Baker v. Kaiser, 89-6268

• Decision Date: 08 April 1991
• Docket Number: No. 89-6268,89-6268
• Citation: 929 F.2d 1495
• Parties: Everett Lee BAKER, Petitioner-Appellant, v. Stephen KAISER, Warden; and Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1495

929 F.2d 1495

Everett Lee BAKER, Petitioner-Appellant, v. Stephen KAISER, Warden; and Attorney General of the State

of Oklahoma, Respondents-Appellees.

No. 89-6268.

United States Court of Appeals, Tenth Circuit.

April 8, 1991.

Jill M. Wichlens, Asst. Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colo., for petitioner-appellant.

Wellon B. Poe, Asst. Atty. Gen. (Robert H. Henry, Atty. Gen. of Oklahoma, with him on the briefs), Oklahoma City, Okl., for respondents-appellees.

Before HOLLOWAY, Chief Judge, McWILLIAMS and McKAY, Circuit Judges.

McKAY, Circuit Judge.

Everett Lee Baker appeals the denial of his petition for a writ of habeas corpus. Mr. Baker argues that he was denied his sixth amendment right to counsel during the period in which he was allowed to file an appeal from his state court burglary conviction. He also contends that the state denied him due process of law by overruling his motion for an out of time appeal after he did not receive assistance of counsel during this period.

I.

On November 17, 1982, Everett Lee Baker was convicted of burglary in the second degree in Oklahoma State District Court. Based on his two prior felony convictions, the court sentenced Mr. Baker to seventy-five years imprisonment.

After the trial judge completed sentencing, he informed Mr. Baker that, based on Oklahoma statute, he had ten days to file written notice of his intention to appeal if he wished to appeal his judgment and sentence to the Oklahoma Court of Criminal Appeals. When asked if he wanted to appeal, Mr. Baker's attorney stated that he wished to "reserve that." Excerpt of Sentencing Proceedings, Nov. 17, 1982, at 6. The judge then asked Mr. Baker if he wanted an attorney to be appointed to appeal the case. At this time, defense counsel asked to be relieved and requested "that the Public Defender's Office be appointed to appeal this matter to the Court of Criminal Appeals on behalf of Mr. Baker." Id. at 7. The judge granted the request. Mr. Baker, speaking on his own behalf, stated that he wanted a transcript at public expense. Id. The judge granted this request "to the extent that it's deemed necessary to take the appeal." Id. at 8.

Mr. Baker was imprisoned during the ten days that followed the sentencing proceedings. No attorney from the public defender's office contacted him during this time. Mr. Baker did not file a notice of intent to appeal within the ten-day period. In the next six years, he made repeated efforts to appeal his conviction, secure a transcript at public expense, and obtain assistance of counsel. Mr. Baker was unsuccessful in these attempts.

A.

On January 27, 1983, more than two months after the ten-day period for filing a notice of intent to appeal had expired, petitioner wrote to the state district judge regarding the status of his appeal. Petitioner stated that he had not heard from an attorney. Nor had he received notification about the court orders for appointed counsel and a transcript. Mr. Baker emphasized that he had no intent to abandon his appeal. The record does not indicate that Mr. Baker ever received a response to his letter.

On March 30, 1984, Mr. Baker filed a pro se motion for a transcript of his trial proceedings entitled "Motion to Obtain Certain Designated Records and Documents at Public Expense." The state district judge denied the motion. In support of the denial, the judge determined that Mr. Baker had not requested a transcript at the time he was sentenced and that he had failed to appeal his conviction to the Oklahoma Court of Criminal Appeals.

Mr. Baker sought to have the court reconsider its Order by filing a "Motion for Reconsideration and/or Notice of Intent to Appeal" on May 3, 1984. The defendant stated that, contrary to the district judge's determination, he had requested a transcript after sentencing. He also noted that he was uneducated in this "complex area" of legal pleadings and had been deprived of materials needed to perfect an appeal. Baker v. State of Oklahoma, No. CRF-82-2735, at 2 (May 3, 1984) (Motion for Reconsideration and/or Notice of Intent to Appeal). The district judge denied the motion in a one-sentence order stating, "Defendant-Petitioner's motion for reconsideration is denied for no good cause shown in said application." Baker v. State of Oklahoma, No. CRF-82-2735 (May 15, 1984) (Order).

Approximately three years later, Mr. Baker finally obtained a transcript, although not at public expense. On April 10, 1987, Mr. Baker wrote to the clerk's office to obtain the transcript of the sentencing proceedings. The transcript was filed five months later. It was apparently paid for by Mr. Baker's now-deceased father.

After receiving the transcript, Mr. Baker continued in his attempts to secure appointed counsel to appeal his burglary conviction. On July 26, 1988, more than five years after his conviction, he filed a "Motion for Out of Time Appeal" in the District Court of Oklahoma County. Mr. Baker maintained that he had "at all times desired to with assistance of counsel perfect and submit an appeal." Baker v. State of Oklahoma, No. CRF-82-2735, at 1 (July 26, 1988) (Motion for Out of Time Appeal). He attached the transcript of the sentencing proceedings and highlighted the excerpts in which the court granted his requests for appointed counsel to perfect an appeal and for a transcript at public expense to the extent necessary to take an appeal. In a letter dated July 28, 1988, the district court clerk wrote Mr. Baker that a hearing for his motion had been set for August 5, 1988. However, the hearing occurred on July 29, 1988. The State of Oklahoma made an appearance, but Mr. Baker was not present. The district court later filed an order denying Mr. Baker's motion.

Ten days later, in his last effort seeking relief in state court, Mr. Baker appealed the denial of his Motion for Out of Time Appeal. The Court of Criminal Appeals of the State of Oklahoma affirmed the district court's denial because Mr. Baker had not filed a notice of intent to appeal his conviction within the ten days provided by state statute.

B.

On December 13, 1988, Mr. Baker filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254 (1988) in the United States District Court for the Western District of Oklahoma. The petitioner alleged several grounds for which relief should be granted. Mr. Baker argued that he was denied his sixth amendment right to assistance of counsel to perfect an appeal despite the trial court's assurance that counsel would be appointed. Mr. Baker also claimed he was never provided with a transcript at public expense.

The district court denied Mr. Baker's petition. The court characterized Mr. Baker's argument that he had been denied the assistance of counsel to perfect an appeal as the denial of his right to a direct appeal. Because the petitioner had not filed a notice of intent to appeal within the statutory ten-day period, the court found that the petitioner was not entitled to relief. On the second argument, the district court concluded that his failure to pursue a direct appeal "vitiates any cognizable constitutional claim." Record, vol. 1, doc. 28, at 5.

On June 29, 1989, Mr. Baker filed a motion for reconsideration of the denial of his habeas petition. He argued that the district court failed to address his argument that he had been denied his sixth amendment right to assistance of counsel. The district court denied the motion. The court ruled that the petitioner had not been denied the assistance of counsel because the state trial court had provisionally appointed the public defender to provide assistance if he exercised his right to appeal. ¹ Because petitioner's counsel (who immediately withdrew) reserved the decision to take an appeal and petitioner did not file a notice of intent to appeal within the statutory ten-day period, the court concluded that his "right to assistance of counsel on appeal was never implicated." Record, vol. 1, doc. 31, at 2.

In this appeal, Mr. Baker argues that he was denied his sixth amendment right to the assistance of counsel during the ten-day period for filing a notice of intent to appeal his burglary conviction. He further contends that he did not waive his right to counsel by not personally filing a proper notice of intent to appeal. The petitioner's final argument is that the state denied him due process of law by denying his motion for an out of time appeal after he did not receive assistance of counsel during the time for perfecting an appeal.

II.

We must first determine whether the sixth amendment right to assistance of counsel applies to the statutory ten-day period for filing a notice of intent to perfect an appeal. An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The right to counsel also extends to a defendant's first appeal as of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963).

Earlier decisions of this and other courts have found that the right to counsel applies to the period between the conclusion of trial proceedings and the date by which a defendant must perfect an appeal. In Jackson v. Turner, 442 F.2d 1303 (10th Cir.1971), a habeas petitioner alleged that defense counsel's failure to perfect an appeal denied him the effective assistance of counsel. We remanded the case for a determination of whether petitioner was advised of his right to appeal, and if so whether he received effective assistance of counsel. Id. at 1306. Similarly, in United States v. Winterhalder, 724 F.2d 109, 111 (10th Cir.1983), we noted that counsel appointed to represent indigent persons on appeal must perfect an appeal if the client so desires. Implicit in these decisions is our conclusion that the sixth amendment right to counsel applies to the period for...