Appendix — Cowan v. Caudill

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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF KENTUCKY

CATLETTSBURG

CIVIL ACTION NO. 1074

FILED DEC, 19, 1973

PETITIONER

' VS: MEMORANDUM OPINION AND ORDER

HENRY E. COWAN, WARDEN

The petitioner, who is presently incarcerated in the

Kentucky State Penitentiary at Eddyville, Kentucky,

seeks Federal Habeas Corpus relief pursuant to 28 U.S.C.

§2254. This Court, after finding the petitioner had ex-

hausted his available state remedies, granted an eviden-

tiary hearing, which was conducted at Catlettsburg, Ken-

tucky on October 12, 1973.

The petitioner, who was represented by Court. ap-

pointed counsel, presented four (4) substantive claims in

support of his petition for post-conviction relief from the

sentence of life imprisonment imposed by the Rowan Cir-

cuit Court, Rowan County, Kentucky on March 24, 1964

following a verdict of guilty to an indictment charging

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the petitioner with the capital offense of rape of a female

child under the age of twelve (12).

The petitioner’s first two (2) contentions are that

there was insufficient evidence to support his conviction

and that the trial judge erroneously instructed the jury

upon whose verdict the petitioner’s conviction rests. These

contentions are not cognizable in an action for federal

post-conviction relief and are, therefore, rejected. Work-

man v. Cardwell, 471 F.2d 909, 911 (6th Cir. 1973) ; Bal-

lard v. Howard, 403 F.2d 653, 654 (6th Cir. 1968), as the

instant proceedings are not a substitute for appeal. Di-

_Pazza v. United States, 471 F.2d 719, (6th Cir. 1973).

The petitioner’s third contention is that he was denied

the effective assistance of counsel at his trial. It is the

respondent’s position that the petitioner waived his right to

counsel. The record of the State Court proceedings sub-

stantiates the respondent’s argument The record dis-

closes three (3) separate attempts by the State Court to

appoint counsel to represent he petitioner: March 12, 1964,

March 18, 1964 and March 20, 1964. The petitioner’s de-

cision, albeit unwise, to reject those offers does not give

rise to a violation of the safeguards afforded by the Sixth

Amendment. See Kelly v. Wingo, 472 F.2d 717, 719 (6th

Cir. 1973) and United States v. Murphy, 413 F.2d 1129,

1141 (6th Cir. 1969), cert. denied, 396 U.S. 896 (1969).

The petitioner’s fourth and last contention is that

he was not informed of his right to appeal, denied his right

of appeal and his right to proceed on such appeal in forma

pauperis.

The petitioner did file a motion for new trial on

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March 28, 1964 which was denied the same date. Under

the Kentucky Rules of Criminal Procedure, such a motion;

pursuant to Rule 10.02, is one of the initial procedural

avenues available to a defendant in obtaining review of

his sentence. The record of the proceedings is silent, how-

ever, as to the Trial Court informing the petitioner of his

right to appellate review and as to whether the petitioner

ever attempted to exercise hat right. The record is not

1aute as to the petitioner’s muliple efforts to obtain collat-

eral review based upon the denial of his right to appeal.

At the aforententioned evidentiary hearing, the pe-

titioner reiterates his allegations as tc the Court’s failure

to appraise him of his various appellate rights. He further

testified that he became aware of those rights only after

incarceration.

Although the petitioner has the burden of establishing

a violation of his constitutional rights, Stidham v. Wingo,

482 F.2d 817, 820 (6th Cir. 1973), he need only prove

that he was not informed of his right of direct appeal

or his right to appointed counsel on such appeal to satisfy

that burden. Lovelace v. Haskins, 474 F.2d 1254, 1255-

1256 (6th Cir. 1973). The lapse of almost ten (10) years

since imposition of sentence does not bar the institution

of this action, Herman v. Claudy 351 F.2d 116 (1956), or

serve to increase his burden, Pasley v. Overholser, 282

F.2d 494, 495 (D.C. Cir. 1960) : Frost v. Montana, 149 F.

Supp. 349, 352-353 (D.Mont. 1966) in this instance.

The petitioner’s own uncontroverted testimony has

established a violation of his constitutional rights. The

record does not refute but, rather, tends to substantiate

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the petitioner’s allegations and tesinony. Any inference

of regularity that may be drawn from the petitioner’s

aforementioned motion for a new trial is negated by the

silent record and the absence of any other corroborating

evidence.

Accordingly, the petitioner’s motion for a Writ of

Habeas Corpus shall be, and the same hereby is, SUS-

TAINED on condition. A Writ shall issue, but shall be

stayed for a period of ninety (90) days from the date of

this Opinion and Order to permit the Kentucky Courts to

consider whether the plaintiff shall be granted the right

of a belated appeal with either appointed, if warrented by

his financial condition or retained counsel. If no such

appeal is granted, the Writ of Habeas Corpus shall become

absolute upon the expiration of the stay period and the

petitioner shall be released from confinement attributable

to Rowan Circuit Court Indictment No. 2011 and the

conviction thereon. The respondent shall timely advise the

Court of any State Court order material to this action.

This cause shall remain on the docket for such fur-

ther orders as may be appropriate for a period of ninetv-

five (95) days at which time it shall be stricken from the

docket without a further Order of Court.

IT IS SO ORDERED this 19th day of December, 1973.

/s/H. David Hermansdorfer, Judge

A True Copy Attest

Davis T. McGarvey, Clerk

U. S. District Court

/s/Marie B. Ross, D.C.

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APPENDIX B

FILED JULY 9, 1974

NO. 74-1246

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CURTIS CAUDILL,,

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HENRY COWAN, WARDEN,

Defendant-Appellant.

ORDER

Before: CELEBREZZE, LIVELY & ENGEL, Circuit Judges.

Upon consideration of the record, the briefs, and the

oral argument of the parties, the Court finds no error in

the District Court’s judgment. Accordingly, the grant of

the writ of habeas corpus should be, and it hereby is,

Affirmed.

Entered by Order of the Court

/s/John P. Hehman

Clerk

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APPENDIX C

RENDERED: MAY 26, 1972

COURT OF APPEALS OF KENTUCKY

CURTIS CAUDILL .............ceeceeeceees APPELLANT

Vv. APPEAL FROM ROWAN CIRCUIT COURT

HONORABLE JOHN WINN, JUDGE

COMMONWEALTH OF KENTUCRY........ APPELLEE

PER CURIAM OPINION

AFFIRMING

(Not to be officially reported or cited as authority)

This is the appellant’s third RCr 11.42 motion. See

Caudill 1. Commonwealth, Ky., 408 S.W. 2d 182 (1966).

Under RCr 11.42(3) the final disposition of the

petitioner’s first RCr 11.42 motion concluded all issues

that could reasonably have been presented in the same

proceeding. Gregory V. Knuckles, Ky., 471 S.W. 2d 306

(1971). The issues now asserted could have been in-

cluded in the first RCr 11.42 proceeding.

The order denying relief is affirmed.

APPELLANT:

Curtis Caudill ~

P. O. Box 128

Eddyville, Kentucky 42038

ATTORNEYS FOR APPELLEE:

Hon. John B. Breckinridge, Attorney General

Guy C. Shearer, Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

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APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

NO. 74-1246

CURTIS CAUDILL ............ PETITIONER-APPELLEE

VS. MOTION FOR STAY OF MANDATE

HENRY E. COWAN,

WHEN 530 ésdinkbesensvcece RESPONDENT-APPELLANT

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF KEN-

TUCKY AT CATLETTSBURG

Respondent-Appellant, by counsel, respectiully pre-

sents this application for, and moves the Court to enter, an

order staying the issuance of the mandate in this case, pur-

suant to Rule 41(b) of the Federal Rules of Appellate Pro-

cedure, until final disposition of the case; because it is the

intention of respondent-appellant to make proper and timely

application to the Supreme Court of the United States for

writ of certiorari to review the decision of the Sixth Cir-

cuit in the above-styled action.

The judgment in this case was entered on July 9,

1974; the twenty-five day period for issue of mandate

will expire in vacation, namely, on the 3rd day of August

1974; and the filing of a petition for a rehearing will not,

therefore, stay the issue of such mandate. aaa

It is submitted that this action by Respondent-Ap-

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pellant is presented in good faith and not for delay; sets

forth good and sufficient grounds for appeal, and war-

rants stay of issue of mandate pending disposition thereof.

ED W. HANCOCK

- ATTORNEY GENERAL

By: Guy C. Shearer

Assistant Attorney General

Capitol Building

Frankfort, Kentucky 40601

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COUNSEL FOR RESPONDENT-APPELLANT

PROOF OF SERVICE

I, Guy C. Shearer, one of counsel for respondent-appellant,

hereby certify that a copy of the foregoing Motion for Stay of

Mandate was served on Petitioner-Appellee by mailing same,

postage prepaid, on July 25, 1974, to Mr. Curtis Caudill, Box 128,

Eddyville, Kentucky 42038, and Honorable J. Vincent Aprile II,

Assistant Public Defender, 625 Leawood Drive, Frankfort, Ken-

tucky 40601.

/s/Guy C. Shearer

Assistant Attorney General .

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APPENDIX E

Goza v. Mayden, 93 S.Ct. 2926, 413 U.S. 665, 37

I..Ed.2d 873 (1973)

Adams v. Illinois, 92 S.Ct. 916, 408 U.S. 278, 31

L.Ed.2d 202 (1972)

Linkletter v Walker, 85 S.Ct. 1731, 381 U.S. 618, 14

L.Ed.2d 601 (1965)

Halliday v. United States, 89 S.Ct. 1498, 394 U.S.

$31, 23 L.Ed. 16, rehearing denied 89 S.Ct. 2106, 395

U.S. 971, 23 L.Ed.2d 761 (1969)

Michigan v. Payne, 93 S.Ct. 1966, 412 U.S. 47, 36

L.Ed.2d 736 (1973)

Johnson v. State of New Jersey, 86 S.Ct. 1772, 384

U.S. 719, 16 L.Ed.2d 882, rehearing denied &7 S.Ct. 12,

385 U.S. 890, 17 L.Ed.2d 121 (1966)

Warner v Flemings, 93 S.Ct. 2926

Desist v. United States, 89 S.Ct. 1030, 394 U.S. 244,

22 L.Ed.2d 248, rehearing denied 89 S.Ct. 1766, 395 U.S.

931, 23 L.Ed.2d 251 (1969)

Stovall v. Denno, 87 S.Ct. 1967, 388 U.S. 293, 18

1..Ed.2d 1199 (1967)

Tehan v. United States ex rel Shott, 86 S.Ct. 459,

382 U.S. 406, 15 L.Ed.2d 453, rehearing denied 86 S.Ct.

925, 383 U.S. 931, 15 L.Ed.2d 850 (1966)