Cruz v. Patterson

• Decision Date: 23 February 1966
• Docket Number: Civ. A. No. 9537.
• Citation: 253 F. Supp. 805
• Parties: Raul Leopoldo CRUZ, Petitioner, v. Wayne K. PATTERSON, Warden of Colorado State Penitentiary, Respondent.
• Court: U.S. District Court — District of Colorado

253 F. Supp. 805

Raul Leopoldo CRUZ, Petitioner, v. Wayne K. PATTERSON, Warden of Colorado State Penitentiary, Respondent.

Civ. A. No. 9537.

United States District Court D. Colorado.

February 23, 1966.

Harry L. Arkin, Denver, Colo., for petitioner.

Duke W. Dunbar, Atty. Gen. of Colorado, Frank E. Hickey, Deputy Atty. Gen., and George E. DeRoos, Asst. Atty. Gen., Denver, Colo., for respondent.

ARRAJ, Chief Judge.

This matter is before the Court on petition for a writ of habeas corpus. The petitioner has exhausted his state remedies.

The following facts appear from the record. In August, 1959, petitioner, an indigent, was convicted of robbery and conspiracy to commit robbery; he was represented by Court-appointed counsel. Desiring to appeal his conviction, he twice requested the Colorado Supreme Court to appoint counsel to assist him in perfecting his appeal and both requests were denied. His request to the trial court for the appointment of such counsel was also denied. He then appealed, pro se, to the Colorado Supreme Court, and the conviction was affirmed on the merits. Cruz v. People, 149 Colo. 187, 368 P.2d 774 (1962).

Subsequently, the petitioner sought a writ of habeas corpus in the state trial court contending that the Courts' refusal to afford him the aid of counsel to perfect his appeal denied him the constitutional guarantees of due process and equal protection of the law as enunciated in Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). Relief was denied in the trial court on October 13, 1964, such denial being affirmed by the State Supreme Court, February 4, 1965.

The Colorado Supreme Court, in affirming the denial of the petition for habeas corpus, in view of the decision of Ruark v. Colorado, 378 U.S. 585, 84 S.Ct. 1935, 12 L.Ed.2d 1042 (1964), and in accordance with its practice since that decision, entered the following Order.

In view of the peculiar circumstances of this action, the plaintiff in error having specifically requested counsel for appeal to this court and the request having been specifically denied by this court prior to the decision of the United States Supreme Court in the case of Douglas vs. People of State of California, the trial court is directed to forthwith appoint counsel in this case in order to determine whether any reversible error reviewable by this court occurred during the course of the trial which was not presented upon former consideration of this case. If such error did occur, counsel should file with this court, within sixty days from his appointment, a brief setting forth such error and his argument in support of his position. Counsel is further directed to examine the pro se briefs filed by the plaintiff in error and the opinion of the court in this cause for the purpose of determining whether the points raised by plaintiff in error were adequately presented and, if in his opinion they were not, he is directed to file a supplemental brief on behalf of plaintiff in error within sixty days from his appointment. If, in appointed counsel's opinion, no grounds for writ of error other than those presented by plaintiff in error in his original briefs occurred during the trial, and if, in his opinion, the cause was adequately presented to this court counsel shall so report to this court within said sixty days from his appointment.

By the Court. February 4, 1965.

An attorney was appointed to study the petitioner's case, and on April 12, 1965, reported to the Supreme Court of Colorado that

The opinion of this Court covers all matters raised by the motion for new trial. A review of the entire record fails to disclose any error not presented in the motion for new trial or not covered by the opinion of this Court. The opinion and the record indicate that the defendant received full protection of all legal rights and he was afforded a fair and impartial trial in the lower Court and a complete review of all matters in this Court.

It is my opinion that no grounds for writ of error other than those presented and considered by this Court are in the entire record that require consideration or further consideration. The defendant was given the benefit of all doubt, the jury was properly instruction (sic) and they resolved the facts supported by ample evidence culminating in a proper verdict.

Subsequently, the Colorado Supreme Court, acting upon this report, "* * * declined to appoint other counsel in this case and * * * reaffirmed the previous judgment in the matter." Cruz v. People, 401 P.2d 830 (Colo.1965), cert. denied Cruz v. Colorado, 382 U.S. 869, 86 S.Ct. 145, 15 L.Ed.2d 108 (1965).

The question here presented is — Was there a compliance with the mandate of Douglas v. People of State of California, supra, in the instant case? We believe not.

In a series of decisions beginning with Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), the Supreme Court has established that the guarantee of equal protection of the law set forth in the 14th amendment admits of no exceptions that would permit the discriminatory enforcement of the criminal law between the rich and the poor defendant. A concomitant of this basic principle is exemplified in those decisions that, in developing the basic guarantee of the 6th amendment that the accused shall have the assistance of counsel for his defense, unequivocally declare that the indigent defendant shall be afforded the assistance of counsel at all the critical stages of the criminal proceeding. Beginning with the accusatory stage, Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), continuing through the arraignment, Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961), the actual trial on the merits of the cause, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and culminating in the appellate phases of the criminal proceeding, Douglas v. People of State of California, supra, Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963), the principle that must be applied is clear and unambiguous —the right of the indigent defendant to the assistance of counsel during the critical stages of the criminal proceeding is absolute.

In Douglas the Court, after concluding that the, "* * * denial of counsel on appeal to an indigent would seem to be a discrimination at least as invidious as that condemned in Griffin v. People of State of Illinois * * *", 372 U.S. at 355, 83 S.Ct. at 815, enunciated that an indigent defendant, like the defendant who is able to pay, is entitled to the assistance of counsel to assert his cause before the appellate tribunal so that the appeal to which he, by the law of the state, is entitled will be a "meaningful" appeal rather than a "meaningless ritual". 372 U.S. at 358, 83 S.Ct. at 817. The Court, in discussing the incidents included in the right to the assistance of counsel on appeal, noted in Douglas, that the indigent, like the non-indigent, is entitled to, "* * * the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf * * *." 372 U.S. at 358, 83 S.Ct. at 817. (Emphasis supplied). Thus, Douglas assured to the indigent the full and complete assistance of counsel at all phases of the appellate review. See Pate v. Holman, 341 F.2d 764 (5th Cir. 1965); United States ex rel. Weston v. Sigler, 308 F.2d 946 (5th Cir. 1962). See generally Draper v. State of Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963); Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959).

It is inherent in such guarantee that counsel so appointed by the state shall be effective counsel. See Grubbs v. State of Oklahoma, 239 F.Supp. 1014 (E.D.Okl.1965); Chase v. Page, 343 F.2d 167 (10th Cir. 1965). We believe that for counsel to be an effective representative of his client, he must be an advocate of that client's cause. The judicial history surrounding Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed. 2d 1060 (1958), vacating Ellis v. United States, 101 U.S.App.D.C. 386, 249 F.2d 478 (C.A.D.C. 1957) provides a fair illustration of this principle that representation in the role of an advocate is required. The Court of Appeals for the District of Columbia, in implementing Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957) (which may be characterized as the federal counterpart of Douglas) instituted a procedure for the appointment of appellate counsel that is similar to that used by the State of Colorado in the case at bar. There, in appointing counsel to represent the indigent defendant with respect to the petition to proceed without prepayment of costs, the Court directed counsel to, "* * determine for the benefit of this court whether the case warranted review." 249 F.2d at 478. After studying the defendant's case, appointed counsel reported to the Court that there appeared to be only, "* * * one `possible' area of error; * * *" but that, after reviewing the facts surrounding that particular sector of the case, it was their conclusion that, "there was not such merit even in this aspect of the appeal as to warrant further prosecution of the appeal." 249 F.2d at 479. The Court, in accepting counsel's report and denying the petition to proceed without the prepayment of costs, emphasized that counsel advised the Court, and that they agreed, "* * * that no substantial question existed in this case." Id., at 479 (emphasis in the original). The Supreme Court in vacating the judgment and remanding the case for further consideration, stated

In this case, it appears that the two attorneys appointed by the Court of Appeals, performed essentially the role of amici curiae. But representation in the role of an advocate is required. Ellis v. United States, 356 U.S. at 675, 78 S.Ct. at 975.

Guided by the principle of Douglas, that the indigent defendant is to be...