DeMarrias v. United States, 71-1154.

• Decision Date: 16 June 1971
• Docket Number: No. 71-1154.,71-1154.
• Parties: Peter Kenneth DeMARRIAS, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

444 F.2d 162 (1971)

Peter Kenneth DeMARRIAS, Appellant, v. UNITED STATES of America, Appellee.

No. 71-1154.

United States Court of Appeals, Eighth Circuit.

June 16, 1971.

Dennis A. Brown, Aberdeen, S. D., filed brief for appellant.

William F. Clayton, U. S. Atty., Richard D. Hurd and David R. Gienapp, Asst. U. S. Attys., Sioux Falls, S. D., filed brief for appellee.

Before VAN OOSTERHOUT, HEANEY and ROSS, Circuit Judges.

HEANEY, Circuit Judge.

The petitioner, Peter Kenneth DeMarrias, appeals from the denial, by the United States District Court for the District of South Dakota, of his motion for vacation of sentence pursuant to 28 U.S.C. § 2255.

His appeal raises the question of the proper procedure to be followed by a District Court in acting upon an indigent defendant's request for the appointment of counsel on a first direct appeal.

DeMarrias was indicted by a federal grand jury for manslaughter in the death of his half-brother, Jerry DeMarrias. He pleaded not guilty. The manslaughter indictment was subsequently dismissed on motion of the United States Attorney, and an indictment charging DeMarrias with second degree murder and two counts of assault with a dangerous weapon was substituted in its place. DeMarrias again pleaded not guilty. He was tried and convicted by a jury on all counts on April 17, 1968. He was sentenced to life imprisonment on the murder count, and to concurrent sentences of five years on each of the remaining counts. A timely notice of appeal was filed in this Court, but was subsequently dismissed for reasons stated hereafter. DeMarrias is presently incarcerated in the United States Penitentiary at Leavenworth, Kansas.

The petitioner filed his pro se § 2255 motion in the District Court on October 21, 1970. It was denied on January 29, 1971. DeMarrias alleged that he was denied effective assistance of counsel in that the actions of his attorney and the District Court improperly denied him his right of appeal.

DeMarrias was represented at his arraignment and trial by retained counsel. The United States Attorney, at the suggestion of the trial court, spoke with DeMarrias prior to his first arraignment to inquire if he would need appointed counsel. The content of their conversation is disputed.¹ The result of the conversation was that an attorney, who the court had indicated it intended to appoint for DeMarrias, came into the detention room to talk with him. The attorney subsequently agreed to represent DeMarrias for the total amount of DeMarrias's savings.

Following DeMarrias's conviction and sentencing, his attorney filed notice of appeal to this Court. The appeal was not perfected because, on February 24, 1969, DeMarrias's attorney wrote him a letter stating,

"I have reviewed the complete file in the above-entitled matter. It is my feeling, based on my review of the records, that there is no basis for the appeal, and, therefore, either I will move to dismiss the appeal or withdraw as counsel of record."

On March 2, DeMarrias wrote to the presiding judge, asserting that he was anxious to appeal his case and requesting that another attorney be appointed to handle his appeal. He also wrote a letter to his attorney requesting aid in securing another lawyer. The District Judge wrote a letter, dated March 31, 1969, to DeMarrias stating,

"Your attorney is one of the fine lawyers in the state. Each and every aspect of your case had consideration as he wrote that letter, I am sure, and I have no reason to believe that any appeal of yours would be anything more than frivolous. Your application for that reason must be denied and it is so held."

On June 9, 1969, without notice to DeMarrias, this Court dismissed the appeal for lack of prosecution.² DeMarrias did nothing further until filing his § 2255 motion.³

We must decide whether the District Court's handling of DeMarrias's request for counsel and attempted assertion of his right to appeal satisfies constitutional requirements. In doing so, we have studied the opinions of the Supreme Court and the other federal courts and have concluded that a District Court must recognize the following rights of an indigent defendant after his conviction:

(1) An indigent defendant is entitled to an in forma pauperis appeal and to the assistance of counsel on that appeal, unless his appeal is found to be wholly frivolous. Anders v. California, 386 U. S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962); Williams v. United States, 402 F.2d 548 (8th Cir. 1968); Horsley v. Simpson, 400 F.2d 708 (5th Cir. 1968); 18 U.S.C. § 3006A; 28 U.S.C. § 1915.

(2) A defendant is entitled to due process in the court's determination of whether his appeal is wholly frivolous. Due process requires the court, with the assistance of briefs of defense counsel setting forth any grounds arguably supporting the appeal, to make a full examination of the record before determining that the appeal is wholly frivolous.⁴ Anders v. California, supra; Horsley v. Simpson, supra.

(3) If the court finds that the appeal is frivolous, an indigent defendant is entitled to be informed that he may challenge the court's finding, and that he may have the assistance of counsel in doing so. Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957); 18 U.S.C. § 3006A.

It is clear that the District Court, by relying solely upon the conclusion of DeMarrias's attorney in finding the appeal frivolous, violated DeMarrias's constitutional rights under Anders.

Furthermore, we think that the District Court's finding of frivolity was incorrect. Without indicating any opinion on the merits of the issues raised either by the § 2255 motion or by those issues we have discerned in the record, we are convinced that serious questions are presented by DeMarrias's conviction. Some of these issues, such as the sufficiency of the evidence to support either a second degree or manslaughter conviction, the admissibility of certain statements, and the propriety of the substitution of a...