Crick v. Smith
| Decision Date | 12 June 1981 |
| Docket Number | No. 80-3091,80-3091 |
| Citation | 650 F.2d 860 |
| Parties | James G. CRICK, Petitioner-Appellee, v. Steve SMITH, Warden, Kentucky State Reformatory, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Steven L. Beshear, Atty. Gen. of Ky., Robert L. Chenoweth, Michael R. Beiting, Asst. Attys. Gen., Frankfort, Ky., for respondent-appellee.
William M. Radigan, Asst. Public Defender, Frankfort, Ky., for petitioner-appellee.
Before ENGEL and BROWN, Circuit Judges, and GUY, District Judge. *
James G. Crick entered counseled pleas of guilty in the Christian Circuit Court, Kentucky, to charges of murder, armed robbery, and taking a vehicle without the consent of the owner. After exhausting his state remedies, he sought freedom through federal habeas corpus proceedings in the United States District Court.
The events which led to the criminal proceedings occurred on November 29, 1973, seventeen days before Crick's eighteenth birthday. Under Kentucky law he was entitled as a minor to the protection of the state's juvenile statutes. Ky.Rev.Stat. § 208.010, et seq. At the time of the events here, sections 208.020 and 208.170 required that before a minor could be charged and tried in circuit court as an adult, the Juvenile Division of the District Court must have transferred jurisdiction over the case to the Circuit Court. Such transfer might be made only after a hearing and a determination that "the best interests of the child and of the public require that the child be tried and disposed of under the regular law governing crimes " Ky.Rev.Stat. § 208.170.
The failure of his transfer order to make the foregoing specific finding concerning "best interests," and to state the reasons for the findings, Crick claims, violated his right to due process as defined in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). The district court agreed and ordered issuance of the writ, finding also that Crick's state procedural default in failing to interpose an earlier objection to the order did not bar federal habeas corpus review. In this respect, the district judge held that the standard applicable to such defaults was the "deliberate by-pass" rule of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), rather than the "cause" and "prejudice" rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977):
In the case before us, the respondent argues that the "cause" and "prejudice" showing of Wainwright should be required. However, the Court believes that the proper standard by which to test the state procedural default in this case is that of "deliberate by pass", announced in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). The Court's reading of both cases convinces us that Fay was only partially superseded by Wainwright. Where the procedural default involves a decision of counsel, such as failure to object, the threshold showing of "cause" and "prejudice" is required by Wainwright. That decision was based heavily on a desire to prevent "sandbagging" by counsel. However, where the procedural default involves a decision of the defendant, such as failure to appeal, the proper question must be whether there was a "deliberate by pass" under Fay. We are supported in this conclusion by the concurring opinion of Justice Burger in Wainwright v. Sykes, supra, 433 U.S. at 91, 97 S.Ct. 2509.
We reverse and remand. In so doing we recognize that the juvenile court transfer order was technically defective, and hence violative of the due process required by Kent. We hold, for the purposes of this appeal at least, that the trial judge was correct in his holding that the deliberate by-pass rule of Fay v. Noia, supra, applies to consideration of the procedural default here. We depart, however, from the analysis of the district court as to the nature and timing of that procedural default. We hold that the harmless error rule of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), can be applied in the context of the constitutional error involved in this case. We recognize the power of appellate courts to make such findings where appropriate, but exercise our discretion to remand to the district court for the purpose of making this determination.
Kentucky does not seriously contest the petitioner's claim, if it is properly reviewable in federal habeas corpus proceedings, that the failure of the transfer order to include the specific findings, and the reasons for the findings, required by Kentucky law was a due process violation within the meaning of Kent. Extensive litigation both in Kentucky courts and in federal courts has centered on the common error which occurred here. 1
In Kent v. United States, supra, the Supreme Court held that a minor is entitled as a matter of constitutional due process to compliance with the state's statutory protections provided for minors as a condition to their waiver to stand trial as an adult. In Kent, the Court determined that the applicable law of the District of Columbia granted the minor the rights to counsel, a hearing, a full investigation, and statement of reasons for the transfer. The due process violation in Kent was found to be the failure of the juvenile court to hold a hearing as well as make the requisite statement of reasons for the transfer. Nevertheless, since the petitioner had by then attained the age of majority, the Supreme Court did not direct that the writ issue outright. Instead it remanded the case to the district court to determine, after a hearing de novo, whether the waiver was appropriate under the particular facts of the case. Kent, supra, 383 U.S. at 565, 86 S.Ct. at 1059.
We are bound at the outset to observe that here, unlike Kent, the petitioner appears to have been accorded a full hearing in the juvenile court, at which he was provided counsel. No challenge to the completeness, fairness, or procedural regularity of that hearing is made. The sole flaw, it appears, came after the hearing when the juvenile court judge failed to incorporate the specific finding of "best interests of the child and of the public," and the reasons therefor, formally in the transfer order or elsewhere in the record. This distinction from the facts in Kent is important, not because it removes the constitutional flaw altogether, but because it demonstrates that much of the potential for injury present in Kent is not present here.
We conclude, therefore, that if the district court properly reached the issue, it also properly found that at least a technical violation of due process occurred when the juvenile judge failed to incorporate the necessary specific findings and reasons in the transfer order or record. The State of Kentucky, however, maintains that the petitioner's procedural default precluded the Kentucky appellate courts and us from reaching the issue in the absence of an affirmative showing by Crick that his failure earlier to raise the issue was excused by an adequate showing of "cause" and "prejudice" called for in Wainwright.
Much of the argument of the parties centers on the nature and timing of the procedural default, issues the parties urge must be resolved before determining whether Wainwright or Fay applies. We believe the disagreement arises from a confusion in concepts between the failure to exhaust state remedies as a statutory requirement for federal habeas corpus review under 28 U.S.C. § 2254(b) (1976), and the petitioner's original failure to observe state laws requiring him to make a timely objection, which may provide an adequate and independent state ground for the conviction.
Crick asserts that his failure to raise the Kent issue in his first, uncounseled RCr 11.42 motion is the relevant default for analysis here. Rule 11.42 provides for motions to vacate, set aside, or correct sentences subject to collateral attack on due process grounds. 2 Rule 11.42 requires, however, that all grounds for holding the sentence invalid of which the movant has knowledge must be included in the first such motion. 3 RCr 11.42(3). The State of Kentucky, on the other hand, argues that the default first occurred upon Crick's counsel's failure to object to the transfer order at the time of the transfer hearing in the juvenile court. We disagree with both parties' analyses. 4
We believe that, subject to the state's interpretation of the scope of its own provisions for collateral relief generally, a proper analysis of whether a procedural default is to be evaluated under Wainwright or Fay must begin with an inquiry into the circumstances under which the error first occurred. There should follow an analysis of the remedies then available to competent counsel under Kentucky law, a determination whether those remedies were pursued in timely fashion so that the error could be called to the attention of the appropriate Kentucky court at the earliest practicable opportunity and finally a decision whether the failure to pursue the correction of the error barred, under Kentucky law, the subsequent consideration of the issue, thus potentially providing an adequate and independent state ground for Crick's conviction. Only then can we decide which standard applies in determining the reach of federal habeas corpus review.
If an error occurred during the juvenile court hearing, as the State argues, a contemporaneous objection by counsel would have cured it. The error here occurred after the hearing, however, when the juvenile judge failed to incorporate specific findings of "best interest," and a statement of the reasons for the findings, in the order of transfer or the record. Since we know of no Kentucky procedure whereby Crick's counsel could have interposed an objection to the order in the juvenile court at this time, no procedural default could have occurred by his failure to do so.
Competent counsel could most likely have discovered the error...
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