Petition for Writ of Certiorari — Norris v. Robinson

FILED

0) 95 -8] 7 Supreme Court, U.S.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

ROBERT SHERMAN ROBINSON, Respondent,

vs.

LARRY NORRIS, Director,

Arkansas Department of Correction, Petitioner.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WINSTON BRYANT

Arkansas Attorney General

BY: *OLAN W. REEVES

Senior Assistant Attorney General

Arkansas Bar No. 85136

200 Tower Building

323 Center Street

Little Rock, AR 72201

(501) 682-8078

Attorneys for Petitioner

*Counsel of Record

QUESTION PRESENTED FOR REVIEW

DOES THE SIXTH AMENDMENT REQUIRE A STATE

TO PROVIDE COUNSE!., TO AN INDIGENT

CONVICTED DEFENDANT TO RAISE CLAIMS OF

INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

WHEN STATE PROCEDURE REQUIRES THAT SUCH

CLAIMS BE RAISED BETWEEN CONVICTION AND

DIRECT APPEAL?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ............. I

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REASONS FOR GRANTING THE WRIT:

DOES THE SIXTH AMENDMENT REQUIRE

A STATE TO PROVIDE COUNSEL TO AN

INDIGENT CONVICTED DEFENDANT TO

RAISE CLAIMS OF INEFFECTIVE ASSIST-

ANCE OF TRIAL COUNSEL WHEN STATE

PROCEDURE REQUIRES THAT SUCH

CLAIMS BE RAISED BETWEEN CONVIC-

SION AND DEREALS AP WMS) si occvssticcesv¥ians 4

APPENDIX:

Slip Opinion in Robinson v. Norris,

OD FS 407 (Bas Ce. TRG) ao voi vccascciccsovevtvas A-1

Order Denying Rehearing in the Eighth Circuit ...... A-6

Memorandum and Order of District Court ........... A-7

Judgment of the District Court .............-..0008: A-15

In re the Abolishment of Rule 37. and the Revision of

Rule 36. of the Arkansas Rules of Criminal

PUDGINE ocivdavenccatderbercesedescneusare A-16

TABLE OF AUTHORITIES

CASES:

Chapman v. California,

Bey BOENODE) ced cov cvesecewvecccssevessvecess ]

Coleman v. Alabama,

I a Te Seb evieteeecevewevwds 6

Coleman v. Thompson,

SE RSL PE CEOS) cia cccescccedovcvcovesesecevee 5

Cravey v. State,

815 S.W.2d 933 (Ark. 1991) ...... ccc ec eeeeeccceevees 5

Douglas v. California,

ee CEM UE CUEEDD SU weccvecdcecectecceveccseeces 6

Johnson v. Lockhart,

ee ES TL) ) eae 6

Murray v. Giarratano,

PRET ccc ciccavesveuscerseseureeseveees 1

Nolan v. Armontrout,

973 F.2d 615 (8th Cir. 1992)... 1... . cece eee eee eees 6

Pennsylvania v. Finley,

CO eee er {

Robinson v. Norris,

60 F.3d 457 (8th Cir. 1995)... 2... ee eee ee eee eee iv@

United States v. Crowley,

529 F.2d 1066 (3d Cir. 1976), cert. denied,

CO ee ee 6

Whitmore v. State,

re Cw. BOD. cece ccecccceccebeces 2

i\

TABLE OF AUTHORITIES

TREATISES: Page

2 Wayne R. LaFave & J. Israel,

Criminal Procedure § 11.2(b) (1984) ................5

3 Wayne R. LaFave & J. Israel,

Criminal Procedure § 26.6(d) (1984) ................ 7

COURT RULES:

Arkansas Rules of Criminal Procedure 36.4 (1990)........! )

MISCELLANEOUS:

In re the abolishment of Rule 37. & the revision

of Rule 36. of the Arkansas Rules of Criminal

Procedure, 770 S.W.2d 148 (Ark. 1989) 2.0... 0 cece eed

i

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

Eighth Circuit relevant to this petition is reported as Robinson

v. Norris, 60 F.3d 457 (8th Cir. 1995) and is reprinted in the

appendix to this petition. The Memorandum and Order and

the Judgment of the United States District Court for the

Eastern District of Arkansas relevant to this petition are not

reported, but are reprinted in the appendix to this petition.

[he appendix also includes the Eighth Circuit’s August 24,

1995 order denying petitioner Norris’ petition for rehearing.

BASIS FOR JURISDICITON

he Eighth Circuit Court of Appeals entered its opinion

in this case on July 13, 1995. Petitioner Norris petitioned for

rehearing, which was denied by order dated August 24, 1995.

Title 28 U.S.C. § 1254(1) confers jurisdiction on this Court to

review the judgment in question by writ of certiorart.

CONSTITUTIONAL PROVISIONS INVOLVED

In all criminal prosecutions, the accused shal enjoy the

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

the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.

U.S. CONST. amend. VI.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1995

No.

ROBERT SHERMAN ROBINSON, Respondent,

VS.

LARRY NORRIS, Director,

Arkansas Department of Correction, Petitioner.

ON PETITION FOR WRIT OF CERTIORARI

PO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

STATEMENT OF THE CASE

This is a petition for writ of certiorari, brought by

petitioner, Larry Norris, Director of the Arkansas Department

of Correction, in which he asks this Court to review the

decision of the United States Court of Appeals for the Eighth

Circuit in the case of Robinson v. Norris, 60 F.3d 457 (8th Cir.

1995). In Robinson, the Eighth Circuit affirmed a judgment

entered by the United States District Court for the Eastern

District of Arkansas pursuant to 28 U.S.C. § 2254. The District

Court conditionally granted the writ of habeas corpus to

respondent Robinson, a prisoner in the Arkansas Department

of Correction, on the basis that Robinson was not appointed

counsel to prepare and file a motion alleging claims of

ineffective assistance of trial counsel following his state court

convictions for theft, aggravated robbery and being a felon in

possession of a firearm.

At the time of Robinson's conviction, the Arkansas

Supreme Court had abolished Arkansas’ former post-

conviction remedy (provided by Ark. R. Crim. P. 37) in an

effort to “limit or narrow postconviction relief."’ Whitmore v.

State, 771 S.W.2d 266, 267 (Ark. 1989). In place of Rule 37, the

Arkansas Supreme Court revised Arkansas Rule of Criminal

Procedure 36.4 to provide a more limited postconviction

remedy, effective beginning July |, 1989. See In re the

abolishment of Rule 37. & the revision of Rule 36. Of the

Arkansas Rules of Criminal Procedure, 770 S.W.2d 148 (Ark.

1989) (a copy of which appears in the appendix to this

petition). The limited remedy under Rule 36.4 permitted

collateral attacks on a conviction on the basis of ineffective

assistance of counsel only. See id. Prior to the change in

postconviction procedure, an individual in Arkansas had three

years in which to file claims of ineffective assistance under

Rule 37. Pursuant to revised Rule 36.4, however, one was

required to file a pro se motion for new trial asserting collateral

claims of ineffective assistance within thirty days of the

judgment of conviction. If the claims were viewed as meriting a

hearing, new counsel was then to be appointed for the purpose

of pursuing those claims at the hearing and on appeal and for

handling the defendant’s direct appeal. See, e.g., id.

Respondent Robinson was convicted while the revised

Rule 36.4 was in effect. At the close of his trial, Robinson was

advised of his right to file claims of ineffective assistance in the

trial court pursuant to Rule 36.4, but he chose not to do so.

After his direct appeal, Robinson filed the federal habeas

corpus petition underlying this petition, where Robinson

asserted that he was entitled to the appointment of counsel to

prepare and file a motion alleging counsel ineffective, and that

the trial court’s failure to automatically appoint counsel for

him, without any request from Robinson, constituted a

deprivation of Robinson's Sixth Amendment right to counse!

Without an evidentiary hearing, the District Court agreed,

holding that Rule 36.4 represented a critical stage in the

criminal proceeding against Robinson simply because the rule

required that a motion alleging ineffective assistance be filed

alter trial but before direct appeal of one’s conviction, while

the right to appellate counsel sull existed. The Eighth Circuit

agreed, and both courts presumed prejudice to Robinson.

REASONS FOR GRANTING THE WRII

It is well-settled in the law that states have no obligation to

provide postconviction relief for collateral attack upon a

judgment of conviction. E.g., Pennsylvania v. Finley, 481 U.S.

551, 557 (1987). If states choose to provide postconviction

remedies, they possess ‘‘substantial discretion to develop and

implement” them. /d. at 559. This case presents the question of

whether a state’s effort to streamline its postconviction review

process by requiring that the process be initiated between trial

and direct appeal results in the creation of a Sixth Amendment

right to counsel to initiate the process, in spite of this Court's

precedents which hold there is no Sixth Amendment right to

counsel to pursue collateral remedies.

Ihe Sixth Amendment does not require the appointment

of counsel for the purpose of filing a collateral attack on one’s

judgment of conviction, no matter where the collateral attack

falls in reference to trial or direct appeal. A number of this

Court's decisions repeatedly have noted a distinction between

direct and collateral attacks, and while the cases do not provide

a specific definition for each term, they clearly indicate that the

difference is not in the timing of the attacks (i.e., before or after

direct appeal), but is in their substance.

For example, in Murray v. Giarratano, 492 U.S. | (1989),

this Court noted that collateral attacks “‘serve a different and

more limited purpose than either trial or appeal’ — a clear

indication that the difference between collateral and direct

attacks is one of substance, not of timing. In Pennsylvania v.

Finley, 481 U.S. 551 (1987), this Court stated:

Postconviction relief is even further removed from the

criminal trial than is discretionary direct review. It 1s not

part of the criminal proceeding itself, and it is in fact

considered to be civil in nature. It is a collateral attack that

>

normally occurs only after the defendant has failed to

secure relief through direct review of his conviction

States have no obligation to provide this avenue of relief,

and when they do, the fundamental fairness mandated by

the Due Process Clause does not require that the State

supply a lawyer as well.

Id. at 556-57 (citations omitted; emphasis added).

Ihe implication of the quoted passage is that collateral

attacks do not always follow direct appeals. And in Coleman v.

Thompson, 501 U.S. 722 (1991), this Court stated there is no

right to counsel “‘in state collateral proceedings.” Jd. at 75. It

cannot be more clear that Rule 36.4 permitted the presentation

of collateral matters of ineffective assistance only. See Ark. R.

Crim P. 36.4 (1990). In promulgating the rule, the Arkansas

Supreme Court clearly intended it to be a civil, postconviction

remedy. E.g., Cravey v. Arkansas, 815 S.W.2d 933, 935 (1991).

Under Rule 36.4, one was required to file a pro se motion for

new trial asserting collateral claims of ineffective assistance. If

the claims were viewed as meriting a hearing, new counsel was

to be appointed for the purpose of pursuing those claims. See,

e.g., 1d. This procedure complied with constitutional re-

quirements. See 2 Wayne R. LaFave & J. Israel, Criminal

Procedure § 11.2(b) (1984).

[A] defendant is held not to have a right to appointed

counsel to prepare a collateral attack petition, but if a

hearing is granted on that petition, then due process may

necessitate appointment of counsel to ensure that the

hearing is ‘‘fair and meaningful.”

Id. (emphasis added).

That Arkansas changed its rule regarding the timing of

collateral attacks is of no consequence to the “‘right to counsel”

issue. It defies logic to say that the very claims which did not

6

state a constitutional violation in Coleman, or in Nolan v.

Armontrout, 973 F.2d 615 (8th Cir. 1992), or in Johnson v.

Lockhart, 944 F.2d 388 (8th Cir. 1991) state a constitutional

violation in Robinson’s case simply because the time for

raising those claims was changed pursuafit to the stage’s

“substantial discretion to develop and implement” a move

limited postconviction procedure.

Furthermore, the District Court and Eighth Circuit

presumed that the right to counsel, if indeed there is found to

be one in this case, is a Sixth Amendment right akin to the

right to counsel required for direct appeal. The right to

counsel on direct appeal, however, is a due process right, nota

Sixth Amendment right. See, e.g., Douglas v. California, 372

U.S. 353 (1963). Thus, any deprivation of counsel for collateral

attack stands in a significantly different posture than does a

deprivation of the right to counsel at trial, at least regarding

the presumption of prejudice.

Even if a Sixth Amendment right, it 1s clear that not all

violations of the Sixth Amendment right to counsel are within

the automatic reversal category of cases. Rather, depending on

the particular aspect of the right to counsel which is violated,

the harmless error doctrine may be applicable. See Coleman v.

Alabama, 399 U.S. 1, 11 (1970) (holding that the harmless error

doctrine applies to the deprivation of counsel at a preliminary

hearing); United States v. Crowley, 529 F.2d 1066, 1069-71

(3d Cir. 1976), cert. denied, 425 U.S. 995 (1976) (holding that

the harmless error doctrine applies to the deprivation of

counsel “post-trial” at a hearing on a motion to withdraw a

guilty plea, in spite of the fact that the hearing was a critical

stage in the proceedings because the role of counsel at such a

hearing differs significantly from the role of counsel at trial).

Whether the violation of one’s right to counsel is

automatically prejudicial depends ‘“‘upon the aspect of the

right that is violated.”” See 3 Wayne R. LaFave & J. Israel,

Criminal Procedure § 26.6(d) (1984). Robinson's case concerns

alleged ineffective representation, or lack of representation, in

a collateral proceeding. Such a deprivation does not implicate

the same concerns for which automatic reversal is warranted.

For example, it does not have an “inherently indeterminate

impact.’ Jd. [discussing Justice Harlan’s dissenting opinion

in Chapman v. California, 386 U.S. 18 (1967)]. Rather, the

ineffective assistance claims to be presented under Rule 36.4

can, and most likely will, be considered in federal habeas

corpus proceedings, and the deprivation of counsel to file a

Rule 36.4 motion clearly is not related to “the basic trial

machinery.”’ Jd. For these reasons, a harmless error analysis

must be applied to the deprivation of counsel in a collateral

proceeding, if such a right exists at all, and the lower courts

erred in presuming prejudice. Thus, petitioner Norris respect-

fully requests that this Court grant his application for the writ

of certiorari and that this Court review the decision of the

United States Court of Appeals for the Eighth Circuit in

Robinson v. Norris, 60 F.3d 457 (1995).

Respectfully submitted,

WINSTON BRYAN|I

Arkansas Attorney General

BY: *OLAN W. REEVES

Senior Assistant Attorney General

Arkansas Bar No. 85136

200 Tower Building

323 Center Street

Litthe Rock, AR 72201

(501) 682-8078

Attorneys for Petitioner

*Counsel of Record

LPPFE

NDIX

A-l

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 94-2965

Robert Sherman Robinson,

Appellee,

Appeal from the United

States District Court for the

Larry Norris, Director, Eastern District of Arkansas

Arkansas Department ol

Correction,

+e ee ee eS

Appellant.

Submitted: February 15, 1995

Filed: July 13, 1995

Before McMILLIAN, Circuit Judge, HEANEY, Senior Cir-

cuit Judge, and MORRIS SHEPPARD ARNOLD,

Circuit Judge.

McMILLIAN, Circuit Judge.

Larry Norris, director of the Arkansas Department ol

Corrections (hereinafter referred to as “‘the state’’), appeals

from a final order entered in the United States District Court!

for the Eastern District of Arkansas, conditionally granting

habeas corpus relief to petitioner Robert Robinson. For

reversal, the state argues that the district court erred in

concluding that Robinson's Sixth Amendment rights were

violated by the denial of counsel to pursue a new trial motion

under former Arkansas Rule of Criminal Procedure 36.4. For

the reasons discussed below, we affirm.

'The Honorable John F. Forster, Jr., United States Magistrate

Judge for the Eastern District of Arkansas.

. BACKGROUND

On March 2, 1990, Robinson was convicted in Arkansas

state court of theft, aggravated robbery, and unlawful posses-

sion of a firearm. After sentencing, the trial judge addressed

Robinson personally and advised him that, if he was not

satisfied with the services of his trial attorney, he could,

pursuant to Arkansas Rule of Criminal Procedure 36.4,’ file a

motion for a new trial within thirty days alleging that his trial

attorney had rendered ineffective assistance. Specifically, the

state trial judge stated: ‘It is further my duty to advise you that

if you're not satisfied with [your counsel's] services, you may

file a pro se petition alleging such dissatisfaction within [thirty

days].’’ Robinson did not pursue such relief. During the thirty-

day period, Robinson continued to be represented by trial

counsel. Trial counsel pursued a direct appeal in the Arkansas

Supreme Court, and Robinson's conviction was affirmed. See

Robinson v. State, 797 S.W.2d 425 (Ark. 1990). Robinson

susequently filed a habeas corpus petition in federal district

court pursuant to 28 U.S.C. § 2254. Among other grounds, he

claimed he had been unconstitutionally deprived of counsel to

pursue his motion for new trial under Rule 36.4. Relying on

our court’s decision in Dawan v. Lockhart, 980 F.2d 470 (8th

Cir. 1992) (Dawan), the district court conditionally granted the

writ on the grounds that the Rule 36.4 motion represented a

2Between July |, 1989, and January |, 1991, the only means by

which a person convicted of a crime could challenge the effectiveness

of his defense counsel was through a motion for new trial pursuant to

Ark. R. Crim. P. 36.4. That rule, which has now been replaced witha

revised version of Ark. R. Crim. P. 37, provided in part that upon a

guilty verdict:

the trial judge must address the defendant personally and

advise the defendant that if the defendant wishes to assert that

his or her counsel was ineffective a motion for new trial

stating ineffectiveness of counsel as a ground must be filed

within thirty (30) days from the date of pronouncement of

sentence and entry of judgment.

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critical stage to which the constitutional right to counsel

attaches and that Robinson had therefore been denied his Sixth

Amendment right to counsel to pursue such motion. Robinson

uv. Norris, No. PB-C-93-640 (E.D. Ark. July 11, 1994) (Memo-

randum and Order).

If. DISCUSSION

This case requires us to revisit Dawan. In that case,

Dawan, who had been convicted of burglary, assault, and theft

of property in Arkansas state court, sought federal habeas

corpus relief. Dawan raised an ineffectiveness-of-counsel claim

alleging that his trial attorney had a conflict-of-interest that

affected the way in which he conducted Dawan’s defense.

Dawan contended that his lawyer successively represented

Stout, a co-defendant who pled guilty, and Dawan “‘on issues

involving the same matter, the burglary, in which Dawan and

Stout told contradictory stories about Dawan’s participation.”’

Id. at 472. Thus, Dawan asserted that his attorney’s loyalty to

the former client, Stout, had crippled his examination of Stout

at Dawan’s trial. Jd. at 472-473.

In response to Dawan’s habeas petition, the state argued

that Dawan was procedurally barred because he had not raised

his conflict-of-interest claim in the state courts ina motion for

a new trial under Rule 36.4 or on direct appeal. Our court,

however, found unreasonable the failure of Dawan’s attorney

to tell the state trial court of his conflict-of-interest and to

request new counsel:

This prejudiced Dawan by leaving him essentially

unrepresented at the post-trial proceedings with respect to

the conflict-of-interest question and denying him sub-

sequent review of this issue. This ineffectiveness thus

establishes the cause necessary to excuse Dawan’s failure

to raise the underlying conflict-of-interest question on

motion for new trial and appeal.

Id. at 475. In a footnote, we noted that the Supreme Court's

decision in Coleman v. Thompson, 501 U.S. 722 (1991)

(Coleman), which held there is no constitutional right to

postconviction counsel, did not limit the right of effective trial

counsel post-trial, ‘as distinct from postconviction.”’ 980 F.2d

at 474 n.5. We further stated that Dawan claimed “‘inet-

lectiveness of counsel in the post-trial and appellate phases of

the case, rather than in postconviction collateral proceedings.”

Id. In the present case, the district court interpreted Dawan as

holding that “Rule 36.4 was a post-trial remedy and that the

peutioner had a constitutional right to effective assistance of

counsel in Rule 36.4 proceedings.’’ Slip op. at 4. Thus, the

district court found that Robinson was deprived of his Sixth

Amendmentright to counsel to pursue an ineffective assistance

claim in a motion for new trial under Rule 36.4.

The state argues that the district court incorrectly

followed what the state characterizes as the dicta in Dawan.

However, the state fails to recognize that in order to explain

how another opinion from our circuit, Simmons v. Lockhart,

915 F.2d 372, 378 (8th Cir. 1990) (Simmons), applied to

Dawan’'s case, we specifically stated that Dawan’s claims

related to post-trial and appellate phases, not postconviction

collateral proceedings. Dawan, 980 F.2d at 474 n.5. Simmons

involved the failure of counsel to preserve a conflict-of-interest

issue in postconviction proceedings. Thus, the distinction was

necessary to demonstrate Simmons’s applicability in light of

the Supreme Court’s decision in Coleman. Without the

conclusion that Dawan’s Rule 36.4 proceeding was post-trial,

the Simmons decision would have been devoid of precedential

value in Coleman's wake. Thus, our conclusion in Dawan that

the Rule 36.4 proceeding was post-trial is not dicta, which is

defined as ‘‘words of an opinion entirely unnecessary for the

decision of the case,"’ BLACK’S LAW DICTIONARY 967 (5th

ed. 1979), but rather essential to the court's reasoning. There-

fore, the district court correctly followed the language in

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Dawan holding a Rule 36.4 proceeding was a critical stage of

Robinson's criminal proceedings

Bcause a defendant is entitled to counsel under the Sixth

Amendment in all such critical stages, see Michigan v.

Jackson, 475 U.S. 625, 630-33 (1986), the district court correctly

concluded that Robinson. who in no way waived his right to

counsel, was denied his constitutional right to effective

assistance of counsel when the state trial court informed him

that he could file a pro se Rule 36.4 petition. Further, such

actual denial of counsel is presumed prejudicial. United States

uv. Cronic, 466 U.S. 648, 659 (1984). The fact that Robinson

continued to be represented by trial counsel throughout the

thirty-day period for filing a Rule 36.4 motion is of no

consequence. Robinson was entitled to separate counsel to

pursue his ineffective assistance claim. See Page v. United

States, 884 F.2d 300, 301 (7th Cir. 1989) (holding that counsel

Should not be expected to attack his own competence)

Therefore, we hold that the district court did not err in

concluding that Robinson's Sixth Amendment rights had been

violated by the denial of separate counsel to pursue a Rule 36.4

motuon.

Hl CONCLUSION

For the reasons discussed above, the judgment of the

district court 1s affirmed

A true copy

Attest

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUTI

A-6

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

No. 94-2965E APB

Robert Sherman Robinson,

Appellee,

Order Denying Petition for

Rehearing and Suggestion

Larry Norris, Director, for Rehearing En Ban

Arkansas Department of

Correction,

*eeeee ee + + +H

Appellant.

[he suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

August 24, 1995

Order Entered at the Direction of the Court:

s/ Clerk, U.S. Court of Appeals, Eighth Circuit

——

pen mre nh ee RO ee

A-7

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

ROBERT SHERMAN ROBINSON, Petitioner

v. PB-C-93-640

LARRY NORRIS, Director,

Arkansas Department of Correction, Respondent

MEMORANDUM AND ORDER

Before the Court is the Petitioner’s petition for writ of

habeas corpus.

On March 2, 1990, a Pulaski County Circuit Court jury

found Petitioner guilty of theft by receiving, aggravated

robbery, theft of property, and being a felon in possession of a

firearm. Petitioner was sentenced as an habitual offender with

four priur felony convictions to consecutive sentences of thirty,

eighty, thirty, and fifteen years respectively on each of the

convictions. After the trial judge pronounced Petitioner's

sentence, he informed Petitioner, pursuant to Ark. R. Crim. P.

36.4, that if Petitioner was not satisfied with the services of his

appointed counsel! he could file a pro se petition alleging such

dissatisfaction within thirty (30) days.? Petitioner did not

'Howard Koopman.

“At the time of Petitioner's conviction and sentencing, Rule 36.4

allowed defendants to raise ineffective assistance of counsel claim by

filing a motion for new trial within thirty (30) days from the date of

pronouncement of sentence and entry of judgment. Under Rule 36.4,

the trial judge was required to address the defendant personally and

advise him that if he wished to file a motion for new trial alleging

that counsel was ineffective, it had to be filed within thirty (30) days.

The trial judge was further required to advise the defendant that, if a

motuon for a new trial was filed asserting facts sufficient to raise an

A-8

pursue Rule 36.4 relief. He did proceed with a direct appeal!

with the benefit of Koopman’s services. On appeal, Petitioner

alleged that the trial court erred by treating his prior convic-

tions of robbery and theft of property as two convictions for the

purposes of sentence enhancement because the theft occurred

in the course of the robbery. The Arkansas Supreme Court

found that his contention had no merit and affirmed his

convicuions. Robinson v. State, 303 Ark. 351, 797 S.W.2d 425

(1990). The Supreme Court issued a mandate on November 2,

1990.

In his current habeas corpus petition, Petitioner contends

that he was denied counsel for the purpose of filing a motion

for new trial pursuant to Rule 36.4, that Rule 36.4 was a critical

stage of his trial, and that he, therefore, 1s entitled to habeas

relief. He also contends that counsel was ineffective at trial and

that the trial court erred by treating his prior convictions of

robbery and theft of property as two convictions for the

purposes of sentence enhancement because the theft occurred

in the course of the robbery.

It is well-established that the Sixth Amendment to the

United States Constitution ensures a defendant the right to

counsel in all ‘‘critical stages’’ of the criminal proceedings

* continued

issue whether his counsel was ineffective, a hearing would be held,

and the time for filing a notice of appeal would not expire until thirty

(30) days after the disposition of the motion, as provided in Rule

36.22.

Rule 36.4 was in effect from July 1, 1989, until December 31,

1990. In the Matter of the Abolishment of Rule 37 and the Revision of

Rule 36 of the Arkansas Rules of Criminal Procedure, 299 Ark. 573,

770 S.W.2d 148 (1989). Rule 37, which was the remedy to assert

ineffective assistance of counsel prior to Rule 36.4, was reinstated as

of January |, 1991. Jn the Matter of Reinstatement of Rule 37 of the

Arkansas Rules of Criminal Procedure, 303 Ark. 746, 797 S.W.2d 458

(1990).

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against him.’ Michigan v. Jackson, 475 U.S. 625, 630-33, 106

S.Ct. 1404, 1407-09 (1986). A critical stage is any stage of the

prosecution implicating substantial rights of the accused.

Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256 (1967).

The United States Supreme Court has held that there is no

constitutional right to an attorney in state post-conviction

proceedings and that, consequently, a petitioner cannot claim

constitutionally ineffective assistance of counsel in such

proceedings. Coleman v. Thompson, —— U.S. —_, 111 S.Ct.

2546, 2566 (1991). In Dawan v. Lockhart, 980 F.2d 470, 474 n.5

(8th Cir. 1992), the Eighth Circuit distinguished Coleman,

holding that Coleman did not limit the right of effective

assistance of counsel post-trial, as distinct from post-

conviction. The Eighth Circuit concluded that Rule 36.4 was a

post-trial remedy and that the petitioner had a constitutional

right to effective assistance of counsel in Rule 36.4 pro-

ceedings. In so holding, the Court necessarily had to conclude

that Rule 36.4 proceedings were a critical stage in the prosecu-

tion against petitioner and that petitioner, therefore, had a

constitutional right to counsel in Rule 36.4 proceedings. See

Coleman, 111 S.Ct. at 2566.

The Respondent contends that Dawan was wrongly

decided. There is persuasive authority for Respondent’s

position. In concluding that Rule 36.4 was a post-trial remedy,

the Eighth Circuit declined to mention that the Arkansas

Supreme Court, which promulgated the rule, considered Rule

36.4 to be a civil, post-conviction remedy. Cravey v. State, 306

*The Sixth Amendment provides in pertinent part that ‘‘{iJn all

criminal prosecutions, the accused shall enjoy the right. . . to have

the assistance of counsel for his defense.”’

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Ark. 487, 490, 815S.W.2d 933, 935 (1991); Fox v. State, 309 Ark.

619, 620, 832 S.W.2d 244, 245 (1992); Burk v. State, 313 Ark.

652, 856S.W.2d 14(1993). In addition, ineffective assistance of

counsel, the ground for relief under Rule 36.4, is traditionally

a post-conviction or collateral ground for relief, and the most

common ground for relief asserted by petitioners under Rule

37 as it existed prior to the promulgation of Rule 36.4 and

under the current version of Rule 37. The fact that the remedy

under Rule 36.4 had to be asserted within thirty (30) days of the

date of pronouncement of sentence and entry of judgment

rather than, as Rule 37 currently provides, within sixty (60)

days of the date the appellate mandate was issued if the case was

appealed (or within ninety (90) days of entry of judgment

where no appeal was taken), arguably should not be the

pivotal factor in determining whether Rule 36.4 proceedings

are a critical stage of the criminal proceedings against a

defendant. Furthermore, the First Circuit has held that a

federally convicted defendant is not entitled, under the

Criminal Justice Act, 18 U.S.C. § 3006A, or the Sixth Amend-

ment, to appointment of counsel on a motion for new trial.

United States v. Tajeddini, 945 F.2d 458, 469-470 (Ist Cir.

1991), cert. denied, __ U.S. —_, 112 S.Ct. 3009 (1992) (citing

‘In Cravey, the Arkansas Supreme Court held that a defendant

has no constitutional right to counsel to assist him in preparing a

motion for new trial pursuant to Rule 36.4. Cravey, 306 Ark. at 490,

815 S.W.2d at 935. The Court also held that where a hearing is

required under Rule 36.4 due to a trial court’s finding of sufficient

facts alleged, appointment of counsel is ‘“‘necessary.’’ Id. However,

the Court did not hold that counsel was constitutionally required.

The rules with regard to appointment of counsel announced in

Cravey are consistent with the rules for appointment of counsel

under Rule 37. Under Rule 37, a petitioner has no constitutional

right to appointment of counsel in preparing the petition. Robinson

v. State, 295 Ark. 693, 700, 751 S.W.2d 335, 339 (1988). However, Ark.

R. Crim. P. 37.3 provides for appointment of counsel by the circuit

court where a hearing is granted and petitioner is unable to afford

counsel. /d.

OID AE APU, it

A-11

United States v. Lee, 513 F.2d 423 (D.C. Cir.), cert. denied, 423

U.S. 916 (1975), and United States v. Birell, 482 F.2d 890, 892

(2d Cir. 1973)).

Notwithstanding compelling authority to the contrary,

this Court is obliged to follow Dawan. There is support for the

holding in Dawan that a defendant is entitled to counsel in

pursuing Rule 36.4 relief. The Arkansas Supreme Court,

citing Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814

(1963), has indicated that the constitutional right to counsel

does not end until the direct appeal of the original criminal

trial is completed.> Fretwell v. State, 290 Ark. 221, 222, 718

S.W.2d 109, 110 (1986). In addition, the Fifth, Ninth, and

Seventh Circuits have held that a motion for new trial 1s a

critical stage of the prosecution and that a defendant is

therefore entitled to counsel in pursuing sucha motion. Bland

uv. Alabama, 356 F.2d 8, 15-16 (5th Cir.), cert. denied, 383 U.S.

947 (1966); Menefield v. Borg, 881 F.2d 696, 698-699 (9th Cir.

1989); Johnston v. Mizell, 912 F.2d 172, 175-176 (7th Cir. 1990),

cert. denied, 498 U.S. 1094 (1991). See also King v. State, 613

So.2d 888, 890-891 (Ala. Crim. App. 1993); Adams v. State, 199

Ga.App. 541, 543, 405 S.E.2d 537, 539 (1991).

The Court finds that Rule 36.4 proceedings were a

“critical stage” in the criminal proceedings against Petitioner

5The Court notes that under Ark. R. Crim. P. 36.26, trial counsel

must represent a convicted defendant throughout any appeal to the

Arkansas Supreme Court, unless permitted to withdraw, in the

interest of justice or for other sufficient cause, by the trial court or the

Arkansas Supreme Court. The Court acknowledges that Petitioner's

attorney, who represented petitioner at trial and on appeal, could not

have ethically represented Petitioner in Rule 36.4 proceedings since

the ineffectiveness of trial counsel would have been at issue in such

proceedings. The Arkansas Supreme Court, in promulgating Rule

36.4 without indicating the role of counsel in such proceedings,

simply did not harmonize the rule with Rule 36.26.

A-12

and that he was entitled to counsel in pursuing Rule 36.4 relief.

The right to counsel does not depend upon a request for

counsel, and it is readily apparent from the record that

Petitioner did not waive his right to counsel.® Michigan v.

Jackson, 475 U.S. at 633 n.6, 106 S.Ct. at 1409 n.6. Actual denial

of counsel at a critical stage of a defendant's trial 1s legally

presumed to be prejudicial and is constitut®nal error. United

States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 2047 (1984):

Penson v. Ohio, 488 U.S. 75, 88, 109 S.Ct. 346, 354 (1988). See

also Smith v. Lockhart, 923 F.2d 1314, 1321-1322 (8th Cir.

1991). Actual denial of counsel can never be treated as harmless

error. Penson, 488 U.S. at 88, 109 S.Ct. at 354. Under the

circumstances, the Magistrate Judge concludes that Peti-

tioner’s Sixth Amendment right to counsel was violated.’

‘In fact, Petitioner had appointed counsel (his trial attorney)

during the time for requesting Rule 36.4 relief since counsel had not

been permitted to withdraw and thus was required to represent

Petitioner through his direct appeal pursuant to Rule 36.26. To

protect Petitioner’s constitutional right to counsel at a critical stage

of the proceedings against him, the trial court and appointed counsel

should have made sure that Petitioner had parallel counsel to assist

and advise Petitioner in the determination of whether to pursue Rule

36.4 relief and to represent Petitioner in all Rule 36.4 proceedings,

including the preparing and filing of the petition. See United States

v. Turnbull, 888 F.2d 636, 638 (9th Cir. 1989), cert. denied, 498 U.S.

825 (1990) (stating that “‘[i]f an accused does not knowingly and

voluntarily waive counsel, and does not retain acceptable counsel,

the court must appoint counsel’’); Pall v. State, 632 So.2d 1084, 1085

(Fla. Dist. Ct. App. 1994).

7The Court notes that Respondent contends that Petitioner's

claim that he was deprived of counsel in Rule 36.4 proceedings is

procedurally barred. The Respondent, citing Fox v. State, 309 Ark.

619, 832 S.W.2d 244 (1992), asserts that Petitioner could have filed a

Rule 37 petition within ninety (90) days of January 1, 1991, the date

that Rule 37 was reinstated. In Fox, the Arkansas Supreme Court held

that where a petitioner pled guilty while Rule 37 was not in effect and

the trial court failed to advise him of the provisions of Rule 36.4, he

could file a petition pursuant to Rule 37, provided he filed the

petition within ninety (90) days of January |, 1991. Fox, 309 Ark.

A-13

In conclusion, the Court finds that Petitioner was

deprived of his Sixth Amendment right to counsel in pursuing

his motion for new trial pursuant to Rule 36.4. The Court

orders that a writ of habeas corpus shall issue unless, within

ninety (90) days, Petitioner is allowed to prosecute, with the

’? continued

at 621, 832 S.W.2d at 246. The Court finds that Fox only applies to

pleas of guilty..The Arkansas Supreme Court has applied a different

rule with respect to convictions resulting from a trial after a plea of

not guilty. The Court has held that where a petitioner was convicted ,

after entering a plea of not guilty, the conviction was had during the

time that Rule 36.4 was in effect, and the appellate mandate was

issued after January |, 1991, he could filea petition pursuant to Rule

37 within sixty days of the date the appellate mandate was issued.

Pogue v. State, 316 Ark. 428, 430-431, 872 S.W.2d 387, 388 (1994). See

also Prince v. State, 315 Ark. 492, 493, 868 S.W.2d 77, 78 (1994),

rehearing denied, Prince v. State, CR 93-1020 (February 14, 1994).

Petitioner was convicted on March 2, 1990, after a jury trial. The

Arkansas Supreme Court affirmed his convictions on October 15,

1990. The appellate mandate was issued on November 2, 1990, fifty-

nine days prior to the date that Rule 37 was reinstated. Accordingly,

the remedy announced in Pogue and Prince was not available to

Petitioner.

The Court further finds that the new rules announced in Fox,

Pogue, and Prince do not preclude review by this Court of peti-

tioner’s claim since the Arkansas Supreme Court did not announce

the rules until well after Petitioner’s time for filing a Rule 37

petition, under the Arkansas Supreme Court’s new procedural rules,

had expired. See Michel v. Louisiana, 350 U.S. 91, 93 (1955);

Williams v. Lockhart, 873 F.2d 1129, 1131-32 (8th Cir.), cert. denied,

493 U.S. 942 (1989); Spencer v. Zant, 715 F.2d 1562, 1571 (11th Cir.

1983); Ford v. Georgia, 498 U.S. 411, 424-425, 111 S.Ct. 850, 857-858

(1991); Thomas v. Goldsmith, 979 F.2d 746, 750 (9th Cir. 1992):

Warner v. United States, 975 F.2d 1207, 1213-1214 (6th Cir. 1992),

cert. denied, 113 S.Ct. 1314 (1993).

In summary, the Court finds that there was no reasonably

available state remedy by which Petitioner could raise his claim that

he was deprived of counsel in Rule 36.4 proceedings. Under the

circumstances, his claim that he was deprived of counsel in Rule 36.4

proceedings is not procedurally barred.

A-14

benefit of counsel, Rule 36.4 proceedings in Pulaski County

Circuit Court and an appeal to the Arkatisas Supreme Court, if

desired. See United States v. Rundle, 244 F.Supp. 894 (E.D.

Penn. 1965); King v. State, 613 So.2d at 892.

THEREFORE, the Court finds that a writ of habeas

corpus shall issue unless, within ninety (90) days, Petitioner is

allowed to prosecute, with the benefit of counsel, Rule 36.4

proceedings in Pulaski County Circuit Court and an appeal to

the Arkansas Supreme Court, if desired.

IT IS SO ORDERED this | 1th day of July, 1994.

/s/ United States Magistrate Judge

THIS DOCUMENT ENTERED ON DOCKET SHEET IN

COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP ON

7-12-94

ies.

A-15

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

PINE BLUFF DIVISION

ROBERT SHERMAN ROBINSON, Petitioner

v. PB-C-93-640

LARRY NORRIS, Director,

Arkansas Department of Correction, Respondent

JUDGMENT

Pursuant to the Memorandum and Order filed in this

matter on this date, it is Considered, Ordered, and Adjudged

that a writ of habeas corpus shall issue unless, within ninety

(90) days, Petitioner is allowed to prosecute, with the benefit of

counsel, Rule 36.4 proceedings in Pulaski County Circuit

Court and an appeal to the Arkansas Supreme Court, if

desired.

IT iS SO ORDERED this 11th day of July, 1994.

‘s/ United States Magistrate Judge

THIS DOCUMENT ENTERED ON DOCKET SHEET IN

COMPLIANCE WITH RULE 58 AND/OR 79(a) FRCP ON

7-12-94

A-16

IN THE MATTER OF THE ABOLISHMENT OF RULE

37. AND THE REVISION OF RULE 36. OF THE

ARKANSAS RULES OF CRIMINAL PROCEDURE

770 S.W.2d 148

Supreme Court of Arkansas

Delivered May 30, 1989

PER CURIAM. Rule 37. of the Arkansas Rules of

Criminal Procedure is abolished effective July 1, 1989, how-

ever, persons who have been convicted and sentenced during

the time the rule was in effect may proceed in accordance with

the rule as it existed prior to that date.

Rule 36.4. is amended effective July 1, 1989, by addig the

following paragraph:

The trial judge must address the defendant per-

sonally and advise the defendant that if the defendant

wishes to assert that his or her counsel was ineffective a

motion for a new trial stating ineffectiveness of counsel as

a ground must be filed within thirty (30) days from the

date of pronouncement of sentence and entry of judg-

ment. The juge must further advise the defendant that, if a

motion for a new trial is filed asserting facts sufficient to

raise an issue whether his or her counsel was ineffective, a

hearing will be held, and the time for filing a notice of

appeal will not expire until thirty (30) days after the

disposition of the motion, as provided in Rule 36.22.

Am 18 er gor ng em - Tee . . ied “ eh ane ME eas OR NaS *