Petition — Perez v. Wainwright

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OCTOBER TERM, 1978

"79-5267

ANTONIO PEREZ,

Petitioner,

vs.

Louie L. Wainwright, Secretary,

Florida Dept. of Offender

Rehabilitation

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BENNETT H. BRUMMER

Public Defender

Eleventh Judicial Circuit

of Florida

1351 N.W. 12th Street

Miami, Florida 33125

KAREN M. GOTTLIEB

Assistant Public Defender

Counsel for Petitioner

INDEX

Opinion below

Jurisdiction

Question Presented For Review

Constitutional and Statutory Provisions

Involved

Statement of the Case

Reasons for Granting the Writ

Conclusion

TABLE OF CITATIONS

ANDERS v. CALIFORNIA

386 U.S. 738 (1967)

ARSENAULT v. COMMONWEALTH OF

“MASSACHUSETTS

393 U.S. 5 (1968

BETTS v. BRADY

316 U.S. 455 (1942)

BLANCHARD v. BREWER

G29 F.2d 89 (8th Cir. 1970)

Cert. Denied, 401 U.S. 1002 (1971)

BODDIE v. CONNECTICUT

401 U.S. 371 (1971)

BOYD v. COWAN

519 F.2d 182 (6th Cir. 1975)

COLE v. ARKANSAS

333 U.S. 196 (1948)

COMMONWEALTH v. HAMBLEN ET AL.

ome Mass.

DOUGLAS v. CALIFORNIA

372 U.S. 353 (1963)

DRAPER v. WASHINGTON

U.S. 19

ESKRIDGE v. WASHINGTON STATE BOARD

“OF PRISON TERMS AND PAROLES

357 U.S. 214 (1958)

ESTELLE v. DURROUGH

U.S. 3

FRANK v. MANGUM

237 U.S. 309 (1915)

GAIRSON v. CUPP

392 F.2d 210 (4th Cir. 1968)

GRIFFIN v. ILLINOIS

3551 U.S. 12 (1956)

GROPPI v. LESLIE

U.S. 1972)

TIN aera FASCIST REFUGEE COMMITTEE

su Us . 173 (1951)

rm UId bh Nore

LEVANTHAL v. GAVIN

396 F.2d 441 (ist Cir. 1968)

LEVENTHAL v. GAVIN

421 F.2d 270 (Ist Cir. 1970)

Cert. Denied, 398 U.S. 941 (1970)

LINDSEY v. NORMET

405 U.S. 56 (1972)

McKANE v. DURSTON

I53S U.S. 684 (1894

McMANN v. RICHARDSON

397 U.S. 759 (1970)

MALINSKI v. PEOPLE OF STATE

OF NEW YORK

324 U.S. 40 (1945)

NATIONAL UNION OF MARINE COOKS AND

camer aeniees

Vv.

343° U.S. 37 (1954)

RINALDI v. YEAGER

384 U.S. 305 (1966)

ROCHIN v. CALIFORNIA

34Z US. 165 (1952)

RODRIGUEZ v. UNITED STATES

395 U.S. 327 (1969)

ROSS v. MOFFITT

417 U.S. 600 (I

974)

SANDERS v. CRAVAN

488 F.2d 478 (9th Cir. 1973)

SHIFLETT v. COMMONWEALTH

433° F.2d 124 (4th Cir. 1970)

Cert. Denied, 405 U.S. 994 (1972)

SHIFLETT v. COMMONWEALTH

OF VIRGINIA

447 F.2d 50 (4th Cir. 1971)

STOVALL v. DENNO

67)

TEHAN v. UNITED STATES

UNITED STATES EX REL. MASELLI

383-F-Ta-179 (2d Cir. 1967)

UNITED STATES EX REL. O'BRIEN

GIF Td B65 (3d Cir. 1969)

UNITED STATES v. McCOLLOM

420 U.S. 3l/ (19/6)

WOODALL v. Wer

Cir. 1971)

WYNN v. PAGE

369 F.2d 930 (10th Cir. 1966)

OTHER AUTHORITIES

UNITED STATES CONSTITUTION

SIXTH AMENDMENT

FOURTEENTH AMENDMENT

ABA CODE OF PROFESSIONAL RESPONSIBILITY

DR 2-110(A)

ABA STANDARDS

THE DEFENSE FUNCTION

§ 8.2 (1971)

§ 8.3 (1971)

CRIMINAL APPEALS

§2.2 (1970)

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO:

ANTONIO PEREZ,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, ANTONIO PEREZ, respectfully prays that

a writ of certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Fifth Circuit

rendered on the 13th day of July, 1979.

OPINION BELOW

The full opinion of the United States Court of

Appeals for the Fifth Circuit is attached hereto as Appendix

A. The reported opinion appears at 594 F.2d 159.

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C.

Section 1254(1), to review the judgment and opinion of the

United States Court of Appeals for the Fifth Circuit. That

judgment and opinion was entered on May 1, 1976. (App. A, B).

A timely Petition for Rehearing and Suggestion for Rehearing

En Banc was denied on July 13, 1979. (App. A, C). The mandate

of the court was stayed until August 31, 1979, or alternatively,

pending disposition of a timely filed petition for writ of

certiorari. (App. D).

QUESTION PRESENTED FOR REVIEW

WHETHER IT IS FUNDAMENTALLY UNFAIR,

IN CONTRAVENTION OF THE SIXTH AND

FOURTEENTH AMENDMENTS, FOR THE STATE

OF FLORIDA TO DENY THE INDIGENT

PETITIONER APPELLATE REVIEW OF

HIS CRIMINAL CONVICTION BECAUSE OF

THE FAILURE TO FILE A TIMELY NOTICE

OF APPEAL, WHERE THAT FAILURE WAS

IN NO WAY ATTRIBUTABLE TO PETITIONER,

BUT RATHER WAS DUE TO PETITIONER'S

RELIANCE UPON FRAUDULENT REPRESEN-

TATIONS BY HIS RETAINED COUNSEL.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

1. This case involves the Sixth and Fourteenth

Amendments to the Constitution of the United States.

2. This case also involves the provisions of

Florida law set forth in the Appendix.

STATEMENT OF THE CASE

Petitioner Perez, an indigent, was convicted of

robbery in the Circuit Court of the Eleventh Judicial Circuit

of Florida. (App. D at 24). Prior to trial, the Public

Defender had been appointed to represent him. (Id. at 23).

However, petitioner's parents subsequently retained counsel

who represented petitioner at trial.

At the post-trial "rendition of judgment" proceeding

held on August 14, 1975, this retained counsel stated in

open court that he had filed the notice of appeal essential

to protect petitioner's appellate right. (App. F at 9).

Under Florida law, such a notice would have been invalid as

premature. (App. H, I, J). The trial court thereafter did not

advise petitioner of his appellate rights and obligations,

although such advisement is required under Florida law.

(App. K, L).

The statement of defense counsel was untrue; no

notice of appeal had in fact been filed when counsel's

contrary representation to the court was made. And no notice

of appeal was ever filed, despite the promise made by counsel

sills

that he would take an appeal, and despite petitioner's reliance

upon that promise.

Two days after the time period had elapsed for the

pursuit of a timely appeal, petitioner's parents retained

new counsel who unsuccessfully sought a belated appeal via

a motion for "post-conviction relief." (App. E at 11-12).

Thereafter, the Public Defender was appointed to represent

petitioner. (App. E at 14).

On February 17, 1976, petitioner sought a belated

appeal in the District Court of Appeal of Florida, Third

District, raising the issues of the’ ineffectiveness of counsel,

and the denial of his rights to due process of law and equal

protection of the laws, via a Petition for Writ of Habeas

Corpus Or, In the Alternative, Motion to Treat as a Timely

Notice of Appeal. (App. E at 16-22). In this petition,

it was alleged that counsel had promised petitioner that he

would pursue an appeal and that petitioner had relied to his

detriment upon counsel's ‘promise. This application was denied

two days after it was filed, on the ground that petitioner

had been represented by private counsel at the time of trial.

(App. E at 15).

On December 9, 1976, petitioner filed a Petition for

Writ of Habeas Corpus in the United States District Court for

*the Southern District of Florida, again alleging that his

right to appeal had been thwarted by the ineffective assistance

of his retained counsel. (App. E). Specifically, petitioner

founded his federal claim on the guarantees of the Sixth and

Fourteenth Amendments to the Constitution of the United States.

The district court, after ordering an evidentiary hearing,

concluded that petitioner was not entitled to habeas corpus

relief under the Sixth Amendment, but was entitled to relief

under the Fourteenth Amendment.

In granting relief, the district court made the

following findings of fact:

{PJetitioner's privately retained

counsel indicated to the state trial

court at the sentencing proceeding

that a notice of appeal had been

filed, and further indicated to the

petitioner subsequent to that pro-

ceeding that he would be prosecuting

petitioner's appeal for him. No

further contact was had between

petitioner and his attorney, and no

action was ever taken by counsel to

perfect or prosecute petitioner's

appeal. Petitioner was at all times

indigent, albeit managed to obtain a

private attorney at trial only through

the assistance of his parents. He

at all times relied on his attorney

to perfect and prosecute his appeal.

(App. G at 3)

In view of counsel's blatant misrepresentation, the court concluded

that counsel's active course of misconduct at the "rendition

of judgment" proceeding constituted wilful disregard for the

responsibility placed upon him by the system. This conduct,

which foreclosed whatever potertial then existed for compliance

. by the trial court with the requirement that it advise petitioner

of his appellate rights, was <# unconscionable and deficient

as to render the proceedings fundamentally unfair. (Id. at 4).

The respondent then appealed to the United States

Court of Appeals for the Fifth Circuit. On May 1, 1979, the

court reversed the grant of habeas corpus relief. (App. A).

The court held that the district court's denial of relief under

the Sixth Amendment was not clearly erroneous. The court

further held that, despite its sentiments to the contrary,

the precedent of the Fifth Circuit precluded it from affirming

the grant of relief pursuant to the Fourteenth Amendment.

The court stated that, were the issue being presented for the

first time, the court would hold that where a lawyer does not

perform his promise to his client that an appeal will be

taken, fairness requires that the deceived defendant be granted

a belated appeal.

A timely Petition for Rehearing and Suggestion for

Rehearing En Banc was filed by petitioner. (App. C). This

ee.

petition was denied on July 13, 1979. (App. A).

Due to the extant conflict among the decisional law

of the United States courts of appeals, and due to the important

question of federal constitutional law herein raised which

has not previously been resolved by this Court, this petition

for writ of certiorari is hereby presented pursuant to Rule

19(1)(b) of this Court.

REASONS FOR GRANTING THE WRIT

THE HOLDING BELOW THAT PETITIONER

WAS NOT DENIED DUE PROCESS OF

LAW WHEN HIS RIGHT TO APPEAL WAS

THWARTED BY THE DERELICTIONS OF

DEFENSE COUNSEL DIRECTLY CONFLICTS

WITH DECISIONS OF THE UNITED STATES

COURTS OF APPEALS AND PRESENTS A

CONSTITUTIONAL QUESTION OF VITAL AND

CONTINUING IMPORTANCE TO THE ADMIN-

ISTRATION OF THE CRIMINAL JUSTICE

SYSTEM.

There is no distinct constitutional right to appellate

review of a state criminal judgment. McKane v. Durston, 153

U.S. 684 (1894). Petitioner does not contend otherwise.

Petitioner does submit, however, that where a state has provided

for appellate scrutiny of all criminal convictions as a

matter of right, it can be fundamentally unfair to deprive a

defendant of the exercise of that right where the "waiver"

of the appeal is occasioned by the derelictions of defense

counsel. And where, as here, the failure to invoke timely

the jurisdiction of the appellate tribunal is in no way

attributable to the indigent petitioner, but rather, is due

only to his, and the trial court's, detrimental reliance upon

a fraudulent representation by retained counsel, all basic

notions of due process of law are denigrated by the denial

of a oelated appeal.

The due process issue presented in this case must be distin-

pit from that presented in Estelle v. Durrough, 420 U.S.

34 (1975), and National Union of Marine Cooks and Stewards v.

Arnold, 348 U.S. 37 (1954). In Estelle, the deprivation of

appellate review was a reasonable sanction to impose (cont.)

wis

The requirements of due process of law "cannot be

ascertained through mechanical application of a formula."

Groppi v. Leslie, 404 U.S. 496, 500 (1972). Rather, the Due

Process Clause, as effectuated through the art of judicial

conscience, “is compounded of history, reason, the past course

of decisions, and stout confidence in the strength of the

democratic faith which we profess." Joint Anti-Fascist

Refugee Committee v. McGrath, 341 U.S. 123, 162-163 (1951)

(Frankfurter,J., concurring), cited in, Groppi v. Leslie,

404 U.S. at 500.

An examination of the historical growth of the

right to an initial appeal with the aid of counsel on that

appeal, and the decisions of this Court and of the United

States courts of appeals for the various circuits avowing

protections of the appellate right, inexorably leads to one

conclusion: the state's action of disentitling Petitioner

Perez to appellate review cannot be reconciled with the funda-

mental precepts of due process of law.

Since 1894 when this Court recognized that states

need not provide appellate review systems ,” this Court has

increasingly haled the significance of the "first appeal,

granted as a matter of right to rich and poor alike, from a

criminal conviction." Douglas v. California, 372 U.S. 353,

356 (1963) (citation omitted). Thus, despite the lack of

constitutional compulsion for a state appellate review system,

L(cont .)

upon one who had escaped from custody. Similarly, in National

Union of Marine Cooks and Stewards, the denial of appellate

scrutiny was a reasonable device to employ against a union

which had failed to purge itself of contempt by posting the

requisite money bond pending appeal. In the case at bar,

the sanction or irrebuttable presumption of waiver exacted

comes as the result of neither misconduct, nor even action,

on the part of petitioner.

McKane v. Durston, 153 U.S. 684 (1894), so holds, noting

that a citation of authorities to support this holding is

unnecessary.

where an appellate avenue is provided a defendant,

the proceedings in the appellate

tribunal are to be regarded as a part

of the process of law under which he

is held in custody by the state, and to

be considered in determining any

question of alleged deprivation of

his life or liberty contrary to the

14th Amendment. Frank v. Mangum,

237 U.S. 309, 327 (1915)

See also, Cole v. Arkansas, 333 U.S. 196, 201 (1948).

A full and fair resolution of the merits of "the

one and only appeal" of right has become an integral part

of the state criminal justice system. Douglas v. California,

supra at 357. Indeed, in 1956, this Court noted with approba-

tion that "[a]ll of the States now provide some method of

appeal from criminal convictions, recognizing the importance

of appellate review to a correct adjudication of guilt or

innocence." Griffin v. Illinois, 351 U.S. 12, 18 (1956).

The significance of state appellate review has further

led the Court steadfastly to proclaim a mandate of equality

to govern appellate proceedings. See, e.g., Rinaldi v. Yeager,

384 U.S. 305 (1966); Draper v. Washington, 372 U.S. 487 (1963);

Douglas v. California, supra; Eskridge v. Washington State Board

of Prison Terms and Paroles, 357 U.S. 214 (1958); Griffin v.

Illinois, supra. Impediments to full appellate review of

criminal convictions have been retroactively stricken by the

Court to avert "the clear danger of convicting the innocent."

Tehan v. United States, 382 U.S. 406, 416 (1966); accord,

Stovall v. Denno, 388 U.S. 293, 297-298 (1967).°

Moreover, in exalting the value of the appeilate

The importance of the first direct appeal to "a correct

adjudication of guilt" has been more recently underscored

by the decisions of the Court which have refused to extend

safeguards attendant to the first appeal to subsequent

discretionary and collateral review proceedings. United

States v. MacCollom,426 U.S. 317, 323-326 (1976); Ross v.

Moffitt, 417 U.S. 600, 605-617 (1974).

etn

process,“ this Court has emphasized the correlative significance

of securing counsel in the appellate court to protect and

effectuate the appellate guarantee. > See Anders v. California,

386 U.S. 738 (1967); Douglas v. California, supra. Thus, the

right to counsel on appeal has been held a retroactive requisite

binding upon the states due to the combined significance of the

right to counsel and the right to an appeal in ensuring an

adequate truth-finding process.

The right to counsel at the trial

(Gideon v. Wainwright, 372 U.S. 335,

83 S.Ct. 792, 9 L.Ed.2d 799) on appeal

(Douglas v. People «! State of California,

372 U.S. 353, 83 S.Cc. 814, 9 L.Ed.2d

811) and at the other "critical" stages

of the criminal proceedings (Hamilton

v. State of Alabama, supra) have all

been made retroactive, since the

“denial of the right must almost in-

variably deny a fair trial." See Stovall

v. Denno, 388 U.S. 293, 297, 87 S.Ct.

1967, 1970, 18 L.Ed.2d 1199. Arsenault

v. Commonwealth of Massachusetts,

U.S. 5, 6 (1968) (footnote omitted)

Against this historical and precedential backdrop,

the need for federal intervention in this case becomes focused.

While due process scrutiny of state criminal proceedings is

necessarily narrow, where a defendant is deprived of the effective

assistance of counsel on appeal to the end that no appeal at

all is obtained, a federal claim commanding rectification is

presented. And indeed, the United States courts of appeals

which have addressed this issue, save the court below, have

consistently so concluded.

The most recent federal decision recognizing the

constitutional dimension of petitioner's claim is Boyd v. Cowan,

Indeed, even in the civil context, this Court has been

receptive to claims that state burdens imposed upon the exercise

of the statutory right to appeal are constitutionally offensive.

See, e.g., Lindsey v. Normet, 405 U.S. 56 (1972); Boddie v.

Connecticut, i x (1971).

Necessarily included within this right to counsel guarantee

is the right to the effective assistance of counsel. See,

e.g., McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970).

519 F.2d 182 (6th Cir. 1975). There, the court first framed

the "narrow question" presented:

[W]hether as a federal Constitutional

matter Kentucky denied appellant due

process in refusing his motion for belated

appeal when his statutory time for appeal

expired without action due to failure

of his retained counsel to give appellant

personal and timely notice that he

did not intend to file or process

appellant's appeal. Id. at 183

The Boyd Court reached the conclusion that a belated appeal

was required, employing reasoning predicated upon the consti-

tutional right to counsel to appeal a criminal conviction.

Concomitantly, the court emphasized the lack of a waiver by

the petitioner of the right to an appeal or to counsel on

that appeal. This holding of the Sixth Circuit was in accordance

with its previous precedent which had recognized that the

abandonment of an appeal by a retained lawyer without warning

to the convicted client is tantamount to a deprivation of the

right to counsel. Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971).

Similarly, the United States Court of Appeals for

the Fourth Circuit, in Shiflett v. Commonwealth of Virginia,

433 F.2d 124 (4th Cir. 1970), cert. denied, 405 U.S. 994 (1972),

upheld the federal claim of a petitioner who had been deprived

of an appeal due to the actions of his retained counsel. The

record established that the petitioner had desired an appeal,

had relied upon his attorney to perfect an appeal, and had

not been informed by his counsel that an appeal was not being

pursued. On these facts, the court concluded that the consti-

tutional right to the assistance of counsel for the purposes

of appeal had been abridged. ° See also, Sanders v. Cravan, 488

Shiflett v. Commonwealth of Virginia, supra, was a consoli-

dated opinion. Rehearing en banc was subsequently granted by

the Fourth Circuit to reconsider the panel decision to the

extent that it had accorded relief to petitioners who had not

been fully advised of the right to appeal by either counsel

or the trial court. Shiflett v. Commonwealth of Virginia,

447 F.2d 50 (4th Cir. I971). The majority opinion declined

to hold retroactive the new constitutional standard requirin

full advisement; the opinion also made clear the propriety of the

grant of a belated appeal to the petitioner whose appellate

right had been lost due to detrimental reliance upon assurances

by counsel. Id. at 55, 56.

-. J

F.2d 478 (9th Cir. 1973); Gairson v. Cupp, 392 F.2d 210 (4th Cir.

1968); Wynn v. Page, 369 F.2d 930 (10th Cir. 1966).

In the same vein, the Court of Appeals for the

Eighth Circuit held, in Blanchard v. Brewer, 429 F.2d 89, 91

(8th Cir. 1970), cert. denied, 401 U.S. 1002 (1971), that the

failure of the state to accord the petitioner an appeal solely

due to the ineffective corduct of his retained counsel consti-

tuted treatment by the state that so invidiously classified

petitioner “as to shock the conscience and consequently to

violate due process." In rejecting the propriety of a distinction

between the ineffective conduct of retained versus court-appointed

counsel when the result is the evisceration of the appellate

right, the court explained:

Indeed, failure by appointed or

retained counsel to commence the simple

steps for appeal is a blatant denial

of due process. (Citations omitted).

Distinctions between gross or simple

negligence on the part of counsel,

or between active or passive negli-

ence on the part of the state are

mmaterial. Whether counsel's

conduct is classified as passive or

active is irrelevant, since in either

case appellee has been denied effective

and complete appellate review through

no fault of his own. Id. at 90 (cita-

tions omitted)

The resultant denial of "fundamental fairness" required the

grant of habeas corpus relief.’

Due process analysis similarly compelled the United

States Court of Appeals for the Second Circuit to grant habeas

corpus relief to a petitioner whose appellate rights had been

It should be noted that the ineffective act of retained

counsel in Blanchard was not the failure to file a notice

of Ho re but rather, the failure to serve the written notice

on the state attorney after orally advising of the intent to

appeal. The respondent had argued that the petition should be

denied since defense counsel had not committed gross misconduct,

such as completely failing to file a notice of appeal, but had

merely acted in error. The Eighth Circuit flatly rejected this

distinction since in either case, due process was impugned

by the state's denial of an appeal as the byproduct of the

inactions of counsel.

-10-

thwarted by his retained counsel. In United States ex rel.

Maselli v. Reincke, 383 F.2d 129 (2d Cir. 1967), retained counsel

had failed to pursue an appeal, although he knew that his

client desired such and that an appeal was meritorious. This

failure was attributable to other demands on his time and due

to a belief that his client's interests could be served through

certain further negotiations with the state.

The court of appeals, in determing that “fundamental

fairness" had been abrogated, emphasized that its resolution

of the case placed no premium on ineffective representation

by counsel, nor any burden upon trial courts to supervise

possible ineffective conduct of attorneys. Rather, since at

issue was post-trial "representation" of which the petitioner was

unaware, and since the result was the total deprivation of a

direct appeal, the grant of the writ of habeas corpus in no

way contravened traditional policy obstacles to the award of

a new trial based upon the ineffectiveness of private counsel.

The court concluded:

Here, counsel's post-trial conduct

contrary to his client's wishes is not

attributable to the accused, who was

unconscionably prejudiced thereby.

Fundamental fairness requires that he

be granted the rights which were lost

to him through no fault of his own.

Id. at 133-134 (footnote omitted)

Reasoning similar to that of the Second Circuit led

the First Circuit to uphold a denial of habeas corpus relief

where the failure of retained counsel to perfect an appeal

was the result of a tactical decision of which the client had

been advised. Leventhal v. Gavin, 421 F.2d 270 (lst Cir. 1970),

cert. denied, 398 U.S. 941 (1970). Originally, that court had

reversed the summary dismissal by the district court of the

petition for writ of habeas corpus since it had been unclear

whether retained counsel's conduct had been deliberate and

with the approval of the petitioner. In so reversing, the

court had recognized that under appropriate circumstances

the failure to perfect an appeal would be an effective denial

ahs

of counsel.® Levanthal v. Gavin, 396 F.2d 441, 442 (1st Cir.

1968). Only after the district court found that the state

appeal had not been pursued due to a tactical determination

made by counsel and known to the petitioner, did the court of

appeals countenance the denial of a belated appeal.

The United States Court of Appeals for the Third

Circuit employed identical: reasoning in upholding the denial

of habeas corpus relief in United States ex rel. O'Brien v.

Maroney, 423 F.2d 865 (3d Cir. 1969). There, the petitioner

had been informed by his retained counsel that an appeal would

be futile and therefore was cognizant of the fact that no

appeal would be effected. The court, in rejecting the petitioner's

assertion of a due process violation, distinguished the case

from one where a defendant is deprived of an appeal through

the deceitful conduct of counsel:

Nor is this a case in which counsel

fraudulently led his client to believe

that an appeal was being processed,

or in which counsel simply abandoned

the appeal after his client's financial

resources were exhausted. There is

absolutely no evidence that appellant

was at any time deceived by his attorney.

In brief, the record is barren of any

showing of "misconduct of his counsel

amounting to a breach of his legal

duty faithfully to represent his

client's interests." Id. at 870

In striking contrast, the present record does present

proof of inexplicably deceitful conduct by counsel compelling

a finding of “a breach of his legal duty faithfully to repre-

sent his client's interests."' The false proclamation by defense

counsel that a notice of appeal had been filed, followed by

the total abandonment of Petitioner Perez at this critical

stage, violates all "canons of decency and fairness." Malinski v.

The fact that Petitioner Levanthal was represented in the

state court by retained counsel can be gleaned from the state

court opinion, Commonwealth v. Hamblen, ec al., 225 N.E.2d

911, 916 (Mass. 1967).

vhPn

People of State of New York, 324 U.S. 401, 416-417 (1945)?

Indeed, the panel decision does not conclude otherwise.

Rather, the court makes clear that, absent the precedent of

the Fifth Circuit adverse to petitoner's claim, the finding

of “fundamental unfairness" made by the district court would

be upheld:

What is or isnot "fundamental unfairness"

cannot of course be identified by litmus.

Ultimately the characterization is

visceral andemotional. Indeed the very

term "fundamentally unfair" has pejorative

overtones. Were we approaching the

issue for the first time, we would hold,

as did the district judge, that, when

a lawyer, by definition a member of

a learned profession and a member of

the bar of the court, does not perform

his promise to his client that an appeal

will be taken, fairness requires that

the deceived defendant be granted an

out-of-time appeal. (App. A at 5)

This conclusion of the court, consistent with the

conclusion uniformly drawn by the courts of appeals throughout

the United States, is sound. Regrettably, the panel members

were constrained to reverse, although while doing so they

paused to lament, "Our sentiments are repressed by our duty

to adhere to the prior decisions that we cannot distinguish."

Ibid.

The panel's adverse resolution, while compelled by

the decisions of the Fifth Circuit, is contrary to the precedent

of each circuit which has addressed the issue. Moreover, and

most significantly, its resolution is contrary to the reality

of the deprivation at issue, as elucidated in the case law of

The most fundamental rules of ethics and obligations of

the legal profession were broken by counsel's total disregard

of the interests of his client. See ABA Code of Professional

Responsibility, DR 2-110(A); ABA Standards, The Defense

Function §§8.2, 8.3 (1971); ABA Standards, Criminal Appeals

§2.2 (1970).

~13-

this Court. !°

The denial of an appeal to petitoner, as the

result of counsel's abdication of his solemn duty, is "shocking

to the universal sense of justice". Betts v. Brady, 316 U.S.

455, 462 (1942).The limits that traditionally bind our federal

courts impose no rein upon the review of petitioner's funda-

mental due process claim.

Even though the concept of due process

of law is not final and fixed, these

limits are derived from considerations

that are fused in the whole nature of

our judicial process. See Cardozo,

The Nature of the Judicial Process;

The Growth of the Law; The Paradoxes

of Legal Science. These are considera-

tions deeply rooted in reason and in

the compelling traditions of the legal

profession. The Due Process Clause

places upon this Court the duty of

exercising a judgment, within the

narrow confines of judicial power

in reviewing State convictions, upon

interests of society pushing in opposite

directions. Rochin v. California, 342

U.S. 165, 170-171 (1952)

In the case at bar, the interests of Petitioner Perez

and society coincide. Moreover, the traditions of our profession,

the precedent of our Court, and the Due Process Clause of our

Constitution all beg the declaration that "fundamental unfairness"

has occurred. The constraints bemoaned by the court below

must be undone.

It should be noted that in the federal context, this Court

has acknowledged the propriety of providing a belated appeal

to a defendant whose right to appeal is frustrated by the

ineffective representation by retained counsel. Rodriguez v.

United States, 395 U.S. 327 (1969). Im such a case, no speci-

' Fication of the points that would have been raised on appeal

is required.

elie

CONCLUSION

The critical significance of the question presented,

as well as the need for harmonization of the decisions of the

courts of appeals on this question, mandate the issuance of

the Writ of Certiorari.

Respectfully submitted,