# Petition — Sowders v. Wiley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1981
- **Citation:** 454 U.S. 1091

## Text

Office- Supreme Court, U.S.
FIle

D

84,°113 JUL 20 1981

ALEXANDER L. STEVAS,

CLERK
SUPREME COURT OF THE UNITED STATES
Term, 1981
DEWEY SOWDERS, Superintendent,
Kentucky State Reformatory - - - Petitioner
versas
EARL WAYNE WILEY - - - ~- _ Respondent

Petition for a Writ of Certiorari to the United States
Court of Appeals for the Sixth Circuit

STEVEN L. BESHEAR

Attorney General

MICHAEL R. BEITING
Assistant Attorney General

PAUL E. REILENDER, JR.
Assistant Attorney General
Capitol Building
Frankfort, Kentucky 40601
Telephone: (502) 564-4058

Counsel for Petitioner

WESTERFIELO-BONTE CO., 619 W. KENTUCKY~-P.O. BOX 3251, LOUISVILLE, KY.

The petitioner prays that a writ of certiorari issue to
review the decision of the United States Court of Appeals
for the Sixth Circuit rendered April 24, 1981.

QUESTIONS PRESENTED FOR REVIEW

Did the decision by the United States Court of Appeals for
the Sixth Circuit, that respondent had exhausted his
state remedies with respect to his ineffective assistance
of counsel claim, circumvent an available state procedure
in which respondent could have presented his ineffec-
tive assistance of counsel claim, thereby usurping the
authority of the Kentucky state courts in this matter?

Does a trial counsel’s concession of guilt during the closing
argument, done as part of a legitimate trial strategy,
deny the accused effective assistance of counsel within
the meaning of the Sixth and Fourteenth Amendments
of the United States Constitution where the client’s
consent does not appear of record?

Is a “Boykin” type inquiry constitutionally mandated when
trial counsel concedes his client’s guilt arguing for
leniency in the closing argument?

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

PAGE
Questions Presented for Review...............60005 i
Reference to Opinions............cccccscceveeeeees 1- 2
Statement of Jurisdiction...................0e ees 2- 3
Constitutional Provisions Involved................. 3
Statement of the Case................4.. iiababesed 4-7
Arguments and Reasons for Granting the Writ of
OP POPTPTTTETYTITLererel err errr ee 7-28
ls cad oo x b6es onsen beeen eternes oa 28
NEO, wae ddccecasecsacecetsneesisaceeee 29
SIE 004 6.660 nbd 4500000006000) 000050000008 00
SL UL GAG 5G bab iwddu ddd scesvensekacnskeseees 31-47
GRE OME FURMIIEE oc cc ccccscccsccvssvescescces 48-45
Findings of Fact, Conclusion of Law, and Recom-
PIE Sidccvcctvescdechasacédeceseaseenee

Memorandum Opinion Per Curiam—Affirming ....64-67

The Constitution of the United States
EE ards ed ons cher ee buewsaccutns 67

IEE OE 5 Sh v'd.kd 0d cab 000 ews eedonee sbbae 68
RUM AEhL cea Sc awdGas sce'saueesceeés 0408s bd eee’ 69-71

TABLE OF AUTHORITIES

Cases: PAGE
Beasley v. United States. 491 F. 2d 687 (6th Cir.
BOUVET bd kh Avecascorsccsdbeccersasecuséeaciens 23, 24
Blankenship v. Commonwealth, Ky. App., 554 8. W.
Pe SEO TTR iscccbequbbsedcrianccistetesass 12
Boykin v. Alabama, 395 U. 8. 238, 89 8. Ct. 1709,
oe Gt Perr rrr 3, 26, 27, 28
Brady v. United States, 397 U. S. 742 (1970)...... 27
Brookhart v. Janis, 314 U. S. 1, 8, 86 8S. Ct. 1245,
3B Tn WG, BE SEG (REGS) oo ccecvcccccssccccese 18
Brown v. Commonwealth, Ky., 551 8S, W. 2d 557
(SOUT ho 6 cha vhbescoesdetceevccnewevonnne ts 9

Carothers v. Rhay, 594 F. 2d 225 (9th Cir. 1979)... 13
Cleaver v. Commonwealth, Ky., 569 S. W. 2d 166

CREO) 0 ve bicwseecusesenccsascavggQatessdesech 12
Coleman v. Commonwealth, 276 Ky. 802, 125

BS. W. Bd 726, 720 (19GB)... wcsccccccccccccccces 22
Crowell v. Zahradnick, 571 F. 2d 1257 (4th Cir.

IOUT 6 a cctddeevetncccccvecesecsveeeeseseves 14

Dombrowski v. Johnson, 488 F’. 2d 68 (6th Cir. 1973) 13
Flener v. Commonwealth, Ky., 514 S. W. 2d 201

CUE cok eso eeeKUebaddwotcccddntsdacebubese 14
Foremost Insurance Company v. Shephard, Ky.,

588 S. W. 2d 468 (1979)... ..ccccccccccccccces 9
Galtieri v. Wainwright, 582 F. 2d 248 (5th Cir.

BUG) « cb adavadededbetenshssduetcdvevecseces 16

Gardner v. Blackburn, 569 F. 2d 856 (5th Cir. 1978) 16
Gonzales v. Stone, 546 F. 2d 807 (9th Cir. 1976).... 16
Haggard v. Alabama, 550 F, 2d 1019 (5th Cir. 1977) 24
Hamilton v. Commonwealth, Ky., 580 S. W. 2d 208

COTO ass ct bednceavedscedvedsoveccoscsvecce 9
Hennemeyer v. Commonwealth, Ky., 580 8S. W. 2d
ME MOUNT cc ceaddcwsesvaos ceyscerverdboseades 9

Herring v. Estelle, 491 F. 2d 125 (5th Cir, 1974). ..23-24

Hibbs v. Commonwealth, Ky. App., 570 8S. W. 2d
GOB (IDTS) cciciwsccccceseceses usveeeees pisee Oe

iv
Cases (Cont'd):
Johnson v. United States, 506 F. 2d 640, 643 (8th
Cir, 1974), cert. denied 420 U. S. 978 (1974).... 25
Keener v. Ridenour, 594 F’, 2d 581 (6th Cir. 1979).. 18
Knoxson v. Estelle, 574 F. 2d 1339 (5th Cir. 1978)... 15
Lay v. Commonwealth, Ky., 506 S. W. 2d 507 (1974) 12

McMann v. Richardson, 397 U. S. 759, 771, 25 L. Ed.
2d 763, 90 S. Ct, 1441 (1970)..........0000 23, 24, 27

McQueen v. Swenson, 498 F’. 2d 207 (8th Cir. 1974) 23

Meadows v. Commonwealth, Ky., 550 S. W. 2d 511
A Per Pe Peer eye errr Tey Tr ere 21

Miller v. Harvey, 566 F’. 2d 879 (4th Cir. 1977).... 13
Moran v. Hogan, 494 F’. 2d 1220 (1st Cir. 1974).... 24
Parker v. North Carolina, 397 U. S. 790, 25 L. Ed.

PAGE

2d 785, 90 S. Ct. 1458 (1970)... ...cccccccccees 24
Parr v. United States, 351 U. S. 513, 76 S. Ct, 912,
PE A OORT. COUN ccdccececcbdecccdvcsenss 16
Picard v. Connor, 404 U. S. 270, 92 S. Ct. 509, 30
ee SF eo) ee per ery ere 9,13
Powell v. Alabama, 287 U.S, 45, 68-69, 53 S, Ct, 55,
pe SE RS fp | a ere 18, 23
Raisor v, Commonwealth, Ky., 278 S. W. 2d 635
Ss SN eb od baad be ness eCdn dh man ones bn 14
Ramsey v. Commonwealth, Ky., 399 S. W. 2d 473
(1966), cert. denied, 385 U. 8. 865 (1966) ....... 12
Smith v. Commonwealth, Ky., 567 S. W. 2d 304
SES ci oraaks chy ceae) 00s clus icreaee es 9-10
Tollett v. Henderson, 411 U. S. 258, 36 L. Ed. 2d 235,
SE SEDUIEDS i G5 Gwrekcee s AWceee be vecce 23
United States v. Cotton, 446 F. 2d 865 (8th Cir.
1 RB PES A ne a ee 24
United States v. Hager, 505 F. 2d 737 (8th Cir.
Dt coue Mi ciel cepine ease Oeekeweeceet 25

United States v. Israel, 556 F’. 2d 865 (7th Cir.1977) 13
United States, ex rel. Allum v. Twomey, 484 F. 2d
Oy 2 Foo Re: ) See 19
United States v. Yelardy, 567 F. 2d 863 (6th Cir.
1978), cert. denied 99 S. Ct. 133 (1979)......... 25

Cases (Cont'd):
Vaughan v. Commonwealth, Ky., 505 S. W. 2d 768

PAGE

SEE a's Grid LA KGA UC EMED Coveraddeuceassadeees 14, 25
Wainwright v, Sykes, 433 U. S. 72, 94-95, 97 S. Ct.
Debt, GS Tse, TG. BR: GE CIOTT).. sv vccccveczcccs 19
Walker v. Henderson, 492 F. 2d 1311 (2d Cir. 1974),
cert. denied 417 U. S. 972 (1974)..........006. 24
Watkins v. Estelle, 527 F. 2d 1336 (5th Cir. 1976).. 13
Williams v. Perini, 557 F. 2d 1221 (6th Cir. 1977).. 13
Williams v. Twomey, 510 F. 2d 634 (7th Cir. 1975) 24
Wilson v. Commonwealth, Ky., 601 S. W. 2d 280
CEE vnc Ctprecvdsedsracccccvcaceresenencns 9
Constitutional Provisions (U. 8.):
United States Constitution, Fourteenth Amendment 3
United States Constitution, Sixth Amendment..... 3
Statutes and Rules:
REED, ‘SS oulsoadeenskcchadesceventenael 2
28 U.S.C, See. 2254(b) and (c) .......ceeeeees 3, 4, 8, 28
ic. a's Vel uc de ee sbaeed.eneeneaeeeawe 21
DET 64. Cid oobes 6 bebsabeecdeaenenereeke 21
Rule 17.1(a) and (c), Supreme Court of the United
PN ceueadateecheeas bones seeneseoes obeeee 2, 3
Other:
Kentucky RCr 9.84(1) .....cccecccccccccccccccece 3, 20

POURUORT TOP BEAD cicivcisevcsvesccss 2, 3, 7, 8, 10, 12

SUPREME COURT OF THE UNITED STATES

Term, 1981
No.

Dewey Sowpers, Superintendent,
Kentucky State Reformatory - - Petitioner

v.
Earn WayNE Witty - - - - ~ 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 Circuit was filed on April 24, 1981,
and styled Earl Wayne Wiley v. Dewey Sowders, Su-
perintendent, Kentucky State Reformatory, No. 80-
3445. The decision reverses the judgment of the United
States District Court for the Western District of Ken-
tucky. The decision of the Sixth Circuit may be found
at Appendix 31-47. The order and judgment of the
United States District Court for the Western District
of Kentucky, reviewed on an appeal to the Court of
Appeals, dated March 31, 1980, may be found at Ap-
pendix 48-49. The magistrate’s findings of fact, con-
clusions of law, and recommendations of March 3, 1980,
which were accepted by the District Court order above
set forth, may be found at Appendix 50-63. The
memorandum opinion per curiam of the Kentucky
Supreme Court rendered September 11, 1979, which

2

affirmed the respondent’s trial court conviction may be
found at Appendix 64-67.

STATEMENT OF JURISDICTION

The filing date of the decision of the United States
Court of Appeals for the Sixth Circuit of which review
is sought in this Court is Apri] 24, 1981. The appellate
decision 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 decision in question
by 28 U.S.C. 1254(1).

This Court should grant the writ of certiorari ieades
the authority of Rule 17.1(a) and (ce) of this Court.

Rule 17.1(a). The Sixth Cireuit has ruled that the
respondent exhausted his state remedies with respect
to his ineffective assistance of counsel claim by the
mere presentation of this claim to the Kentucky
Supreme Court, notwithstanding that the Kentucky
Supreme Court never reached the merits of the claim
because it had not been properly preserved for appel-
late review. In so doing, the Sixth Circuit has denied
the Kentucky courts a first opportunity to rule on the
question by way of its post-conviction relief procedure
(Kentucky Rule of Criminal Procedure, hereinafter
RCr 11.42), which is the prescribed way for an ag-
grieved defendant to raise constitutional questions of
this type. The federal court of appeals has so departed
from this Court’s principles of comity and federalism

3

as to call for this Court’s supervision to resolve the
issue. Additionally, the Sixth Circuit has decided a
federal question in a way in conflict with the Kentucky
Supreme Court regarding the application of a ‘‘ Boy-
kin’’ inquiry to a closing argument where guilt is con-
ceded as trial strategy in trying to obtain leniency for
the client.

Rule 17.1(c). The Sixth Circuit has decided a
nationally important question involving the scope and
application of Boykin v. Alabama, 395 U.S. 238 (1969).
As a corollary to that question, the Sixth Cireuit has
ruled that it is ineffective assistance of counsel to
concede the client’s guilt during closing argument
while trying to obtain leniency for the client.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner asserts there is no Constitutional au-
thority to justify the results of the court below. Such
absence of authority involves reference to

The Sixth Amendment, Constitution of the United
States

The Fourteenth Amendment (Section 1), Consti-
tution of the United States

28 U.S.C, 2254 (b)

28 U.S.C. 2254 (ce)

RCr 11.42

RCr 9.84

The full text of this authority is set forth at Ap-
pendix 69-71,

STATEMENT OF THE CASE

References herein will be to either the Joint Ap-
pendix of the parties as filed in the Court of Appeals
and which is presently not before this Court (JA), or
to the Appendix which accompanies this petition (A).
Respondent invoked federal jurisdiction under 28
U.S.C. 2254 in the District Court.

Earl Wayne Wiley, the respondent, was indicted
by the Henderson County Grand Jury on August 1,
1978, along with his brother, Elmer Wiley, of first de-
gree burglary, theft of the value of one hundred (100)
dollars or more and being a persistent felony offender
in the second degree. The offenses were committed on
July 13, 1978 (JA 1-3).

On August 8, 1978, the respondent was arraigned
and an attorney was appointed to represent him (JA
4-5). Separate counsel was also appointed for Elmer
Wiley (Transcript of State Trial Record, hereinafter
TR 6). Earl and Elmer both pled ‘‘not guilty’ (JA
5; TR 7).

Karl and Elmer were jointly tried on September
20, 1978 (Transcript of State Trial Evidence, herein-
after TE 1). At the close of all the evidence in the
first phase of the trial, the respondent’s attorney pre-
sented the closing argument on behalf of both the re-
spondent, and his brother Earl (JA 83). During the
closing argument, the attorney admitted that both the
respondent and Elmer were guilty (JA 87-88, 90-91, 93,
96-97). As was later explained in their amicus brief
to the Kentucky Supreme Court, the trial counsel felt

5

that in light of the fact that the evidence against their
clients was overwhelming, their only hope was to con-
cede guilt and ask the jury to be lenient and merciful in
rendering their verdict (JA 137-147). Both defend-
ants were found guilty of first degree burglary and
theft, and each was sentenced to ten (10) and fifteen
(15) years, respectfully (JA 6-7).

During the persistent felony offender stage of the
trial, Elmer’s lawyer made the closing argument for
both the respondent and Elmer. Again, guilt was
admitted as part of the same trial strategy (JA 123-
129). The jury found both the respondent and Elmer
guilty as second degree persistent felony offenders and
sentenced each to life imprisonment (JA 8). The
judgment of the trial court was entered on October 2,
1978, sentencing the respondent to life imprisonment
(JA 9-10).

The respondent, along with his brother, appealed to
the Kentucky Supreme Court which affirmed their con-
victions on September 11, 1979 (A 64-67). Of import-
ance to this petition are the issues raised on appeal to
the Kentucky Supreme Court regarding the application
of the ‘‘ Boykin”’ inquiry to the closing argument, and
the ineffective assistance of counsel claim. Principally,
the respondent argued that he was denied effective as-
sistance when his court-appointed lawyer repeatedly
admitted his guilt to the jury without prior consent, and
further, the trial court, sua sponte, should have con-
ducted an on-the-record inquiry into whether or not the
respondent and his brother voluntarily and intelligently
consented to counsel’s admissions, With respect to the

ineffective assistance of counsel claim, the Kentucky
Supreme Court said the claim was not preserved for
appellate review because it had never been presented
to the trial court, hence they did not address it on ap-
peal (A 66). Concerning the argument that the de-
fense counsel’s closing argument amounted to a guilty
plea, the voluntariness of the plea, the Kentucky
Supreme Court classified this as a ‘‘frivolous assign-
ment of error’’ (A 66).

The respondent filed a petition for writ of habeas
corpus and supporting memorandum in the United
States District Court for the Western District of Ken-
tucky on December 3, 1979 (JA 159-163). Again, of
importance to this petition are the resolution by the
District Court of the issues relating to whether a
**Boykin”’ inquiry should have been held to determine
the voluntariness and knowledge of the import of the
plea, and whether the respondent was denied effective
assistance of counsel. The District Court concluded
(per magistrate King) that the contention, that a
“Boykin’’ inquiry should take place where guilt is
conceded during closing argument was ‘patently
frivolous’’ (A 59). The District Court also coneluded
that the respondent was not denied effective assistance
of counsel (A 59). The petition for writ of habeas
corpus was denied on March 31, 1980 (A 49).

On April 25, 1980, the respondent filed his notice of
appeal to the United States Court of Appeals for the
Sixth Cireuit (JA 184). Although the respondent
raised basically the same issues raised earlier in the
Kentucky Supreme Court and the United States Dis-

7

trict Court, the Court of Appeals decided the case on
the ineffective assistance of counsel claim and did not
consider the other claims raised (A 31-47). The Sixth
Circuit found that the respondent had been denied
effective assistance of counsel and reversed the deci-
sion of the District Court (A 47). This petition for
writ of certiorari stems from the findings of the United
States Court of Appeals for the Sixth Circuit that
respondent had exhausted his state remedies and re-
ceived ineffective assistance of counsel.

I.

ARGUMENTS AND REASONS FOR GRANTING
THE WRIT OF CERTIORARI

The Finding of Exhaustion of State Remedies by the Sixth
Circuit and the District Court Was Incorrect and Denied
the Kentucky Courts a First Opportunity to Rule on the
Respondent’s Ineffective Assistance of Counsel Claim.

The ramifications of the decision by the Sixth Cir-
cuit that the respondent had exhausted his state
remedies, extend far beyond the instant case and ef-
fectively emasculate the Kentucky post-conviction
relief procedure [RCr 11.42 (A 69-70) ].

The petitioner submits that the respondent failed
to exhaust his available state remedies with respect to
the ineffective assistance of counsel claim, and, there-
fore, federal habeas corpus relief was inappropriate.

In its decision, the Sixth Circuit stated that the
exhaustion of state remedies is satisfied and comity
preserved when a federal constitutional claim is “fairly

8

presented”’ to the state court for initial determination
(A 38). The Sixth Circuit seemed to ignore the fact
that the merits of the claim were not considered by the
Kentucky Supreme Court because it was not preserved
before the trial, and hence, not properly preserved for
appellate review. The decision of the District Court
and the Sixth Circuit that state remedies were ex-
hausted is clearly incorrect.

28 U.S.C, Sec, 2254 specifically requires that a peti-
tioner seeking federal habeas corpus relief first ex-
haust any existing remedies in state court. An ap-
plicant is not deemed to have exhausted his state
remedies if he has the right under state law to raise,
by any available procedure, the question presented
(A 68). In the case at bar it is uncontroverted that
the merits of Wiley’s claim of ineffective assistance of
counsel may be asserted in the Kentucky courts by a
motion to vacate sentence under RCr 11.42 (A 69-70).
Wiley’s failure to pursue his claim of ineffective
assistance of counsel through available remedies in
state court results in a failure to exhaust this claim,
thereby rendering his present attack premature, Con-
sequently, the issue of inadequate representation was
not properly before the District Court or the Sixth
Circuit.

The issue of ineffective assistance of counsel was
raised on direct appeal in the Kentucky Supreme
Court, but rejected without a consideration of the
merits because it had not been properly preserved for
appellate review by a prior presentation to the trial
court (A 66). The petitioner submits that this was not

a “fair presentation”’ of the issue to the state courts
as is required to exhaust an available state remedy. In
Picard v. Connor, 404 U.S, 270, 92 8. Ct. 509, 30 L. Ed.
2d 438 (1971), the Supreme Court ruled that a peti-
tioner had failed to exhaust his state remedies with
respect to his constitutional claim even though he had
asserted virtually the same challenge in the context of
state law on direct appeal to the Massachusetts
Supreme Judicial Court. The Court held that the peti-
tioner’s equa! protection argument had never been
fairly presented to the state court. Consequently, it
required the petitioner to present his constitutional
claim to the state courts before seeking federal habeas
corpus relief.

This same rationale applies to foreclose review of
respondent’s claim of ineffective assistance of counsel.
It cannot be said that the respondent’s briefing of an
unpreserved question gave the Kentucky courts a fair
oppertunity to resolve his constitutional claim. Ken-
tucky has a strong and consistent policy of requiring
strict compliance with its procedural rules. Foremost
Insurance Company v. Shephard, Ky., 588 8. W. 2d
468 (1979); Brown v. Commonwealth, Ky., 551 8. W.
2d 557 (1977). In particular, the Kentucky courts
routinely refuse to address the issue of trial counsel’s
effectiveness in the absence of a post-trial motion pre-
senting the matter for the trial judge’s consideration.
Wilson v. Commonwealth, Ky., 601 8. W. 2d 280
(1980); Hamilton v. Commonwealth, Ky., 580 8. W.
2d 208 (1979); Hennemeyer v. Commonwealth, Ky.,
580 S. W. 2d 211 (1979); Smith v. Commonwealth,

10

Ky., 567 8. W. 2d 304 (1978). Thus, respondent raised
this issue on appeal with full knowledge that the matter
would be disposed of on non-preservation grounds.
This is borne out by counsel’s failure to cite a single
Kentucky case as authority for the review of the un-
preserved issue in the Kentucky Supreme Court. Con-
sequently, it is clear that when Wiley raised this issue
on direct appeal of his conviction he did not afford the
Kentucky Supreme Court a fair opportunity to resolve
his constitutional claim.

The respondent’s resort to federal habeas corpus
as a vehicle for litigation of his ineffective assistance
of counsel claim, and the acquiescence of the Sixth
Cireuit in such maneuvering, smacks of a deliberate
by-pass of an available state remedy. The Sixth
Circuit puts misplaced emphasis on the filing, in the
Kentucky Supreme Court, of an amicus curiae brief
by the respondent’s trial counsel outlining and de-
fending his trial strategy. The Sixth Circuit also con-
sidered important the fact that the trial judge sub-
mitted an affidavit to the Kentucky Supreme Court
stating that in his opinion defense counsel were com-
petent and their trial strategy was sound. The Sixth
Circuit stated that with this additional information
before it, the Kentucky Supreme Court had the posi-
tion of all the parties concerned and was obligated to
decide the ineffective assistance of counsel claim on the
merits (A 40). The Sixth Circuit stated further that
the trial judge’s affidavit effectively foreclosed the re-
spondent’s relief through the RCr 11.42 procedure, and
that exhaustion does not require pursuit of a futile

11

state remedy (A 40). The Sixth Cireuit seemed to
consider as unimportant the fact that (1) the Kentucky
Supreme Court was not obligated to reach the merits
on an issue not properly preserved for appellate review
and (2) the respondent still had a state remedy avail-
able which was infinitely better suited to resolve the
type of claim raised by the respondent.

In effect, the Sixth Cireuit has ruled that state
remedies are exhausted when an unpreserved trial
claim, of a type ordinarily handled by way of the state’s
post-conviction relief procedure, is briefed on direct
appeal to the state appellate court. This ruling has
the practical effect of emasculating not just the Ken-
tucky post-conviction relief procedure, but also any
similar procedures in other states. As a result of the
Sixth Circuit opinion, a defendant who briefs, and
thereby ‘‘fairly presents,’’ an unpreserved trial claim
to the state appellate court is now able to proceed
directly with that claim from the state appellate courts
to the United States District Courts seeking federal
habeas corpus relief. The state post-conviction relief
procedure is therefore by-passed without ever having
given the state courts an opportunity to rule on the
defendant’s constitutional claim. As a further con-
sequence, this will inundate the already overburdened
federal courts with claims that in the past have been
presented first to the state courts for resolution by way
of the state’s post-conviction relief procedure. This
results in an unnecessary expenditure of federal judi-
cial energy and resources.

12

Although the Kentucky courts do not generally
consider such claims on direct appeal because of the
absence of a timely objection, and more importantly,
because of the absence of an evidentiary hearing below
in which the relevant facts can be developed, these
claims are routinely considered by the Kentucky courts
pursuant to motions to vacate under RCr 11.42 (A
69-70). Hibbs v. Commonwealth, Ky. App., 570 8. W.
2d 642 (1978); Lay v. Commonwealth, 506 S. W. 2d
507 (1974) ; Ramsey v. Commonwealth, Ky., 399 8. W.
2d 473 (1966), cert. denied, 385 U. S. 865 (1966). This*
is true even where the issue was not preserved for re-
view at trial, nor raised on direct appeal. Blanken-
ship v. Commonwealth, Ky. App., 554 8. W. 2d 898
(1977). In Hibbs, supra, the Court noted that the
issue of the effective assistance of counsel is generally
the subject of a RCr 11.42 motion, and not a direct
appeal. It is only where a claim of ineffective assist-
ance of counsel has been rejected on the merits on
direct appeal that RCr 11.42 becomes an inappropriate
vehicle for seeking relief. Cleaver v. Commonwealth,
Ky., 569 S. W. 2d 166 (1978). Consequently, RCr
11.42 was an available and state remedy for the asser-
tion of Wiley’s constitutional claim, whereby evidence
of the factual dispute over whether the respondent had
consented to the strategy of conceding guilt in closing
argument could be presented and resolved in an evi-
dentiary hearing.

The petitioner has pointed out that respondent’s
briefing of the unpreserved claim under Kentucky law
was the functional equivalent of a failure to present

13

his argument to the Commonwealth’s highest court at
all. Thus, Wiley failed to exhaust his state remedy.
Picard, supra; Williams vy. Perini, 557 F. 2d 1221 (6th
Cir. 1977); Watkins v. Estelle, 527 F. 2d 1336 (5th
Cir. 1976). Exhaustion of state remedies can require,
as here, report to state statutes providing for post-
conviction attacks on a judgment. Keener v. Ridenour,
594 F. 2d 581 (6th Cir. 1979) ; Carothers v. Rhay, 594
F, 2d 225 (9th Cir. 1979) ; Miller v. Harvey, 566 F. 2d
879 (4th Cir. 1977) ; Dombrowski v. Johnson, 488 F. 2d
68 (6th Cir. 1973). Consequently, the respondent’s
‘*by-pass’’ of an available procedure under Kentucky
law for litigating his constitutional claim of ineffective
assistance of counsel rendered his habeas corpus action
premature.

The Seventh Circuit reached this same conclusion
in United States v. Israel, 556 F. 2d 865 (7th Cir. 1977).
There the petitioner sought relief on the ground
(among others) that he was denied the effective assist-
ance of counsel. The Court ruled that since the peti-
tioner based his claim in part on matters not con-
tained in the record that he had an available remedy
under the Illinois post-conviction hearing act. <Ace-
cordingly, it held that the petitioner had failed to ex-
haust his available state remedies. The Court also re-
jected the argument that resort to this process would
be futile because of Tlinois’ less stringent standard for
the effectiveness of counsel.’

IThis was not a situation where it would have been futile to
resort to an available state remedy, since state law did not preclude
Wiley from obtaining relief on his ineffective assistance of counsel
(Footnote continued on next page)

14

A similar result was reached in Crowell v. Zahrad-
nick, 571 F. 2d 1257 (4th Cir. 1977). There the peti-
tioner argued that he had exhausted his constitutional
claim because he was procedurally barred from raising
it on direct appeal under Virginia law. The Court
rejected this position, finding that the petitioner could
still raise this contention by attacking the inadequacy
of his counsel in a state habeas corpus petition. Con-
sequently, it ruled that the petitioner had failed to
exhaust an available state remedy.

These cases provide convincing support for the
petitioner’s position that Wiley failed to exhaust an
available state remedy with regard to his claim of in-
effective assistance of counsel. Contrary to the opin-
ion of the Sixth Circuit, the petitioner submits that
Wiley’s futile attempt to assert this claim for the first
time on direct appeal in the Kentucky Supreme Court
was not a ‘‘fair presentation”? of his constitutional
claim to the state’s highest court.

The Sixth Circuit decision, that the exhaustion re-
quirement was satisfied, was incorrect in another re-
spect. The opinion of the Sixth Circuit regarding the
claim of ineffective assistance of counsel attached great
significance to the respondent’s assertion below that he

(Footnote continued from preceding page)

claim. Kentucky courts have reversed convictions on the basis of
ineffective assistance of counsel in the past. Flener v. Common-
wealth, Ky., 514 8S. W. 2d 201 (1974) ; Vaughan v. Commonwealth,
Ky., 505 8. W. 2d 768 (1974); Raisor v. Commonwealth, Ky., 278
S. W. 2d 635 (1955). The fact that the Sixth Circuit thought it
was unlikely that Wiley would succeed on the merits of his claim
in state court was a totally insufficient basis for the Sixth Circuit
waive compliance with the exhaustion requirement.

15

did not consent to the concession of guilt in closing
argument. However, there was absolutely no evidence
of any kind in the record to support this contention.
The petitioner submits that as a result of the signi-
ficance attached to the consent issue by the Sixth Cir-
cuit, the resolution of the issue of respondent’s consent
to the closing argument became crucial in determining
whether or not there was ineffective assistance of coun-
sel. The need for an evidentiary hearing to resolve
this issue was obvious. Instead, the Sixth Circuit,
without any support for so doing, found that the re-
spondent had not given his consent to the closing argu-
ment (A 45). Ata minimum, the Sixth Circuit should
have ordered the District Court to hold an evidentiary
hearing on the matter. It has been held that where a
petitioner makes factual contentions going outside the
record, and a remedy is available in state court, that
the petitioner has failed to exhaust his available state
remedies. Knozson Vv. Estelle, 574 F. 2d 1339 (5th Cir.
1978). There the Court ruled that new factual conten-
tions in support of an alleged error should be reviewed
by the state courts. This is only logical. The policy
of federal-state comity embodied in the exhaustion
doctrine is designed to give the state courts the first
opportunity to hear and resolve constitutional claims.
This policy is violated when a petitioner is permitted
to by-pass an available state post-conviction remedy,
which provides for evidentiary hearings, in order to
seek a similar hearing on his claim in the federal
courts. Consequently, the Sixth Circuit should have
ruled that Wiley was precluded from seeking federal

16

habeas corpus relief on his claim of ineffective assist-
ance of counsel.

Although the respondent’s petition for writ of
habeas corpus contained both exhausted and unex-
hausted claims, the Sixth Circuit did not dismiss the
petition, but instead chose to base its entire opinion on
the unexhausted claim of ineffective assistance of coun-
sel. The petitioner submits that the better approach to
follow where a petition contains both exhausted claims
and one or more unexhausted claims is for the court to
dismiss the entire petition, including the exhausted
contentions. Galtieri v. Wainwright, 582 F. 2d 348
(5th Cir. 1978) ; Gardner v. Blackburn, 569 F. 2d 856
(5th Cir. 1978) ; Gonzales v. Stone, 546 F. 2d 807 (9th
Cir. 1976). A rule allowing a federal court to consider
the exhausted claims in a petition for writ of habeas
corpus would almost certainly interfere with the state
court’s subsequent review of the petition’s unexhausted
claims. This would impair comity. Gonzales, supra.
Such a rule would also lead to piecemeal litigation,
thereby frustrating the judicial policy against frag-
mentary appeals, and creating unnecessary work for
an already overburdened court. Parr v. United States,
351 U. 8. 513, 76 8S. Ct. 912, 100 L. Ed. 1377 (1956).
Therefore, the petitioner submits that the respondent
failed to exhaust his state remedies with respect to his
ineffective assistance of counsel claim.

For the foregoing reasons, the petitioner respect-
fully requests this Honorable Court to grant the peti-
tion for writ of certiorari to rectify the misapplication
and misinterpretation of the doctrine of exhaustion of

17

state remedies to the case at bar, and to undue the
destructive effect of the Sixth Circuit’s opinion on
Kentucky’s post-conviction relief procedure.

II,

THE SIXTH CIRCUIT'S DECISION THAT THE RE-
SPONDENT WAS DENIED EFFECTIVE ASSIST-
ANCE OF COUNSEL CONFLICTS WITH THE
DECISION OF OTHER COURTS.

The Sixth Circuit incorrectly found that the re-
spondent was denied effective assistance of counsel
when his attorney conceded his guilt during the closing
argument. The Sixth Circuit in reaching its decision
seemed to dismiss without consideration that this con-
cession was done as part of a legitimate trial strategy
to obtain leniency for the respondent.

The Sixth Circuit found, without any support in
the record for so doing, that the respondent had not
consented to the concession of guilt in closing argu-
ment. Because of this alleged lack of consent, the re-
spondent was allegedly denied effective assistance of
counsel. As stated earlier, the Sixth Circuit has made
the respondent’s consent the pivotal factor in determin-
ing whether or not there was ineffective assistance of
counsel. As such there needed to be some evidence in
the record before the court could make such a finding.
In the case at bar, there was absolutely no evidence
whatsoever. Thus, the need for an evidentiary hear-
ing was obvious in order to gather evidence on the
matter.

18

In effect, the Sixth Circuit has established a per se
rule of ineffective assistance of counsel: It is ineffee-
tive assistance of counsel when an attorney adopts a
trial strategy, such as conceding guilt in closing argu-
ment in order to obtain leniency, without first getting
his client’s approval on the record. Needless to say,
such a rule takes control of the case away from the
attorney, An attorney should certainly be able to
pursue a trial strategy the client may not understand.
It is clear that it is within the discretion of defense
counsel to select trial tactics which he believes will best
advance his client’s interests. As Justice Harlan stated °
in his concurrence in Brookhart v. Janis, 314 U. 8. 1,
8, 86 S. Ct. 1245, 16 L. Ed. 2d 314 (1966) :

‘“‘T believe that a lawyer may properly make a
tactical determination of how to run a trial even in
the face of his client’s incomprehension or even
explicit disapproval.”’

In this same vein, it has been stated that:

“If counsel is to have the responsibility for con-
ducting a contested criminal trial, quite obviously
he must have the authority to make important
tactical decisions promptly as a trial progresses.
The very reasons why counsel’s participation is of
such critical importance in assuring a fair trial
for the defendant, see Powell vy. Alabama, 287
U. S. 45, 68-69, 53 S. Ct. 55, 77 L. Ed. 158, make it
inappropriate to require that his tactical decisions
always be personally approved, or even thoroughly
understood, by his client. Unquestionably, assum-
ing the lawyer’s competence, the client must accept
the consequences of his trial strategy. A rule

19

* which would require the client’s participation in
every decision to object, or not to object, to prof-
fered evidence would make a shambles of orderly
procedure. United States ex rel. Allum v. Twomey,
484 F, 2d 740, 744-745 (CA 7 1973).”’

Justice Stevens has likewise repudiated the notion that
an accused must give prior approval of counsel’s trial
tactics:

“The notion that a client must always consent to a
tactical decision not to assert a constitutional ob-
jection to a proffer of evidence has always seemed
unrealistic to me. Wainwright v. Sykes, 433 U. 8.
72, 94-95, 97 S. Ot. 2497, 53 L. Ed. 2d 594 (1977)
concurring opinion.’’

Clearly then, trial counsel was not required to obtain
the respondent’s prior approval before adopting the
complained-of trial tactie in his closing argument.

The ripple effect of such a rule, requiring on-the-
record consent to strategic trial matters, will have
tremendous repercussions in the state and federal
courts. The criminal defendant’s consent will have to
appear in the record on such matters of strategy as the
strategic failure to object when appropriate, the type
of questions to be asked of witnesses, the decision on
whether or not to call a certain witness, the decision on
whether or not to introduce evidence, ete. The practical
effect of such a rule will be to lengthen the trial time of
a case in the already crowded state and federal trial
courts.

The Sixth Circuit’s ineffective assistance of counsel
rule will also open the floodgates to the appellate courts

20

with ineffective assistance of counsel claims. In a case
where a defendant’s consent does not appear on the
record, the defendant can choose to be bound or not
bound depending on the outcome of the case. This will
greatly increase the number of such claims raised in
the state courts. More importantly, the federal courts,
in light of the Sixth Circuit’s handling of the exhaus-
tion issue, will be confronted with the increased num-
ber of such claims in the form of petitions for writ of
habeas corpus.

As mentioned before, trial counsel conceded the
brothers’ guilt in his closing argument at trial before
arguing mitigating factors on the theft-related offenses
(JA 86-97). The Magistrate’s Report, later adopted
by Judge Johnstone, found that this was a competently
conceived and applied trial strategy which did not deny
the respondent effective assistance of counsel (A 63).
The Sixth Circuit paid little attention to petitioner’s
argument that this was a competent trial tactic, especi-
ally under Kentucky procedure where the jury deter-

‘mines guilt or innocence and also fixes the penalty.
[RCr 9.84(1) (A 71)].

It must be recognized that respondent’s counsel had

very little to go on in the ease. His client was stopped
by the police within minutes of the theft with the stolen
goods in his possession (JA 49-53, 62). The stolen
goods were found in the same Budget Rent-A-Truck
seen leaving the Tegethoff home only a few minutes
earlier (JA 28). Burglar tools and a pistol were found
in the front seat of the van (JA 65, 68). Earl Wiley
fled the scene (JA 52).

21

Neither co-defendant took the stand on his own be-
half, nor did they offer any explanation for their con-
duct. The possibility of a successful defense in this
situation was simply non-existent. In light of this
telling case against his client, defense counsel took what
he felt to be the most reasonable course ; that is, to argue
for lienency for his elient (JA 139-140).

It should be noted that trial counsel vehemently
disputed the Public Advocate’s assessment of his rep-
resentation in a highly unusual amicus brief filed with
the Kentucky Supreme Court (JA 137-147). Trial
counsel argued that they saw no hope of avoiding con-
viction for the principal offenses, but hoped to minimize
the punishment received. They were successful in
achieving the latter objective, since Earl Wiley and
his co-defendant received the minimum sentence per-
mitted by Kentucky law for burglary (JA 6; KRS
511.020; 532.060). Also, defense counsel’s avowed
strategy in the persistent felony offender (PFO) stage
of the proceeding was to win acquittal or minimum
punishment (JA 139-141). Although the trial counsel
was not successful at the PFO stage (the respondent
received the maximum sentence—life imprisonment),
this does not mean that the trial tactic was ill-conceived.

The strategy of conceding guilt finds support in
Kentucky law. In Meadows vy. Commonwealth, Ky.,
550 S. W. 2d 511 (1977), the Court held that an appeal
to the jury’s merey accompanied by a concession of
guilt was a permissible trial tactic. Furthermore, the
Kentucky courts have long noted that a jury is free to
disregard evidence of prior felonies in a habitual of-

22

fender trial. As the Court stated in Coleman vy. Com-
monwealth, Ky., 276 Ky. 802, 125 S. W. 2d 728, 729
(1939) :

‘*. . . Perhaps they deemed the principal crime
for which the accused was being tried not to merit
such severe punishment or that the character of
the man itself did not justify it.”’

Thus, by invoking the sympathy of the jury, defense
counsel hoped to obtain a minimal punishment for his
client. His lack of suceess in this attempt may have
disappointed his client, but it did not amount to in-
effective assistance of counsel.

The District Court’s review of the record indicated
that counsel did not abdicate his professional duty to
zealously represent the interests if his client. The
court stated defense counsel conducted a vigorous de-
fense of his client throughout the proceedings (JA
175-176). The court noted that counsel moved for a
directed verdict of acquittal on two occasions. He
also requested instructions on second and third degree
burglary, which were denied by the court (JA 82).
He argued vigorously that several mitigating factors
were present which reduced the gravity of the appel-
lant’s offense (JA 91-98). He continually objected to
the procedure followed by the Commonwealth during
the persistent offender stage of the proceedings (JA
107, 116, 119, 121-122). Finally, the presiding judge,
by affidavit submitted on appeal, stated his opinion that
both defense attorneys were competent members of the
local bar, and had performed as such in the case sub

judice (JA 146-147). It is the petitioner’s contention
that defense counsel employed a permissible trial tactic
in making his closing argument to the jury. Petitioner
submits that his decision to do so was well within his
discretion in conducting Wiley’s defense.

The Sixth Circuit's finding of ineffective assistance
of counsel is the result of misapplication of its own case
of Beasley v. United States, 491 F, 2d 687 (6th Cir.
1974) and other decisions relating to ineffective as-
sistance of counsel. The United States Supreme Court
has long interpreted the Sixth Amendment right to
‘the Assistance of Counsel’’ to mean “‘effective’’ as-
sistance of counsel. Powell v. Alabama, 287 U. 8. 45,
77 L. Ed. 158, 53 8. Ct. 55 (1932). The Court has also
stated that advice given by counsel must be ‘within
the range of competence demanded of an attorney in
criminal cases.’”’ McMann v. Richardson, 397 U. 8.
759, 771, 25 L. Ed. 2d 763, 90 8S. Ct. 1441 (1970). See
also Tollett vy. Henderson, 411 U. 8. 258, 36 L, Ed. 2d
235, 93 8. Ct. 1602 (1973). However, this Court has
not articulated a constitutional test which has an ap-
plication broader than a “guilty plea”’ situation. Thus,
the defining of the proper standard for judging the
effectiveness of trial counsel has been left primarily
to the lower federal courts and the state courts.
McQueen v. Swenson, 498 F', 2d 207 (8th Cir. 1974).

Many courts have adopted the standard of counsel
‘reasonably likely to render and rendering reasonably
effective assistance,’’ including the federal courts in
the 6th Cireuit. Beasley v. United States, 491 F, 2d
687 (6th Cir. 1974); Herring v. Estelle, 491 F’. 2d 125

24

(5th Cir. 1974); Williams v. Twomey, 510 F. 2d 634
(7th Cir. 1975). Although the Beasley court stated
expressly that it was rejecting the ‘farce and mockery”’
standard, petitioner submits that the distinction be-
tween the two standards is more apparent than real.
It is perhaps more informative to state that an accused
is denied the effective assistance of counsel, when his
attorney’s incompetence deprives him of a substantial
defense. Beasley, supra, at 696. Error free represen-
tation is not required. Parker v. North Carolina, 397
U. 8. 790, 25 L. Ed, 2d 785, 90 S. Ct. 1458 (1970),

In Beasley, the Court stated at 696 that:

“Tf however, action that appears erroneous from
hindsight was taken for reasons that would ap-
pear sound to a competent criminal attorney, the
assistance of counsel has not been constitutionally
defective. McMann v. Richardson, 397 U. 8. 759,
90 8. Ct. 1441, 25 L. Ed, 2d 763 (1970).”’

The petitioner submits that this same rationale sup-
ports rejection of respondent’s claim in this case.
Courts have been particularly reluctant to second-guess
the strategy or trial tactics of defense counsel in ef-
fectiveness of counsel cases. Moran v. Hogan, 494 F, 2d
1220 (1st Cir. 1974); Walker v. Henderson, 492 F, 2d
1311 (2d Cir. 1974), cert. denied 417 U. 8. 972 (1974) ;
Haggard vy. Alabama, 550 F’, 2d 1019 (5th Cir, 1977) ;
and United States v. Cotton, 446 F. 2d 865 (8th Cir.
1971). As the 8th Circuit has noted ‘‘a wrong or
poorly advised decision by a defense attorney is not
alone enough to support a subsequent claim of ineffeec-

25

tive counsel.’’ United States v. Hager, 505 F. 2d 737
(8th Cir. 1974).

Although the opinion of the Sixth Circuit espouses
these same principles, the Sixth Circuit did judge the
effectiveness of counsel from hindsight. Further, the
Court did second guess counsel’s judgment and trial
strategy. It completely ignored and discounted the
representation rendered at all other phases of the trial.
It based its finding of ineffectiveness totally on the
content of the closing argument. The total circum-
stances surrounding the case must be reviewed before
deciding on the effectiveness of counsel by the attorney.
Vaughan v. Commonwealth, Ky., 505 S. W. 2d 768
(1974). Trial tactics are often hard decisions made in
the tempo of the adversary proceeding and, once made,
are not subject to rejection in the event one misfires.
Johnson v. United States, 506 F. 2d 640, 643 (8th Cir.
1974) cert. denied 420 U. 8. 978 (1974). Yet, this is
precisely what the Sixth Circuit has done in the case
at bar. The Sixth Circuit has rejected the trial strat-
egy because it was not successful. Trial counsel’s judg-
ment in the case may be subject to debate, but it does
not amount to ineffective assistance of counsel. United
States v. Yelardy, 567 F. 2d 863 (6th Cir. 1978), cert.
den. 99 8. Ct. 133 (1979).

For the foregoing reasons, this Court should review
this error because of the grave implications it carries
and the flood of claims to the federal and state courts
that will likely ensue as a result.

26

Il.

THE CONCESSION OF GUILT IN THE CLOSING WAS
NOT A DE FACTO GUILTY PLEA AND THERE.
FORE THE SIXTH CIRCUIT WAS INCORRECT IN
DECIDING THAT A “BOYKIN” TYPE INQUIRY
WAS CONSTITUTIONAL.

The Sixth Circuit stated in its opinion that the
concession of guilt in the closing argument amounted
to a guilty plea and as such the trial court was obligated
to make an on the record inquiry of the defendant to
ensure the plea was voluntary and intelligent.

The petitioner submits that the concession of guilt
in the closing argument was not a guilty plea and the
Sixth Circuit incorrectly extended Boykin v. Alabama,
395 U.S. 238 (1969), to the closing argument phase
of the trial. Contrary to the opinion of the Sixth
Cireuit, the respondent was not denied the right to
have his guilt or innocence decided by the jury. Fur-
ther he was extended those constitutional rights funda-
mental to a fair trial.

The respondent herein, presented the same argu-
ments to the Kentucky Supreme Court and the United
States District Court. It is interesting to note that
the Kentucky Supreme Court and District Court re-
spectively characterized the argument as ‘‘a frivolous
assignment of error’ and ‘‘patently frivolous’? (A
59, 66).

It was clear to the courts below, with the exception
of the Sixth Circuit, that Boykin supra, and its progeny
deal only with the situation where an accused, prior

27

to trial, makes the decision to plead guilty to the
charges against him. In those circumstances, this
Court requires that the judge inquire as to whether
the defendant understands the nature and consequences
of his plea, the constitutional rights that he is relin-
quishing, and whether or not the plea is voluntary,
Boykin, supra.

This Court has also noted that the decision to plead
guilty involves the making of difficult judgments. The
accused and his counsel must assess the weight of the
prosecution’s case without having the opportunity to
test that case. Brady v. U. S., 397 U. 8S. 742 (1970) ;
McMann v. Richardson, 397 U. 8. 759 (1970). The
accused relinquishes his right to a trial by jury, his
privilege against self-incrimination, and the right to
confront his accusers.

The foregoing discussion makes it abundantly clear
that there is absolutely no analogy between a concession
of guilt in closing argument and a guilty plea. In the
case at bar, the respondent certainly had the oppor-
tunity to confront his accusers and to test the strength
of the prosecution’s case. In fact, it was seeing the
overwhelming evidence against his client that mandated
the trial counsel’s strategy (JA 139). Secondly, the
accused was not denied his right to a jury trial. The
jury returned a verdict of guilty and imposed the
minimum sentence permitted by law in the first phase
of the trial. The prosecution had sought the maxi-
mum penalty. Finally, the respondent did not waive
his privilege against self-incrimination, In Boykin,

28

supra, at 242, footnote 4, the Court approved the state-
ment that even a voluntary confession by the defend-
ant in open court did not amount to a guilty plea.
Surely, then, an admission by counsel in closing argu-
ment cannot be said to be the equivalent of a guilty
plea. The petitioner submits that this rebuts the Sixth
Cireuit’s decision that a concession of guilt by counsel
in closing argument is the ‘‘functional equivalent’ of
a guilty plea, and requires a Boykin inquiry.

CONCLUSION

For the foregoing reasons the petitioner respect-
fully requests this Honorable Court to grant the pe-
tition for writ of certiorari in this case in order to
rectify the misinterpretation and misapplication of the
exhaustion requirement of 28 U.S.C. 2254, and Boykin
v. Alabama, supra, to the case at bar.

Respectfully submitted,

STeveN L. BESHEAR
Attorney General

MicHae. R. Beitrna
Assistant Attorney General

PAu E. REMENpDeER, JR.
Assistant Attorney General
Capitol Building
Frankfort, Kentucky 40601
Telephone: (502) 564-4058

Counsel for Petitioner

29

PROOF OF SERVICE

I, Michael R. Beiting, one of counsel for the petitioner,
hereby certify that three copies of the foregoing Petition
for hee of Certiorari were mailed postage prepaid this
{7% day of July, 1981, to Hon. Kevin Michael McNally,
Assistant Public Advocate, State Office Building Annex,
Third Floor, Frankfort, spate 40601, ieee for Earl
Wayne Wiley.

Micuast R. Berrine
Assistant Attorney General
Counsel of Record for Petitioner

APPENDIX

31

No. 80-3445

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

Earn Wayne Wutzy, - - ~- _ Petitioner-Appellant,
v.

Dewey Sowpers, Superintendent, Kentucky
State Reformatory, - - Respondent-Appellee.

Appeal from the United States District Court for
the Western District of Kentucky, Paducah.

OPINION—Decided and Filed April 24, 1981.

Before: Weick and Enoet, Circuit Judges; and Hu1-
MAN,” District Judge.

Hitiman, District Judge. Earl Wiley, petitioner, was
indicted by the Henderson County Grand Jury on August
1, 1978, along with his brother, Elmer Wiley, of first de-
gree burglary,' theft of the value of $100 or more? and be-
ing a persistent felony offender in the second degree.* The
offenses were allegedly committed on July 13, 1978.

On August 8, 1978, Earl Wiley was arraigned and
counsel appointed to represent him. Earl Wiley pled “not
guilty.” Separate counsel was appointed for Elmer Wiley.
Elmer Wiley also pled “not guilty.”

*Honorable Douglas W. Hillman, United States District Judge
for the Western District of Michigan, sitting by designation.

IKRS § 511.020.

2KRS § 514.030.

SKRS § 532.080(2).

32

The Wileys were tried together on September 20, 1978.
The jury found both Earl Wiley and Elmer Wiley guilty
of first degree burglary and theft, and sentenced each to
10 and 5 years respectively. At the persistent felony
phase of the trial held that evening, the same jury found
the Wileys guilty and the first degree burglary charge was
enhanced to life imprisonment. Judgment was entered
October 2, 1978, sentencing Earl Wiley to life.

The Wileys appealed to the Supreme Court of Kentucky
which affirmed their convictions on September 11, 1979. In
this habeas corpus petition, Earl Wiley challenges both the
conviction and the habitual criminal sentence. The district
court denied his petition. We reverse.

In challenging his convictions, Wiley raises several
constitutional challenges. Principally, he argues that be-
cause his court-appointed lawyer repeatedly admitted his
guilt to the jury without his prior consent, he was denied
effective counsel in violation of his rights under the Sixth
and Fourteenth Amendments to the United States Consti-
tution. Our disposition of this issue makes it unnecessary
to consider his other constitutional claims.

At the close of proofs in the first phase of trial, peti-
tioner’s counsel presented the closing argument on behalf
of both defendants.®

*Under Kentucky procedure, the jury, in addition to determin-
ing the guilt or innocence of a defendant, also fixes the penalty.
Kentucky Criminal Rule 9.84(1). Thereafter, the court imposes
sentence. Criminal Rule 11.02.

‘The practice of one attorney making a closing argument on
behalf of two defendants, whose interests could well be in conflict,
might well in and of itself constitute reversible error. ‘‘Irrespec-
tive of any conflict of interest, the additional burden of repre-
senting another party may conceivably impair counsel's effective-
ness.”’ Glasser v. United States, 315 U.S. 60, 75 (1942).

33

Defense counsel’s closing argument, apparently a “trial
tactic,” contained several unequivocal admissions that the
defendants were guilty while at the same time attempting
to obtain mercy. The following are excerpts from defense
counsel’s closing argument:

“Ladies and gentlemen, I think it’s very important that
you realize what the function of [counsel for Elmer
Wiley] and mine is in the case. We were appointed
to represent these two men, and we are going to repre-
sent them to the best of our ability, and that is what
I want to talk to you about right now. (emphasis
added.)

®Although not raised as error, this statement constitutes highly
questionable practice. Compare with the conduct of Harold R.
Medina, eminent trial attorney and later Circuit Judge on the
U. S. Court of Appeals for the Second Circuit. Medina was court-
appointed counsel for Anthony Cramer, an alleged German sabo-
teur, charged with treason during World War II. Feeling ran
high against Medina and, among other indignities, he was spat on
by a spectator. At the close of the government’s case, the trial
judge asked Medina to stand and then proceeded to praise him
highly for his skill and vigor in defending Cramer as assigned
counsel without compensation. In response, Medina immediately
took exception to the court’s remarks as he had not wanted the jury
to think that he personally thought Cramer was guilty and was
defending him only because he had been assigned by the court to
do it. Medina said:
‘*May it please your Honor, I have a most distressing and dis-
agreeable task, and that is to object to the fact that you have
mentioned that to this jury, and to take exception o your
Honor’s comment. It is something I do with the most extreme
regret, but I honestly feel that my duty requires that I do it.
I do not think the jury should have been told that. I have
tried to keep it from them myself, and I have not mentioned
it."’ The Anatomy of Freedom, Harold R. Medina, Henry
Holt and Company, 1959, p. 59.

34

“Often times when a lawyer gets involved in a case,
he gets stars in his eyes and he starts having notions
that there may be some way, you know, if I examine
this case . . . and I do my homework and I go out
and I investigate as much as I can and I interview all
the witnesses, that I'll be able to get a man off. That
I will be able to prove to a jury that he is not guilty
with what they have got him charged with.

“The stars aren’t in our eyes in this case, ladies and
gentlemen. They never have been. We're all adults.
We're all mature thinking human beings .. .

“But as I said, the stars aren’t in my eyes in this case.
. . » Because unfortunately for these two men that
you see here today, they are guilty. They're guilty as
charged by the Commonwealth’s Attorney’s office.
(Emphasis added.)

“Mr. Walker [the prosecutor] in voir diring you all
said, do you understand that the indictment .. .
doesn’t become a question of fact until I prove beyond
a reasonable doubt that they are in fact guilty.

“We have to stand and give him credit for that because,
ladies and gentlemen of the jury, he has proved to you
beyond a reasonable doubt that these gentlemen are
guilty of this crime. We don’t have stars in our eyes,
and we never have. They're guilty. (Emphasis added.)

“T couldn’t stand up here and argue to you on behalf
of Earl Wiley — you know there were no eye witnesses,
and I could make the same argument about Elmer
Wiley — you know there were no eye witnesses, nobody
saw them go in and come out. I’m not that foolish.
I’m not that naive. And I know you're not.

35

“T know, and you know, you're going to give these men
time in the penitentiary. And they know it, or they
had better know it after they've heard the evidence
here today. They’re going to the penitentiary. That
part’s easy because they're guilty. I can’t stand up
here and say they didn’t do it, they haven’t proven
that they did it, I’d be foolish and naive and immature.
Because they did do it. And the Commonwealth’s At-
torney’s office has proven to you that they have done
it. ("2mphasis added.)

“T told you before we know they are going to the peni-
tentiary. And they know that they’re going to the
penitentiary. And you know they’re going to the
penitentiary.

“ . . It’s bad, and it’s a crime, and you know and I
know and they know they are going to the peniten-
lary...

“Ladies and gentlemen, we submit to you that in this
case, in this case, that we are here about today the
question of guilt is absolutely clear. Absolutely clear,
beyond a question of a doubt. You know sometimes
we stand up and we argue beyond a reasonable doubt.
We don’t have that argument here today. We don’t
have that argument here today. I don’t think there
is reasonable doubt. I don’t think there is a shadow
of a doubt that these two men are guilty. (Emphasis
added. )

“We ask that you be a compassionate jury and a merci-
ful jury within reason because we know good and well
as I stand here today that you’re going to find these

36

boys guilty. I know you are going to find them guilty.
There is no question in my mind about it. There is
no question in your mind about it . . . I'd venture to
say that there’s not a single one of you sitting here
who is not going to say that these boys are guilty.
I know that. It’s going to happen. We know that it
is going to happen.” (Emphasis added.)

At the close of the proofs of the second phase of trial,
counselor for petitioner’s brother made the closing argu-
ment for both defendants. Again, the predominant theme
of this closing argument was that both men were guilty
of the burglary and theft with the added admission that
both men had prior convictions. The specific strategy is
unclear, particularly when counsel told the jury he was
not asking for mercy. Following is an excerpt from the
closing argument:

“Your first verdict reflects what [attorney for Earl
Wiley] forthrightly told you before you went out to
deliberate on it that these men did that. That they
definitely did do it. He also told you in first summa-
tion here that these men had been, his quote was ‘down
the road before’...

“Elmer and Earl Wiley have been here before. Each
of these men has been previously adjudged guilty of
going where they had no right to be, and taking what
did not belong to them. That’s in the record here.

“Earl in 1974. Elmer in 1972. Both in McCracken
Circuit Court down in Paducah. In the most literary
sense of the term, ladies and gentlemen, when that
happened in ’74 and ’72 to him both of these men in-
curred a debt to society ...

37

“Elmer Wiley’s first debt in ’74—excuse me, in °72,
and Earl’s first one in ’74, that that means that you
must assess an ultimate toll here today that is far far
heavier than anything that you have done before.

“I submit that you folks had a very very strong sug-
gestion, a very very strong indication before you were
sent out the first time garnered from [counsel’s] state-
ment that these guys had been down the road before.
Well there it is. They have. They have been down
the road before and they are still on the same road .. .

“(Attorney for Earl Wiley] told you if you will recall
in the first summation before you ever went out that
first time that these men were guilty. That those men
were guilty ...

“We don’t ask you folks for mercy here. I feel there’s
little enough of that in the world anyway and what
there is isn’t to be applied in a case like this. These
men are guilty. They are guilty of a serious crime.
We haven’t tried to duck that. We haven't tried to
pull any wool over your eyes on that.” (Emphasis
added.)

EXHAUSTION OF STATE REMEDIES

Before addressing petitioner’s claim of ineffective coun-
sel, a threshold question must be considered. Respondent
contends that petitioner has failed to exhaust available
state remedies with respect to the ineffective counsel claim
and therefore federal habeas relief is inappropriate.

It is, of course, well recognized that a state convicted
prisoner must first exhaust his available and adequate state
remedies as a condition precedent to federal habeas relief.

38

28 U.S.C. § 2254(b). See, Preiser v. Rodriguez, 411 U. S.
475 (1973), The exhaustion doctrine springs from eonsider-
ations of comity between the states and federal govern-
ment. Fay v. Noia, 372 U. S. 391 (1963). The required
exhaustion is “designed to give the state an initial op-
portunity to pass upon and correct alleged violations of its
prisoners’ federal rights.” Wilwording v. Swenson, 404
U. S. 249, 250 (1971).

Exhaustion is satisfied and comity preserved when a
federal constitutional claim which arises in a state criminal
proceeding is “fairly presented” to the state court for ini-
tial determination. Picard v. Connor, 404 U. S. 270, 275
(1971).

Under the law of Kentucky, claims of ineffective counsel
are initially addressed to the trial court through a post-
trial motion under Kentucky Rule of Criminal Procedure
11.42. Petitioner made no such motion. Instead his in-
effective counsel claim was first presented on direct appeal
to the Kentucky Supreme Court. Nevertheless, the Ken-
tucky Supreme Court has, on occasion, reviewed unpre-
served error to prevent “manifest injustice.” Stone v.
Commonwealth, Ky., 456 S. W. 2d 43 (1970). In the past,
the state appellate court has both agreed and refused to
consider the issue of ineffective assistance of counsel on
direct appeal. Wilson v. Commonwealth, Ky., 601 S. W.
2d 280 (1980); Nickell v. Commonwealth, Ky., 565 S. W.
2d 145 (1978).

In the present case, the Kentucky Supreme Court re-
ceived the parties’ briefs which contained arguments on the
ineffective counsel issue. In addition, the Kentucky Sup-
reme Court took the unusual step of gathering supplemental
material relative to this claim. For example, petitioner's
trial counsel was permitted to file an amicus brief outlining
and defending his trial strategy. In addition, the presid-
ing trial judge submitted an aflidavit stating that in his

39

opinion defense counsel were competent and their trial
strategy sound. After having received these materials, the
state supreme court nevertheless backed off the issue by
declining to rule on the ineffective connsel claim stating
that absent a post-trial motion, the claim was not preserved
for appellate review. Nevertheless, it is clear that the
Kentucky Supreme Court, by virtue of its own orders, had
before it the position of all parties concerned: Petitioner,
the Commonwealth, both trial counsel, and the trial judge.
Unquestionably the issue of trial counsel’s ineffectiveness
was “fairly” presented. Relevant in this regard is the case
of Rachel v. Bordenkircher, 590 F. 24 200 (6th Cir. 1978).
In Rachel, the constitutional claim which formed the basis
of the habeas petition was not preserved at the trial court.
Nevertheless, the petitioner urged the Kentucky Supreme
Court to consider the claim on the theory that the uif-
preserved error resulted in “manifest injustice.” The Ken-
tucky Supreme Court did not directly address the issue
but rejected the claim as either “(1) without merit or (2)
not properly preserved for review.” Rachel then filed a
petition for a writ of habeas corpus. The Attorney Gen-
eral, as he does here, argued that Rachel was required to
return to Kentucky and file a state post-conviction motion
before the trial judge. This Court stated:

“We disagree. As already noted, the Kentucky appel-
late court has already had a fair opportunity to review
this issue and to require petitioner to trek through
Kentucky’s post-conviction relief procedure again is
simply to further delay redress of a clear infraction of
his constitutional rights . . . Furthermore, requir-
ing petitioner to apply for relief again in the Ken-
tucky courts might be an exercise in futility. [Cita-
tions and footnotes omitted.]” /d., at 204

Consistent with Rachel, we conclude that although peti-
tioner’s claim was not preserved before the trial court the

40

claim was fairly presented to the state supreme court. Our
opinion that petitioner’s claim was fairly presented to the
appellate court is further reinforced by the unusual manner
in which the claim came before that court. Having sub-
mitted an affidavit to the state supreme court, the trial
judge effectively foreclosed petitioner’s further relief
through the conventional post-trial motion. Petitioner’s
remedy at the trial court level was prejudiced and any
further pursuit rendered futile. The exhaustion doctrine
does not require pursuit of a state remedy where such a
pursuit is clearly futile. Coley v. Alvis, 381 F. 2d 870 (6th
Cir. 1967); Galtierit v. Wainright, 582 F. 2d 348 (5th Cir.
1978).

Conversely, the fact that the appellate court received
this expanded record placed that court in substantially the
same position as if the post-trial motion had been made,
denied, and incorporated into the appellate record. After
receiving the affidavit which foreclosed petitioner’s trial
court remedies, the appellate court was obligated to decide
the ineffective counsel claim on the merits. Petitioner can-
not be penalized because the Kentucky Supreme Court re-
fused to decide an issue put squarely before it. Likewise,
it is settled that satisfaction of the exhaustion require-
ment “cannot turn upon whether a state appellate court
chooses to ignore in its opinion a federal constitutional
claim squarely presented in petitioner’s brief in state
court.” Smith v. Digmon, 434 U. S. 332, 333 (1978).

Accordingly, we conclude that petitioner has exhausted
his state remedies with respect to his ineffective counsel
claim and that his claim is appropriately before this court.

EFFECTIVENESS OF COUNSEL

Since Powell v. Alabama, 287 U.S. 45 (1932), the Sixth
Amendment of the United States Constitution has been
construed to require that a criminal defendant be afforded

41

effective assistance of counsel.’ As the Supreme Court
noted in McMann v. Richardson, 397 U. S. 759 (1970),
counsel’s performance must be “within the range of com-
petence demanded of attorneys in criminal cases.” Td., at
771.

In his opinion in Beasley v. United States, 491 F. 2d 687
(6th Cir. 1974) Judge Celebrezze chronicled the history of
the law of ineffective counsel within this cireuit. The opin-
ion recounts the early “see-saw between a ‘reasonably ef-
fective assistance of counsel’ standard [United States v.
Johnson, 318 F. 2d 288 (6th Cir. 1963)] and a ‘farce and
mockery’ test [O’Malley v. United States, 285 F. 2d 733
(6th Cir. 1961)].” Beasley, supra, at 695. Beasley resolved
this fluctuation by adopting a standard more probing and
more objective than the farce and mockery standard.
Beasley held the Sixth Amendment to require that
“(djefense counsel must perform at least as well as a
lawyer with ordinary training and skill in the criminal law
and must conscientiously protect his client’s interest, un-
deflected by conflicting considerations.” Id., at 696.

The Beasley standard of effective counsel incorporates
several well-settled principles of law. The requirement
that counsel be effective is not a result-oriented standard.
Counsel is required to be competent, but not necessarily
victorious. The measure of competence is that of the
ordinary practitioner in the heat of trial. Counsel's ef-
fective assistance is not to be judged from hindsight. J/d.,
at 696. Error-free representation is not requirec, Parker
v. North Carolina, 397 U. S. 790 (1970).

Any claim alleging counsel's ineffective trial perform-
ance requires the court to mediate between the funda-

The Sixth Amendment of the United States Constitution guar-
antees that ‘‘[in] all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defense.’’

42

mental due process rights of the accused and the need of
defense counsel to structure his case. It is not the purpose
of this court to second-guess counsel’s judgment and trial
strategy. As Justice Harlan asserted in his coneurring
opinion in this case of Brookhart v. Janis, 384 U. S. 1, 8
(1966) :

“, . . A lawyer may properly make the tactical de-
termination of how to run a trial even in the face of
his client’s incomprehension or even explicit disap-
proval.”

The welfare of the client, our adversarial system and
orderly judicial procedure require that an attorney chart
his course of litigation free from undue intervention. It
is axiomatic that no two lawyers would ever try the same
case in exactly the same manner. The court is particularly
sensitive to counsel’s need to freely structure his own argu-
ment on his client’s behalf.

Notwithstanding the strong policy favoring attorney
autonomy, ethical, professional and constitutional princi-
ples establish limits to counsel’s control over a criminal
ease. Canon 7 (EC 7-24) of the Code of Professional Re-
sponsibility of the American Bar Association provides:

“The expression by a lawyer of his personal opinion
as to the justness of a cause, as to the credibility of a
witness, as to the culpability of a civil litigant or as to
the guilt or innocence of an accused is not a proper
subject for argument to the trier of fact.”

The decision to plead “guilty” or “not guilty” is a deci-
sion reserved solely for the accused based on his intelligent
and voluntary choice. Boykin v. Alabama, 395 U. S. 238
(1969). The defendant’s decision to plead guilty cannot be
presumed from the plea itself in the context of an other-
wise silent record. Instead, the trial court must make an

43

on the record inquiry of the defendant to insure that the
defendant’s plea is voluntary and intelligent. Jd., at 243-
244. Similarly, an attorney may not admit his client’s guilt
which is contrary to his client’s earlier entered plea of “not
guilty” unless the defendant unequivocally understands the
consequences of the admission. Brookhart v. Janis, supra.
Counsel may believe it tactically wise to stipulate to a
particular element of a charge or to issues of proof. How-
ever, an attorney may not stipulate to facts which amount
to the “functional equivalent” of a guilty plea. United
States v. Brown, 428 F. 2d 1100 (D.C. Cir. 1970); Coz v.
Hutto, 589 F. 2d 394 (8th Cir. 1979) ; Achtien v. Dowd, 117
F. 2d 989 (7th Cir. 1941).

Appellee relies on Meadows v. Commonwealth, Ky., 550
S. W. 2d 511 (1977), for the proposition that in Kentucky
an appeal to the jury’s mercy accompanied by a concession
of guilt is a permissible trial tactic. That is not a correct
reading of Meadows. Meadows’ counsel, in closing argu-
ment, said, “I think he deserves punishment.” The Court
held this did not constitute a plea of guilty, but instead was
a “ploy.” The Court went on to say:

“The action of trial counse! in this particular instance
may have amounted to a tactical retreat but certainly
it did not surrender the cause.” IJd., at 512.

Here, however, the admissions of Wiley’s counsel con-
stituted a surrender of the sword.

In People v. Carter, 41 Til. App. 3d 425, 354 N. E. 2d 482
(1976), the Appellate Court of Illinois analyzed a factual
and legal situation similar to the case at bar. In Carter,
the defendant was charged with armed robbery. The victim
testified that after the defendant lost his money in a dice
game, he pulled a gun and stated that this was a stickup.
The defendant took the stand and denied robbing the
victim or taking ‘a gun to the apartment. Defense counsel,

44

during closing argument, not only stated that his client
was not very brilliant in doing what he did, but specifically
declined to discuss the factual discrepancy concerning
whether the defendant was armed. Reversing the defend-
ant’s conviction on the grounds the defendant was denied
effective assistance of counsel by defense counsel’s closing
argument, the court stated:

“In the instant case, we believe defendant was denied
the effective assistance of counsel. Counsel’s closing
argument is the most notable incident that leads us to
this conclusion. A defendant’s closing argument per-
mits an answer to the State on the law and the facts
and a presentation of the defense theory . . . Here,
counsel’s closing argument not only failed to perform
this function, but was tantamount to an admission of
his client’s guilt. . . . Counsel abdicated his client’s
position. . . . Such failures cannot be overlooked as
mere errors in judgment or trial startegy.” (Citation
omitted, emphasis added.) Id., at 485.

Also, in Commonwealth v. Lane, 382 A. 2d 460 (1978),
the Supreme Court of Pennsylvania analyzed a similar
situation. The defendant was charged with knowingly re-
ceiving stolen property. During closing argument, defense
counsel said this to the court, “If he didn’t have a record I
would ask Your Honor to give him the benefit of the doubt
and find him not guilty.” Reversing the defendant’s con-
viction because he was denied effective assistance of coun-
sel, the court stated:

“It is urged counsel was engaged in a strategic trial
tactic to obtain leniency for his client. We are not so
persuaded. At the particular moment, Lane was chal-
lenging his guilt and the issue confronting the court
was guilt or innocence. We are unable to see how trial

45

counsel’s statement would aid Lane’s claim of inno-
cence.” Id., at 461.

Throughout the closing arguments, both attorneys for
petitioner repeatedly stated to the jury that petitioner was
“guilty,” “guilty as charged,” and “guilty beyond reason-
able doubt.” Counsel’s argument represented the precise
admission which the defendant rejected in making his
earlier plea of “not guilty.” Counsel made his remarks
with knowledge of petitioner’s earlier “not guilty” plea,
and without petitioner’s consent.®

A plea of “not guilty” has at least two dimensions recog-
nizable by this court. First, in pleading “not guilty” a
defendant reserves in toto those constitutional rights fun-
damental to a fair trial. Included in this category of con-
stitutional rights is the accused’s right to trial by jury, his
privilege against self-incrimination, and his right to con-
front his accusers. Boykin, supra. Second, in pleading
“not guilty,” a defendant exercises his right to make a

8Petitioner first raised before the Kentucky Supreme Court his
assertion that he did not consent to counsel’s concession of guilt by
his response to the amicus brief submitted by his trial counsel. No
claim was ever made by trial counsel in their amicus brief to the
Kentucky Supreme Court that their trial strategy was made known
or consented to by petitioner. Petitioner reaffirmed his non-consent
in his sworn petition for habeas corpus. Respondent did not dis-
pute this issue. The United States Magistrate, in his © ading of
fact number 11, summarized the facts surrounding trial counsel’s
confession of guilt without mentioning that petitioner did not
consent to this confession. The Magistrate’s conclusion of law
number 3 noted that no facts were in dispute. Petitioner objected
to these findings insofar as they did not reflect his lack of consent
to counsel’s trial tactic. Petitioner’s statement that he did not
consent to counsel’s trial tactic is not controverted. In any event,
an alleged consent in the present case cannot be presumed from a
silent trial record. Consent obtained without the protection of an
on the record inquiry as required by Boykin, supra, is a nullity.

46

statement in open court that he intends to hold the govern-
ment to strict proof beyond a reasonable doubt as to the
offense charged. Byrd v. United States, 342 F. 2d 939
(D.C. Cir. 1965).

Unquestionably, the constitutional right of a criminal
defendant to plead “not guilty,” or perhaps more accurately
not to plead guilty, entails the obligation of his attorney to
structure the trial of the case around his client’s plea. We,
therefore, hold that petitioner was deprived of effective as-
sistance of counsel when his own lawyer admitted his
client’s guilt, without first obtaining his client’s consent to
this strategy. In those rare cases where counsel advises
his client that the latter’s guilt should be admitted, the
client’s knowing consent to such trial strategy must appear
outside the presence of the jury on the trial record in the
manner consistent with Boykin, supra.

Although statements made by attorneys in closing argu-
ments are not evidence, nevertheless, for all practical pur-
poses, counsel’s admission of guilt on behalf of his client
denied to petitioner his constitutional right to have his
guilt or innocence decided by the jury. Petitioner, in
pleading not guilty, was entitled to have the issue of his
guilt or innocence presented to the jury as an adversarial
issue. Counsel’s complete concession of petitioner’s guilt
nullified the adversarial quality of this fundamental issue.

Finally, the question remains open whether an adjudica-
tion of ineffective assistance requires a showing that de-
fense counsel’s performance adversely affeated the trial’s
outcome and, if such a showing is required, on whom the
burden of proving or disproving prejudice falls. Chapman
v. California, 386 U.S. 18 (1967) ; United States v. Yelardy,
567 F. 2d 863 (6th Cir. 1978), cert. denied, 439 U.S. 842
(1978); and United States v. Beasley, supra. Under the
facts of this case, however, no such claim could seriously
be raised. Despite strong circumstantial evidence against

47

petitioner, no witness observed the burglary. No one saw
a gun in the hand of either defendant. Yet use of a “deadly
weapon” is one of the essential elements under Kentucky
law of first degree burglary. Who can be sure that both or
either of these brothers would have been convicted had not
the jury been told by defendant’s own attorney “they’re
guilty”? 7

A criminal defendant has a constitutional right to expect
during trial that his attorney will, at all times, support him,
never desert him, and will perform with reasonable com-
petence and diligence. Defense counsel in this case fell
short of this modest standard.

Accordingly, the judgment of the district court is re-
versed and the case is remanded to the district court with
instructions to grant petitioner’s release unless the state
initiates procedures to retry him within a reasonable period
of time.

48

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY AT PADUCAH
No. 79-0230-P(J)

Eart Wayne Witey . . . . . Petitioner
Vv,

Dewey Sowpers”~ - - - - - Respondent

ORDER AND JUDGMENT—Entered March 31, 1980

This matter being before the Court on a petition for
writ of habeas corpus filed by the petitioner pursuant to
28 USC §2254; this matter having been referred to the U.S.
Magistrate and the Magistrate having filed his report pur-
suant to 28 USC §636 and the petitioner having filed timely
objections thereto; the Court having made a de novo de-
termination of those portions of the Magistrate’s report to
which the petitioner has objected; there appearing to be
no affirmative allegations in the pleadings before this
Court or in the trial court record that the petitioner did or
did not consent or have prior knowledge of the content of
his counsel’s closing argument addressed to the jury; the
Court having determined that it should modify in part the
findings of fact of the Magistrate’s report and should other-
wise accept the Magistrate’s report; and the Court being
sufficiently advised ;

It is hereby Onveren that:

1. The report of the Magistrate is accepted by tho
Court and is incorporated by reference herein. In addition
to the findings of fact of the Magistrate’s report which are

49

made a part of this judgment, the following factual finding
is made, to-wit: “The petitioner's penalty was enhanced to
a life prison sentence by the jury following his conviction
as a persistent felony offender.”

2. The petition for writ of habeas corpus be Dentep.
Dated: March 31, 1980

(s) Edward H. Johnstone
U.S. District Judge

50

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY AT PADUCAH
No. 79-0230-P(J)

Eart Wayne Witey ° . ° ° ° Petitioner
v.

Dewey Sowpers - - - - = Respondent

FINDINGS OF FACT, CONCLUSIONS OF LAW,
AND RECOMMENDATIONS—Entered March 3, 1980

This matter coming before the court on proceeding filed
pursuant to 28 USC §2254; upon a conviction and judgment
exacted by the Henderson Circuit Court on the 2nd of
October, 1978; it appearing that the petitioner was granted
leave to proceed in forma pauperis and his petition was
filed on the 3rd of December, 1979; it appearing that the
respondent filed his Answer with all exhibits required by
Rule 5 of the Rules Governing Section 2254 Proceedings;
the Court having referred this matter to the undersigned
Magistrate pursuant to 28 USC §636(b) and Rule 8 of the
above-mentioned Rules; the undersigned having considered
the record as a whole, makes the following proposed find-
ings and recommendations to the Court:

FINDINGS OF FACT

1. On the 13th of July, 1978, at approximately 1:00 to
1:15 p.m., the petitioner, using the name Darl W. Riley,
entered the Budget Rent-a-Truck Agency operated by Mrs.
Margaret Rumans. Mrs. Rumans rented the petitioner a
cargo van (truck no. CV 701, license mo. 74494 A). The

51

petitioner was identified by the witness as the man who
rented the truck (TR 74-87).

2. On the 13th of July, 1978, at approximately 2:15
p-m., Kenneth Tegethoff, son of Edward Tegethoff, was
traveling to his parents’ home on the Geneva-Alzey Road in
Henderson County, Kentucky. As he was driving on the
one-lane driveway from the Geneva-Alzey Road to his
parents’ house; a white truck, which had previously been
parked behind the house, approached the witness, passed
him, and proceeded out the driveway. The truck, being
driven by two white males, had the words Budget Rent-a-
Truck painted on the side and was similar to the truck
referred to in Finding 1 above and depicted in photographs
admitted as exhibits. The witness entered his parents’
home and, after noticing several items out of place, saw
that his mother’s sewing machine was missing. He then
called the sheriff's department. Upon the sheriff’s arrival;
the witness, Kenneth Tegethoff, gave information concern-
ing the missing items.

The next day, the witness saw a truck similar to the
truck that had passed him in his parents’ driveway at a
Henderson service station. Upon inspection, he found
property which he could identify as belonging to his par-
ents in the back of the truck (TR 88-110).

3. The property taken from the Tegethoff home had a
fair market value of in excess of $100.00 (TR 117, 124-125).

4. On the 13th of July, 1978, Officer Robert Williams
along with Officer Young, set up a road block in order to
try to intercept the white van involved in the burglary.
At approximately 2:45 p.m., the witness, Williams, stopped
a van answering the description and identified the peti-
tioner as the driver of the van. The petitioner fled the
area on foot. At the trial, the witness identified the peti-
tioner as the driver of the van and as the man who fled on
foot (TR 126-132).

52
5. Shortly after the petitioner fled the scene; Bobby

Sauls, Sheriff of Webster County, arrived at the scene
where the van had been stopped. After taking the peti-
tioner’s co-defendant into custody from Officer Williams,
Sheriff Sauls obtained a description of the stolen articles
from the Henderson County Sheriff’s Office. He then
looked in the window of the van and saw “that most of
these articles were there” (TR 138-144). Upon inspecting
a pillow slip found between the two bucket seats in the van,
Sheriff Sauls found, among other things, a loaded .22 cali-
ber pistol (TR 144, 147).

6. Sheriff Sauls testified as follows:

“And at that time I went back and asked Mr. Wiley
(petitioner’s co-defendant and brother) where he had
gotten the articles and who was with him in the van.
And he told me that it was his brother that was with
him and he was helping him move.

Mr. Norment: Objection, Your Honor.

The Court: Overruled.

Mr. Norment: May we approach the bench please?

The Court: You may.

(At this point, counsel for the parties and the re-
porter approached the bench and the following record
was made, in low tones.)

Mr. Norment: Judge, any testimony about what
one co-defendant says about another is inadmissible.”

“The Court: . . . Do you want me to admonish
the jury not to consider the last response.

Mr. Norment: Yes, on behalf of Earl Wiley also,

(The following proceedings were had in normal
tones.)

The Court: All right, members of the jury, Sheriff
Sauls just testified as to what one of the defendants

53

said concerning his co-defendant. That answer that
the sheriff just gave, you’re to remove that from your
mind and not to consider it in arriving at a verdict in
this case.”

(TR 141-143)

7. Sheriff Sauls received a citation from Officer Wil-
liams which had been found at the scene of the arrest. The
Indiana traffiic citation named Earl Wayne Wiley as the
recipient of the citation with an operator’s number of
W 400 162 866 587 (TR 157-159). This operator’s license
number is the same as given by the petitioner when he
rented the truck (Pla.ntiff’s Exhibit 5).

8. At the close of evidence by the Commonwealth, the
petitioner’s attorney moved for a directed verdict of ac-
quittal on the grounds that the Commonwealth had failed
to establish a prima facie case of burglary in the first
degree against the petitioner. The motion was overruled
(TR 173-174).

9. On query of the court, petitioner’s counsel indicated
that he did not wish to make an opening statement or pre-
sent any evidence for the defense. The counsel for the co-
defendant likewise announced closed. The court then ad-
vised the jury in pertinent part as follows:

“The Court: All right, members of the jury, all
of the evidence is in in this case and it will be neces-
sary for me to take up some matters in chambers and
get the instructions ready for you. It’s now more im-
portant than ever that you do not discuss the case or
let anybody discuss it with you. You are to refrain
from forming or expressing an opinion thereon. We
might be in the neighborhood of 15 minutes hopefully
getting these ready for you.”

(TR 174-175)

o4

10. Upon recess to chambers, petitioner’s counsel re-
newed his motion for directed verdict of acquittal. The
motion was overruled. Counsel also unsucessfully sought
an instruction on circumstantial evidence (TR 175-180).

11. Mr. Norment, petitioner’s counsel, presented the
closing argument on behalf of both defendants. In his
presentation, he stated on more than one occasion that the
petitioner and his co-defendant were guilty as charged.
He further asked the jury to consider the totality of the
circumstances surrounding the offense, to be “merciful,”
and to arive at a minimal sentence (TR 187-198).

12. The jury found the petitioner guilty under In-
structions Nos. 1 and 2 and assessed a penalty of ten years
and five years respectively (TR 183, 184, 209).

13. On the 2nd of October, 1978, the petitioner’s coun-
sel, on petitioner’s behalf, filed a Notice of Appeal (Clerk’s
Transcript of Record p. 61).

14. All issues raised herein by the petitioner were
presented to the Supreme Court of Kentucky on appeal
(See Appellant’s brief).

15. By Memorandum Opinion Per Curiam rendered
the 11th of September, 1979, the Supreme Court of Ken-
tucky affirmed the conviction of the petitioner (Memoran-
dum of Law in Support of Petition for Writ of Habeas
Corpus A 140-143).

CONCLUSIONS OF LAW

1. This court has jurisdiction over the subject matter
of this action pursuant to 28 USC §2241 et seq. §2254.

2. The petitioner has exhausted his state remedies by
appearing all issues raised in this action to the Supreme
Court of Kentucky. Deitch v. Maxwell, 337 F. 2d 424 (C.A.
6 1964).

55

3. There being no facts in dispute as raised by the
petition, no evidentiary hearing is required. Townsend v.
Sam, 372 U.S. 293.

4. The petitioner’s conviction was not obtained in vio-
lation of his right to be confronted with the witness against
him as guaranteed by the 6th and 14th Amendments to
the United States Constitution.

Authority

The testimony, subsequent objection, and ruling of the
court objected to and giving rise to this issue may be found
in Finding of Fact 6 above.

The witness testified that the petitioner’s codefendant
and brother told him (the witness) that the petitioner had
been in the van and was moving with the codefendant’s
help. Petitioner’s counsel objected, the objection was sus-
tained, and the jury was admonished not to consider the
statement in arriving at a verdict in the case.

The petitioner cites Bruton v. United States, 391 U. 8S.
123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1966), in support of
his position. In that case, the Supreme Court held that
admission of codefendant’s confession that implicated de-
fendant at joint trial constituted prejudicial error even
though the trial court admonished the jury not to consider
the statement as to the defendant. This case is clearly
distinguishable from the case at bar in that the statement
by petitioner codefendant was not a confession of any
criminal act and did not allege that the petitioner had com-
mitted any criminal act or acts. As this distinetion can
be made, further language from the Bruton opinion becomes
particularly relevant to the testimony and resulting ad-
monition of which the petitioner complains. At 77 S. Ct.
2d 300 the court stated:

“Unless we proceed on the basis that the jury will
follow the court’s instructions where those instructions

56

are clear and the circumstances are such that the jury
can reasonably be expected to follow them, the jury
system makes little senes.” 352 U.S., at 242, 77 S. St.,
at 300. We agree that there are many circumstances
in which this reliance is justified. Not every admission
of inadmissible heresay or other evidence can be con-
sidered to be reversible error unavoidable through
limiting instructions; instances occur in almost every
trial where inadmissible evidence creeps in, usually
inadvertently. “A defendant is entitled to a fair trial
but not a perfect one.”

The Supreme Court more recently discussed its Bruton
reasoning in Parker v. Randolph, U.S. —_—., 99 S. Ct.
2132, 60 L. Ed. 2d 713 (1979). The Court, in discussing
the harmlessness of the error, stated at 99 S, Ct. at 2138:

In some cases the properly admitted evidence of guilt
is so overwhelming, and the prejudicial effect of the
codefendant’s admission so insignificant by comparison,
that it is clear beyond a reasonable doubt that intro-
duction of the admission at trial was harmless error.

If the Magistrate, for argument’s sake, were to accept the
position that the petitioner’s codefendant’s statement made
to Sheriff Sauls constituted a confession under Bruton; we
feel that the implication of the petitioner arising from the
statement is so “insignificant by comparison” to the “prop-
erly admitted evidence of guilt” as set forth in the record
and the Findings of Fact above constitutes harmless error.

We conclude that the statement of petitioner’s code-
fendant was not a confession and was not admitted into
evidence. Therefore, the petitioner’s Sixth Amendment
rights were not deprived by its making.

5. The burglary statute under which the petitioner was
convicted is not unconstitutional for vagueness,

57

Authority

KRS 511.020, the statute attacked and under which the
petitioner was convicted on September 20, 1978, states, in
pertinent part as follows:

Burglary in the first degree. — (1) a person is guilty
of burglary in the first degree when, with the intent
to commit a crime, he knowingly enters or remains
unlawfully :

(a) In a dwelling;

(b) In a building, and when in effecting entry or
while in the building or in the immediate flight there-
from, he or another participant in the crime:

1. Is armed with explosives or a deadly weapon;

The term “dwelling” and “building” are defined by KRS
511.010 as:

(1) “Building,” in addition to its ordinary meaning,
means any structure, vehicle, watercraft or aircraft:

(a) Where any person lives; or

(b) Where people assemble for purposes of busi-
ness, government, education, religion, entertainment or
public transportation.
Each unit of a building consisting of two (2) or more
units separately secured or occupied is a separate
building.

(2) “Dwelling”’means a building which is usually oceu-
pied by a person lodging therein.

The petitioner bases his argument on the assertion that
the definitions of “building” and “dwelling” are synono-
mous and therefore the petitioner could not have reason-
ably been expected to know whether his actions constituted

58

burglary in the first degree or burglary in the second de-
gree. It is not necessary for the Magistrate to determine
whether these terms are indistinguishably synonomous.

The petitioner is apparently basing his argument under
prior law and not under the law that was in effect on the
date of the offense and as cited above. The petitioner’s
lack of knowledge of the provisions of this statute has
given rise to this issue. According to the statute in effect
on July 13, 1978; burglary in the first degree could be
effected by the unlawful entering of a “dwelling” or the
entering of a “building” and being in possession (either
personally or by a codefendant) of a deadly weapon. We
are sure that the petitioner will not deny that a pistol is
a “deadly weapon” as defined by KRS 500.080(4)(a). The
jury found the petitioner guilty under instruction number
1. See Finding of Fact 12 above. Under that instruction,
the jury not only found that the Tegethoff home was a
“dwelling” but found that the petitioner or another par-
ticipant had in his possession during the immediate flight
a pistol. See Finding of Fact 5 herein. Therefore, it is
of no consequence whether the edifice where the Tegethoffs
lived should be defined, or understood by the petitioner, to
be a “dwelling” or “building” under KRS 511.010. The
facts as found by the jury in instruction 1 would support
a conviction of burglary in the first degree as defined by
KRS 511.020 as amended.

Notwithstanding the above analysis of the specific pro-
visions of the Kentucky Revised Statutes complained of
by the petitioner, the Magistrate rejects the contention
that Chapter 511 as amended effective June 17, 1978, is
unconstitutionally vague as defined by the United States
Supreme Court in McBoyle v. United States, 283 U. 8. 25,
51 S. Ct. 340, 75 L. Ed. 816 (1931).

6. The statements made by petitioner’s counsel in his
closing argument did not constitute a guilty plea so as to

59

require an inquisition by the Court into the voluntariness
and knowledge of the import of the plea.

Authority

This allegation is patently frivolous and only a short
discussion will be made.

The United States Supreme Court stated in Boykin v.
Alabama, 395 U. S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274
(1969) ;

A plea of guilty is more than a confession which ad-
mits that the accused did various acts; it is itself a
conviction; nothing remains but to give judgment and
determine punishment.

Obviously, if the petitioner’s counsel’s statements had
constituted a guilty plea; the evidence would have never
gone to the jury. It was the jury who determined the pe-
titioner’s guilt and judgment was imposed pursuant to
those verdicts and not upon some imagined plea of guilty
submitted by counsel on behalf of a petitioner during the
course of a trial. This argument is without merit.

7. Petitioner received effective assistance of counsel at
his trial as required by the Constitution of the United
States.

Authority

In assessing the merit, or the lack of merit, of the
petitioner’s assertion that his trial counsel failed to pro-
vide adequate assistance of counsel at trial on the specific
grounds that counsel, in his argument before the jury,
stated that the petitioner was guilty; the Magistrate read
the complete trial transcript made a part of the record
herein. The Magistrate concludes that, considering the
totality of circumstances, the assistance of counsel fur-
nished the petitioner was effective. The Sixth Circuit

60

Court of Appeals in United States v. Yelardy, 567 F. 2d
863 (1978) discussed its approach in assessing the merits
of such a Sixth Amendment claim. At page 865, the Court
stated:

our evaluation of appellant’s Sixth Amend-
ment claim turns “not on a mere assessment of partic-
ular missteps or omissions by counsel, whether or not
caused by negligence . . . but on the District Court's
evaluation of the total picture, with the objective of
determining whether petitioner was deprived of
rudimentary legal assistance,”

There is no question that upon review of the trial tran-
script and the specific findings of fact in this report, the
weight of evidence against the petitioner was overwhelm-
ing. A further undisputed fact revealed by the record is
that petitioner’s counsel vigorously represented the in-
terests of his client both prior to, during, and after trial.

The record reveals that counsel filed several pretrial
motions on petitioner’s behalf soon after his appointment.
During the trial, counsel conscientiously objected to the
introduction of damaging evidence, both documentary and
testimentary, against the petitioner. Counsel moved for
directed verdicts of acquittal on behalf of his client both
at the close of the Commonwealth’s case-in-chief and at
the close of the evidence in the case. Petitioner’s counsel
filed a Notice on Appeal on behalf of the petitioner. See
Finding of Fact 13 above.

During counsel’s closing argument to the jury, he
stated that petitioner was guilty and beseeched the jury to
assess a minimal sentence, See Finding of Fact 11. De-
fense counsel, in his amicus brief addressed to the Supreme
Court of Kentucky (Petitioner’s Appendix 106-114), as-
serted that his statement to the jury was a part of his trial
strategy. He stated that his plan of strategy was adopted

61

after having considered the overwhelming weight of evi-
dence against his client. The petitioner does not challenge
counsel’s intent or good faith in adopting his strategy.

The United States Court of Appeals for the Sixth Cir-
cuit examined this issue and formulated the proper guide-
lines to be used in its determination in Beasley v. United
States, 491 F. 2d 687 (C.A. 6, 1974). Effective assistance
of counsel was defined as “counsel reasonably likely to
render and rendering reasonably effective assistance.”
With this general definition in mind, we now must apply
this test to the sole area of ineffective assistance raised by
the petitioner, i.e., application of counsel's trial strategy.
The Sixth Circuit Court stated in Beasley at 696:

Defense strategy and tacties which lawyers of ordinary
training and skill in the criminal law would not con-
sider competent deny a criminal defendant the ef-
fective assistance of counsel, if some other action
would have better protected the defendant and was
reasonably forseeable as such before trial. United
States v. Katz, 425 F. 2d 928, 930 (C.A. 2, 1970). If,
however, action that appears erroneous from hind-
sight was taken for reasons that would appear sound
to a competent criminal attorney, the assistance of
counsel has not been constitutionally defective. Me-
Mann v. Richardson, 397 U. S. 759, 90 8. Ct. 1441, 25
L. Ed. 2d 763 (1970).

The Supreme Court of Kentucky considered a case
similar to the case at bar styled Meadows v. Commonwealth,
550 S. W. 2d 511 (Ky. 1977). In this case, the appellant
had been convicted of capital murder. In his closing argu-
ment, appellant’s trial counsel made the following state-
ment:

“So, if you would think about the evidence when you
get back into the jury room and apply it to the law

*

62

which the Judge will give you and arrive at a fair and
impartial judgment and give Ronnie Meadows, I think
he deserves punishment, but give him what you think
he deserves.”

Appellate counsel argued that such a statement denied
appellant effective assistance of counsel. The court, in an
opinion written by Justice Palmore, addressed this argu-
ment at pages 512 and 513 with language which eloquently
expresses the opinion of the Magistrate:

This last point leads into another cortention that has
become all too common in the appeals being presented
by the Public Defender, which is that because trial
counsel did or did not do this, that or the other which
he should or should not have done, according to the
hindsight judgment of appellate counsel, the defend-
ant was deprived of his Sixth Amendment right of
counsel and, indeed, of his due process right to a fair
trial. It is easy for brilliant young lawyers to flyspeck
a trial record and pick out flaws in the manner in
which it was practiced. It is even more simple if one
has had no first-hand experience of his own in the
pit. We have read the transcript of this trial and are
not at all convinced that it was incompetently tried or
that any of the alleged errors and irregularities, singly
or in toto, resulted in an unfair trial. This was a
mean, desperate case. In our opinion it is beyond any
reasonable doubt whatever that even if it were prac-
ticed, and every trial action taken, as appellate counsel
would have it, any impartial jury in the country would
find Meadows guilty of murder just as this jury in
McCracken County did. The outcome was just plainly
inevitable, . . .

The Magistrate sees it as very unfortunate that, given
the set of circumstances in the case at bar, the petitioner

63

found it necessary to assail the ethical standards of his
trial counsel. Since petitioner did not rely on the ethies
related allegations in significant proportions, further dis-
cussion of this matter is not necessary.

In conclusion; the Magistrate, after having considered
the record as a whole, finds that the strategy adopted by
trial counsel was competently conceived and applied and
that, therefore, the petitioner was afforded effective assist-
ance of counsel at trial as required by the Sixth and
Fourteenth Amendments of the United States Constitution.

RECOMMENDATION

Based on the foregoing Findings of Fact and Con-
clusions of Law; the Magistrate recommends that the peti-
tion for writ of habeas corpus herein be denied.

(s) W. David King
United States Magistrate

CERTIFICATE

Pursuant to Title 28, U.S. Code, Section 636, Rule 8 of
the Rules Governing Section 2254 Procedures, and Rule
6.05 of the Federal Rules of Civil Procedure; the parties
shall have thirteen days from the date hereof to file written
objections to the foregoing report with the Clerk of the
Court. An extra copy of same shall be mailed to the under-
signed at P.O. Box 826, Padueah, Kentucky.

Dated: 3-03-80

(s) W. David King
United States Magistrate

64

RENDERED: SEPTEMBER 11, 1979

SUPREME COURT OF KENTUCKY

78 SC 626 MR
78 8C 627 MR

Exuaer Lee Witey and

Ean Warye Winey - - - «+ «= Appellants
v.
Commonweattn or Kentucky - - ~- Appellee

Appeal from Henderson Circuit Court
Honorable Carl B. Melton, Judge
Indictment No. 78 CR 049

MEMORANDUM OPINION PER CURIAM—
AFFIRMING

Appellants are brothers who were convicted of first-
degree burglary (10 years), theft (5 years), and of being
persistent felony offenders in the second degree. They
appeal from a judgment sentencing them to life imprison-
ment,

On July 13, 1978, appellants rented a van from Budyet-
Rent-a-Truck. A short time later the van was seen depart-
ing from the Tegethoff house, whose owners were known to
be away. It was discovered that the house had been
burglarized, so the police were alerted. A half hour later,
in neighboring Webster County, officers stopped appellants
in the van. Earl, the driver, fled, leaving Elmer to explain
the presence of numerous stolen goods, burglar’s tools, and
a loaded .22 caliber pistol in the van, At trial, neither
brother offered any defense.

65

Several issues were raised by both appellants and can
be readily disposed of. 1) They contend KRS 511.020 and
KRS 511.030 are unconstitutionally vague, in that the
broad definition of “building” [KRS 511.010 (1)(a)] would
seem to encompass “dwelling,” which traditionally has been
one distinguishing element between first and second degree
burglary. Appellants are correct that after amendment of
KRS 511,020 by Chapter 125, Acts of 1978, first degree
burglary may be committed in a building not a “dwelling.”
However, they overlook the fact that KRS 511.020 as
amended requires that one of several aggravating factors
be present if the building is not a “dwelling.” See Palmore,
Kentucky Instructions to Juries, Comment See. 3.01, p. 14
(1979 Supp). We find no vagueness in these statutes.

2) Appellants seek to raise for the first time on appeal
the sufficiency of the indictment, which omitted the phrase
“with intent to commit a crime” on the burglary count.
Though this issue has not been properly preserved for
review, we remind appellate counsel that the indictment did
specify KRS 511,020 and otherwise comport with Official
Form 15 which is appended to the Kentucky Rules of
Criminal Procedure, Those forms are deemed sufficient as
a matter of law. RCr 13,06,

8) Appellants contend the trial court erred in giving a
complicity instruction too broad for these facts, But no
objection was made by either defense counsel, so the error
will not be reviewed. RCr 9.54 (2).

4) During the persistent felon phase of trial, the deputy
clerk testified and read into evidence five previous judg-
ments of conviction for storehouse or dwelling house
breaking, three for Earl and two for Elmer, Contrary
to appellants assertion, this was not unnecessary repe-
tition and detail, but was the proper procedure to follow.
The jury was informed in a straightforward fashion of

66

facts relevant to its determination of the appropriate
penalty for these recidivist offenders.

5) Appellants contend they were denied effective as-
sistance of counsel when defense counsel in closing chése
to concede that appellants had been proven guilty and to
argue instead for leniency, citing such facts as no endanger-
ment to human life. This claim has never been presented
to the trial court, hence we will not address it on appeal.
Davidson v. Commonwealth, Ky., 555 8. W. 2d 269, 272
(1977).

6) A connected argument is that defense counsel's
closing argument amounted to a de facto guilty plea, neces-
sitating an immediate hearing to determine the voluntari-
ness and competency of appellants’ pleas. This is a friv-
olous assignment of error,

7) Appellants also attack the instructions given on the
persistent felony offender charges, but failed to record
any objections at the proper time, RCr 9.54(2).

Individually, Elmer asserts he was entitled to a directed
verdict of acquittal simply because he was not driving the
van and did not flee as Earl did. Suffice it to say there was
sufficient evidence to submit the case to the jury. Trowel
v. Commonwealth, Ky., 550 8, W. 2d 530, 533 (1978),

Earl raises two separate questions, First, he criticizes
the instruction on first-degree burglary on the ground
there was no proof of entry with the pistol. Not only was
this error not preserved by timely objection, but KRS
511.020 was amended effective June 17, 1978, so as no
longer to require the element of armed intrusion if a dwel-
ling is involved. Second, Earl claims denial of confron-
tation by the admission of Elmer's prior statement to the
police that he was helping his brother move. Elmer did
not take the stand, it is true, but this is a far ery from
Bruton v, United States, 391 U, 8, 128 (1966). Elmer had
not made a confession of guilt implicating Earl; the judge

67

admonished the jury not to consider the statement. We
do not hesitate to declare this error harmless beyond a
reasonable doubt in light of the overwhelming evidence of
guilt. IZarrington v. California, 395 U. 8S. 250 (1969).

The judgments are affirmed.

All concur,

Attorneys for Appellants:

JACK EMORY FARLEY, Public Advocate
RODNEY MeDANIEL, Assistant Public Advocate
State Office Building Annex, Third Floor
Frankfort, Kentucky 40601

Attorneys For Appellee:

ROBERT F. STEPHENS, Attorney General
MICHAEL R. BEITING, Assistant Attorney General
Capitol Building

Frankfort, Kentucky 40601

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 defense.

68

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.

§ 2254. State custody; remedies in State courts

(b) An application for a writ of habeas corpus in be-
half of a person in custody pursuant to the judgment of a
State court shall not be granted unless it appears that the
applicant has exhausted the remedies available in the
courts of the State, or that there is either an absence of
available State corrective process or the existence of cir-
cumstances rendering such process ineffective to protect
the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted
the remedies available in the courts of the State, within
the meaning of this section, if he has the right under the
law of the State to raise, by any available procedure, the
question presented.

69

RULE 11.42 Motion To Vacate, Set Aside Or
Correct Sentence

(1) A prisoner in custody under sentence who claims
a right to be released on the ground that the sentence is
subject to collateral attack may at any time proceed di-
rectly by motion in the court which imposed the sentence
to vacate, set aside or correct it.

(2) The motion shall be signed and verified by the
movant and shall state specifically the grounds on which
the sentence is being challenged and the facts on which
the movant relies in support of such grounds. Failure to
comply with this section shall warrant a summary dis-
missal of the motion.

(3) The motion shall state all grounds for holding the
sentence invalid of which the movant has knowledge.
Final disposition of the motion shall conclude all issues
that could reasonably have been presented in the same
proceeding.

(4) The clerk of the court shall notify the attorney
general and the commonwealth’s attorney in writing that
such motion (whether it be styled a motion, petition or
otherwise) has been filed, and the commonwealth shall
have 20 days after the date of mailing of notice by the
clerk to the attorney general in which to serve an answer
on the movant,

(5) Affirmative allegations contained in the answer
shall be treated as controverted or avoided of record. If
the answer raises a material issue of fact that cannot be
determined on the face of the record the court shall grant
a prompt hearing and, if the movant is without counsel of
record and is financially unable to employ counsel, shall
appoint counsel to represent him in the proceeding, in-
cluding appeal.

70

(6) At the conclusion of the hearing or hearings the
court shall make findings determinative of the material
issues of fact and enter a final order accordingly. If it
appears that the movant is entitled to relief, the court
shail vacate the judgment and discharge, resentence, or
grant him a new trial, or correct the sentence as may be
appropriate.

(7) Either the movant or the Commonwealth may ap-
peal from the final order or judgment of the trial court
in a proceeding brought under this Rule.

Amended effective July 1, 1976.

(8) The final order of the trial court on the motion
shall not be effective until expiration of time for notice of
appeal under RCr 12.04 and shall remain suspended until
final dispossition of an appeal duly taken and perfected.

Amended effective November 1, 1978.

(9) Counsel appointed for the movant under this rule
shall be entitled to reimbursement by the commonwealth
for his reasonable expenses of travel and subsistence for
necessary conferences with the movant at his place of con-
finement, provided that each trip made for that purpose
be authorized in advance thereof by order of the trial court.

(10) Original applications for relief of the nature de-
scribed in this rule that are addressed directly to a court
other than the one in which the sentence was imposed shall
be transmitted to the court in which the sentence was im-
posed for further disposition in the manner above set forth.

Amended effective January 1, 1965; January 1, 1970;
September 1, 1970; July 1, 1976.

71

RULE 9.84 Penalty

(1) When the jury returns a verdict of guilty it shall
fix the degree of the offense and the penalty, except where
the penalty is fixed by law, in which case it shall be fixed
by the court.

(2) When the defendant enters a plea of guilty, the
court may fix the penalty, except in cases involving offenses
punishable by death.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2556%3A1. Public record. Not legal advice.