Petition — Sowders v. Cleaver

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SUPREME COURT OF THE UMTED STATES

October Term, 1980

aameqpeenemnenl : ~+ so E VAS, |

DONALD E. BORDENKIRCHER, Superin-

tendent Kentucky State Penitentiary - - Petitioner

versas

GEORGE H.CLEAVER - - - - - Respondent

Petition For a Writ of Certiorari to the United States

Court of Appeals for the Sixth Circuit

STEVEN L. BESHEAR

Attorney General

J. GERALD HENRY

Assisant Attorney Georeral

Counsel of Record

Capitol Building

Frankfort, Kentucky 40601

Telephone: (002) 564-4044

Counsel for Pe tition i

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O©. BOX 3251, LOUISVILLE, KY.

The petitioner prays that a writ of certiorari issue to

review the appellate opinion and judgment of the United

States Court of Appeals for the Sixth Cireuit rendered

October 31, 1980.

THE QUESTION PRESENTED FOR REVIEW

Is There a Constitutional Right to the Effective Assistance

of Appellate Counsel, as Opposed to Trial Counsel?

PARTIES TO THE PROCEEDING

All the parties to this proceeding are set forth in the

caption of the case before this Court.

TABLE OF CONTENTS

——_____—_—

The Question Presented For Review .............-. | a

Reference To Opinions .............seeeer tee eeees 1

Statement of Jurisdiction .......... 66sec seer eens 2

Constitutional Provisions Involved ................ 3

Statement of the Case .......... cece eee eee eee ees 3-— 8

Argument And Reasons For Granting The Writ of

Certiovari ...ccccccccsceesotsoevsessenestdeuwesan 8-23

Conclusion .......cccecccccecvneevcvssnssee wena as 24

Proof Of Service ....... ccc ccccccvcccvvvevvesces 24

Appendix... apaeesvesnedsdengsens oeentneebes oe

TABLE OF AUTHORITIES

Cases: PAG

Anders v. California, 386 U.S. 738 (1967)......... 21

Beasley v. United States, 491 F. 2d 687 (6th Cir.,

OG | RR spn Uae rn Et armas Shia rane ger ene Braye 12

Carroll v. United States, 354 U. S. 394, 400-401, n. 9

PS ee Coen re cle eae eetenne aia aTee 12

Cleaver v. Commonwealth, Ky., 569 S. W. 2d 166

ee Lr Cerner Cit aa ire Cea een neta 5, 11

Douglas v. California, 372 U.S. 353 (1963) ........ 16, 17

Francis v. Henderson, 425 U. S. 536 (1976) ........ 3, 22

Gideon v. Wainwright, 372 U. S. 335 (1963) ...... 13

Griffin v. Illinois, 351 U. 8. 12 (1956) ............. 16, 17

Hoy v. Newburg Homes, Inc., Ky., 325 8. W. 2d 301,

302 (1959)

Lucey v. Seabold, No. 79-3732 0... cece eececeeees 19

Mallett v. North Carolina, 181 U.S. 589, 598 (1901) — 21

MecKane v. Durston, 153 U. S. 684 (1894)...3, 10, 11, 12,

13, 14, 15, 17, 22

Ross v. Moffitt, 417 U. S. 600 (1974) .....3, 6, 12, 13, 14,

15, 16, 17, 19, 21, 22

Wainwright v. Sykes, 433 U.S. 72 (1977) ......... 22

Williams v. Payne, Ky., 515 8. W. 2d 618, 619 (1974) 11

Constitutional Provisions (U.5.):

Sixth Amendment, Constitution of the United

A ee see kN eT Ce

Tenth Amendment, Constitution of the United

RNS AN ye al en ai hotel, a ee eae ae ea Se RO ee o, 1]

Fourteenth Amendment, Constitution of the United

Ra rey Ne kr ote Dh eee Gere akg ein eas a ee

lv

Statutes and Rules:

Sy ee. Ss SOD o iaccin es heeds abo eE a ee eee 2

Rules 17.1(a) and (¢c), Supreme Court of the United

ER oo tak LASSEN IELTS EDO OE RO 2, 24

Rule 16.1, Supreme Court of the United States... .3, 9, 22

Rule 33.7, Supreme Court of the United States... .3, 9, 22

Rule 31(c), Federal Rules of Appellate Procedure. 3, 9, 22

Ue, Ge eae bad COR BREA RS ep out eRe CDE E Ss 3

Other:

Sections 115-116, Kentucky Constitution .......... 11,15

le COE TR aah ieee eee 11

No.

SUPREME COURT OF THE UMTED STATES

October Term, 1980

DonaLp E. BoRDENKIRCHER, Superintendent

Kentucky State Penitentiary - - Petitioner

v.

GEORGE H. CLEAVER - - - - Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR PETITIONER,

WITH APPENDIX

REFERENCE TO OPINIONS

Decision herein by the United States Court of Ap-

peals for the Sixth Cireuit was by opinion rendered

and entered on October 31, 1980 in Cleaver v. Borden-

kireher, —_— F. 2d (6th Cir. 1980, No. 79-3514).

This opinion may be found at Appendix 25-30. The

order and memorandum opinion of the United States

District Court for the Eastern District of Kentucky,

reviewed on appeal to the Court of Appeals, were both

dated May 29, 1979. The memorandum opinion was

entered May 30, 1979, and the order was entered May

31, 1979, and both may be found at Appendix 31, 32-40,

bo

STATEMENT OF JURISDICTION

The filing and entry date of the appellate opinion

and judgment of the United States Court of Appeals

for the Sixth Cireuit of which review is sought in this

Court is October 31, 1980. The appellate opinion and

judgment resulted from a civil appeal from a habeas

corpus proceeding in the District Court.

No rehearing was sought by any party.

Jurisdiction is conferred upon this Court to review

by writ of certiorari the appellate opinion and judg-

ment in question by 28 U.S.C. $ 1254(1).

This Court should grant the writ of certiorari un-

der the authority of Rules 17.1(a) and (¢) of this Court.

Rule 17.1(a). The Sixth Cireuit has decided a

federal question in a way in conflict with the Supreme

Jourt of Kentucky, a court of last resort, thereby cast-

ing doubt on the Kentucky court’s Constitutional

ability to dismiss Kentucky appeals based upon ap-

pellate counsel’s procedural default. In so doing, the

federal court of appeals has so departed from this

Court’s opinion authority regarding state-court ap-

peals, and from its rule authority, and from its prin-

ciples of comity and federalism as to call for this

Court’s supervision to resolve and restore its Consti-

tutional authority.

Rule 17.1(c). The Sixth Cireuit has decided a na-

tionally important question involving state-court power

over state-court appeals procedures, and as to whether

there is a substantive Constitutional right to effective

assistance of state-court appellate counsel, in a way in

3

direct conflict with WMeKane v. Durston, 153 U. 8. 684

(1894), Ross vy. Moffitt, 417 U. S. 600 (1974), and

Francis v. Henderson, 425 U. S. 536 (1976), and the

principles embodied in Rules 16.1 and 33.7 of this

Court and Rule 31(c) of the Cireuit Courts. That

federal court of appeals cites no authority to justify

its holding. This Court should settle such challenge to

its authority and to the Constitution.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner asserts that there is no Constitutional

authority to justify the result of the courts below.

Such absence of authority involves reference to

The Sixth Amendment, Constitution of the United

States

The Tenth Amendment, Constitution of the United

States

The Fourteenth Amendment, Constitution of the

United States

Rules 16.1 and 33.7, Supreme Court of the United

States

Rule 31(c), Federal Rules af Appellate Procedure.

The full text of this authority is set forth at Ap-

pendix 42-45.

STATEMENT OF THE CASE

Reference herein will be to the record appendix on

file in the Sixth Cireuit (JA), and to the Appendix re-

quired to accompany this petition (A). Jurisdiction

in the District Court was asserted under 28 U.S.C.

§ 2254 (JA 1; A 33).

4

Respondent George Herman Cleaver was found

guilty in the Johnson (Ky.) Circuit Court of murder

and robbery (JA 67). Judgment of conviction and

sentence was imposed upon respondent in that court on

February 5, 1976 (JA 67). Notice of Appeal to the

Supreme Court of Kentucky was timely filed on Febru-

ary 5, 1976 (JA 20, 67).

The record on appeal was due no later than 120

days after February 5, 1976. However, respondent ob-

tained three extensions of time so that the record was

ultimately filed almost one year later on January 19,

1977 (JA 21). Respondent’s appeal brief became due

40 days after January 19, 1977 (JA 22). Respondent

moved for an extension of time in which to file his brief

on the grounds that he had six briefs due in the period

just before February 24, 1977 (JA 26). The Com-

monwealth of Kentucky did not object to respondent’s

motion and the Supreme Court of Kentucky granted

the requested extension to March 30, 1977 (JA 29).

On March 30, 1977, respondent moved for an addi-

tional period of time in which to file his brief on the

ground that he again had seven briefs due within ten

days of March 30, 1977 (JA 30). On April 20, 1977,

the Supreme Court of Kentucky denied the motion

(JA 33).

On July 29, 1977, or three months after the brief

was originally due, respondent moved for an extension

of time to file his brief in which he recounted that he

was unable to meet the March 30 deadline because he

had seven other briefs to prepare, that he had since

J

)9

prepared 23 subsequent briefs and that these facts

constituted excusable neglect (JA 34-38).

The Commonwealth of Kentucky objected and

moved to dismiss the appeal; the appeal was dismissed

(JA 52, 54).

Respondent then returned to the Kentucky circuit

court, which imposed another judgment upon him for

the sole purpose of taking another appeal. On Janu-

ary 30, 1978, the Commonwealth of Kentucky moved

to dismiss this second appeal (JA 75). The Supreme

Court of Kentucky initially denied this motion (JA

89). However, that court on its own later reconsidered

this denial and dismissed this second appeal (J A 90-95)

in a ease styled Cleaver v. Commonwealth, Ky., 569

S. W. 2d 166 (1978).

On October 13, 1978, respondent filed a petition for

writ of habeas corpus in the United States District

Court for the Eastern District of Kentucky in which

he alleged he was denied the right of state-court appeal

because of the ineffective assistance of his appellate

counsel, in violation of the Fourteenth Amendment (JA

1-16).

Petitioner denied that respondent has a Constitu-

tional right to the effective assistance of appellate

counsel, as opposed to trial counsel, and that in the

absence of invidious discrimination the dismissal of

his Kentucky appeal did not violate the Fourteenth

Amendment (JA 97-124).

On January 26, 1979, the District Court’s magis-

trate, in his report and recommendation, agreed with

respondent’s argument (JA 125-127). Petitioner ob-

6

jected (JA 128-132). On May 29, 1979, the District

Court issued a memorandum opinion finding against

petitioner on the issues of (1) whether respondent had

a Constitutional right to effective assistance of appel-

late counsel on state-court appeal, the District Court

thinking such state appeal was ‘‘mandatory,”’ and (2)

if such right exists, whether it was violated by the fail-

ure of respondent’s appointed counsel to timely file his

brief on appeal, thereby causing dismissal of the appeal

(A 31-40).

The District Court found on due process grounds

that respondent had received ineffective assistance of

his appellate counsel, and granted the writ of habeas

corpus. That court pointedly noted that respondent

had asserted no equal protection deprivation whatso-

ever in that court, and that he did not allege that the

rules of dismissal were applied in a discriminatory

way to deprive him of an appeal because of his

indigency.

In reaching its due process decision, the District

Court relied upon opinion authority of the United

States Court of Appeals for the Sixth Cireuit. How-

ever, the District Court did so with apparent reluc-

tance on the basis of this Court’s opinion in Ross Vv.

Moffitt, 417 U. S. 600 (1974)... The court noted that

all the Sixth Cireuit authority was decided before

Moffitt, and that the law after Mo/fitt has without

doubt become unsettled.

The District Court also criticized appellate counsel

who continue to represent their client in subsequent

7

proceedings and assert their own ineffectiveness as the

sole basis of relief (A 31-40).

Petitioner appealed to the Sixth Circuit. His ap-

peal asserted that there is no right in the Constitution

of the United States to the effective assistance of state-

court appellate counsel, that assertion being discussed

in six separate sections. The appeal asserted, among

other things, that the right of appeal is not a Constitu-

tional right but is created solely by state law.

The Sixth Cireuit rendered its opinion on Octo-

ber 31, 1980, in an equal protection setting based upon

facts not found in the District Court, and without an

evidentiary hearing. That court concluded that re-

spondent’s appellate counsel was so overworked that

he couldn’t process the appeal. The Sixth Cireuit de-

termined that respondent has been deprived of the

right to appeal his (state) conviction solely because

his indigency status made the overworked public de-

fender his only source of legal representation. Peti-

tioner in District Court and before the Sixth Circuit

had denied any invidious discrimination against re-

spondent.

That Sixth Cireuit concluded its opinion, affirming

the District Court’s result, by stating:

In the District Court in our present case, the

District Judge relied primarily upon a due process

analysis based upon denial of counsel. In the

event the largely equal protection rationale em-

ployed above is found inadequate to sustain this

writ, alternatively we endorse the opinion authored

by the District Judge * * *.

8

Thereafter, the Sixth Circuit stayed the issuance

of its mandate, by order, pending petitioner’s request

for writ of certiorari in this Court.

ARGUMENT AND REASONS FOR GRANTING

THE WRIT OF CERTIORARI

There Is No Constitutional Right to the Effective Assist-

ance of Appellate Counsel, as Opposed to the Assistance

of Trial Counsel.

The Constitutional question which this Court should

accept and resolve is whether there is a right of effee-

tive assistance of state-court appellate counsel, as there

is to trial counsel, under either due process or equal

protection standards. If so, then this Court should

decide whether such right will absolutely preclude state

appellate courts from dismissing appeals based upon

appellate counsel’s procedural default. After ali, what

default b> appellate counsel is worse than that which

results in dismissal of the entire appeal?

The United States District Court below determined

that there is a substantive due process Constitutional

right to effective assistance of appellate counsel which

precludes dismissal of state appeals. The United

States Court of Appeals then used due process as an

alternative basis to justify its equal protection ease-by-

ease factual analysis to override the dismissal of the

state appeal.’

1It appears, infra at p. 20, that the United States Court of

Appeals for the Sixth Cireuit, by indirection, is asking this Court

to review its opinion,

9

These federal courts reached this result knowing

that federal courts themselves may dismiss appeals

within their own jurisdiction under Rules 16.1 and 33.7

of this Court and Rule 31(¢) of the Federal Rules of

Appellate Procedure, under the same and similar fac-

tual circumstances, without violating the Constitution.

These questious are critically important to the Con-

stitutional functioning of Kentucky’s appellate courts

and appellate procedures. In Kentucky, dismissal of

appeals based upon failure to follow procedural rules

is approved by the Commonwealth’s Constitution, by

procedural rule, and by decision of the Supreme Court

of Kentucky. Numerous cases of this nature presently

are being litigated in Kentucky courts and in federal

habeas corpus courts on review. They apply to the

circumstances which occur after the trial ends follow-

ing felony conviction and after jurisdiction leaves the

trial court and attaches in the appellate court.

The question then becomes, that while trial is Con-

stitutionally fundamental, is state-court appeal also

Constitutionally fundamental ?

Unlike the Constitutional due process right to the

assistance of trial counsel which arises from a specific

Constitutional provision, the right of an indigent to

appellate counsel arises, to the extent it may exist at

all, from equal protection considerations of the Four-

teenth Amendment.

If respondent has the right to effective assistance

of appellate counsel, it must be a right wholly created

hy substantive due process. This Court has never so

held, however, and its opinions on the matter indicate

10

that it will not so hold. The common practice, as seen

in rules of dismissal in the federal system as well as

among the states, indicates that such fundamental right

does not exist.

To create such a right for the first time, moreover,

wceuld have severe adverse effects. State appellate

courts could not exert effective control over the orderly

processing of appeals, and finality of judgment would

be destroyed. The federal judiciary, especially the

district courts, would be forced to direct the adminis-

tration of state appellate courts.

Under the authority of McKane v. Durston, 153

U. S. 684, at 687-688 (1894), state-court appeal is not

a due process requirement of the Constitution:

A review by an appellate court of the final judg-

ment in a criminal ease, however grave the offense

of which the accused is convicted, was not at com-

mon law and is not now a necessary element of

due process of law. It is wholly within the discre-

tion of the State to allow or not to allow such a

review.

%* * *

It is, therefore, clear that the right of appeal

may be accorded by the State to the accused upon

such terms as in its wisdom may be deemed proper.

* * * TWHhether an appeal should be allowed,

and if so, under what circumstances or on what

conditions, are matters for each State to deter-

mine for itself.

Thus, Constitutional protection of life, liberty and

property oceurs only at trial, is extinguished at trial,

11

and Kentucky need have no appeal procedure whatso-

ever, as a matter of federal Constitutional law, the

matter of appeal apparently having been reserved by

the states unto themselves, Tenth Amendment, United

States Constitution.

Through §§ 115-116 of its Constitution, Kentucky

has created a system of limited and conditional appeal.

That is, appeal may be taken only by following certain

authorized rules of procedure. If those rules are not

followed by all who would appeal, the appeal may be

dismissed. The promulgation and enforcement of such

procedural rules prevents chaos on appeal, enhances

orderly and effective proceedings, and in fact provides

all citizens with the equal protection of law. Walliams

v. Payne, Ky., 515 8. W. 2d 618, 619 (1974).

That appeal in Kentucky is not absolute is con-

firmed by (Ixy.) CR 76.34(6), which provides that

appeals may be dismissed in their entirety, and by

Cleaver v. Commonwealth, Wy., 569 S. W. 2d 166

(1978), which approved dismissal of respondent’s di-

rect appeal from a murder conviction.

It is clear then, that Kentucky has created a con-

ditional and limited system of appeal as approved by

McKane, supra.

However, both the Sixth Cireuit and the District

Court erroneously concluded that in Kentucky appeal

is absolute. Based upon that erroneous analysis of

Kentucky law, both courts then proceeded to erect

thereon an error of federal Constitutional law.

In so doing they did not address the reality, that if

dismissal of appeals by federal courts based upon ap-

pellate counsel’s procedural default is Constitutional,

then so also must it be for state courts. It would be

odd indeed for federal courts to impose Constitutional

limitations upon state courts which they do not impose

upon themselves. oss v. Mofitt, 417 U. S. 600, at

617-618 (1974).

These federal rules buttress petitioner’s argument.

The violation of these rules which leads to their opera-

tion may be occasioned by the acts or omissions of

appellate counsel. If violation of these rules auto-

matically points to ineffective assistance by appellate

corsel, or deprivation of appellate counsel, on Con-

stitutional grounds, this Court could not countenance

their existence and their enforcement would be worse

than useless.

These federal rules are a practical application in

federal jurisdiction of the logic expressed in Mckane,

supra, and in Mojjitt, supra and infra, that there is

no Constitutional due process right to a state criminal

appeal or any of its parts. Since criminal appeals in

federal law were unknown prior to 1889, Carroll v.

United States, 354 U. S. 394, 400-401, n. 9 (1957), it

is seen that no substantive or fundamental due process

right to appeal arises from the Constitution. Logically

and historically, therefore. there can be no Sixth

Amendment right to effective assistance of appellate

eounsel. The Constitutional right to effective assist-

ance of trial counsel is derived from the Sixth Amend-

ment, Beasley v. United States, 491 F. 2d 687 (6th

Cir., 1974), which is made applicable to the states

through the Due Process Clause of the Fourteenth

13

ib ie 4

Amendment, Gideon v. Wainwright, 372 U. 8S. 335

(1963). The Sixth Amendment applies only to trial

counsel and does not apply to appellate counsel.

Appeals and appellate counsel were unknown to

federal law when the Sixth Amendment was adopted,

and they remained unknown for another one hundred

years, Carroll, supra. Appeal, it therefore is seen, is

not a fundamental and independent Constitutional

right to protect life, liberty or property. Such pro-

tection occurs at trial, and the failure of appellate

counsel to timely file a brief on appeal does not offend

the Sixth Amendment. Whatever happens in appel-

late court is not governed by due process standards

which apply at trial. Those fundamental trial stan-

dards simply cease to exist when appeal commences,

McKane, supra, and Moffitt, supra and infra.

Thus, the McKane law that appeals may be limited

and conditioned upon procedural rules prevails in

United States law in just the same manner as it pre-

vails in Kentucky law. That is, counsel’s acts or

omissions on appeal simply do not offend the Constitu-

tion as a matter of due process, Mojjitt, supra and

infra, and respondent is without any federal remedy

as regards his state-court appellate default. Of course,

any allegation of violation of a Constitutional right at

state trial could be vindicated by resort to habeas cor-

pus in federal court. Interestingly, respondent in all

the time he has spent in federal courts has never

alleged in federal court that his state trial resulted in

denial of a Constitutional right.

14

That being the case, petitioner submits that there

2an be no Constitutional right to effective assistance of

appellate counsel on appeal, at least as such assistance

applies to trial counsel in the fundamental arena of

the trial court. After all, what default by appellate

counsel can be worse than that default which leads to

dismissal of the entire appeal? JMJclkane, supra.

The reason there is no Constitutional right to state

appeal or to prohibition of dismissal of appeal, or to

effective assistance of appellate counsel, is articulated

in Moffitt, supra, at 610-611, as follows.

Trial is fundamental. Appeal is not fundamental.

A state trial court may not dispense with trial without

the consent of the criminal defendant. A state appel-

late court, however, may dispense with appeal without

the appellant’s consent. Appeal, therefore, is no part

of trial. Trial and appeal are significantly different

and accomplish different things.

Accordingly, at some point the trial must end and

the appeal, if any, begin. So do the duties of trial

counsel end and the different aspects of appellate

counsel representation begin. Kentucky law marking

this point of change, Hoy v. Newburg Homes, Inc.,

Ky., 325 8S. W. 2d 301, 302 (1959) is binding upon

federal courts, because any grant or privilege of state

appeal is not a matter of fundamental due process

under the Constitution.

The creation of appeal for criminal defendants, as

well as the conditions of its taking, is entirely depend-

ent upon the wisdom of state law, J/cKane, supra.

That is, whether any appeal exists in any form at all

15

in Kentucky is entirely a Kentucky consideration and

states may attach such conditions and limitations to

appeal as they alone see fit, without offending due

process. Mckane, supra. Since the assistance of ap-

pellate counsel! is ancillary to the non-fundamental

grant of state appeal assistance of appellate counsel

can rise to no greater due process status than the

appeal itself.

Sections 115-116 of the Kentucky Constitution and

the rules promulgated thereunder are entirely con-

sistent with due process requirements. Respondent

under the United States Constitution not being entitled

to an appeal at all in Kentucky, except for the Ken-

tucky Constitutional procedure granting one under

conditions and limits, thus has no federal entitlement

beyond what $§ 115-116 provide.

Therefore, dismissal of a state-court appeal does

not offend the Constitution on due process grounds.

Conceptually, for a person in respondent’s present

position, the right of appeal simply does not exist as

a matter of state law. Thus a right of state appeal does

not exist as a matter of Constitutional law.

And equal protection considerations, which must be

made on a case-by-case factual basis, cannot elevate an

appellant to an exalted position so that he may dis-

regard state procedural requirements which all who

would appeal must follow, as will be seen, infra.

Moffitt, supra, is important in another regard. It

represents the first apparent attempt by this Court to

come to grips with a generation of imprecise and am-

biguous opinions which it has written in the area of

16

state-court appeal. Those opinions begin with Griffin

y. Illinois, 351 U. S. 12 (1956), and Douglas v. Cali-

fornia, 372 U. 8. 353 (1963).

This Griffin-Douglas line of opinions, without ever

identifying and explaining the Constitutional source

of the asserted appeal right, tends to raise for the first

time the idea that there may be a Fourteenth Amend-

ment due process right under the Constitution to effec-

tive assistance of counsel on state-court appeal, and

that it somehow may be buttressed by equal protection.

Moffitt, at 608-609, takes particular notice of this

imprecise analysis and unidentified source of the as-

serted Constitutional right to state-court appeal, as

expressed in this Court’s Griffin-Douglas line of

opinions:

The precise rationale for the Griffin and Doug-

las lines of cases has never been explicitly stated,

some support being derived from the Equal Pro-

tection Clause of the Fourteenth Amendment, and

some from the Due Process Clause of that Amend-

ment. Neither Clause by itself provides an en-

tirely satisfactory basis for the result reached,

each depending on a different inquiry which em-

phasizes different factors . ‘‘ Due process’? empha-

sizes fairness between the State and the individual

dealing with the State, regardless of how other

individuals in the same situation may be treated.

‘Equal protection,’ on the other hand, empha-

sizes disparity in treatment by a State between

classes of individuals whose situations are argu-

ably indistinguishable. (emphasis added).

17

Petitioner submits that the Gri/fin-Douglas line of

cases does not stand for the proposition that there is

a due process right to effective assistance of appellate

couunsel, as opposed to trial counsel, on state-court

appeal. ‘To do so would be to overrule McKane, supra,

and its continuing vitality is explicitly confirmed by

Moffitt, supra, at p. 606.

Moffitt is the most direct examination made by this

Court in the area of due process rights, if any, on

state-court appeal, and clearly questions the Constitu-

tional basis and reach of this Court’s Griffin-Douglas

line of statements on the matter. JJo/ffitt, then, is seen

as the first step taken by this Court to limiting the

Griffin-Douglas sway, and adhering to the clear teach-

ing of McKane, as regards state appeals procedures.

Even the District Court below recognized that Moffitt

is a turning point by this Court in this area, but never-

theless felt bound by the Sixth Circuit’s pre-Mo/ffitt

decisions.

The Sixth Cireuit, in upholding the result of the

District Court below did so by a different method.

Finding facts which had not been found or even in-

quired into by the District Court, the Sixth Circuit

declared that dismissal of respondent’s state-court ap-

peal was an equal protection violation, and alterna-

tively a due process violation.

Petitioner questions the accuracy of the Sixth Cir-

euit’s own fact-finding, and also questions the pro-

priety of appellate fact-finding, especially in regard to

a Constitutional question of this dimension, in the ab-

18

sence of any prior consideration or evidentiary hearing

by the District Court.

Contrary to the assertion of the Sixth Circuit, it

appears that the record does not show without dispute

that respondent ‘‘was denied counsel to process his

appeal, while other persons in Kentucky convicted of

erimes who had the financial means to do so would

have been able to perfect their appeals and receive ad-

judication of them’? by Kentucky’s highest court.

Petitioner in the District Court (JA 98) asserted that

respondent was not subjected to invidious discrimina-

tion, a point explicitly reiterated in his Sixth Circuit

appeals brief at pages 20 and 48. The Sixth Circuit’s

equal protection rationale was squarely based upon

respondent’s indigency and what that court saw as his

resulting discriminatory treatment on equal protection

erounds. In this regard, if must be noted that the Dis-

trict Court explicitly determined that respondent in

that court did not assert an equal protection depriva-

tion as part of his habeas corpus claim, but only a

due process deprivation, That being the ease, how

could petitioner deny an equal protection violation

any more explicitly than he did.

It is the responsibility of one who claims a Con-

stitutional deprivation in habeas corpus court to say

what it is. That is the only way the custodian and

eourt can answer and consider the charge. Instead of

asserting that petitioner never disputed the depriva-

tion found by the Sixth Circuit, the Sixth Cireuit

instead should have noted respondent’s own non-as-

1)

sertion in the Distriet Court of an equal protection

claim, and then refused to consider it,

The case of Lucey VY. Seabold, No, 79-8702, was

argued before the Sixth Cireuit at the same time the

present case was argued. ‘The appellate counsel who

defaulted there, leading to dismissal of the Nentucky

appeal, was retained. As to this writing, no decision

has been rendered by the Sixth Cireuit in Luceye

Examination of the Sixth Cireuit opinion will show

that it makes no reliance for its result on authority of

this Court, and that it does not identify the Constitu

tional source of the right it proclaims, It does, never

theless. create a substantive Constitutional right to

state-court appeal and absolutely overrides state-court

appeal procedures. And it does so in the absence of

proper claim in the District Court, in the absence of

supportive fact-finding by the District Court, and in

the face of the District Court’s observation that Moffitt

has left the last generation of this Court’s pronounce

wents in the area of state appeal quite unsettled,

The Sixth Cireuit concluded its opinion below with

this remarkable assertion of its own Constitutional un

certainty about what it had just done:

In the District Court in our present case, the

District Judge relied primarily upon a due process

2The Sixth Cireuit also asserts that the Court of Appeals ot

Kentucky denied respondent’s motion for an extension of time and

then dismissed his appeal. Of course, this was done instead by

the Supreme Court of Kentucky, The Sixth Cireuit also asserts

that the Supreme Court of Kentuelks dismissed the second atlempl

at appeal following a hearing, It appears that no evidentiary

hearing was held, but an appellate oral argument,

%0

analysis based upon denial of counsel, In the

event the largely equal protection rationale em

ployed above is found inadequate to sustain this

writ, alternatively we endorse the opinion authored

by the District Judge * * *. Cemphasis added)

(A 380).

It is clear that the Sixth Cireuit was uncertain

about whether to justify its opinion upon due process

or upon equal protection grounds, It also is clear that

nowhere did that court identify and explain the source

of the purported Constitutional right it proclaimed,

It appears, in fact, that the Sixth Cireuit may be ask-

ing this Court to resolve the matter, This is because

only this Court has the power to find that an equal

protection rationale is inadequate to sustain the writ

of habeas corpus, Thus, it is to this Court that the

Sixth Cireuit’s fear of reversal of its equal protection

opinion had to be addressed,

The only assertable Constitutional requirement re

garding appeal and appellate counsel, based upon

equal protection considerations, is that the state treat

everyone substantially the same as regards appeals,

Here, respondent nowhere alleged that he was

singled out to arbitrarily eut off his appeal or that

Kentucky's rules are other than neutral on their face,

There has been no showing that Kentucky left the

appeal door open for more affluent persons who did not

follow its rules, nor do the faets of reeord so indicate,

Equal protection prohibits discrimination whieh is

either invidious or without a rational basis, or diserim-

ination that is based upon race, ereed, color or similar

21

suspect classification. Equal protection means that

ho person or class of persons shall be denied the same

protection of the laws which is enjoyed by other per-

sous or other classes in the same place and under like

circumstances, Mallett vy, North Carolina, 181 U.S.

589, 598 (1901).

The Constitutional right to appellate counsel itself,

to the extent it may exist, arises from the Equal Pro-

tection Clause of the Fourteenth Amendment, Anders

V, California, 886 U. S, 738 (1967). The protection

afforded to an appellant is strietly limited by the ambit

of the equal protection clause, Moffitt, supra, Accord

ingly, unless the procedural default in failing to timely

file the brief on appeal was oceasioned by invidious

discrimination against an appellant, the limited equal

protection right of Anders, supra, is not violated.

urther, unless the procedural default was occasioned

by the creation by the state of an unfair advantage for

itself, no right of Moffitt, supra, is violated,

There is no showing that the procedural default on

direct state appeal was occasioned here by unfair ad

vantage, Kentucky's system of appeal is rational and

is neutral on its face and in its application, All per

sons are treated fairly and equally under Kentucky's

system of appeal which, in the first place, is not itself

a requirement of the Constitution, Any appeal would

have been dismissed for duyvore under the procedural

default whieh oeeurred here, Violation of the Rules,

whether by appointed or retained counsel, triggers

dismissal,

In this regard, petitioner reiterates that this Court

in Moffitt, supra, has taken the first step tu dealh

with the Constitutional haziness which may have led

to the Sixth Cireuit opinion, and which also tries to

implicate fundamental due process standards for the

first time,

The Sixth Cireuit has violated this Court’s an

thorits in WMeAane, supra, and Moffitt, supra, as well

as that whieh is embodied in Rules 16.1 and 33.7 of

this Court and 31(e) of the Cireuit Courts. Furthe

it has violated the principles of comity and federalism

which this Court has so strongly announeed in sueh

opinions as Franeis v. Henderson, 425 US. 536 (1976)

and its respect for state procedures, os ln Wamweright

Vv. Sykes, 483 U.S. 72 (1977). This strong poliey of

federalism and respect applies even when proceedings

in the fundamental tria/ arena are at issue,

In turning from the teachings of this Court, the

Sixth Cireuit bas ereated untenable and uneonstitu

tional problems for the appeals process in Kentucks

aud in the other states,

The question presented here is of plenary national

Importance, because it implicates state appellate pre

cedures in the entire United States. That is, if Ke:

Lucky courts cannot dismiss appeals under state Con

stitutional authority, based Upon nets Or ODDTSSloO} it

appellate counsel who thereby automatically and pe

te

render Constitutionally ineffective assistance, then

either can the courts of CULLS other state.”

While this Inability to dismiss appeals exists 1n the

courts of Kentucky and of the other states, everyone In-

volved will know absolutely that federal courts: still

ullow themselves to dismiss appeals without offense to

the Constitution, he it for reasous of appellate eounsel’s

ineffectivenes or for other grounds. Everyone will

understand the Orwellian observation, that while all

court rules and procedures are equal, some court rules

ind procedures are more equal than others.

The Fourteenth Amendment protects liberty and property

rests without apparent distincetio1 To Say that a state court

dismiss al criminal app al b aise of appellate eounsel’s

procedural default is to say that state courts similarly cannot

dis} SS il apy als based Upon appella C counsel's procedural

24

CONCLUSION

Petitioner submits that this is a question of plenary

national importance which should be accepted for reso-

lution under the authority of this Court’s Rules 17.1(a)

and (¢).

Respectfully submitted,

STEVEN L. BESHEAR

Attorney General

J. GERALD HENRY

Assistant Attorney General

Counsel of Record

Capitol Building

Frankfort, Kentucky 40601

Telephone: (502) 564-4044

Counsel for Petitioner

PROOF OF SERVICE

I, J. Gerald Henry, counsel of record for petitioner,

hereby certify that three (35) copies of the foregoing Pe-

tition for Writ of Certiorari were mailed by United States |

mail, with first class postage prepaid, to Mr. Jack Emory

Farley and Mr. William M. Radigan, Office of Public Ad-

vocacy, State Office Building Annex, Frankfort, Kentucky

40601, counsel for respondent, and that all parties required

to be served have been served, all on this January 2b ,

1981.

J. GprRaALp HENRY

Assistant Attorney General

Counsel of Record for Petitioner

APPENDIX

No. 79-3514

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

GEORGE H. CLEAVER,

Petitioner-A ppellee

Pl ; APPEAL from the

v. | United States Dis-

trict Court for the

Kastern District of

Kentucky

Donatp E. BorpenxkircHer,

Superintendent, Kentucky State

Penitentiary,

Respondent-Appellant.

Decided and Filed October 31, 1980

(Entered October 31, 1980)

3efore: Epwarps, Chief Judge, Encet and JONES, Cir-

cult Judges

Kpwarps, Chief Judee, Respondent warden appeals

from an order of the United States District Court for the

Kastern District of Kentucky granting appellee Cleaver’s

petition for a writ of habeas corpus.

The facts show that Cleaver had been convicted in a

Kentucky State Court on an indictment charging murder

and robbery in the first degree. He was sentenced to life

imprisonment. His counsel at trial was a court-appointed

public defender who filed the appropriate notice of appeal

in timely fashion.

After repeated extensions to allow for the filing of the

record on appeal, the public defender was faced with a 40-

day limitation on the filing of his appellate brief. Detailing

26

the work in other cases assigned to him which he had to

accomplish during the tine span involved, Cleaver’s counsel

sought a 30-day extension which the Supreme Court

eranted “as a final extension.” At the end of that 30 days,

and on the date when the appellate brief was required to be

filed. the same counsel filed a motion requesting an addi-

tional 30-day extension, giving as reasons the following:

During the next ten (10) days, the undersigned

counsel has seven (7) appellate briefs which are sched-

nled to be filed with this Court and the Court of Ap-

peals. In an attempt to complete as many of these

pleadings as possible, the undersigned counsel has been

forced to devote a majority of his available time to

completing other cases to the detriment of appellant’s

appeal. The requested additional time is required to

allow the undersigned counsel to devote the time to

appellant’s case which is necessarily required by its

complexity and length.

The public defender’s motion continued:

Under Anders Vv. California, 296 T). S. 738. 87 S. Ct.

1396, 1400, 18 L. Ed. 2d 495 (1967), appointed counsel’s

“role as advocate requires that he support his client’s

appeal to the best of his ability.’ Under our adversary

system, it has become a well-established principle that

there is no substitute for counsel who acts as an

advocate and who makes the best arguments he can on

the facts and the law. //igh v. Rhay, 019 F. 2d 109, 1138

(9th Cir. 1975), citing Anders v. California, supra.

Accordingly, when an appointed counsel in a eriminal

appeal because of his total volume of work is unable to

devote sufficient time to complete a professionally com-

petent appellate brief within the allotted time period,

his only recourse is to seek an extension of time from

Mt

the appellate court. If the appointed counsel! declines

to request an extension and instead files a perfunctory

brief, the indigent appellant is denied the effective

assistance of counsel on appeal, a right which he is

guaranteed by tle Sixth Amendment.

The Kentucky Court of Appeals denied this motion for

an additional extension. It also dismissed the appeal.

When counsel went back to the trial court and sought and

received an order reinstating the appeal, the Supreme

Court held a hearing and decided that the trial court had

no authority to readjudicate a procedural issue already

decided by the highest court of the state. It again dis-

missed the appeal.

While there is no doubt as to the validity of this last

ruling, the net result of the entire procedure is that the

record shows, without dispute, that appellee Cleaver was

denied counsel to process his appeal, while other persons in

Kentucky convicted of crimes who had the financial means

to do so would have been able to perfect their appeals and

receive adjudication of them by the highest court in th

state.

The District Judge who issued this writ did so on the

basis of his view that appellant had been denied the ef-

fective assistance of counsel, relying in part upon Douglas

Vv. Califoria, 879 17. S. 353 (1963), and Anders v. Cali-

fornia, 886 U. S. 739 (1967), and distinguishing Poss v.

Moffitt, 417 U. 8. 600 (1974).

Petitioner Cleaver, of course, has no federal constitu-

tional right to appeal his state court conviction, McKane

v. Durston, 153 U. S. 684 (1894). Tle has, however, a state

constitutional right of appeal (Kentucky Constitution

§ 110(2)(b)'). This right cannot be regarded as having

been vindicated by the appointment of a public defender

who is so overloaded with work as to be unable to service

his appeal as of right. Deprivation of counsel on this

ground cannot, of course, be established merely by the

public defender’s assertion. Here, however, the facts

alleged by the public defender concerning overload have not

been disputed either in the proceedings before the State’s

highest court or in the briefing and argument in this federal

habeas proceeding.

We recognize that the Attorney General does claim that

“there is no proot that the state withheld adequate funds

or staff to process indigent appeals.” The record in this

case is, however, proof to the contrary of this assertion

and the same may be said of the record currently before

us in Brown v. Smith, ——_ F. 2d (6th Cir. 1980) (No.

79-3589), wherein a similar habeas writ has been granted

on similar facts by another United States District Judge.

The Attorney General also asserts, “The proper pro-

cedure would have been to request the assignment of addi-

tional personnel to handle the increased caseload.” We do

not, however, think that proving where the budget-making

processes or personnel assignment procedures of the Com-

monwealth of Kentucky broke down is an appropriate -

burden to place upon an indigent habeas petitioner or his

counsel. The state-appointed counsel for this defendant

has stated that he could not perform his responsibility to

perfect appellant’s appeal because of an excessive work-

load. This assertion, if untrue, could have been contested,

“Anpeals from a judgment of the Cireuit Court imposing a

sentence of death or life imprisonment or imprisonment for twenty

vears or more shall be taken directly to the Supreme Court. In all

other Cases, eriminal and civil, the Ssupr me Court shall eXerelse

appellate jurisdiction as provided by its rules.”’ Kentucky Consti-

tution § 110(2)(b).

99

but was not. It stands undenied on this record. An af-

fiuent defendant who sought to retain an overburdened

lawyer could and would have hired another. This petitioner

was denied equal protection of the law by being denied the

right to appeal which Kentucky granted to others by its

Constitution.

On this record we must conclude (and do) that the rea-

son the public defender was delinquent in observing the

time limitations facing him in processing this appeal was

an overload of other appellate work before the Supreme

Court of Kentucky, and that this overload rendered observ-

ance of the time limitation in this case impossible.

We recognize Kentucky’s right to decide, in the first

instanee, any disputed issue of fact concerning representa-

tions of work overload by counsel supplied by the State. If

inaccurate claims are tendered, Kentucky can take meas-

ures to discipline any lawyer found to be untruthful in such

representations, or willfully or negligently delinquent. We

believe, however, that the facts upon which we rely in this

ease are undisputed. As a result of them petitioner has

been deprived of the right to appeal his conviction solely

because his indigency status made the overburdened public

defender his only source of legal representation. In Ross

v. Moffitt, 417 U. S. 600 (1974), the Supreme Court said:

The cases encompassed a variety of cireumstances

but all had a common theme.

[They] stand for the proposition that a State ean-

not arbitrarily cut off appeal rights for indigents while

leaving open avenues of appeal for more affluent per-

sons. Ross v. Moffitt, supra at 606-07,

In Ross v. Moffitt, supra, the opinion of the Court also

observed that the entitlement to appellate counsel (where

the state grants an absolute right to appeal) implicates

both the equal protection clause and the due process clause.

Id, at 608-09."

In the District Court in our present case, the District

Judge relied primarily upon a due process analysis based on

denial of counsel. In the event the largely equal protection

rationale employed above is found inadequate to sustain

this writ, alternatively we endorse the opinion authored by

the Distriet Judge and dated May 29, 1979.

The judgment of the District Court is affirmed.

>The precise rationale for the Griff inand Douglas lines of cases

has never been explicitly stated, some support being derived from

the Equal Protection Clause of the Fourteenth Amendment, and

some from the Due Proces Clause of that Amendment, Neither

Clause by itself provides a entirely satisfactory basis for the result

reached, each depending on a different inquiry which emphasizes

different factors. ‘*Due process’’ emphasizes fairness between the

State and th individual dealine with the State, regardless of how

other individuals in the same situation may be treated. ‘‘Equal

protection,’’ on the other hand, emphasizes disp irity in treatment

by a State between classes of individuals whose situations are

arguably indistinguishable. We will addr these issues sep-

arately in the sueceeding section. Poss v Moffitt, supra at 605-00,

(footnote omitted

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE

Civil Action No. 78-204

GeorcE H. CLEAVER 2 e i a . Petitioner

DonaLp Ii. Borpenkrrcner, Warden, Kentucky

State Penitentiary - - - - Respondent

ORDER (Entered May 31, 1980)

In conformity with the Memorandum Opinion filed

herein this date,

[rt Is Orperep Herern as Fotiows:

(1) That the petition for a writ of habeas corpus be,

and th2 same hereby is, GRANTED.

(2) That this Order be, and the same hereby is, Stayep

for a period of sixty (60) days from this date.

(3) That the Commonwealth of Kentucky shall, within

sixty (60) days of the date of this Order, notify the Court

as to whether petitioner’s appeal has been reinstated.

(4) That, if at the end of sixty (60) days, no notice of

reinstatement of petitioner’s appeal has been filed, the writ

sought herein shall issue without further order of the

Court.

This the 29th day of May, 1979.

(s) H. David Hermansdorfer, Jud

ge

oe

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

PIKEVILLE

Civil Action No, 78-204

Greorce H. CLEAVER - Petitioner

v,

Donato E. Borpenkirncuer, Warden, Kent ky

State Penitentiary - . . Respondent

MEMORANDUM OPINION—Iiled May 80, 1979

(Entered May 380, 1980)

Petitioner herein was convicted on February 5, 1976 in

the Johnson Cireuit Court of robbery and murder and was

sentenced to imprisonment for life. On direct appeal of

right to the Kentucky Supreme Court petitioner was repre

sented by the Kentucky Public Advocate who failed to

timely file petitioner’s appellate brief, After a final exten

sion deadline passed, the appeal was dismissed, By order

of October 25, 1977, the Johnson Cireuit Court, apparently

in response to the Public Advocate’s motion alleging in

effective assistance of appellate counsel, reinstated peti

tioner’s right to appeal. Petitioner refiled his appeal; but

at oral argument the Supreme Court dismissed, without

reaching the merits of the ineffective assistance claim, on

the ground that the Cireuit Court was without jurisdiction

to reinstate petitioner’s right to appeal. Cleaver v. Com

monwealth, Ky., 569 8S. W. 2d 166 (1978).) Still represented

‘Wherein the procedural history of petitioner's case in the

Kentucky Courts is set forth fully.

by the Publie Advocate, petitioner filed his application for

a writ of habeas corpus in this Court on October 17, 1978,

and by general order the matter was referred to the United

States Magistrate at Ashland, Catlettsburg, Nentueky, The

Court is now in receipt of the Magwistrate’s report, which

recommends that the writ issue unless Kentueky retires

petitioner or reinstates his appeal, and of the Common

wealth’s scholarly particularized objections to that report,

The matter is thus before this Court for de novo review,

The issues presented are (1) whether petitioner has a

constitutionally protected right to effective assistance of

counsel on direet mandatory appeal to the NKentueky

Supreme Court, (2) what are the souree and henee the

parameters of that right if it exists, and (3) whether that

right, if it exists, was violated by the failure of the Publie

Advocate to timely file petitioner's appellate brief which

caused the dismissal of petitioner’s appeal.

Petitioner ar@ues that he has such a right and that this

right was violated by the omissions of the Publie Advocate

and the dismissal of the appeal. In response the Common

wealth argues that petitioner has no constitutionally pro

tected right to appeal, but only a state-created right subject

to federal equal protection guarantees, Thus it is reasoned

that petitioner’s only right to effective assistance of counsel

on appeal consists of a right to be free from irrational dis

crimination in the quality of the representation available

based on his indigent status. Here, the Commonwealth

points out, the dismissal of the appeal resulted not from

discrimination against an indigent, but from the even

handed application of the appellate rule which sets a time

limit for the filing of briefs. Indeed, petitioner does not

allewe that the Kentucky rules were applied in a dis

criminatory way to deprive him of an appeal because of

his indigeney; therefore it will be assumed that no Equal

Protection violation has occurred and that unless peti

od

tioner’s asserted right to counsel on appeal has some basis

other than the Equal Protection Clause of the Fourteenth

Amendment, his petition must be denied’ To analyze the

arguments the Court must look to three lines of cases

those defining the Sixth Amendment right to counsel in

state trials, those setting the parameters of the rights of

indigents on appeal, and those Sixth Cireuit cases dealing

with assistance of counsel on appeal,

The Sixth Amendment guarantees that a federal crim

‘nal defendant shall “. . . have the assistance of counsel

for his defense.” Assistance of counsel means effective

assistance of counsel. Avery v. Alabama, 3808 U, S, 444

(1940). The Sixth Amendment guarantee of effeetive

assistance of counsel is a fundamental right and is there

fore imposed upon the states by the Due Process Clause of

the Fourteenth Amendment. Gideon v. Watneright, 3872

U. S. 885 (1963). To determine whether assistance of

counsel at a criminal trial has met the requirements of the

Sixth Amendment, the Sixth Cireuit Court of Appeals ap

plies a test which asks whether the representation supplied

was “, , , reasonably likely to render and rendering reason

ably effective assistance. . . . Defense counsel must

perform at least as well as a lawyer with ordinary training

and skill in criminal law and must conscientiously protect

a)

‘

his client’s interest . . . (citations omitted) Beasley

v. United States, 491 F, 2d 687, 696 (6th Cir, 1974), Tf, in

2As to the possible significance, not addressed by the parties

herein, of the fact that the attorney whose omission was the basis

of the petition was paid by the Commonwealth rather than privately

retained, see, Cantrell v, Alabama, 546 BF. 2d 602 (Sth Cir, 1977)

Fitegerald vy. Estelle, 505 F. 2d 18384 (Sth Cir.) Cen bane), cert,

denied, 422 U.S, 1011 (1975) ; Goodwin vy, Cardwell, 482 BF, 2d 521

(6th Cir. 1970) (O'Sullivan, J., dissenting); and United States

cx vel. Smith v. MeMann, 417 BF, 2d 648 (2d Cir, 1969), cert, dented,

897 U.S, 925 (1970) (Friendly, J., dissenting).

the case at bar, counsel's failure to timely present an argu

ment had oceurred at trial and resulted in a conviction

rather than a dismissal of appeal, there is little doubt that

it would be deemed ineffective assistance under Beasley

and require the issuance of the writ applied for, Woidson

Vv. Phend, 417 BF. 2d 1197 (7th Cir, 1969): see also, Reece \

Georaia, 850 U.S. 85 (1999),

The question that remains is how the fact that counsels

omission here oceurred at the appeal stage affects peti

tioner’s claim. The cases on indigents’ post-convietion

rights show that there is no federal constitutional right to

appeal. Ross v, Moffitt, 447 U.S. 600 (1974); Norris vy,

Wainwriaht, 588 BF. 2d 180, 187 (oth Cir, 1979). When a

stute grants a right to appeal er:minal convictions, it may

impose conditions upon the exercise of that right, Ross,

supra, at 417; MeKane vy. Durstan, 100 U. S. GS4 (1894).

In Doualas v. California, 872 U.S. 353 (1968), it was held

that where the state provides for an appeal of right, the

Fourteenth Amendment prohibits it from conditioning th

appointment of appellate counsel for indigents upon a

preliminary determination by the Court of Appeals that

the appeal is meritorious since to do so draws“... an

unconstitutional line . . . between rich and poor.” [d. al

857. Mr. Justice Douglas’ opinion in Douglas was based

predominantly on the Equal Protection Clause, but li

statement that “[wlhen an indigent is forced to run th

vauntlet of a preliminary showing of merit: [without a

istance of counsel] the right to appeal does not comport

with fair procedure . . . .” 2d. at 307, indicates that hy

thought the right to counsel on appeal also had a Dh

Process component,

In Anders v. California, 886 U.S. 738 (1967), appointed

appellate counsel reviewed appellant's trial record and tn

formed the appellate court that the appeal was without

merit. Appellant moved for appointment of substitute

SP ae

ob

counsel, and his motion was denied. He then filed his pro

se appellate brief. The Court, after examining the record,

affirmed the conviction. The United States Supreme Court,

citing Gideon v. Wainwright, supra, held that the practice

of allowing appointed counsel to effectively withdraw from

an appeal upon his own determination of lack of merit and

then requiring appellant to proceed pro se was one in

which “(t]he constitutional requirement of substantial

equality and fair process .. .” had not been fulfilled.

Anders v. California, supra at 744. As in Douglas, supra,

it is unclear whether the Court meant that petitioner had

a Due Process right to counsel on appeal regardless of his

indigent status or that petitioner had an Equal Protection

right to counsel since non-indigents were not subject to

the Court’s discretionary refusal to appoint substitute

counsel once the attorney commencing the appeal pro-

nounced it nonmeritorious.

In Ross v. Moffitt, supra, the Court held that neither

the Due Process or the Equal Protection Clause imposes

a duty on a state to provide counsel for indigent defendants

who have exhausted their mandatory appeal right and are

pursuing a discretionary appeal. Mr. Justice Rehnquist’s

analysis of the Due Process component in Ross can be in-

terpreted by the Commonwealth in this case, as a repudia-

tion of the language in Douglas and Anders which seems

to find a Due Process as well as an Equal Protection basis

for indigents’ right to counsel on appeal. Ross v. Moffitt,

supra at 609-11.

Given the lack of clarity in the Supreme Court cases

as to the basis and therefore the extent of the right to

effective assistance on appeal, the Court must look to

certain Sixth Cireuit decisions dealing with claims of in-

effective assistance of counsel at the post-trial stages of

37

criminal proceedings.* In Boyd v. Cowan, 519 F, 2d 182

(6th Cir. 1975), it was held that the convicted state de-

fendant’s right to effective assistance of counsel on appeal

was violated when his appointed trial counsel failed to tell

him that he (the lawyer) would not file and process an

appeal with the result that pretitioner’s time for filing no-

tice of appeal lapsed. In Woodall v. Neil, 444 F. 2d 92 (6th

Cir. 1971), the Court held that where a habeas corpus pe-

titioner alleged that, after his state trial, retained counsel

had contrary to petitioner’s instructions failed to perfect

an appeal, allowing petitioner’s time to run; petitioner had

stated a cause of action for ineffective assistance of coun-

sel. In Goodwin v. Cardwell, 423 F. 2d 521 (6th Cir. 1970),

petitioner was held to have stated a claim of ineffective

assistance of counsel where he alleged that retained trial

counsel had failed to inform him of his right to appeal.

In his strong dissent, Judge O’Sullivan apparently conceded

that, had petitioner been represented by appointed counsel,

he would have been entitled to a hearing on ineffective

assistanee. Jd. at 523-24 (O’Sullivan, J., dissenting), In

Benoit v. Wingo, 423 F. 2d 880 (6th Cir.), cert. denied,

400 U. S. 852 (1970), petitioner’s appointed trial counsel

commenced an appeal from his state conviction but then

withdrew; the appeal was dismissed. Citing Douglas v.

California, supra, the Court held simply that “[t]he indi-

gent is entitled to have counsel to assist him on appeal

[citations omitted].” Benoit v. Wingo, supra at 882. All

of these cases seem to recognize a Due Process right to

effective assistance of counsel on appeal, albeit none of them

includes an explicit statement of the source of the right.

The Commonwealth argues that the above cases are not

controlling because they found ineffective assistance of

3’These cases would themselves dispose of the questions pre-

sented here were it not for the facet that they were all decided

before Ross v. Moffitt, supra. See further discussion infra.

“*

- =

Do

trial, not appellate, counsel. The simple answer to this

argument is that the errors complained of occurred after

the trial stage and involved either failure to commence or

failure to prosecute an appeal. To argue that these were

not appellate errors borders on sophistry. The more sub-

stantive objection to these cases is that they were all de-

cided before Ross v. Moffitt, supra. They were therefore

decided without the benefit of the language in that case

which the Commonwealth argues should be read to restrict

the right of effective assistance of counsel on appeal to the

ambit of Equal Protection.

A thorough review of the law having been made, it is

clear that indigents have at least an Equal Opportunity

right to effective assistance of counsel on mandatory ap-

peal. But this does not help petitioner herein because no

offensive discrimination between rich and poor is claimed.

Unless the Court determines that he has a Due Process

right to assistance of counsel meeting the standard of

Beasley v. United States, supra, his petition must be denied.

There is no doubt the law is unsettled after Ross v. Moffitt,

supra. Given the context of the Due Process analysis in

Ross, i.e., the Court was concerned with a discretionary

appeal taken after appellant had lost on his mandatory ap-

peal even with ample assistance of counsel; given the fact

that the Ross court could have overruled Douglas v. Cali-

fornia, supra, and Andrews v. California, supra, but chose

not to do so; and given the Sixth Cireuit cases citing

Douglas and Anders in finding ineffective assistance by

both retained and appointed appellate counsel; it must be

concluded that, as the law now stands, petitioner herein has

a Due Process right to assistance of counsel on mandatory

appeal which satisfies the standard of Beasley v. United

States, supra.

The Public Advocate has conceded and the Common-

wealth does not controvert that the Public Advoecate’s fail-

*)

oy

ure to timely file petitioner’s appellate brief after three

extensions is representation less effective than that ex-

pected of “. . . a lawyer with ordinary training and skill

in criminal law... .” Jd. at 697. As the Supreme Court

stated in Ross, the case most heavily relied on by the Com-

monuwealth, a state criminal defendant is entitled to have

his “. . . claims of error... organized and presented

in a lawyerlike fashion to the Court of Appeals.

Ross v. Moffitt, supra at 615. Because of the Publie Ad-

vocate’s failure to adequately represent him, petitioner was

deprived of such a presentation.

Mr. Justice Rehnquist said in Ross that professional

legal assistance on appeal is a sword rather than a shield

and implied that the state has no Due Process duty to

thus arm a convicted defendant. It is the holding of this

Court that if the state does hand the defendant the sword

of post-conviction assistance of counsel, it must be of steel,

not paper. The state need not guarantee that it will eut as

will the best of swords; it must, however, insure that once

the defendant puts his faith in the weapon provided him,

it will not crumble against the first routine procedural

40

shield the state throws up.t. This does not conflict with

the holding or the analysis on Loss,

For the reasons set forth above, the writ prayed for

herein shall be granted unless the Commonwealth reinstates

petitioner’s appeal within sixty (60) days. An order in

conformity herewith shall issue this date.

This the 29 day of May, 1979.

(s) H. David Hermansdorfer, Judge

‘The state must, in other words, insure that appellants’ legal

weapons are welded by persons reasonably skilled in their use. In

connection with this and pursuant to this Court’s supervisory,

rather than its review, powers, the Office of the Public Advocate

of Kentucky is advised not to assign any matter to be filed or

which is pending in this Court to any attorney whose own ineffee

tiveness or incompetency is among the grounds asserted for relief,

Any attorney who has asserted his own incompetency to handle trial

matters in any forum shall make that fact known directly to the

Court so that an appropriate determination can be made as to the

qualifications of such attorney to practice before it. The Public

Advocate’s Office shall advise the Court as to what disciplinary

action or retraining has taken place with respect to such attorney.

Every criminal defendant is entitled or right to be represented

by ‘*. . . a lawyer with ordinary training and skill in criminal

law.’’ Beasley Vv. United States, supra at 697. To continue the use

of admittedly incompetent attorneys does not serve the reasonable

ends of justice.

4]

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No, 79-3514

Grorce H, CLEAVER - - - Petitioner-Appellee

DonaLp K, Borpenxkrrcuer, Superintendent

Kentucky State Penitentiary - Respondent-Appellant

Brrore: Kpwarps, Chief Circuit Judge, Encet and Jonss,

Cireuit Judges

ORDER STAYING MANDATE

(Entered December 1, 1980)

OrDERED, That motion staying mandate herein pending

application to the Supreme Court for writ of certiorari is

hereby granted and the mandate is stayed for seventy-five

days from this date; provided that, if within such seventy-

five days, the applicant shall file with the Clerk of this

Court the certificate of the Clerk of the Supreme Court

that the certiorari petition, record, and brief have been

filed, the stay shall continue until the final disposition of the

‘ase by the Supreme Court. Unless this condition is com-

plied within such seventy-five days or any extension thereof

made by the Court or any judge thereof, or if the condition

is complied with, then upon the filing of copy of an order

denying the writ applied for, the mandate shall issue.

42

THE CONSTITUTION OF THE UNITED STATES

Amendment 6

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously ascer

tained by law, and to be informed of the nature and cause

of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of counsel

for his detense.

Amendment 10

The powers not delegated to the United States by the

Constitution, nor prohibited by it to the States, are reserved

to the States respectively, or to the people.

Amendment 14

Section 1

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are 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 deprive 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.

43

Section 2

Representatives shall be apportioned among the several

States according to their respective numbers, counting the

whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for

the choice of electors for President and Vice President of

the United States, Representatives in Congress, the Execu-

tive and Judicial officers of a State, or the members of the

Legislature thereof, is denied to any of the male inhabitants

of such State, being twenty-one years of age, and citizens

of the United States, or in any way abridged, except for

participation in rebellion, or other erime, the basis of rep-

resentation therein shall be reduced in the proportion which

the number of such male citizens shall bear to the whole

number of male citizens twenty-one years of age in such

State.

Section 3

No person shall be a Senator or Representative in

Congress, or elector of President and Vice President, or

hold any office, civil or military, under the United States

or under any State, who, having previously taken an oath,

as a member of Congress, or as an officer of the United

States, or as a member of any State legislature, or as an

executive or judicial officer of any State, to support the

Constitution of the United States, shall have engaged in

insurreetion or rebellion against the same, or given aid or

comfort to the enemies thereof. But Congress may by a

vote of two-thirds of each house, remove such disability.

Section 4

The validity of the public debt of the United States,

authorized by law, ineluding debts incurred for payment

44

of pensions and bounties for services in suppressing in-

surrection or rebellion, shall not be questioned. But neither

the United States nor any State shall assume or pay any

debt or obligation incurred in aid of insurrection or re-

bellion against the United States, or any claim for the loss

or emancipation of any slave; but all such debts, obliga-

tions, and claims shall be held illegal and void.

Section 5

The Congress shall have power to enforee, by appro-

priate legislation, the provisions of this article.

* * * * * * *

SUPREME COURT OF THE UNITED STATES

RULE 16.1

1. Within 30 days after receipt of the jurisdictional

statement, unless the time is enlarged by the Court or a

Justice thereof, or by the Clerk under the provisions of

Rule 29.4, the appellee may file a motion to dismiss, or a

motion to affirm. Where appropriate, a motion to affirm

may be united in the alternative with a motion to dismiss,

provided that a motion to affirm or dismiss shall not be

joined with any other pleading. The Clerk shall not accept

any motion so joined.

(a) The Court will receive a motion to dismiss an appeal

on the ground that the appeal is not within this Court’s

jurisdiction, or because not taken in conformity with statute

or with these Rules.

(b) The Court will receive a motion to dismiss an appeal

from a state court on the ground that if does not present a

substantial federal question; or that the federal question

sought to be reviewed was not timely or properly raised

and was not expressly passed on; or that the judgment rests

on an adequate non-federal basis.

49

(c) The Court will receive a motion to affirm the judg-

ment sought to be reviewed on appeal from a federal court

on the ground that it is manifest that the questions on

which the decision of the cause repends are so unsubstantial

as not to need further argument.

(d) The Court will receive a motion to dismiss or affirm

on any other ground the appellee wishes to present as a

reason why the Court should not set the case for argument.

RULE 33.7

7. The Clerk shall not accept for filing any document

presented in a form not in compliance with this Rule, but

shall return it indicating to the defaulting party wherein

he has failed to comply: the filing, however, shall not

thereby be deemed untimely provided that new and proper

copies are promptly substituted. If the Court shall find

that the provisions of this Rule have not been adhered to, it

may impose, in its discretion, appropriate sanctions includ-

ing but not limited to dismissal of the action, imposition of

costs, or disciplinary sanction upon counsel. See also Rule

38 respecting oral argument.

FEDERAL RULES OF APPELLATE PROCEDURE

RULE 31(c)

(c) Consequence of Failure to File Briefs. If an appel-

lant fails to file his brief within the time provided by this

rule, or within the time as extended, an appellee may move

for dismissal of the appeal. If an appellee fails to file his

brief, he will not be heard at oral argument except by

permission of the court.

* * * * * * *