerous decisions on

these subjects, and these decisions reflect a consistent policy.

This policy is based on the very words of the Constitution

6

and a century of precedent. The chaos which now prevails

in the Fifth and other circuits in this area of the law

demonstrates the prudence of this court’s policy. In decid-

ing the instant case the Honorable United States Court of

Appeals for the Fifth Circuit totally disregarded this policy

and the controlling decisions of this Honorable Court. If

this is not a matter of overriding importance, the petitioner

is hard put to say what is.

CONCLUSION

In conclusion, the Petitioner, the State of Alabama again

respectfully submits that the decision and opinion of the

Honorable United States Court of Appeals for the Fifth

Circuit conflicts 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 again 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

JOSEPH G. L. MARSTON, III

Assistant Attorney General of

Alabama

7

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

the foregoing Reply Brief on the attorney for the Respondent

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

and addressed as follows:

Mr. Mark R. Spiegel, Esq.

Attorney at Law

Inmate Legal Assistance Program

University of Pennsylvania

Law School

3400 Chestnut Street

Philadelphia, Pa. 19104

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