# Record and brief — Wainwright v. Perez > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0262%3A0 ## Record - **Collection:** Supreme Court brief - **Document type:** Record and brief - **Published:** January 1, 1982 - **Citation:** 456 U.S. 910 ## Text UOmed | eek oe Court, U.S. | ; LED 81-417 1 . AUG 28 198! SUPREME COURT OF THE UNITED \S®PATBS&.. srevas, OCTOBER TERM, 19B1 CLERK NO. LOUIE L. WAINWRIGHT, Secretary, FLORIDA DEPARTMENT OF CORRECTIONS , Petitioner, vs. ANTONIO PEREZ, Respondent. xx enereknernee*ke%*ke#*ewee%*k*k#k# ke PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT . © 2 2.87 2-82 83828 8. @ 82 @ JIM SMITH Attorney General Tallahassee, Florida ANTHONY C. MUSTO Assistant Attorney General Chief Counsel, Miami Suite 820 401 N. W. 2nd Avenue Miami, Florida 33128 (305) 377-5441 Counsel for Petitioner elke QUESTION PRESENTED FOR REVIEW (A) WHETHER A STATE PRISONER IS ENTITLED TO FEDERAL HABEAS CORPUS RELIEF ON A CLAIM OF INEFFECTIVE POST-TRIAL REPRESENTATION BY A PRIVATELY RETAINED ATTORNEY IN THE ABSENCE OF A SHOWING OF THE EXISTENCE OF AN ISSUE OF AT LEAST ARGUABLE MERIT AND/ OR ONE WHICH CASTS DOUBT UPON THE PRISON- ER'S GUILT, AND; (B) WHETHER THE OPINION OF THE FIFTH CIRCUIT COURT OF APPEALS IN THE PRESENT CASE CONFLICTS WITH THE OPIN- ao oie UNITED STATES V. DECOSTER, — F. d z. ii TABLE OF CONTENTS PAGE QUESTION PRESENTED FOR REVIEW....... i TABLE OF CONTENTS... cccccccccces ii ee Ge Bs occ cc ceece cesses iv PRD Ds cc cess ccesecneesceses 1 JURISDICTIONAL STATEMENT............ 3 CONSTITUTIONAL PROVISIONS RPP ch ccc es er teccneccsonesecess 4 STATEMENT OF THE CASE............... 5 REASONS FOR GRANTING THE WRIT....... 11 Gs cece ccccccsencoseeeesecne 30 iii TABLE OF CITATIONS CASES PAGE Bonds v. Wainwright, 564 F.2d 1125 (5th Cir. 1977), vacated et. banc on other grounds 579 F.2d 317 (5th Cir. 1978)....... 21 Cuyler v. Sullivan, 446 U.S. 335 (1980)................ 10,11,14, 16 ,22,23 Dozier v. State, 361 So.2d 727 (Fla. 4th DCA 1978). 19 Ennis v. Le Fevre, 509 F.2d 1072 (2d Cir. 1977)...... 28 Estelle v. Dorrough, 2 2 ee 8: errr Te 15,16 Hill v. United States, 2k ee fC rrr rr ee 27 Kaufman v. United States, Ff te fl ere 26 Mc Kayne v. Durston, Ee ee EB eee eee 15,16 O'Neal v. State, 308 So.2d 569 (Fla. 2d DCA 1975)..19 Perez v. Wainwright, 440 F.Supp. 1037 (S. D.Fla.1977). Perez v. Wainwright, 594 F.2d 159 (5th Cir. 1979) rehearing denied 599 F.2d 1054 (5th Cir.1979).1 iv TABLE OF CITATIONS CASES PAGE Perez v. Wainwright, 447 U.S.932,100 S.Ct.3032,65 L.Ed.2d Be GU 6 6606660 ce veccascssececes 1, Perez v. Wainwright, 627 F.2d 742 (5th Cir. 1980)........ 2 Perez v. Wainwright, 640 F.2d 596 (5th Cir. 1981)........ 2 Rose v. Mitchell, ee Walle St COE 6 60600 cecceeucees 26 Sanders v. State, 386 So.2d 256 (Fla. 5th DCA 1980)...19 Schneckloth v. Bustamonte, ee ee ee Ce be ccesecoccseess 26 Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979)....19 United States v. DeCoster, 624 F.2d 196 (D.C.Cir.1979) ee ee ee ee 25,28, 30 United States ex rel. Barksdale v. Blackburn, 616 F.2d 254 (5th Cir. 1981)........ 26 United States v. Timmrick, a ee eS Tre 27 Young v. State, 177 So.2d 345 (Fla. 2d DCA 1965)....19 Vv TABLE OF CITATIONS OTHER AUTHORITIES PAGE Florida Statutes (1973)§813.011...... 5 Florida Rule of Criminal Procedure Ke MOPITTTrrrrrirt tri 6 BD U.S.G. BeOER pc ccvncccccscoescneas 3 30 Southwestern Law Journal 801...... 18 38 U.Chi.L.Rev. 142 (1970)........... 27 65 Cornell L.Rev. 1123 (1980)........ 27 OPINIONS BELOW The orders of the United States Dis- trict Court for the Southern District of Florida granting relief and denying re- hearing are reported as Perez v. Wain- wright, 440 F. Supp. 1037 (S.D. Fla. 1977). The opinion of the United States Fifth Circuit Court of Appeals reversing the district court is reported as Perez v. Wainwright, 594 F.2d 159 (5th Cir. 1979), rehearing denied 599 F.2d 1054 (5th Cir. 1979). The order of this Court remanding the case for reconsideration by the Fifth Circuit is reported as Perez v. Wainwright, 447 U.S. 932, 100 S.Ct. 3032, 65 L.Ed. 2d 1127 (1980). The opinion of the Fifth Circuit on remand is reported as Perez v. Wainwright, -* 627 F.2d 762 (5th Cir. 1980). The order denying rehearing is reported as Perez v. Wainwright, 640 F.2d 596 (5th Cir. 1981). 3 JURISDICTIONAL STATEMENT The judgment of the Fifth Circuit Court of Appeals was ertered on October 8, 1980. Rehearing was denied by the court on March 23, 1981. Rehearing en banc was denied by that court on April 30, 1981. The time for filing this petition was twice extended by this court. This court's jurisdiction is invoked pursuant to 28 U.S.C. 1254 (1). 4 CONSTITUTIONAL PROVISIONS INVOLVED United States Constitution, Sixth Amendment : In all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defence. United States Constitution, Four- teenth Amendment: No State shall...deprive any person of life, liberty, or property without due process of law... STATEMENT OF THE CASE Respondent was convicted in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, before the Honorable George Orr, of robbery, in violation of Florida Sta- tutes (1973) §813.011. On August 14, 1975, he was adjudged guilty and sen- tenced to be imprisoned for a period of seven years. Respondent was insolvent at all times and was therefore originally represented in the trial court by the Office of the Public Defender. Subsequently, however, Respondent's representation was under- taken by private counsel who had been 6 retained by Respondent's parents. It was by this privately retained counsel the Respondent was represented at trial. Following the conviction, no appeal was instituted. On October 29, 1975, Respondent, represented by a second privately re- tained counsel, filed a motion in the trial court, which was styled as "POST- CONVICTION RELIEF," and which was ap- parently intended to function as a motion to vacate pursuant to Florida Rule of Criminal Procedure 3.850. In this pleading, it was asserted that "the attorney for the Defendant failed to file the necessary motions as to pro- tect the Defendant to his rights to appeal." This motion was denied on November 12, 1975. (The order of the district court is in error in stating that this motion was denied on Sep- tember 15, 1975.) The denial of this motion was not appealed. On February 17, 1976, Respondent filed a petition in Florida's Third District Court of Appeal seeking a writ of habeas corpus or, in the alternative, that the petition be treated as a timely notice of appeal. In this petition, he asserted that he at all times desired that an appeal be undertaken, that his counsel had informed him at sentencing that he would take the necessary steps to institute an appeal and that he re- lied upon his counsel to pursue the appeal. This petition was denied on February 19, 1976, due to the fact that Respondent was represented by private counsel at the time of trial. Respondent instituted the proceeding 8 from which this case arises by filing a petition for writ of habeas corpus on December 9, 1976, in the United States District Court for the Southe~n District of Florida, in which he made essentially the same assertions as in the petition filed in the Florida appellate court. Pursuant to an order to show cause, Petitioner filed a memorandum of law and motion to dismiss, in which it was contended that Respondent had not ex- hausted his state remedies. In an order filed September 1, 1977, setting an evidentiary hearing, Judge Sidney M. Aronovitz rejected that argument. Sub- sequently, on October 27, 1977, Judge Aronovitz entered an order which con- cluded that although the fact that Respondent was not able to appeal was not due to state action, Respondent was entitled to relief hecause the conduct of his counsel was "so grossly deficient as to render the proceedings fundamen- tally unfair." This finding was based primarily on the fact that Respondent's counsel at sentencing in seeking super- sedeas bond announced to the court that a notice of appeal had already been filed, although this was not the case. Petitioner timely sought rehearing, or, in the alternative, a stay pending appeal. On December 1, 1977, an order was entered denying rehearing and grant- ing a stay pending appeal. Petitioner appealed to the United States Fifth Circuit Court of Appeals, which reversed the district court, hold- ing that Respondent had exhausted state remedies, but finding that fundamental unfairness had not occurred. 10 Respondent sought review in this Court, which vacated the Fifth Circuit's judgment and remanded the case for recon- sideration in light of Cuyler v. Sullivan, 446 U.S. 335 (1980). On remand, the Fifth Circuit, with- out calling for further briefs affirmed on the authority of Cuyler v. Sullivan. On rehearing, the court allowed the filing of additional briefs and in denying rehearing, rejected the posi- tions taken by Petitioner that a dis- tinction exists between appointed and retained counsel on appeal and that when a claim of ineffectiveness is not direct- ed to trial representation, the existence of an issue of at least arguable merit must be demonstrated to entitle a federal habeas corpus petitioner to relief. 11 REASONS FOR GRANTING THE WRIT A In Cuyler v. Sullivan, 446 U. S. 335 (1980), this Court dealt with a claim of ineffective representation due to an allegation that the defendant's attor- neys had a conflict of interest when they represented him at his state court trial. This Court made it quite clear that in order for Sullivan, the defendant in the case, or any other state defendant to be entitled to federal habeas corpus relief, he must show the existence of state action. A state prisoner can win a federal writ of habeas corpus onl on a showing that the State participated in the de- nial of a fundamental right protected by the Fourteenth Amendment . 447 U.S. at 342-343 (emphasis added). 12 Since Sullivan'a lawyers were pri- vately retained, and since Sullivan did not allege that state officials knew or should have known that his lawyers had a conflict of interest, this Court noted that the question that had to be initial- ly dealt with was "whether the failure of retained counsel to provide adequate representation can render a trial so fundamentally unfair as to »“_olate the Fourteenth Amendment."" 446 U.S. at 343 (emphasis added). In answering this question in the affirmative, this Court noted and relied upon the fact that "a state criminal trial, a proceeding initiated and con- ducted by the State itself, is an action of the State within the meaning of the Fourteenth Amendment ."' 100 S.Ct. at 1715. Accordingly, this Court concluded that 13 "[sJince the State's conduct of a crim- inal trial itself implicates the State in the defendant's conviction, we see no basis for drawing a distinction between retained and appointed cousel. ™ 446 U.S. at 344-345 (emphasis added). In short, this court found inherent state action in ineffective trial repre- sentation. The present case deals with the question of whether the reasoning of Cuyler v. Sullivan should also extend to claims of post-trial ineffectiveness. 1l Numerous factors support the conclusion that is should not. Ithe Fifth Circuit did not consider this claim, finding that since no appeal was taken, the ineffectiveness here occurred at the trial level. This reasoning is a invalid. The thrust of the argu- ment that Cuyler v. Sullivan applies only 14 First of all, the State does not initiate an appeal from a conviction, as is the case with a trial, a factor upon which the Court in Cuyler v. Sulli- van relied. Thus, a defendant on appeal is not embroiled in a proceeding in which he has no desire to participate or choice not to participate. Rather, the proceed- ing is one the institution of which the State has no control over whatsoever. Second, while it is true that a State "conducts" an appeal in the sense that to trial representation is based on, as will be subsequently detailed, the nature of the trial itself, not the level of the court. Obviously, once the trial is over, the considerations set forth herein by Petitioner come into play, regardless of whether the challenged act or omission occurs in the trial court or in the appellate court. 15 the appellate court is a state agency or department, it must also be consi- dered that the State conducts appeals only as an added benefit to defendants convicted in the state trial courts. It is under no obligation to hear appeals at all, as the Supreme Court has held that review by an appellate court is not a necessary element of due process. McKayne v. Durston, 153 U.S. 684 (1894). Accordingly, the Court has recognized that there is no federal constitutional right to state appellate review of state criminal convictions. Estelle v. Dor- rough, 420 U.S. 534 (1975). Since the State is not required to do anything at all in this regard, the mere fact that it "conducts" the appeal in one sense of the word cannot in itself establish state action. In the present case, the 16 lack of state action is even more clear than in most claims of ineffective appel- late counsel. Since here no appeal was even instituted, there was no proceeding for the State to conduct. Thus, even this factor is absent in the present case. The third point to consider is that in Cuyler v. Sullivan, the Court required a showing of state action in the denial of a fundamental right. As noted previously, an appeal is not a constitutional right at all, much less a fundamental one. Estelle v. Dorrough, supra; McKayne v. Durston, supra. Moreover, even putting aside the precedential factors, the differences be- tween a claim of ineffective trial counsel and one of ineffective appellate counsel are of such a nature that the latter situa- tion clearly presents a much less funda- mental issue. The right to a fair trial is one of 17 the most fundamental constitutional rights, protected in various ways by numerous pro- visions of the Constitution. No portion of the Constitution, however, even mentions specifically the rights of a defendant on appeal. At trial, every defendant is bathed in apresumption of innocence and the bur- den of proof rests with the prosecution. Ineffective representation at that point must therefore be dealt with strictly, in light of the posture in which a case must be viewed at that stage of the proceedings. On appeal, the opposite is true. It is presumed that no error has occurred and it is the obligation of the defendant to demonstrate error. As a result, the number of criminal appeals in which a defendant is successful is not great, regardless of the quality of appellate counsel. Therefore incompetent 18 representation will seldom have a detri- mental effect. In this regard, it should be noted that in a law review article a- dopted by the Fifth Circuit as an addendum to its internal operating procedures man- ual, Judge John C. Godbold, of that court, cited statistics from the court's 1975-76 court year which presumably reflect approxi - mate percentages of reversals of appel- late courts in general. Those statistics showed that only 10.8 percent of criminai appeals resulted in reversal. Godbold, Twenty Pages and Twenty Minutes-Effective Advocacy on Appeal, 30 Southwestern Law Journal 801 at 803. In addition, of that 10.8 percent, undoubtedly a reasonable num- ber would involve fundamental error, for ¢ which relief can be obtained by post-con- viction collateral attack, regardless of 19 what happened on onal.” thus allowing a defendant to achieve the same result. There is also another crucial dis- tinction between representation at trial and on appeal regarding the effect of in- competent representation. When an attor- ney at trial incompetetently represents his client, whether by failing to raise a defense or an objection, raising an im- proper defense, failing to prepare ade- quately, or for whatever other reason, the result is generally that the evidence that is presented to the trier of fact almost compels a conviction. On appeal, however, no matter how badly an attorney handles a case, the court will reach its conclusions 2 This is Clearly true in Florida. See O'Neal v. State, 308 So.2d 569 (Fla. 2d . ee also Sanders v. State, 386 So.2d 256 (Fla. 5th DCA 1980); Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979); Dozier v. State, 361 So.2d 727 (Fla. 4th DCA 1978); Young v. State, 177 So.2d 345 (Fla. 2d DCA LL 20 based on the law. Briefs end ergunents are merely methods by which parties to an appeal call the court's attention to those theories and precedents that they feel ap- ply to the facts of the case. An appellate court will adopt those positions it finds to be legally correct, regardless of how well written a brief may be or how eloquent an oral argument may be presented. More- over, an appellate court may employ a line of reasoning not advanced by either party if it finds such action to be appropriate. This is in contrast to the role of the trier of fact at trial, who may not go beyond the evidence presented in reaching a verdict. The sum of these distinctions is that the role of counsel on appeal is of much less importance than is the role of coun- sel at trial. Where counsel does a com- petent job in handling an appeal, certainly 21 things are easier for the court and jus- tice is expedited. But where counsel fails to do so, the system is such that the appellate judges will often compen- sate for counsel's shortcomings, slowing down the process, but ending up with the same conclusion, one based on the law and not just on what is presented to the court. The less fundamental nature of effec- tive appellate counsel was implicitly re- cognized in Bonds v. Wainwright, 564 F.2d 1125 (5th Cir. 1977), vacated en banc on other grounds 579 F.2d 317 (5th Ci.. 1978), in noting that "while we might hesitate to give effect to a waiver that purported to permit counsel to fail to prepare a de- fense, a waiver of effective assistance on appeal is far less drastic." 564 F.2d at 1131. Therefore, given the nature of the 22 role of counsel on appeal, the non- fundamental nature of the rights involved, the reversal of the presump- tions and burdens that exist at trial and the fact that in very few cases will incompetent representation on appeal com- pel a different result than that which would otherwise be obtained, Petitioner submits the “inherent state action" con- cept of Cuyler v. Sullivan to appeals would be unwarranted. It is of course true that while an appeal is not a fundamental right, it is a vehicle by which violations of such rights may be remedied. It must be re- membered, however, that declining to extend Cuyler v. Sullivan to appeals would not preclude relief for such vio- lations, since as noted in footnote one, they can be raised by collateral attack. 23 It is hard to imagine how "fundamental unfairness" can be found when a defend- ant does not receive an appeal when what- ever fundamental claims he might have can still be considered. To do otherwise would be to ignore the import of the word "fundamental," a word used in Cuyler v. Sullivan to describe the rights in- volved that compelled the Court's con- clusion. Such a conclusion is plainly not supportable and it should therefore be held that Cuyler v. Sullivan does not apply to a situation such as that present- ed here in which a claim is made of in- effective appellate representation. Given these factors, it is clear that a substantial question exists as to whether the rationale expressed by this court in Cuyler v. Sullivan should ex- tend to assertions of post-trial 24 ineffectiveness. Until this Court answers that question, significant confusion will exist. This Court should thus grant certiorari to deal with the issue. 25 B Even if it is assumed that Cuyler v. Sullivan does apply to post-trial repre- sentation, a substantial question exists as to what standard should apply to re- view claims of ineffective representation, as this Court has never dealt with this issue when counsel's performance is " "untrammelled and unimpaired' by state action." United States v. DeCoster, 624 F.2d 196, 202 (D.C. Cir. 1979) (en banc). Perhaps the most significant aspect of this question is whether a state prisoner is entitled to a relief on a claim of ineffective post-trial representation in the absence of a show- ing that there exists an issue of at least arguable merit and/or one which casts doubt upon the prisoner's guilt. It is true that ordinarily such a 26 showing is not required. In the situa- tion dealt with here, however, no actual state action is present and the prisoner has available, as noted previously, other avenues to correct any fundamental error that may have occurred. (See footnote two, supra). The Fifth Circuit noted the existence of numerous minority views calling for such requirement in even the less com- pelling circumstances than are presented here. See Rose v. Mitchell, 443 U.S. 545, 574-588 (1979) (Stewart, J., concurring; Powell, J., concurring); Schneckloth v. Bustamonte, 412 U.S. 218, 250 (1973) (Powell, J., concurring); Kaufman v. United States, 394 U.S. 217, 231 (1969) (Black, J., dissenting). See also United States ex rel. Barksdale v. | Blackburn, 616 F.2d 254 (5th Cir. 1981) 27 (en banc); Friendly, Is Innocence Irrele- vant? Collateral Attack on Criminal Judgments, 38 U.Chi.L.Rev. 142 (1970). See generally Note, Guilt, Innocence and Federalism in Habeas Corpus, 65 Cornell L. Rev. 1123 (1980). Other cases have also expressed sim- ilar sentiments. See United States v. Timmrick, U.S. , 99 S.Ct. 2085 (fail- ure to inform defendant of minimum manda- tory parole term upon accepting guilty plea not cognizable on collateral attack when claim is only as to technical viola- tion of rule requiring that a defendant be so informed and not that defendant was actually unaware of term); Hill v. United States, 368 U.S. 424 (1962) (failure to ask defendant whether he has anything to say before sentencing not cognizable on habeas corpus as it is not fundamental or 28 constitutional right and claim regarding such failure does not attack sentence itself); Ennis v. Le Fevre, 509 F.2d 1072 (2d Cir. 1977) (lawyer's decision not to raise identification issue on appeal rendered harmless error in failing to provide transcript relevant to issue, but ineffective assistance might have been found had argument had "obvious merit.'' 509 F.2d at 1076). The Fifth Circuit's conclusion that it need not be shown that there exists an issue of at least arguable merit also con- flicts with the holding of United States v. DeCoster, 624 F.2d 196 (D.C.Cir. 1979) (en banc), which requires a showing of probable prejudice to warrant relief on a claim of ineffective representation. 624 F.2d at 206. Obviously, if the exist- ence of an issue of at least arguable 29 merit is not shown, it cannot be said that such probable prejudice exists, particularly given, as noted previously, the low percentage of reversals in crimi- nal appeals and the availability of relief if fundamental error was com- mitted. The conflict between the present case and DeCoster is thus quite real and should be resolved by this court. 30 CONCLUS ION There exists a significant question as to whether a state prisoner may obtain federal relief based on a claim of inef- fective post-trial representation by retained counsel. If such a prisoner can obtain such relief, the standards to be applied need to be established and the question of whether a showing of pre- judice, in the sense of the existence of an issue of arguable merit and/or of one relating to guilt, is necessary needs to be answered. Similarly, the conflict between the opinion in the present case and that in United States v. DeCoster, 624 F.2d 196 (D.C. Cir. 1979) (en banc) needs to be resolved. This Court should therefore grant certiorari to deal with these matters. 31 Respectfully submitted, JIM SMITH Attorney General of the State of Florida ANTHONY C. MUSTO Assistant Attorney General 32 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Petition for Writ of Certiorari was furnished by mail to KAREN GOTTLIEB, Assistant Public Defender, 1351 Northwest 12 Street, Miami, Florida 33125 on this 28th day of August, 1981. ANTHONY C. MUSTO Assistant Attorney General TABLE OF CONTENTS APPENDIX PAGE Order Setting Evidentiary Hearing Filed September 1, 1977............ App. Order--Filed October 27, 1977...... App. Order--Filed December 1, 1977...... App. Opinion-May 1, 1979, Rehearing and Rehearing En Banc denied July 13, PPT, TUTTO TTT TOE TTT TTT ee App. POS, TEP Bg BTM se ccccccccccsce App. Judgment, October 8, 1980.......... App. Opinion - March 23, 1981........... App. Judgment on Remand from the United States Supreme Court........ App. 1-16 17-26 27-38 39-56 57-58 59-60 61-74 75-76 APP. 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 76-2219-CIV-SMA ANTONIO PEREZ, PETITIONER vs. LOUIE L. WAINWRIGHT, Secretary Department of Offender Rehabilitation, RESPONDENT ORDER SETTING EVIDENTIARY HEARING Filed Sept. 1, 1977 Antonio Perez brings this Petition for Habeas Corpus attackiny a seven year sen- tence imposed by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida on August 14, 1975. Sen- tence was imposed pursuant to a jury ver- dict of guilty to the offense of robbery. Petitioner is presently in the custody of the Respondent, Louie L. Wainwright, Secretary, Department of Offender Rehabi- litation, State of Florida. As the sole ground for relief, Peti- tioner alleges that his privately retained APP. 2 counsel failed to timely invoke the juris- diction of the appropriate Florida appeals court after promising Petitioner to do so, rendering counsel's assistance ineffec- tive and depriving Petitioner of due pro- cess of law. II The record reveals that Petitioner never appealed his conviction. Petition- er filed a Motion to Vacate and Set Aside Judgment pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which was denied on September 15, 1975. There- after, Petitioner filed a Petition for Writ of Haheas Corpus or in the Alterna- tive Motion to Treat as Timely Notice of Appeal with the Florida District Court ef Appeals, Third District. Such peti- tion was denied on February 19, 1976. The issue presented in the instant petition was not included in Petitioner's Motion to Vacate in the trial court, but APP. 3 was the gist of Petitioner's habeas peti- tion in the Third District Court of Ap- peals. The Court of Appeals order dis- missing the Petition stated: ". . .it is ordered that the said petition is denied as the petitioner was represented by pri- vate counsel at the time of trial."' (Case No. 76-277). Ill It is no secret that the Florida courts are not receptive to a claim of ineffec- tive private counsel. U.S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976). Nevertheless, Respondent asserts that the Petitioner has failed to exhaust state remedies and should do so via a peti- tion for habeas corpus in the Florida Supreme Court. Respondent argues that the Florida Supreme Court has not had the opportunity to rule on this question since Capetta v. Wainwright, 203 So.2d 609 (1967). The court notes that the Court in Capetta relied on a Fifth Circuit decision, King APP. 4 Wainwright, 368 F.2d 57 (1966), for the proposition that a private counsel's failure to perfect an appeal for his client did not constitute a denial of due process. However, as pointed out in a later Fifth Circuit case, the majority of decisions for sometime made no distinc- tion between private and court-appointed counsel in considering ineffectiveness of counsel questions. Breedlove v. Beto, 404 F.2d 1019, 1020 (1968). As early as 1962, the Fifth Circuit had articulated the majority position. Porter v. United States, 298 F.2d (5th Cir. 1962). Thus, while the Fifth Circuit's position was in doubt at the time of the Capetta decision, the Florida Supreme Court decision was against the weight of authority. Moreover, L At any rate, the decisions of the Fifth Circuit do not bind the Florida state courts. See Bradshaw v. State, 286 So.2d 4 (Fla. 1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 225 (1974); Stonom v. Wainwright, 235 So. 2d 545 (Fla. App. 1970). APP, 5 the Florida Appellate courts continue to deny the firmly established Fifth Circuit law which recognizes claims of ineffec- tive private counsel at both the trial and appellate stage. U.S. ex rel. Reis 2 v. Wainwright, supra. The case of Lamberti v. Wainwright, 513 F.2d 277 (Sth Cir. 1975) does not patent- ly vitalize Respondent's exhaustion argu- ment. In that case, the court stated at 283: “Lamberti only urged the state courts to see that the trial judge had deprived him of his — by misleading his coun- sel; he never suggested a theory on which the state courts could afford him relief from the ef- fects of any errors of his pri- vately retained counsel. Since his ineffective assistance of retained counsel theory is not the substantial equivalent of his ‘judicial thwarting’ ground 2 "In an uninterrupted line of cases Florida has steadfastly refused to recog- nize incompetence of privately retained counsel as a valid basis for post-convic- tion relief." "d. at 1272. APP. 6 comity compels us to the con- clusion that the district court Godlsuties soueel sngames be- fore it had been adequately pre- sented to the state courts." Unlike Lamberti, the Petitioner in the instant case clearly presented the issue of ineffective private counsel in his habeas petition filed with the Florida District Court of Appeals. In fact, the decision denying his petition, as previous- ly mentioned, was based on the fact that he was represented by private counsel at trial. The only logical conclusion is that the issue presented herein was ade- quately presented to the Florida appellate court but rejected as an unrecognized ground for post-conviction relief. In addition, remanding for further exhaustion poses the danger that the Florida Supreme Court would dismiss a petition for habeas corpus on grounds of res judicata. As stated in Jenkins v. APP. 7 Wainwright, 322 So.2d 477, 478 (Fla. 1975): ss .[O]Jnce a petitioner seeks relief in a particular court by means of a petition for extra- ordinary writ, here habeas cor- pus, he has picked his forum. He is not entitled to a second or third opportunity for the some relief by the same writ in a different court. Once he has gg his forum, his remedy is y the appropriate enagee pro- cess and not by another petition for an extraordinary writ." See also Lamberti v. Wainwright, 284 So. 2d 202 (Fla. 1973). Under these circum- stances, "[nJleither the statute nor the spirit of needed comity behind it require such a formalistic waste of precious judi- cial energy, state or federal." Reed v. Beto, 373 F.2d 723, 725 (5th Cir. 1965). IV Every convicted person has an absolute right to appeal. Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L. Ed.2d 21 (1961). The Supreme Court later mandated that every convicted person has APP. 8 the right to counsel on appeal. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 8 L.Ed.2d 811 (1963). The Sixth Amendment right to counsel and the Sixth Amendment incorporated into the Fourteenth Amendment Due Process Clause guarantee each defendant the right to effective assistance of coun- sel. Id. For a long time a distinction was made between privately retained and court-appointed counsel for purposes of claims of ineffective assistance of coun- sel. See e.g., King v. Wainwright, supra; Breedlove v. Beto, supra. However, in recent years the Fifth Circuit has abol- ished the distinction, although different standards have been maintained. Fitzgerald v. Estelle, 505 F.2d 1334 (1975). Although no attempt at harmo- nizing these lines has been previously made, they are not necessarily at odds. Our re- conciliation stresses the im- portance of recognizing the constitutional framework upon which the particular claim of ineffective assistance of counsel APP. 9 in a state court is to be based. The first question to be asked must be whether the case invol- ves the Fourteenth Amendment due process clause standing alone, or the Sixth Amendment right to counsel incorporated in Fourteenth Amendment due process.1 The con- viction of a defendant after a trial that is fundamentally un- fair, whatever the cause of such unfairness, violates Fourteenth Amendment due process. See e.g., the mob domination cases: Frank v. Man , 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915) (Holmes, Bate ee and Moore v. oe. 261 U.S. 86, 43 S.Ct. 265° 67 L.Ed. 543 (1923); the conviction of an accused person while he is legally incompetent: Pate v. Robinson, 383 U.S. 375, 388, 86 S.Ct. 836, 838, 15 L. Ed. 2d 815 (1966) and a conviction predicated upon no evidence at all: Thompson v. City of Louis- ville, 362 U.S. 119, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960). When ever a defendant has been con- victed as the result of such a ross malfunction, the result s that the state's criminal justice system has operated to deny due process. Requisite Fourteenth Amendment state ac- tion is present, not because a state official knew the par- ticulars of the unfairness or +Gideon v. Wainwr , 372 U.S. 335, 83 $.Ce. , L.Ed.2d 799 (1963). App. 10 because retained counsel is deemed a state official, but because the system has failed, and the state's consequent im- prisonment or fine of the de- 2 fendant is fundamentally wrong. In the same manner, whenever a lawyer's ineffectiveness has rendered a trial fundamentally unfair, whether he be retained or appointed and whether his ac- tion or inaction was known or unknown to state trial officials, a deprivation of Fourteenth Amend- ment due process results from en- forcement of the resultant judg- ment. Moving from the Fourteenth Amend- ment alone to the incorporated Sixth, our decisions established that the “Porter v. United States, supra, from the first line of decisions, is a good example of this type of case. There the attorney retained by the defendant repre- sented conflicting interests. His alle- age to the defendant was divided by is attempt to protect an adverse witness in another proceeding. Holland v. Hender- son, supra, involved facts similar to Porter. In Bell v. Alabama, supra, the petitioner averred that his counsel in- duced him to produce him to present no defense at all and that his "trial" con- sisted only of an appearance in court, and "introduction to the jury” and the pronouncement of a 25 year sentence. APP. 11 standard of reasonably effec- tive assistance of counsel, most recently delineated in Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974), covers a greater range of counsel errors than does the fundamental fair- ness standard of the due process concept solely embodied within the Fourteenth Amendment. The circumstances in which the state will be bound by retained coun- sel's failure to meet the Sixth Amendment standard of effective- ness (when the resulting trial cannot be characterized as fun- damentally unfair) must be as- sessed more strictly lest we place a procedurally intolerable and practically impossible bur- den upon trial judges, who have no control over the selection of counsel employed by a defendant. The only reasonable judicial checkrein--questioning of the tactics and strategy of retained counsel throughout a trial--would freight the bench and bar alike and many times would be counter- productive for the defendant. With- out such interrogation of the de- fendant's lawyer, the court could never know whether his actions or inactions were deliberate or for- getful, brilliant or inept. To find state involvement in re- tained counsel's conduct which is adjudged to be less than reasonably effective, yet not so grossly defi- cient as to render the proceedings fundamentally unfair, it must be shown that some responsible state APP. 12 official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the accused. That the trial judge and the prosecutor have such a ca- pacity and duty is unquestionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a parti- cular defendant is receiving in- competent representation and takes no remedial action, the state ac- tion requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained attorney's repre- sentation is so apparent of the state should have been aware of and could have corrected it then again the state action require- ment is satisfied.3 Id. at 1336-37 It is well established that failure of counsel to perfect an appeal is a denial 7 : The factual situation in most of the second line of cases set out above are not detailed in the court's opinions. To the extent that such factual situation could stand for the rationale that even retained counsel action which rendered the trial fundamentally unfair could not be reached absent some showing of state knowledge or eee, those cases are here over- ruled. APP. 13 of constitutionally effective counsel. Arrastia v. United States, 455 F.2d 736 (5th Cir. 1972); Atilus v. United States, 406 F.2d 697 (5th Cir. 1969); Cantrell v. State of Alabama, 546 F.2d 652 (5th Cir. 1977). See also, Malone v. Alabama, 514 F.2d 77 (5th Cir. 1975); and Kallie v. Estelle, 515 F.2d 588 (5th Cir. 1975). These latter two cases have interpreted the duties of retained counsel with re- spect to appeals in light of Fitzgerald, supra. In his petition, Petitioner asserts that private counsel informed him that an appeal would be perfected by the filing of a notice of appeal, and that at all times Petitioner relied on private coun- sel to perfect his appeal. Petitioner contends he was never contacted by coun- sel, although Petitioner was at all times desirous of pursuing his appeal. Respon- dent, on the other hand, alleges that APP. 14 private counsel informed the Petitioner that no appeal would be taken of his con- viction unless he was compensated for the legal services already rendered for trial. Petitioner, further states through an affidavit of his parents that they in fact paid private counsel for services rendered. Thus a factual dispute is mani- fest and in order to resolve this case in light of the above cited law, an eviden- tiary hearing is required. Townsend v. Sain, 372 U.S. 293 (1962). Accordingly, it is ORDERED AND ADJUDGED that an eviden- tiary hearing be held in this cause before the Honorable Peter R. Palermo, United States Magistrate on October 12, 1977 at the U.S. Courthouse and Post Office, 300 N.E. lst Avenue, Miami, Florida (COURT- ROOM 253) at 10:00 AM. It appearing from the petition for writ of habeas corpus that the Petitioner, APP. 15 Antonio Perez is confined in the Union Correctional Institution at Raiford, Florida, and that it is necessary for said defendant to be before this Court for said proceeding; NOW THEREFORE, this is to command the Respondent, Louie L. Wainwright, Secretary, Department of Offender Rehabilitation that you have the body of said Antonio Perez now detained in custody as aforesaid, un- der safe and secure conduct, before this Court at Miami, Florida by or before 10:00 A.M. on October 12, 1977 for purpose of an evidentiary hearing. It is further ORDERED that Petitioner Antonio Perez be brought to Dade County, Florida at least five (5) days prior to said evidentiary hearing so that he may have time to confer with his counsel. Upon competition of said proceedings you will return subject with all convenient APP. 16 speed, under safe and secure conduct to the custody of the Warden of the aforesaid penal institution. DONE AND ORDERED at Miami, Florida, this 1 day of September, 1977. /s/ Sidney M. Aronovitz United States District Judge cc: Karen M. Gottlieb Assistant Public Defender Sidney M. Pertnoy Assistant Attorney General Louis L. ere Secretary, Department of Offender Rehabilitation APP. 17 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 76-2219-CIV-SMA ANTONIO PEREZ, PETITIONER, vs. LOUIE L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, RESPONDENT, ORDER--FILED Oct. 27, 1977 Antonio Perez brings Petition for Habeas Corpus attacking a seven year sentence imposed by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida on August 14, 1975. Sentence was imposed pursuant to a jury verdict of guilty to the offense of robbery. Petitioner is presently in the custody of the Respondent, Louie L. Wainwright, Secretary, Department of Offender Rehabi- litation, State of Florida. As the sole ground for relief, Peti- tioner alleges that his privately retained APP. 18 counsel failed to timely invoke the juris- diction of the appropriate Florida appeals court after promising Petitioner to do so, rendering counsel's assistance ineffective and depriving Petitioner of due process of law. The record reveals that Petitioner nev- er appealed his conviction. Petitioner filed a Motion to Vacate and Set Aside Judgment pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure, which was denied on September 15, 1975. There- after, Petitioner filed a Petition for Writ of Habeas Corpus or in the Alterna- tive Motion to Treat as Timely Notice of Appeal with the Florida District Court of Appeal, Third District. Such petition was denied on February 19, 1976. The issue presented in the instant petition was not included in Petitioner's Motion to Vacate in the trial court, but was the gist of Petitioner's habeas APP. 19 petition in the Third District Court of Appeal. The Court of Appeal order dis- missing the Petition state: ". . .it is ordered that the said petition is denied as the petitioner was represented by pri- vate counsel at the time of trial."(Case No. 76-277). Based on these facts and the history of the Florida courts’ treat- ment of the post-conviction claim of in- effective private counsel, this court, in its previous order signed on September l, 1977, rejected the respondent's contention that petitioner should be required to fur- ther exhaust state remedies. The court relied on U.S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (5th Cir. 1976) for this position. The court further ordered that an evidentiary hearing be held before Magistrate Peter R. Palermo on October 12, 1977 in order to resolve factual dis- putes evident from the record. Signifi- cant to the court's determination, APP. 20 examination of the record and the find- ings of fact reveal that petitioner's privately retained counsel indicated to the state trial court at the sentencing proceeding that a notice of appeal had Been filed, and further indicated to the petitioner subsequent to that proceeding that he would be prosecuting petitioner's appeal for him. No further contact was had between petitioner and his attorney, and no action was ever taken by counsel to perfect or prosecute petitioner's ap- peal. Petitioner was at all time indi- gent, albeit managed to obtain a private attorney at trial only through the assis- tance of his parents. He at all times relied on his attorney to perfect and prosecute his appeal. Petitioner contends that his attorney's representation in open court that he had already filed a notice of appeal was suf- ficient to constructively notify the APP. 21 judge, the prosecutor or the clerk of counsel's ineffectiveness so as to imbue his subsequent deprivation of appellate rights with state action. Petitioner relies on Cantrell v. Alabama, 546 F.2d 652 (5th Cir. 1977) and Flanagan v. Henderson, 496 F.2d 1274 (5th Cir. 1974) to support his position. We cannot agree. Clearly, Cantrell involved a substantially greater degree of state involvement than present in the case at bar: "The highest legal officer of the state, by a written motion, called to the attention of the Supreme Court and the appel- lant's retained counsel a de- fect which under Alabama law, if unremedied, would require that the appeal be dismissed without consideration of its merits. The Attorney General asked for and secured dismiss- al of the appeal because of the mistake."" Id. at 654. In Flanagan, ". . .{S]lince the default of one of his attorneys in properly perfecting a full appeal was promptly made APP. 22 known to the trial a in the form of a request extension of time to perfect a regular appeal, state in- volvement unquestionably is present here."' Id. at 1278. In the instant case, suffice it to say that the attorney's announcement is open court that he has filed a notice of ap- peal is insufficient to constructively apprise the court that a defendant's ap- pellate right may not be perfected at all in the future. However, the landmark case of Fitzgerald v. Estelle, 505 F.2d 1334, 1336 (5th Cir. 1974) provides that privately retained counsel may be ineffective within the purview of the Fourteenth Amendment's protections in another manner: ". . .[W]henever a lawyer's ineffectiveness has rendered a trial fundamentally unfair, . . .Whether his action or inaction was known or unknown to state trial officials, a deprivation of Fourteenth Amendment due process results from enforcement of the re- sultant judgment." APP. 23 Postal v. Beto, 508 F.2d 679 (5th Cir. 1975) was the first case to interpret Fitzgerald standards as applied to claims of ineffective privately retained appel- late counsel. Petitioner in that case claimed that the failure of his counsel to appear at sentencing and advise him of his right to appeal rendered his assis- tance ineffective. The Court held to the contrary: "([Wje have carefully exa- mined the record and deter- mined that the District Court had le basis for concluding that the actions of retained counsel did not operate to deprive the trial of fundamental fairness as required by the Fourteenth Amendment." In Malone v. Alabama, 514 F.2d 77 (5th Cir. 1975), the court felt compelled by Postel to hold that counsel's conduct was not "so grossly deficient as to render the proceedings fundamentally unfair, “Fitzgerald, supra, 505 F.2d at 1337." APP. 24 In Malone, retained counsel gave oral notice of appeal but failed to file a brief, resulting in the dismissal of his client's appeal without opinion. Finally, in Kallie v. Estelle, 515 F.2d 588 (5th Cir. 1975), retained counsel gave notice of appeal in open court but failed to pursue his client's appeal without notice when he realized he would not be paid what he considered a reasonable fee. Petitioner's appeal was dismissed as a result of counsel's failure to file an appellate brief. The court in Kallie felt bound by the decision in Malone to find that the petitioner was not denied fundamental fairness in the proceedings. In the instant case counsel announced in open court that a written notice of appeal had already been filed,” although ——+—— Florida Appellate Rule 6.4 mandates that an appeai may be taken only by fil- ing with the clerk of the lower court a APP. 25 no such notice was ever filed. This court finds this to be a crucial distinc- tion from Postel and its progeny. Such an active course of conduct on the part of private counsel, can only be charac- terized, at the very least, as a wilful disregard for the responsibility placed upon him by the system, which served only to insure the deprivation of petitioner's appellate rights. Such unconscionable actions languish to the level of conduct of counsel "so grossly deficient as to render the procedings fundamentally unfair notice in writing that the appellant ap- peals from a judgment, order, ruling, or sentence, as the case may be. Such a notice would be untimely as pre- ture under Florida Appellate Rule 6.2 which provides : Any appeal by the defendant from the judgment or sentence shall be taken within 30 days after the sentence is entered, provided that the defendant may take an appeal from the judgment with- in 30 days after the judgment is entered. (Emphasis added). APP. 26 For these reasons, it is ORDERED AND ADJUDGED that unless the state appellate court grants Petitioner belated appeal of his conviction within ninety (90) days of this order, this Court will grant Petitioners Writ of Habeas Corpus. DONE AND ORDERED at Miami, Florida, this 26 day of October, 1977. /s/ Sidney M. Aronovitz United States District Judge APP. 27 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA NO. 76-2219-Civ-SMA ANTONIO PEREZ, PETITIONER, vs. LOUIE L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, RESPONDENT ORDER--Filed Dec. 1, 1977 Antonio Perez filed a Petition for Writ of Habeas Corpus pursuant 28 U.S.C. §2254. In accordance with this Court's order of September 1, 1977, an eviden- tiary hearing was held on October 12, 1977 before United States Magistrate Peter R. Palermo. The petitioner and his father testified at the hearing. Pet- itioner's state court trial counsel, the subject of alleged incompetence, did not testify. The Magistrate set out his findings of fact and recommendation, which in substance reflected that pri- vate counsel advised the state trial * APP. 28 court at sentencing that a notice of appeal had been filed, and further ad- vised petitioner that he would represent him on appeal of his conviction. In addi- tion, it was found by the Magistrate that no notice of appeal was ever filed, al- though petitioner continued to rely on private counsel to pursue the appeal, and at all times desired to appeal. Peti- tioner only found out that no notice of appeal had even been filed subsequent to the requisite filing period. Petitioner has never been granted an appeal of his conviction by the State of Florida, and was indigent at all times subsequent to his conviction. Based on these findings, the Magistrate recommended to the under- signed that counsel's conduct rendered the proceedings fundamentally unfair, en- titling petitioner to habeas corpus relief, as outlined in Baggett v. Wainwright, 229 So.2d 239 (Fla. 1969). The undersigned APP. 29 after an independent review of the record and applicable law in this Circuit, or- dered on October 26, 1977 that unless the state appellate court grants petitioner a belated appeal within ninety days, the Writ of Habeas Corpus will issue. Respon- dent has now filed a Petition for Rehear- ing or Alternatively, Motion for Stay Pending Appeal. Respondent presents two factors for this Court's consideration. First, respon- dent contends that Williams v. State, 324 So.2d 74 (Fla. 1975) colors private coun- sel's representation to the state court at sentencing in a different light than de- scribed in this Court's previous order. Specifically, respondent argues that coun- sel's representation should be viewed sim- ply as a case of "mistaken impression." The Court is unpersuaded by this argument. Initially, the Court notes that Williams v. State, supra was decided on December APP. 30 3, 1975 while the proceeding at which private counsel asserted a notice of ap- peal had been filed was held on August 14, 1975. Moreover, suffice it to say that "premature" as utilized in the con- text of Williams, supra is inapposite to the case at bar. Herein, counsel's assertion implied that a notice of appeal had been filed prior to the adjudication of guilt and pronouncement of sentence. Williams, supra, even if applicable, does not illustrate that if counsel had filed the notice of appeal prior to the senten- cing proceeding, it could have been treated as timely filed. More importantly, counsel's conduct only served to insure that the petitioner would be denied his right to appeal his conviction. The sentencing transcript reveals that immediately following the court's adjudication of guilt and pro- nouncement of sentence, private counsel APP. 31 stated the following: THE COURT: . . .I'1ll adju- dicate the defendant guilty, sentence him to seven years in the State prison. MR. NEGRETTI: Your Honor, at this time, Judge, we al- ready filed a notice of ap- peal. We ask for a superse- deas bond. The transcript goes on to reveal that the trial judge never informed the petitioner concerning his rights of appeal, contrary to Florida Rule of Criminal Procedure 3.670.+ In this Court's view, counsel, by his misrepresentation, foreclosed what- ever potential may have then existed for C In pertinent part, Rule 3.670 provides: "When a judge renders a final judgment of conviction, withholds adjudication of guilt after a verdict of guilty, imposes a sen- tence, grants probation »%r revokes proba- tion, he shall forthwith inform the defen- dant concerning his rights of appeal there- from, including the time allowed by law for taking an appeal."" As to the effect of noncompliance with this rule, see Nichols v. Wainwright, 243 So.2d 430 detiuas T 1971); compare with Baker v. State, 224 APP. 32 compliance by the trial judge with Rule 3.670. As a practical matter, any likeli- hood of inquiry by the court or manifesta- tion of indigency and desire to appeal by the petitioner necessary to invoke the mandate of Douglas v. California, 373 U. S. 353 (1963) was substantially lessened by this false representation. The sensi- tive and crucial nature of the stage of the proceedings at which counsel's misre- presentation occurred needs no further elaboration. For these reasons, the Court concludes that counsel's conduct was indicative of a wilful or, at least, reckless disregard of petitioner's rights, and the responsibility placed upon an attorney by the system. As we previously stated, "such unconscionable actions lan- guish to the level of conduct of counsel So.2d 331 (3d Dist. 1969). The Supreme Court of Florida has not taken a stand on the substantive effect of a literal noncompliance with 3.670 Robinson v. Wainwright, 245 So.2d 867 (Fla. I97I). APP. 33 ‘so grossly deficient as to render the proceedings fundamentally unfair.'" See Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1975). Secondly, respondent contends that pe- titioner can only be granted relief if the State was apprised of the deficiency of counsel's representation, citing Malone v. Alabama, 514 F.2d 77 (5th Cir, 1975). Again, respondent's argument is without merit. This Court's ruling is based on the law in the Fifth Circuit as establish- ed in Fitzgerald v, Estelle, supra at 1336: . .whenever a lawyer's in- effectiveness has rendered a trial fundamentally unfair, whether he be retained or ap- pointed and whether his action or inaction was known or unknown to state officials, a depriva- tion of Fourteenth Amendment due process results from enforcement of the resultant judgment." (emphasis supplied) Malone, supra, did not alter the standard articulated in Fitzgerald. PP, 34 Finally, respondent has requested this Court to reconsider its ruling on the merits in light of a ruling by another judge in this district on a case similar to this one. In Taylor v. Wainwright, Case No. 77-373-CIV-JLK, Judge Lawrence King dismissed a federal habeas petition alleging ineffective private appellate counsel so that petitioner could further exhaust state remedies by seeking relief in the Florida Supreme Court. However, the instant case is distinguishable from the Taylor case, At page 5 of his order, Judge King stated that "although petitioner attempted to litigate the question of in- effective private counsel in his petition filed with the Third District, the response by the State and the findings of the Com- missioner indicated that only the ques- tion of a state action denial of peti- tioner's right to appeal was ever seri- ously considered." Judge King therefore APP. 35 concluded that the problem of res judi- cata would not present itself if Taylor presented his claim to the Florida Supreme Court. See Jenkins v. Wainwright, 322 So.2d 477 (Fla. 1975). However, in the instant case the District Court of Appeal summarily denied petitioner's Peti- tion for Habeas Corpus based on the fact that petitioner was represented by pri- vate counsel at trial. In addition, the decision of the District Court reaffirms the position that the Florida courts have taken in regard to claims of ineffective private counsel since 1967 in Capetta v. Wainwright, 203 So.2d 609 (1967). In U.S. ex rel. Reis v. Wainwright, 525 F.2d 1269 (1976), the Fifth Circuit, although giving weighty consideration to principles of comity, would not require the petition- er therein to bring his claim of incompetent trial counsel before the Florida appellate courts. Similarly, given the posture of the APP. 36 case at bar, this Court cannot countenance what in all likelihood amounts to a waste of judicial energy, both state and federal. Petitioner's Petition for Rehearing is therefore denied. The question of whether to grant a stay of this Court's order pending an appeal of the merits rest on a consideration of four factors: 1) the likelihood of success on the merits; 2) whether the movant will suffer irreparable injury if a stay is not granted; 3) whether other parties will be substantially harmed if a stay is granted; and 4) the dictates of the public interest. Belcher v. Birmingham Trust National Bank, 395 F.2d 685 (5th Cir. 1968); Virginia Petroleum Job Ass'n v. Federal Power Com- ‘mission, 104 U.S. App. D.C. 106, 259 F. 2d 921 (1958). These factors apply when a stay is sought, as in this case, pur- suant to Rule 8 of the Federal Rules of APP. 37 Appellate Procedure. Beverly v. United States, 468 F.2d 732 (5th Cir. 1972). As to the first factor, there appears to be a reasonable chance of success on appeal. Without compromising on what this Court considers to be a sound distinction from prior Fifth Circuit law on the subject,” the Court notes that the Fifth Circuit has not yet granted habeas relief on a claim of ineffective appellate private counsel without a demonstration of "state action." Postel v. Beto, supra; Malone v. Alabama, supra; Kallie v. Estelle, supra. Second- ly there is no question that if the stay is not granted the respondent will be pre- cluded from appealing this decision on the merits, due to the time limitation imposed. Thirdly, the harm to other parties does not appear to be substantial, as petitioner 2 Postel v. Beto, 508 F.2d 679 (5th Cir. 1975); Malone v. Alabama, 514 F.2d 77 (5th Cir. 1975); Kallie v. Estelle, 515 F.2d 588 (5th Cir. 1975). APP. 38 is not without appropriate remedy to counterbalance any harm he may suffer from a delay pending appeal. Finally, the dictates of the public interest man- date that the state be permitted an ap- peal of this case. For the above stated reasons, it is ORDERED AND ADJUDGED that the Petition for Rehearing is DENIED, and the Motion for Stay Pending Appeal is GRANTED. This Court's previous order signed on October 26, 1977 is in all respects reaffirmed. DONE AND ORDERED at Miami, Florida, this 1 day of December, 1977. /s/ Syndey M. Aronovitz United States District Judge cc: Karen Gottlieb, Esq. Assistant Public Defender 1351 N.W. 12th Street Anthony C. Musto, Esq, Assistant Attorney General 8585 Sunset Drive, Suite 75 Miami, Florida 33143 APP. 39 UNITED STATES COURT OF APPEALS FIFTH CIRCUIT NO. 78-1346 ANTONIO PEREZ, Petitioner-Appellee vs. LOUIE L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, State of Florida, Respondent-Appellant, OPINION--May 1, 1979 Rehearing and Rehearing En Banc Denied July 13, 1979 State prisoner filed petition for ha- beas corpus. The United States District Court for the Southern District of Florida, at Miami, Sidney M. Aronovitz, J., 440 F. Supp. 1037, granted relief, and respondent appealed. The Court of Appeals, Alvin B. Rubin, Circuit Judge, held that: (1) peti- tioner had exhausted available state reme- dies; (2) privately retained counsel's representation in open court at time of sentencing that he had filed notice of APP. 40° appeal when, in fact, no notice of ap- peal had been filed was not so clear a warning to the trial court of possibility of dereliction as to result in state ac- tion, even though notice of appeal filed prior to sentencing would not have been effective, and thus failure of the appeal did not entitle defendant to relief under the Six. Amendment on ground of incompe- tence of counsel, and (3) under control- ling precedents, conduct of counsel did not result in such fundamental unfairness as to amount to a denial of due process under the Fourteenth Amendment. Reversed. Rober* L. Shevin, Atty. Gen., Anthony C. Musto, Margarite Esquiroz, Asst. Attys. Gen., Miami, Florida, for respondent- appellant. Karen M. Gottlieb, Asst. Public Defen- der, Bennett H. Brummer, Public Defender, Miami, Fla., for petitioner-appellee. APP. 41 Appeal from the United States District Court for the Southern District of Florida. Before MORGAN, FAY and RUBIN, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: This case requires us to consider once again the constitutional standards by which the actions of counsel retained to defend the accused in a state court proceeding are to be measured when the lawyer has been shown to have been derelict in his duties. Antonio Perez brought this habeas corpus petition attacking a seven year sen- tence imposed after a jury verdict in a Florida court. The sole ground of error alleged is that retained counse1! failed to perfect his appeal, after promising 1 Perez was originally represented by the public defender. However, his family re- tained private counsel, who represented Perez at trial. The public defender has represented Perez in this federal colla- teral proceeding. APP. 42 Perez to do so and falsely stating in open court at the time of sentencing that a notice of appeal had already been filed. After failing to secure habeas relief in the Florida District Court of Appeal, Perez filed a petition with the United States District Court, alleging that he had been denied the reasonably effective assistance of counsel, guaranteed by the sixth amendment, and that the proceeding was rendered fundamentally unfair by his lawyer's failure to perfect an appeal, in violation of his right to due process under the fourteenth amendment. The district court, after finding that Perez had ex- hausted the available state remedies, held that Perez's sixth amendment rights had not been violated because the state nei- ther knew of counsel's failure nor was involved in his dereliction; however, the court agreed that Perez had been denied APP. 43 due process of law under the fourteenth amendment, and granted habeas corpus on that basis. The State has appeal from the order granting habeas corpus, contending that Perez did not exhaust available state remedies and that, under the law of this circuit, counsel's failure to appeal his conviction did not render the proceedings fundamentally unfair. While we agree that Perez exhausted the available state reme- dies, and that he was not entitled to the protection of the sixth amendment, we are procedent-bound to reverse the grant of habeas corpus. The court's finding that Perez exhaust- ed available state remedies is manifestly correct. The state pointed out that the Supreme Court of Florida has not had an opportunity to review its 1967 decision in which it rejected incompetence of re- tained counsel as a valid basis for post APP. 44 conviction relief. Cappetta v. Wainwright, Fla. 1967, 203 So.2d 609. The premise of the argument is that the Supreme Court of Florida might be disposed to change its view after considering later decisions by this and other courts in which similar claims have been recognized; but we have already considered and rejected this the- sis in United States ex rel. Reis v. Wainwright, 5 Cir. 1976, 525 F.2d 1269. We there held that a Florida prisoner was not required to seek any collateral relief in the state appellate system before pre- senting a claim of incompetent private counsel to the district court. After re- viewing Florida authority, we noted that there was no indication that a Florida court would depart from its line of deci- sions that refused to recognize claims based on the incompetence of retained counsel. The speculation of the State concerning what the Florida Supreme Court APP. 45 might or might not do if it were presented with Perez's claim,” is insufficient reason for us to abandon our decision in Reis. Having found that it was proper to examine the petition, we now review the district court's resolution of the constitutional claims. In an en banc decision, the circuit examined the relationship between claims based on counsel's dereliction brought 2 See also Williams v. Moles gat. 5 Cir. 1971, 452 F.2d 775, where Judge Roney re- viewed the relationship between the Florida Supreme Court and the Florida District Courts of Appeal. He found that the state district courts are not intermediate appel- late courts, but are intended to be "the ‘end of the road' for most appeals." Id. at 776. The Florida Supreme Court will review cases only if "the decision sought to be reviewed conflicts with a decision of the Florida Supreme Court or a decision of a different district court of appeals." Id. at 777. It is clear from Reis that the decision of the district court of appeals with respect to Perez's claim was not in conflict with any decision of the state supreme court or any other district court of appeals. Thus, there is no reason to expect that the state supreme court would even accept Perez's case for review. APP. 46 under the fourteenth amendment as a re- sult of its direct guarantee of due pro- cess and those that invoke it because it also incorporates sixth amendment protec- tion. Fitzgerald v. Estelle, 5 Cir. en banc. 1974, 505 F.2d 1334, cert. denied, 1975, 422 U.S. 1011, 95 S.Ct. 2636, 45 L. Ed.2d 675. The fourteenth amendment gua- rantee of due process of law is violated only if the conduct of counsel renders the trial fundamentally unfair, whether or not the state is involved in or knows of coun- sel's failing, "because the system has failed, and the state's consequent impri- sonment or fine of the defendant is funda- mentally wrong." Id. at 1336. When the "incorporated sixth" is in- voked, there must be state involvement to constitute a denial of the right to coun- sel: To find state involvement ir retained counsel's conduct which is adjudged to be less APP. 47 than reasonably effective, yet not so grossly deficient as to render the proceedings fundamentally unfair, it must be shown that some responsi- ble state official connected with the criminal proceeding who could have remedied the conduct failed in his duty to accord justice to the ac- cused. That the trial judge and the prosecutor have such a capacity and duty is unques- tionable. Therefore, if the trial judge or the prosecutor can be shown to have actually known that a particular defen- dant is receiving incompetent representation and takes no remedial action, the state ac- tion requirement is satisfied. If they directly participate in the incompetency, it is even more so. Furthermore, if the incompetency of a retained at- torney's representation is so apparent that a reasonably at- tentive official of the state should have been aware of and could have corrected it then again the state action require- ment is satisfied. Id at 1337. See also United States v. Childs, 5 Cir. 1978, 571 F.2d 315, 316. In at least one case decided since Fitzgerald this circuit has granted relief because state trial officials had actual or constructive notice of the private APP. 48 counsel's incompetence. In Cantrell v. Alabama, 5 Cir. 1977, 546 F.2d 652, cert. denied, 431 U.S. 959, 97 S.Ct. 2687, 53 L. Ed.2d 278, the court found that the state attorney general had actual knowledge of the defective assistance at a time when the attorney's error could have been cor- rected. Instead of seeking correction of the error (submission of an uncertified transcript), the attorney general moved for dismissal of the appeal on the basis of the mistake. As the district court noted, a substantially greater degree of state involvement and knowledge was evi- dent in that case than is found in this situation. In contrast, panels of this court have been unable to find s: “ficient state in- volvement in other situations. In Malone v. Alabama, 5 Cir. 1975, 514 F.2d 77, cert. denied, 423 U.S. 990, 96 S.Ct. 403, 46 L.Ed.2d 309, the court held that no APP. 49 state official was aware or should have been aware that the defendant's privately retained counsel had not informed him of his right to appeal in forma pauperis with court-appointed counsel or that the deci- sion to drop the appeal was against the wishes of the defendant. Similarly, in Kallie v. Estelle, 5 Cir. 1975, 515 F 2d 588, cert. denied, 423 U.S. 1019, 96 S.Ct. 455, 46 L.Ed.2d 391, the court decided that it could not charge state officials with constructive notice simply because the defense attorney failed to request a tran- script or file a brief after giving an otherwise valid oral notice of appeal. Ac- cord, Edwards v. Louisiana, 5 Cir. 1975, 520 F.2d 321, cert. denied, 1976, 423 U. S. 1089, 96th §.Ct. 882, 47 L.Ed.2d 100. Perez contends that state trial offi- cials knew or should have been aware of the incompetence of his lawyer when the attorney asserted at sentencing that a APP. 50 notice of appeal had already been filed when in fact the notice had not been, and never was, prepared. If a notice of appeal had been filed prior to sentencing, it would not have preserved Perez's rights under Florida law as it was interpreted at the time of trial. State ex rel. Faircloth v. Cross, Fla. 1970, 238 So.2d 81; Holmes v. State, Fla. App. 1972, 267 So.2d 344; Florida Appellate Rule 6.2, 32 Fla.Stat.Ann. (West 1967). Compare Williams v. State, Fla. 1975, 324 So.2d 74 (announc- ing new rule subsequent to Perez's trial that premature filing is not subject to dismissal but does not vest jurisdiction in appellate court until juagrent or sen- tence is rendered) > The district court found that the attorney's oral statement 3 The lawyer's assertion in court after sentencing was equally ineffective to per- fect an appeal, as a written notice of ap- peal is required in Florida. Florida Appellate Rule 6.4. APP. 3! to the trial court was insufficient to warn the trial court that something was amiss and cause it to inquire so as to be certain that Perez's appeal would be per- fected. It is apparent that the state was not so clearly appraised of the incompetence of Perez's lawyer as were the state offi- cials in Cantrell. On the other hand, the lawyer's statement that an appeal had al- ready been filed, made at a time when such a notice of appeal clearly was ineffective under the Florida rules, was more of a clue that something might be amiss than the events in Malone, Kallie and Edwards. Yet we cannot say that the warning was so clear or the possibility of dereliction so evident as to find the district court's determination erroneous. Something more is required to constitute state action than the failure of a state official to pick up and follow a scent that might APP. 52 uncover the fault of a privately retainec lawyer. See Fitzgerald, supra, 505 F.2d at 1337. After rejecting Perez's incorporated- sixth amendment challenge, the district court examined his claim under the four- teenth amendment; as discussed above, the test set forth in Fitzgerald, is whether the action, albeit unknown to state offi- cials, rendered the trial "fundamentally unfair." Id. at 1336. On three other occasions we have inter- preted the direct fourteenth amendment Fitzgerald test with respect to claims that counsel's failure to appeal a state court conviction constituted a taint of fundamental unfairness. In Postel v. Beto, 5 Cir. 1975, 508 F.2d 679, cert. denied, 423 U.S. 853, 96 S.Ct. 100, 46 L.Ed.2d 78, we upheld the denial of habeas relief to a defendant whose lawyer had failed to notify him of his right to appeal. The APP. 53 court found that the district court "had ample basis for concluding that the ac- tions of retained counsel did not operate to deprive the trial of fundamental fair- ness." Id. at 680. In Malone v. Alabama, supra, we affirmed denial of habeas relief to a defendant whose counsel gave oral notice of appeal but failed to file a brief with the state appellate court. Finally, in Kallie v. Estelle, supra, we relied on the earlier cases to affirm the denial of habeas to a prisoner whose retained attor- ney gave oral notice of appeal in open court, but failed to request a transcript and did not present an appellate brief to the trial court as required under Texas law. In Malone and Kallie, retained coun- sel aborted the defendant's right to ap- peal by failing in their duty to perfiect the appeal after orally motifying the court that an appeal was contemplated. APP. 54) In the present case, counsel made a false statement in open court when he said that a notice of appeal had already been filed. This was a violation of his duty to the court, but it was no more a viola- tion of his duty to the defendant and created no greater flaw in the trial than did the failure of retained counsel to do what had been promised in Malone and Kallie. We are therefore unable to agree with the district court that these decisions should be distinguished on the basis that Perez's lawyer's statement in open court that an appeal had already been filed was "an active course of conduct" that could "only _ characterized, at the very least, as a wilful disregard for the responsibi- | lity placed upon him by the system." The lawyer wilfully disregarded his profes- sional responsibility in all of these cases; the only factual difference here was that counsel misled the court as well as his client. APP. 55 What is or is not "fundamental unfair- ness" cannot of course be identified by litmus. Ultimately the characterization is visceral and emotional. deed the very term "fundamentally unfair" has pe- jorative overtones. Were we approaching the issue for the first time, we would hold, as did the district judge, that, when a lawyer, hy definition a member of a learned profession and a member of the bar of the court, does not perform his pro- mise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal. The appeal might be fruitless but it would at least be heard. Our sentiments are repressed by our duty to adhere to the prior decisions that we cannot distinguish. Those decisions also command the course the district court should have taken. APP. 56 For these reasons, the judgment of the district court granting a writ of habeas corpus, is REVERSED. REVERSED. APP. 57 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 78-1346 D.C. Docket No. 76-2219-Civ-SMA ANTONIO PEREZ, PETITIONER-APPELLEE versus LOUIE L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, RESPONDENT- APPELLANT Appeal from the United States District Court for the Southern District of Florida Before MORGAN, FAY and RUBIN, Circuit Judges. JUDGMENT This cause came on to be heard on the transcript of the record from the United States District Court for the Southern District of Florida, and was argued by counsel ; ON CONSIDERATION WHEREOF, It is now here ordered and adjudged by this Court APP. 58 that the judgment of the said District Court in this cause be, and the same is hereby, reversed. May 1, 1979 ISSUED AS MANDATE: APP. 59 UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 78-1346 ANTONIO PEREZ, PETITIONER-APPELLEE , Vv. LOUIE L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, RESPONDENT-APPELLANT , October 8, 1980. Appeal from the United States District Court, for the Southern District of Florida; Sidney M. Aronovitz, Judge. Anthony C. Musto, Marqarite Esquiroz, Asst. Attys.Gen., Miami, Florida, for respondent-appellant. Karen M Gottlieb, Asst. Public Defender, Miami, Florida, for petitioner-appellee. ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES (Opinion 5 Cir., 1979, 594 F.2d 159, U.S. , 100 S.Ct. 3032, 65 L.Ed.2d 1127) Before MORGAN, FAY and RUBIN, Cir- cuit Judges. ALVIN B. RUBIN, Circuit Judge. APP. 60 Considering the decision of the United States Supreme Court in Cuyler v. Sullivan, 446 U.S. , , 100 S.Ct. 1708, 1715- 1716, 64 L.Ed.2d 333, the order of the dis- trict court, 440 F.Supp. 1037, granting writ of habeas corpus is AFFIRMED and the case is REMANDED for further proceedings consistent with this opinion. APP. 61 UNITED STATES COURT OF APPEALS FIFTH CIRCUIT No. 78-1346 ANTONIO PEREZ, PETITIONER-APPELLEE vs. LOUIE L. WAINWRIGHT, Secretary, Department of Offender Rehabilitation, RESPONDENT-APPELLANT. March 23, 1981 State prisoner filed petition for ha- beas corpus. The United States District Court for the Southern District of Florida, at Miami, 440 F.Supp. 1037, Sidney M. Aronovitz, J., granted relief, and appeal was taken. The United States Court of Appeals, Fifth Circuit, 594 F.2d 159, Alvin B. Rubin, Circuit Judge, reversed, and petition for writ of certiorari was granted. The Supreme Court, 100 S.Ct. 3032, vacated and remanded. On remand, the Court of Appeals, 627 F.2d 762, af- firmed original order of District Court APP. 62 granting writ of habeas corpus and re- manded case. On petition for rehearing, the Court of Appeals, Alvin B. Rubin, Circuit Judge, heid that when lawyer did not perform his promise to his client that appeal would be taken, fairness required that deceived defendant be granted out-of- time appeal. Petition denied. Anthony C. Musto, Marqarite Esquiroz, Asst. Attys.Gen., Miami, Florida, for respondent-appellant. Karen M. Gottlieb, Asst.!ublic Defender, Miami, Fla., for petitioner-appellee. Appeal from the United States District Court for the Southern District of Florida. ON PETITION FOR REHEARING Before MORGAN, FAY and RUBIN, Circuit Judges. ALVIN B. RUBIN, Circuit Judge: Retained counsel for Perez failed to perfect an appeal of Perez's state court APP. 63 conviction after promising to do so and falsely stating in open court at the time judgment was rendered that an appeal had already been filed. Based on this derelic- tion, Perez sought habeas corpus. Our original decision denied relief because we were bound by Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir. 1974)(en banc), cert. denied, 422 U.S. 1011, 98 S.Ct. 2636, 45 L.Ed.2d 678. Applying the rule of that case, under the Sixth Amendment as made applicable to the states by the Fourteenth Amendment, we found that the state trial court officials had neither actual nor constructive notice of private counsel's incompetence and, therefore, iio state action was proved. We also denied relief under the due process clause be- cause the conduct of counsel had not rendered the trial fundamentally unfair. Perez v. Wainwright, 594 F.2d 159 (5th Cir. 1979). APP. 64 Thereafter, the Supreme Court, in Cuyler v. Sullivan, 446 U.S. 335, 100 S. Ct. 1708, 64 L.Ed.2d 333 (1980), held that ineffective assistance by a privately retained lawyer can provide the basis for federal habeas corpus relief under the Sixth Amendment . The Court reiterated the principle that a denial of the Sixth Amendment right to counsel can be estab- lished only “upon a showing that the state participated in the denial" of that right. L After its decision in Cuyler v. Sullivan, 446 U.S. 335, 10 .Ct. 1708, 64 L.Ed.2d 333 (1980), the Supreme Court, after granting a writ of certiorari in this case, remanded for consideration in light of Cuyler. perez Vv. eee es 447 U.S. ° 0 2d 1127 (1980). ” After vod we affirmed the order of the District Court granting a writ of habeas corpus and remanded for further proceedings, 627 F.2d 762 (5th Cir. 1980) . We are now considering this case on 283 So.2d 124 (Fla. Ist DCA 1973) BATTLE V. STATE 388 So.2d 1323 (Fla. Sth DCA 1980) BENOIT V. WINGO 423 F.2d 880 (6th Cir. 1970) cert. denied, 400 U.S. 852 (1970) BERRIEL WV. WAINWRIGHT 290 F.Supp. 699 (S.D.Fla. 1968) BETTS V. BRADY 316 U.S. 455 (1942) BLACKLEDGE V. PERRY 417 U.S. 21 (1974) ~ BLANCHARD V. BREWER 429 F.2d 89 (8th Cir. 1970) cert. denied, 401 U.S. 1002 (1971) BODDIE V. CONNECTICUT 401 U.S. 371 (1971) BOYD V. COWAN 519 F.2d 182 (6th Cir. 1975) BYRD V. SMITH 407 F.2d 363 (Sth Cir. 1969) CALLAND V, UNITED STATES 323 F.2d 405 (7th Cir. 1963) CHAPMAN V. UNITED STATES 469 F.2d 634 (Sth Cir. 1972) COLE V. ARKANSAS 333 VLS. 196 (1948) COLEMAN V. STATE 215 So.2d 96 (Fla. 4th DCA 1968) CUYLER V. SULLIVAN DANIELS V. ALABAMA e th Cir. 1973) DAVIS V. UNITED STATES 417 U.S. 333 (1974) DESMOND V. UNITED ares st 964) sttie PAGE(S) 10 10 11 12 5,7 13 4,10,12,13 11 DILLANE V. UNITED STATES 121 U.S -App.D.C. 354 350 F.2d 732 (D.C. Cir. 1965) DOUGLAS V. CALIFORNIA 372 U.S. 3 DRAPER V. WASHINGTON 372 U.S. 487 (1963) DUNCAN V. LOUISIANA LVS. 145 (1968) ERB V. STATE 332 A.2d 137 (Del. 1974) ESKRIDGE V. WASHINGTON STATE BOARD OF PRISON ~“TERMS AND PAROLES 357 U.S. 214 (1958) EX PARTE RALEY 528 S.W .2d 257 (Tex. Crim. App. FERRI V. ACKERMAN 444 US. 193 (1979) FINNIE V. STATE $82 S.W.2d 19 (Ark. 1979) FITZGERALD V. ESTELLE 505 F.2d 1334 (5th Cir. 1975) FLORES V. WAINWRIGHT 240 So.2d 816 (Fla. 2d DCA 1970) FOXWORTH V. WAINWRIGHT 449 F.2d 317 (Sth Cir. 1971) GACA V, UNITED STATES 411 U.S. 618 (1973) GAIRSON V. CUPP 415 F.2d 352 (Sth Cir. 1969) GEDERS V. UNITED STATES 425 U.S. 80 (1976) GLASSER V. UNITED STATES 315 U.S. 60 (1942) GRIFFIN V._ ILLINOIS 351 U.S. 12 (1956) — HANNIGAN V. UNITED STATES 587 (10th Cir. 1965) RERKING V. UNITED STATES 42Z U.S, 853 (1975) HOLLOWAY V. ARKANSAS HOPKINS V. HOOPER S.E.2d 241 (1975) JACKSON V. TURNER 442 F.2d 1303 (10 LEVENTHAL V. GAVIN st Cir. 1970) cert. ‘denied, 398 U.S. 941 (1970) th Cir. 1971) 12 ll 12 ( LINDSEY V. NORMET 405 U.S. 56 (1972) MACON V. LASH 458 F.2d 942 (7th Cir. 1972) MARSHALL V. STATE 344 So.2d 646 (FIa. 2d DCA 1977) MOULTRIE V. STATE 542 S.W.2d 835 (Tenn. Crim.App. 1976) McKANE V. DURSTON 153 U.S. 684 (1894) McMANN V. RICHARDSON 397 U.S. 759 (1970) NELSON V. PEYTON 415 F.2d 1154 (4th Cir. 1969) cert. denied, 397 U.S. 1007 (1970) NOBLE V. STATE 353 So.2d B19 (Fla. 1977) NORTH CAROLINA V._ PEARCE 395 US. 711 (1969) O'MALLEY V. WAINWRIGHT 237 So.2d 813 (Fla. 2d DCA 1970) PEOPLE V. BROWN 39 111. 2d 307, 235 N.E.2d 562 (1968) PEOPLE V. SERRANO 33 Cal. App. 3d 331 109 Cal.Rptr. 30 (3d DCA 1973) PEREZ V. WAINWRIGHT 440 F.Supp. 1037 (S.D.Fla. 1977) PEREZ V. WAINWRIGHT 640 F.2d 596 (Sth Cir. 1981) POWE V. STATE 216 So.2d 446 (Fla. 1968) POWELL V. ALABAMA 287 U.S. 45 (1932) PRESNELL V. GEORGIA 439 U.S. 14 (1978) PRESSLEY V. WAINWRIGHT 367 So.2d 222 (Fla. 1979) RINALDI V. YEAGER 384 U.S. 305 (1966) RISER V. CRAVEN 501 F.2d 381 (Sth Cir. 1974) RODRIGUEZ V. UNITED STATES 395 U.S. ROSE V. MITCHELL 443 U.S. 545 (1979) ROSINSKI V. UNITED STATES . t r. ROSS V. MOFFITT 3. 974) -iv- 12 12,14 12 ROUGHT V. HENDERSON 445 F.2d 662 (5th Cir. 1971) SANDERS V. GREEN 488 F.2d 478 (9th Cir. 1973) SHIFLETT V. COMMONWEALTH OF VIRGINIA 447 F.2d 50 (4th Cir. 1971) cert. denied, 405 U.S. 994 (1972) SHIPMAN V. GLADDEN 453 P.2d 921 (Or. 1969) SMITH V. STATE 192 So.2d 346 (Fla. 2d DCA 1966) STATE EX REL. BRATCHER V. COOKE 188 S-E.2d 769 (W.V. 1972) STATE V. SCOTT 492 S$.W.2d 168 (Mo.App. 1973) STATE V. WOODEN 246 So.2d 755 (Fla. 1971) SWINDLE V. STATE 202 So.2?d 132 (Fla. 3d DCA 1967) STONE V. POWELL 478 U.S. 465 (1976) STOVALL V. DENNO Jes U.S. 293 (1967) TEHAN V. UNITED STATES 382 U.S. 406 (1966) TOLAR V. STATE 196 So.2d 1 (Fla. 4th DCA 1967) TOLLETT V. HENDERSON 4IT U.S. 258 (1973) © UNITED STATES EX REL. O'BRIEN V. MARONEY 4723 F.2d 865 (3d Cir. 1970) : UNITED STATES EX REL. MASELLI V. REINCKE 383 F.2d 129 (2d Cir. 1967) UNITED STATES EX REL. MISHKIN V. THOMAS 282 F.Supp. 729 (S.D.N.Y. 1968) © UNITED STATES V. DeCOSTER 624 F.2d 196 (D.C.Cir. 1979) UNITED STATES V. MacCOLLUM 426 U.S. 317 (1976) WEATHERMAN V. PEYTON 433 F.2d 124 (4th Cir. 1970) WEST V. LOUISIANA 478 F.2d 1026 (5th Cir. 1973) WILKINS V. UNITED STATES WILLIAMS V. COINER 39Z F.2d 210 (4th Cir. 1968) WILLIAMS V. OKLAHOMA CITY -Vv- 5,6 WILLIAMS V. UNITED STATES 402 F.2d 548 (8th Cir. 1968) WITT V. STATE 387 So.2d 922 (Fla. 1980) WOODALL V. NEIL 444 F.2d 92 (6th Cir. 1971) WYNN V. PAGE 369 F.2d 930 (10th Cir. 1966) OTHER AUTHORITIES FLORIDA STATUTES (1979) § 924.06 ABA STANDARDS Criminal Appeals §2.1 (1970) Criminal Appeals Transition from Trial Court to Appellate Court § 2.2 (1970) The Defense Function After Conviction § 8.2 (1971) § 8.3 (1971) Post-Convicticn Remedies § 2.2 (1968) AMERICAN BAR ASSOCIATION CODE OF PROFESSIONAL RESPONSIBILITY, ETHICAL CONSIDERATION 2-32, DISCIPLINARY RULE 2-110(a) (2) -vi- 10 IN THE SUPREME COURT OF THE UNITED STATES October Term, 1981 NO. 81-417 LOUIE L. WAINWRIGHT, SECKETARY, FLORIDA DEPARTMENT OF CORRECTIONS, Petitioner, vs. ANTONIO PEREZ, Respondent. REASONS FOR NOT GRANTING THE WRIT THE DECISION BELOW IS IN HARMONY WITH THE DECISIONS OF EVERY CIR- CUIT COURT AND IS COMPELLED BY THE HOLDING IN CUYLER V. SULLIVAN, 446 U.S. 335 (1980). 00 A The factual components of respondent's habeas corpus claim are not in dispute. Respondent has continuously desired to invoke the state appellate machinery for review of his convic- tion since the date upon which his judgment and sentence were entered. Respondent's counsel deceived respondent by promising that an appeal would be taken and deceived the state trial court by falsely announcing in open court that the necessary written afin notice of appeal had in fact been filed. Since counsel hac iot filed the notice of appeal, and since counsel never was to file a notice of appeal, the thirty day appellate time period elapsed, unbeknownst to respondent. And with this passage of thirty days, respondent's right to an appeal was unknowingly lost. The state appellate tribunal held respondent account- able for the trangressions of counsel; the court refused to grant a belated appeal. Respondent's detrimental reliance and lack of fault were never contravened. Rather, the critical factor was that respondent had been deceived by "private" counsel. This abandonment by counsel was punished by the deprivation of an appeal. Upon these facts, the federal district and circuit courts concurred that a fundamental atecerriage of justice had occurred, The district court, in granting the writ of habeas corpus, specifically found counsel's unconscionable conduct and the consequent deprivation to have rendered the state proceedings fundamentally unfair: [The] active course of conduct on the part of private counsel, can only be characterized, at the very least, as a willful disregard for the responsibi- lity placed upon him by the mgr which served only to insure the depri- vation of petitioner's appellate rights. Such unconscionable actions languish to the level of conduct of counsel “so grossly deficient as to render the proceedings fundamentally unfair." Perez v. Wainwright, 440 F.Supp. 1037, 1044 (S.D.Fla. 1977) (Original emphasis). ; And the United States Court of Appeals for the Fifth Circuit, notwithstanding the reversal of the grant of relief, took pains to make clear its own predilections: What is or is not "fundamental unfair- ness" cannot of course be identified by litmus. Ultimately the characteri- zation is visceral and emotional. Indeed the very term “fundamentally unfair" has pejorative overtones. Were we approaching the issue for the first time, we would hold, as did the district judge, that, when a lawyer, by definition a member of a learned profession and a member of the bar of the court, does not per- form his promise to his client that an appeal will be taken, fairness requires -2- that the deceived defendant be ranted an out-of-time appeal. Perez v. Wainwright, 594 F.2d 159, 163 (5th Cir. 1979). The ultimate reversal by the circuit court of the grant of relief was deemed required under the dual standard then drawn by the Fifth Circuit between retained and appointed counsel ineffectiveness claims.! This “state action" dichotomy was the progeny of the en bane decision of Fitzgerald v. Estelle, 505 F.2d 1334 (Sth Cir. 1975). The Fitzgerald majority had declared a more onerous burden for defendant's raising ineffectiveness of counsel claims where counsel was retained rather than appointed. Id. at 1335-1337. The opinion of Judge Godbold, concurring in part and dissenting in part, had urged that one who employs his own counsel should not be penalized for such action by having a lower standard of effectiveness applied to gauge counsel's actions; state action is provided by the regulation by the state of both the criminal justice machinery and the lawyers operating therein. Id. at 1345-1346. This Court has now issued its mandate of equality to govern all ineffectivenes. of counsel claims. Citing with appro- bation both the opinion of Judge Godbold in Fitzgerald v. Estelle and the decision in West v. Louisiana, 4/8 F.2d 1026 (Sth Cir. 1973) ,2 which was vacated at 510 F.2d 363 (Sth Cir. 1975) (en banc) and remanded in the aftermath of Fitzgerald, the Court proclaimed: A proper respect for the Sixth Amendment disarms petitioner's con- tention that defendants who retain their own lawyers are entitled to less protection than defendants for ——— Se ty . It is indisputable that the Fifth Circuit had routinely ordered belated appeals for state defendants who were deprived :.f direct appellate review due to the derelictions of appointed counsel. See, e.g., Daniels v. Alabama, 487 F.2d 887 (5th Cir. 1973); Foxworth v. Wainwright, 449 F.2d 317 (Sth Cir. 1971); Rought v. Henderson, tae dike 682 (seh Cir. 1971); Lumpkin v. Smith, 239 F.2d 1084 t r. ° 2 In the original opinion in West, the court had declared: To “administer justice without respect to person, and do equal right to the poor and to the rich" we must apply the same standard, whether counsel be court- aeenseer or privately retained. 478 F.2d 1026, 1033 (5th Cir. 1973) (footnote omitted) aSe whom the State appoints counsel.... We see no basis for drawing a distinction between retained and appointed counsel that would deny equal justice to defendants who must choose their own lawyers. Cuyler v. Sullivan,? 446 U.S. 335, 344-45 (1980). Application of this Cuyler proclamation following the vacatur and remand ordered by this Court provided the circuit court the opportunity to adopt the holding which had previously been precluded by Fifth Circuit law.“ Therefore, we now hold, as announced by way of dictum in our first opinion, that “when a lawyer, by definition a member of a learned profession and a member of the bar of the court does not perform his promise to his client that an appeal will be taken, fairness requires that the deceived defendant be granted an out-of-time appeal." Perez v. Wainwright, 594 F.2d 159, 163 (Sth Cir. 19 Perez v. Wainwright, 640 F.2d 596, 598 (Sth Cir. 1981). Petitioner now asserts that the decision of Cuyler v. Sullivan has no impact upon this case. Ignoring the very essence of Cuyler -- the requirement of equal justice -- petitioner argues that ineffectiveness of counsel claims must be scrutinized under a different standard where appellate counsel rather than trial counsel is at issue. Yet, even prior to the decision in Cuyler, all of the circuit courts save the Fifth Circuit, have routinely ordered belated appeals for defendants deprived of the right to appeal through wrongdoings of counsel, be it appointed or retained. See, e.g., Leventhal v. Gavin, 421 F.2d 270 (Ist Cir. 1970), cert. denied, 398 U.S. 941 (1970); Desmond v. United States, 333 F.2d 378 (lst Cir. 1964); United States ex rel. Maselli v. Reincke, a ee ee 3 Indeed the holding in Cuyler was presaged by the Court's recog- nition in Ferri v. Ackerman, 444 U.S. 193, 100 S.Ct. 402, 407 n.17 (1979), that retained and appointed counsel are to be in equipoise in both their responsibilities and controls. ‘ The court, in upholding the _ of relief in the aftermath of Cuyler v. Sullivan, acknowledged: Each federal circuit court, even before the Cuyler proclamation of equality, has, under varying circumstances, recog- nized a denial of due process to defendants whose right to appeal is lost through wrongdoings or neglect of counsel. 640 F.2d at 598 n.3 (citations omitted). -h- 383 F.2d 129 (2d Cir. 1967); United States ex rei. O'brien v. Maroney, 423 F.2d 865 (3d Cir. 1970); Shiflett v. Comnonwealth of Virginia, 447 F.2d 50 (4th Cir. 1971)(en banc), cert. denied, 405 U.S. 994 (1972); Williams v. Coiner, 392 F.2d 210 (4th Cir. 1968); Chapman v. United States, 469 F.2d 634 (Sth Cir. 1972); Atilus v. United States, 406 F.2d 695 (5th Cir. 1969); Byrd v. Smith, 407 F.2d 363 (Sth Cir. 1969); Boyd v. Cowan, 519 F.2d 182 (6th Cir. 1975); Rosinski v. United States, 459 F.2d 59 (6th Cir. 1972); Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971); Benoit v Wingo, 423 F.2d 880 (6th Cir. 1970), cert. denied, 400 U.S. 852 (1970); Macon v. Lash, 458 F.2d 942 (7th Cir. 1972); Calland v. United States, 323 F.2d 405 (7th Cir. 1963); Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 1970), cert. denied, 401 U.S. 1002 (1971); Williams v. United States, 402 F.2d 548 (8th Cir. 1968); Riser v. Craven, 501 F.2d 381 (9th Cir. 1974)(en banc); Sanders v. Green, 488 F.2d 478 (9th Cir. 1973); Gairson v. Cupp, 415 F.2d 352 (9th Cir. 1969); Jackson v. Turner, 442 F.2d 1303 (10th Cir. 1971); Wynn v. Page, 369 F.2d 930 (10th Cir. 1966); Hannigan v. United States, 341 F.2d 587 (10th Cir. 1965); Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (D.C. Cir. 1965).> re — oe —— ———_— 3 The state courts have been receptive to defendants’ requests for belated appeals where the right to appeal has been initially forsaken through the ineptitude of privately-retained counsel. See, e.g., Finnie v. State, 582 S.W.2d 19 (Ark. 1979); Moultrie Vv. State, 542 S.W.2d 835 (Tenn. Crim.App. 1976); Ex parte Raley, 528 S.W.2d 257 (Tex. Crim.App. 1975); Hopkins v. Hooper, 234 Ga. 236, 215 S.E.2d 241 (1975); Erb .v. State, 332 A.2d 137 (Del. 1974); People v. Serrano, 33 Cal.App.3d 331, 109 Cal.Rptr. 30 (3d DCA 1973); State v. Scott, 492 S.W.2d 168 (Mo.App. 1973); State ex rel. Bratcher v. Cooke, 188 5.E.2d 769 (W.V. 1972); Shipman _v. Gladden, 453 p.2d 921 (Or. 1969)(en banc); People v. Brown, 39 I11.2d 307. 235 N.E.2d 562 (1968). This Court, acting in its supervisory capacity,has also acknowledged the propriety of the grant of a belated appeal where a defendant in a federal criminal case alleges that his retained counsel fraud- ulently deprived him of his right to appeal. Rodriguez v. United States, 395 U.S. 327 (1969); cf. Gaca v. United States, 411 U.S. 618 (1973)(criminal appeal would be reinstated where dismissal was due to the failure timely to pay the requisite filing fee and the defendant suffered from the mistaken belief that payment was unneces- sary due to the grant of leave to appeal in forma pauperis). More- over, where a fdleral defendant has relied to his Setriasae upon false promises of court-appointed counsel that a timely certiorari would be initiated, the Court has followed the recommendation of the Solicitor General and facilitated a timely petition for writ of certiorari. Wilkins v. United States, 441 U.S. 468 (1979). The underlying notion that rules of procedure are means to an end and not ends in themselves finds support in the American Bar Assocation Standards which advocate a flexible administration of _. appellate time limitations. ABA Standards, Criminal Appeals § 2.1 (1970); Post-Conviction Remedies § 2.2 (1968). «Se In finding a due process violation where a defendant represented by private counsel is deprived of an appeal due to counsel's derelictions, the courts have focused upon the post- ' judgment responsibility of trial counsel, whose representation proves ineffective when the defendant's appellate right is fore- gone.° The result of the ineffectiveness, enforcement by the state of an unknowing forefeiture of the right to appeal, clashes with fundamental fairness where liberty is at stake. The touchstone, the essential role of trial counsel during the post-judgment stage, was articulated by the Court of Appeals for the Fourth Circuit in Nelson v. Peyton, 415 F.2d 1154, 1157 (4th Cir. 1969), cert. denied, 397 U.S. 1007 (1970): {WJe think that counsel is also required in the hiatus’ between the termination of trial and the beginning of an — in order that a defendant know that he has the right to appeal, how to initiate an appeal and whether, in the opinion of counsel, an appeal is indicated. This interim is a critical, crucial one for a defendant because he must make decisions which may make the difference between freedom and incar- ceration. The court subsequently in Shiflett v. Commonwealth of Virginia, 447 F.2d 50, 53 (4th Cir. 1971)(en banc), cert. denied, 405 U.S. 994 (1972), further elaborated upon the responsibilities of trial counsel, whether appointed or retained, to protect the defendant's right to appeal. The analysis of the court which acknowledges the need for a defendant's personal assertion or fore- feiture of the right to appeal, simultaneously elucidates why former agency theories’ precluding retained counsel claims are uniquely inapposite to the situation at bar: —o ee ee eee 6 The eee which devolves upon trial counsel to protect the appellate r ay has been explicitly set forth in the standards promulgated by the American Bar Assocation. A.B.A. Standards, Criminal Appeals: Transition from Trial Court to Appellate Court § 7.4 (1970); The Defense Function AFter Conviction §§ 8.2, 8.3 (1971). The general proposition, that the duties of trial counsel continue long after judgment is pronounced, has also been endorsed by the Florida courts, Coleman v. State, 215 So.2d 96, 100-101 (Fla. 4th DCA 1968); Smith v. State, 192 So.2d 346, 349 (Fla. 2d DCA 1966). In requiring as part of any competent trial representation that a lawyer inform his client fully of his appeal rights, Nelson [v. Peyton, supra, ] is in accord with the trend of recent decisions recognizing that although matters of strategy and tactics are principally for the lawyer to deter- mine, the decision to exercise or forego a guaranteed right is for the defendant alone to make. Ibid The Fourth Circuit therefore requires that a belated appeal be granied a deceived defendant who has reasonably but detrimentally relied upon retained counsel to protect the guaranteed right to appeal. Id at 55 [approving Weatherman v. Peyton, 433 F.2d 124 (4th Cir. 1970), Williams v. Coiner, 392 F.2d 210 (4th Cir. 1968)]. Similar reasoning has led the Sixth Circuit to hold that a defendant cannot be deprived of an appeal as a consequence of an abandonment by private counsel. Woodall v. Neil, 444 F.2d 92 (6th Cir. 1971). That court has concluded that in such a case, there is "no knowing, intelligent and intentional relinquishment" of the right to an appeal. The requirements of due process are consequently violated by the refusal of a state appellate court to grant such a deceived defendant a requested out-of-time appeal. Boyd v. Cowan, 519 F.2d 182, 184 (6th Cir. 1975). The Court of Appeals for the Ninth Circuit has equally affirmed the constitutional compulsion for a belated appeal where retained counsel's ineffectiveness deprives a defendant of the means to appeal. CGairson v. Cupp, 415 F.2d 352 (9th Cir. 1969). The court made clear that it is not only allegations of false promises on the part of counsel that establish the right to an out-of-time appeal. For irrespective of fraud, trial counsel is charged with the solemn responsibility of protecting a client's right to appeal. Thus, the court held that, while an attorney has no affirmative duty to represent a trial client on appeal, he or she does have the obligation of either insuring that an appeal is lodged, or advising a client on how to proceed in the client's the proposition that an attorney cannot wantonly disavow the assumption of responsibility once assumed is enshrined in the American Bar Assocation Code of Professional Responsibility, Ethical Consideration 2-32; Disciplinary Rule 2-110(a) (2). O tee own behalf: Were we to hold that the constitutionally protected right to the assistance of effective trial counsel ended at the moment sentence was pronounced, we would leave many criminal defendants suspended between counsel with the result that direct appeal, otherwise available, would be lost and the time consuming precess of post-conviction proceedings would be begun. This is precisely what has happened in this case. The failure of appellant's trial counsel to preserve his client's statutory right to appeal resulted in a deprivation of the assistance of effective trial counsel. Td, at 353-354 (citations omitted) Employing similar logic, the Eighth Circuit in Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 19/70), cert. denied, 401 U.S. 1002 (1971), repudiated the propriety of the artificial distinc- tion drawn between retained or appointed counsel, simple or gross negligence, where forfeiture of an appeal is the end result: "The failure to perform the simple procedure of timely filing a notice of appeal is not the ‘effective' assistance of counsel required by Powell y. Alabama [287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158), nor the diligent advocacy required by Anders v. California [386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493). The failure of counsel to timely file a notice of appeal after he has been requested or agreed to do so is incompetence as a matter of law and a denial of due peor: This is a true whether the negligent counsel has been appointed or retained. The ‘in- vidious discrimination’ is not between the rich who can hire counsel and the poor for whom counsel must be appointed, but between those who are represented by competent counsel and those whose counsel prove to be grossly incompetent or culpably a agra Id. at 90-91 [quoting Shipman v. Gladden, 453 P.2d 921, 925 (or. 1969)] Accordingly, the court graphically denounced the state's refusal to grant a belated appeal to the petitioner represented by private counsel as effecting a classification so invidious "as to shock the conscience and consequently to violate due process”: Indeed, failure by appointed or retained counsel to commence the simple steps for appeal is a blatant denial of due process. (citations omitted). Distinctions between gross or simple negligence on the part of counsel, or between retained or appointed counsel, or between active or passive negligence on the part of the state are immaterial. Whether counsel's conduct is classi- fied as gross or excusable negligence or whether the state's activity is classified as passive or active is irrelevant, since in either case appellee has been denied effective and complete appellate review through no fault of his own. Ibid at 90 The grant of an out-of-time appeal contravenes none of the traditional policy concerns which militate against relief for ineffectiveness of private counsel claims. No premium is placed upon inadequate representation;® no burden is laid upon trial courts to supervise possible ineffective conduct. United States ex rel. Maselli v. Reincke, 383 F.2d 129, 133 (2d Cir. 1967). With the claim stripped of issues of aquiescence or stra- tagems, former justifications for overlooking inadequacies of private counsel become particularly obsolete: The State tells us that relieving defendants of responsibility for the sort of misconduct of their chosen counsel which transpired here will invariably "***put a premium on in- competent and inefficient counsel whose mistakes could be more certainly relied upon as effective aid for reversal than the sound and competent advice and trial conduct of the most efficient counsel." Popeko v. United States, 294 F.2d 168, 171 (Sth Cir. ~ T9961). We do not share this belief. As we have already observed, relator does not suffer here from counsel's tactical or strategic errors, the detection of which would impose upon the courts the intolerable burden of inquiring into counsel's designs at every stage in the gp ee Here, counsel's post-trial conduct contrary to his client's wishes is not attri- butable to the accused, who was unconscionably prejudiced thereby. Fundamental fairness requires that he be granted the rights which were lost to him through no fault of his own. Id. at 133-134 (citations and footnotes omitted). The penultimate consideration is thus the total depriva- tion. The grant of an out-of-time appeal to a defendant previously denied a direct appeal does not provide "two bites at the appeal." “9 8 Indeed, rather than fostering a premium on ineffective counsel, the grant of relief to petitioner would only alleviate Florida's current premium on court-appointed counsel. Defendants accorded belated appellate scrutiny receive only that which was preliminarily thwarted through the unethical representation of their trial counsel. Petitioner attempts to distinguish Cuyler from the case at bar by ignoring the deprivation at issue. Petitioner argues that there is no constitutionai riyht te an appeal, and, in any event, counsel is relatively insignificant on appeal. (Petition at 18-21). Yet, respondent has not claimed a due process violation because the State of Florida does not provide for appellate 10 and has not challenged the effectiveness of counsel's review, representation on appeal. Respondent's claim has as its founda- tion the refusal by the State of Florida to accord him access to its appellate court solely because the trial counsel who failed to perfect his appellate right was private, not appointed. Had counsel for the impecunious respondent not been remunerated by respondent's parents, but instead by the state, it is certain that respondent's plea for a belated appeal would not have gone unheeded. See, e.g., State v. Wooden, 246 So.2d 755 (Fla. 1971); Baggett v. Wainwright, 229 So. 239 (Fla. 1969); Powe v. State, 216 So.2d 446 (Fla. 1968).!} ———- ———— -_ -- — —— —— 9 The argument of petitioner that the role of counsel is less sig- nificant on appeal than at trial since the appellate courts inde- pendently scrutinize trial records for error is inapposite. Absent the grant of the writ of habeas corpus, respondent would receive no a review of his conviction with or without counsel. e discussion by petitioner regarding the role of appellate counsel and courts would be appropriate ts the State of Florida was amenable to the grant of a belated appeal, but only opposed the representation by counsel, or by effective counsel. Then" the appellate court could provide appellate review, albeit without bene- ty of an —— advocate. But see Anders v. California, 386 738 (1967). 10 In Florida, a direct appeal in criminal cases is guaranteed by both the state constitution and state statute. See Noble v. State, 353 So.2d 819 (Fla. 1977); Marshall v. State, 344 So.2d 646 (Fla. 2d DCA 1977); Bannerman v._Wainvr ight, 283 So.2d 124 (Fla. Ist DCA 1973); § 924.06, Fla. Stat. (1979). i This unfairness in Florida procedure is underscored by the fact that the State of Florida, while denying belated direct appeals where retained counsel is at fault, grants untimely applications for discretionary certiorari review and untimely appeals from orders —— collateral post-conviction motions to vacate ——. where the delay is attributable to —— counsel, See, e. pressisy v. Wainwright, 367 So.2d 222 (Fla. 1979); Flores v. Wainw righ a. 2d DCA 1970), O'Malley v. Wainwright, hs 813, 817 (Fla. 2d DCA 1970). C i. C While appeals are not constitutionally required, once provided, open and equal access is a constitutional requisite: This Court has never held that the States are required to establish avenues of appellate review but it is now fundamental that once established, these avenues must be kept free of unreasoned distinctions that can only impede open and eoual access to the courts. North Carolina v. Pearce, 395 U.S. 711, 724-725 (1969) (citations omitted) .12 . Indeed, since the 1894 declaration in McKane v. Durston, 153 U.S. 684, that appeals are not constitutionally dictated, appellate review of criminal judgments has become an integral part of the American system of criminal justice. Griffin v. Illinois, 351 U.S. 12, 18-19 (1956); see also Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). As early as 1956, this Court noted with approval that "all of the States now provide some method of appeal from criminal convictions, recognizing the importance of appellate review to a correct adjudication of guilt or innocence." Griffin v. Illinois, supra at 18 (1956)./3 Because of the significant role of the criminal appeal in rectifying trial error, this Court has not countenanced any state practice which impinges upon equal access to complete appellate review. See, e.g., Williams v. Oklahoma City, 395 U.S. 12 Petitioner's contention, that the deprivation of appellate review is not fundamentally unfair since respondent can pursue a collateral attack of his conviction,offers an unconscionable impediment for defendants such as Perez. Florida law is clear: a post-conviction motion is not a substitute for appeal, the scope of review on a collateral attack is far more circumscribed than that provided on a direct appeal, and a post-conviction motion can present to the trial court only claims which could not have been presented on direct appeal. See, e.g., Berriel v. Wainwright, 290 F.Supp. 699 (S.D.Fla. 1968), Wee v. State, 387 S0.2d 922 (Fla. 1980), Battle v. State, 388 So.2d 1323 (Fla. Sth DCA 1980); Tolar v. State, 196 So.2d I (Fla. 4th DCA 1967); Swindle v. State, 202 So.2d 132 (Fla. 3d DCA 1967). Indeed, in Witt v. State, supra at 927-28, the Supreme Court of Florida expressly declined to adopt the federal standard of review for collateral attacks articulated i this Court in Davis v. United States, 417 U.S. 333 (1974), as the federal standard of review was deemed unnecessarily broad. The argument of petitioner that the avenue of relief for Respond- ent Perez should be limited to a collateral attack certainly urges an intolerable penalty for counsel's defalcation. 13 In recognition of the utility of the state appellate system as a means of vindication of constitutional rights, the Court has entrusted litigation of significant constitutional claims to the state tribunals. Stone v. Powell, 428 U.S. 465, 493 n.35 (1976). -ll- C he ae 458 (1969); Rinaldi v. Yeager, 384 U.S. 305 (1966); Draper v. Washington, 372 U.S. 487 (1963); Douglas v. California, 372 U.S. 353 (1963); Eskridge v. Washington State Board of Prison Terms and Paroles, 357 U.S. 214 (1958); Griffin v. Illinois, supra. 4 Penalties for the exercise of the appellate right have not been tolerated. Blackledge v. Perry, 417 U.S. 21 (1974); North Carolina v. Pearce, 395 U.S. 711 (1969). '9 And past impediments to full appellate review of criminal cases have danger of convicting the innocent." Tehan v. United States, 382 U.S. 406, 416 (1966); accord, Stovall v. Denno, 388 U.S. 293, 297-298 (1967). | In the final analysis, the state's enforcement of respondent's criminal judgment, deprivation of liberty, and rejection of respondent's plea for appellate review is uncon- scionable. Upholding a forfeiture of an appeal due to counsel's failure "to invoke the procedural and substantive safeguards that distinguish our system of justice", is repugnant to due process. See Cuyler v. Sullivan, 446 U.S. at 343; see also McMann v. Richardson, 397 U.S. /59, 770-771 (1970). The State of Florida, having provided an appellate avenue, must now fulfill the due process promise of fair access to the appellate courts, Boddie v. Connecticut, 401 U.S. 371, 378 (1971). It is now beyond peradventure that once a state provides for appellate scrutiny, 16 The importance of the first direct appeal to "a correct adjudication of guilt" has been more recently underscored by the decisions of the Court which have refused to extend safeguards attendant to the first appeal to subsequent discretionary and collateral review proceedings. United States v. MacCollum, 426 317, a7) (1976); Ross v. Moffitt, 417 U.S. 600, 605- 15 Even in the civil context, the Court has been receptive to claims that state burdens imposed upon the exercise of the statutory right to appeal are a eco offensive. See, ) e.g., Lindsey v. Normet, 405 U.S. 56 (1972); Boddie v. Connecticut, Ot b.§. 37-971), - -12- C id the proceedings in the appellate tribunal are to be regarded as a part of the ee of law under which he is held in custody by the state, and to be considered in determining the question of alleged deprivation of his life or liberty contrary to the 14th Amendment. Frank v. Mangum, 237 U.S, 309, 327 (1915). See also Presnell v. Georgia, 439 U.S. 14 (1978); Cole v. Arkansas, 333 U.S. 196, 201 (1948); United States ex rel. Mishkin v. Thomas, 282 F.Supp. 729 (S.D.N.Y. 1968). Scrutiny of the processes by which respondent has been deprived of his liberty inexorably leads to the conclusion that due process has been denied. Evis- ceration of respondent's right to an appeal as the result of counsel's abdication of his solemn duty, is "shocking to the universal sense of justice.” Betts‘v. Brady, 316 U.S. 455, 462 (1942). The steadfast refusal of the State of Florida to provide redress to individuals represented by private counsel does violence to this Court's most recent declaration that "the often uninformed decision to retain a particular lawyer" cannot forfeit the defendant's entitlement to constitutional protection. Cuyler v. Sullivan, supra at 344: Both equal protection and due process emphasize the central aim of our entire judicial system -- all people charged with crime must, so far as the law is concerned, "stand on an equality before the bar of justice in every American antes ‘ court." riffin v. Illinois, 351 U.S. 12, 17 (1956) [quoting Chambers v. Florida, 307 U.S. 727, 241 (1940)]. ams “SB samers v~ Fairness andequality, the ultimate mandates of Cuyler v. Sullivan, are no less applicable in this case. The petition for writ of certiorari should be denied. () oe C Petitioner also advances, as an additional basis for certiorari jurisdiction, that the standard of review for ineffec-. tiveness of counsel claims such as that advanced by respondent must now be resolved. This contention, first raised by peti- tioner some five years after the commencement of litigation in this cause, is equally misguided. The standard of review which controls the case at bar has been well explicated in the decisions of this Cuourt. Indeed, the decision asserted by petitioner as being in conflict with the decision at bar elucidates the precedential lineage for the holding of the court below. In United States v. DeCoster, 624 F.2d 196 (D.C.Cir. 1979)(en banc), the court noted that prejudice need not be shown for every deprivation of counsel claim. Analyzing ineffectiveness of counsel decisions of this Court against a continuum, the DeCoster Court noted at one end the "cases of structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee." Id. at 201. Where there has been some deprivation of the right to counsel, as opposed to allegations of ineffective actions by counsel, no other prejudice need be affirmatively established. Id. at 201-203; see Holloway v. Arkansas, 435 U.S. 475 (1978); Geders v. United States, 425 U.S. 80 (1976); Herring v. United States, 422 U.S. 853 (1975); Tollett v. Henderson, 411 U.S. 258 (1973); McMann v. Richardson, 397 U.S. 759 (1970); Glasser v. United States, 315 U.S. 60 (1942); Avery v. Alabama, 308 U.S. 444 (1940); Powell v. Alabama, 287 U.S. 45 (1932). In contradistinction, where counsel's performance is assailed, a “non-categorical approach" with prejudice as its focus is dictated. Id. at 203. The DeCoster Court articulated the bases for requiring a showing of prejudice in cases challenging the quality of repre- sentation of counsel. Absent such a requirement, courts would be forever questioning judgment calls by counsel, and inquiring as to clients’ concurrence with tactical decisions of the defense. attorney. As a result, the sensitive relationship between counsel aie VW \, and client would be undermined, and the adversary system transformed into a system almost inquisitorial in nature. Id. at 208. The claim of respondent places no premium on ineffective counsel and imposes no burden of inquiry upon the court. 16 As the United States Court of Appeals for the Second Circuit observed in United States ex rel. Maselli v. Reincke, supra, tactical decisions of counsel are not at issue in a case such as this. Consequently, the policy questions attendant to ineffective representation cases pose no obstacle. The relief sought, the one appeal forfeited only by the derelictions of counsel, is consistent with basic fairness and taxes little costs on the administration of justice, The costs associated with the remedy sought has been the subject of analysis by this Court when considering the need for a showing of prejudice. In requiring no showing of actual prejudice in Rose v. Mitchell, 4+"? U.S. 545 (1979), the Court contrasted those cases where the grant of relief requires exclusion of probative evidence or immunity from prosecution, with cases where the grant requires only a newtrial. Ina case such as this, where the remedy is merely the direct appeal guaranteed by state law, the administration of justice is only furthered by a grant of relief. In the final analysis, the burden which petitioner advocates, a pre-relief showing of merit to the appeal, is con- trary to the precedent of this Court as well as the raison detre v of the DeCoster decision. |? Moreover, the decision sought to be i ee ee 16 In contrast, the burden placed upon the federal courts pursuant to the prejudice standard asserted by petitioner is an onerous one. In assessing the likely merit of the appellate arguments, the federal court would be required to scrutinize the trial transcripts and decipher all pertinent state law. 17 In Rodriguez v. United States, 395 U.S. 327, 330 (1969), this Court eatusal to require a preview of the appellate issues from a similarly deprived defendant, explaining: Those whose right to appeal has been frustrated should be treated exactly like any other appellants; they should not be given an additional hurdle to clear just because their rights were violated at some earlier stage in those proceedings. -15- C es € reviewed is in precise accordance with the decisions of each and every court of appeals. In light of the total harmony among the circuits, and the manifest propriety of the resolution reached by the court below, the petition for writ of certiorari should be denied. iin The decision sought to be reviewed is consistent with the law of every federal circuit, and compelled by the holding in Cuyler v. Sullivan. Accordingly, the petition for writ of certiorari should be denied. Respectfully submitted, BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1351 Northwest 12th Street Miami, Florida 33125 Yd. BY: PA. 7 YM. COITLIEB Assistant Public Defender oh Ja a fee .- C= | RECEIVED Av IN THE SUPREME COURT IN THE UNITED STATES NOV 2 7 gg C [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385008_0262%3A0. Public record. Not legal advice.