Bartley v. Commonwealth of Kentucky, 71-1807.
| Decision Date | 21 June 1972 |
| Docket Number | No. 71-1807.,71-1807. |
| Citation | 462 F.2d 610 |
| Parties | Donald B. BARTLEY, Petitioner-Appellee, v. COMMONWEALTH OF KENTUCKY, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Sidney C. Lieberman, Cincinnati, Ohio (Court appointed), for petitioner-appellee.
Laura L. Murrell, Frankfort, Ky., for respondent-appellant, John B. Breckinridge, Atty. Gen. of Kentucky, Frankfort, Ky., on brief.
Before PHILLIPS, Chief Judge, WEICK, Circuit Judge, and THOMAS,* District Judge.
The Commonwealth of Kentucky has appealed from an Order of a District Court granting a writ of habeas corpus unless a retrial is granted to petitioner on his conviction and life sentence for murdering his nine-year-old son on March 16, 1966. Petitioner did not appeal from the judgment of conviction.
The sole issue raised on appeal is that the trial court did not advise petitioner of his right to appeal in forma pauperis. At his trial, petitioner was represented by retained counsel. No application for leave to appeal in forma pauperis was ever made in the Pike County Circuit Court where he was convicted.
Petitioner did however, file in that court a Motion to vacate judgment under Kentucky's post-conviction court rule, R.Cr. 11.42 which was denied. He then appealed therefrom to Kentucky's highest court relying on six alleged errors. The Court affirmed the judgment in a written opinion in which all of the alleged errors were considered and discussed and found to be without merit. Bartley v. Commonwealth of Kentucky, 463 S.W.2d 321 (1971).
In discussing the issue concerning the failure of petitioner's paid counsel to appeal, the Court said:
The District Court in its Memorandum Opinion, quoted a part of R.Cr. 11.02(2) which relates to sentencing procedures in the Commonwealth's courts, but the Court of Appeals of Kentucky, which is best qualified to pass upon the Kentucky rules of court, did not find any violation of R.Cr. 11.02(2) or of any other rule in its opinion in Bartley. The rule is not even mentioned in its opinion. In any event, we would question that the failure to comply with a rule of a state court violates the federal Constitution. The District Court did not hold that the Constitution was violated by the failure to comply with this rule of court.
In opposition to the application for a writ of habeas corpus, the Commonwealth submitted the affidavit of Fred B. Redwine, an attorney at law.
It appears from the affidavit that after his conviction, Bartley did discuss with his attorneys the probability of an appeal. Bartley therefore knew of his right of appeal and did not need to be advised of it by the Court. It further appears that Bartley's parents had paid the attorneys for their services rendered in the trial court by execution and delivery to them of a promissory note secured by mortgage on the parents' home, in the amount of $1,500. The note and the mortgage were later paid in full by the parents. The parents were willing to increase the mortgage to cover the cost and expense of the appeal and the attorneys agreed thereto. After thinking it over for a day, Bartley advised his attorneys that he did not desire to appeal but preferred to accept his sentence. The affidavit further states: "The problem of money was not present and never arose".
The facts as set forth in the foregoing affidavit are undisputed by petitioner.
The petitioner principally relies on the following...
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...determining whether the initial failure to appeal constituted a "knowing and intelligent" waiver. Compare, Bartley v. Commonwealth of Kentucky, 462 F.2d 610, 611 (6th Cir. 1972), cert. denied, 409 U.S. 1062, 93 S.Ct. 570, 34 L.Ed.2d 515 (1972); United States ex rel. O'Brien v. Maroney, 423 ......
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...Coiner, 464 F.2d 525, 526 (4 Cir. 1972); Walters v. Harris, 460 F.2d 988, 990 (4 Cir. 1972).)Sixth Circuit : Bartley v. Commonwealth of Kentucky, 462 F.2d 610, 611 (6 Cir. 1972), Cert. denied, 409 U.S. 1062, 93 S.Ct. 570, 34 L.Ed.2d 515 (1972). (The Sixth Circuit stated without discussing w......
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Turnbow v. Beto
...information regarding appellate counsel did not amount to an abridgment of the right to appeal in forma pauperis.4 See Bartley v. Kentucky, 462 F.2d 610 (6th Cir.1972). We therefore affirm the judgment of the district court that the Petitioner was not denied the right of direct appeal becau......
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Crenshaw v. Wolff, 74-1260
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