# Appendix — Cowan v. Caudill > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1013%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 419 U.S. 1041 ## Text * a te belie rf ae ; 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 2a 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 } | ; ; 3a 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 ee rE oe te eee 4a 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. OOO Sa APPENDIX B FILED JULY 9, 1974 NO. 74-1246 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT CURTIS CAUDILL,, vz | 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 P~ eae 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 7a 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- F | 8a 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 ee eRe REE se a 2 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 . 9a 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) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385608_1013%3A2. Public record. Not legal advice.