Denbow v. District Court In and For Twenty-First Judicial Dist.

• Citation: 652 P.2d 1065
• Decision Date: 25 October 1982
• Docket Number: TWENTY-FIRST,No. 82SA254,82SA254
• Parties: Lee DENBOW, Petitioner, v. The DISTRICT COURT In and For theJUDICIAL DISTRICT, and James J. Carter, One of the Judges Thereof, Respondents.
• Court: Supreme Court of Colorado

Page 1065

652 P.2d 1065

Lee DENBOW, Petitioner, v. The DISTRICT COURT In and For the TWENTY-FIRST JUDICIAL

DISTRICT, and James J. Carter, One of the Judges

Thereof, Respondents.

No. 82SA254.

Supreme Court of Colorado.

Oct. 25, 1982.

J. Gregory Walta, Colorado State Public Defender, Denver, Harvey M. Palefsky, Deputy State Public Defender, Grand Junction, for petitioner.

No appearance for respondents.

DUBOFSKY, Justice.

In this original proceeding, we issued a rule to show cause why the respondent district court's order denying petitioner Lee Denbow's motion to proceed on appeal in forma pauperis, for a free transcript of habeas corpus proceedings and for appointment of appellate counsel should not be vacated. We now make the rule absolute.

Denbow was arrested in Mesa County, Colorado, on September 29, 1981, and held for extradition to Florida. The respondent district court denied Denbow's subsequent petition for a writ of habeas corpus and Denbow filed a timely notice of appeal. Thereafter, Denbow filed a motion to proceed on appeal in forma pauperis, for a free transcript and for appointment of counsel, along with an affidavit of indigency. The respondent district court denied the motion without opinion on March 25, 1982. Pursuant to our limited authority under C.A.R. 12(b), we considered only the denial of the motion to proceed in forma pauperis and ordered on April 6, 1982, that Denbow be permitted to appeal in forma pauperis. Denbow then brought this original proceeding challenging the district court's order denying him appointed counsel and a free copy of the transcript. We reverse the district court's order and direct the respondent court to grant Denbow's request for a free transcript and appointment of counsel.

Although a petition for a writ of habeas corpus is filed not in the underlying criminal extradition proceedings but as an independent civil action, People v. Pitcher, 192 Colo. 195, 557 P.2d 395 (1976), it is important to look beyond form to the substance of proceedings which involve the incarceration of an individual. Canon City v. Merris, 137 Colo. 169, 323 P.2d 614 (1958). In Mora v. District Court, 177 Colo. 381, 384, 494 P.2d 596, 597 (1972), we held that because an extradition proceeding "substantively involves incarceration or other criminal sanctions," criminal procedural safeguards attach regardless of the formal designation of the proceeding as civil. Thus, we concluded that indigents have a right to appointed counsel in habeas corpus proceedings testing the validity of arrest on an extradition warrant.

The holding in Mora was based upon the Uniform Criminal Extradition Act, which provides that a person arrested on an extradition warrant "has the right to demand and procure legal counsel" prior to extradition. ¹ We held that this right could not be denied to indigents and noted that the courts of Iowa, Illinois, and Michigan had reached the same result in construing identical language from the Uniform Act. Id. at 385, 494 P.2d at 597.

Here, Denbow seeks the assistance of counsel and a transcript in preparing an appeal as of right from the denial of his petition for a writ of habeas corpus. Because such an appeal is concerned with criminal law issues and because, as we discuss below, extradition involves "a significant restraint on liberty," the appeal of the denial of the writ in an extradition proceeding is, in essence, a criminal appeal. The Fourteenth Amendment has long guaranteed indigents the right to appointed counsel and to a free copy of their trial transcript in criminal appeals as of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Mora relied in part on Griffin, which requires a free transcript in criminal appeals, as authority for an indigent's right to counsel at the habeas corpus hearing contesting extradition.

The United States Supreme Court, however, has not considered specifically whether there is a right to counsel at an extradition hearing, at a habeas corpus proceeding contesting extradition, or on appeal of a denial of such a writ. The Supreme Court's analysis of the Sixth Amendment right to counsel turns upon whether the criminal proceeding is at "a critical stage." The right to counsel exists at such critical stages as the preliminary hearing, Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970), and the post-indictment line-up, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The Supreme Court's statement in Michigan v. Doran, 439 U.S. 282, 99 S.Ct. 530, 58 L.Ed.2d 521 (1978) that "[i]nterstate extradition was intended to be a summary and mandatory executive proceeding" comes close to indicating its agreement with lower courts which have held that the extradition hearing is not a critical stage. ² E.g., U.S. ex rel. Calhoun v. Twomey, 454 F.2d 326 (7th Cir.1971); Dunkin v. Lamb, 500 F.Supp. 184 (D.Nev.1980).

On the other...