La Faver v. Turner

• Decision Date: 16 July 1964
• Docket Number: No. C 63-64.,C 63-64.
• Citation: 231 F. Supp. 895
• Parties: Walter LA FAVER, Petitioner, v. John W. TURNER, Warden of Utah State Prison, Defendant. (In the Matter of the Application of Walter La Faver for a Writ of Habeas Corpus)
• Court: U.S. District Court — District of Utah

231 F. Supp. 895

Walter LA FAVER, Petitioner, v. John W. TURNER, Warden of Utah State Prison, Defendant (In the Matter of the Application of Walter La Faver for a Writ of Habeas Corpus)

No. C 63-64.

United States District Court D. Utah, Central Division.

July 16, 1964.

Joseph C. Fratto, Salt Lake City, Utah, for plaintiff.

A. Pratt Kesler, Atty. Gen. of the State of Utah, and Ronald N. Boyce, Chief Asst. Atty. Gen. of the State of Utah, for defendant.

CHRISTENSEN, District Judge.

Petitioner, a State prisoner, has applied to this court for a writ of habeas corpus, asserting that he was induced by duress or coercion to enter a plea of guilty in a State criminal proceeding, and that he was unconstitutionally denied counsel to effectuate an appeal from an adverse judgment in a State habeas corpus proceeding to test the legality of his detention pursuant to such plea of guilty.

There is apparent conflict between the view attributed to the Supreme Court of the State of Utah in this case as well as the rationale of a prior State decision¹ and recent decisions of the Supreme Court of the United States² which point up the right of an indigent to effect a meaningful appeal either through the assistance of counsel or by commensurate relief. The point was urged in an earlier case before this court but not reached because of the circumstances there present.³ Now it is squarely presented and essential for decision.

A complaint was filed in the City Court of Salt Lake City, Utah, on November 7, 1962, charging the petitioner with the crimes of robbery and grand larceny. Later an information was regularly filed. On November 26, 1962, petitioner appeared for arraignment with his appointed counsel and pleaded guilty to the charge of robbery, the grand larceny charge being dismissed upon the motion of the District Attorney. On December 10, 1962, the State court sentenced petitioner to a term in the Utah State Prison, where he is presently serving his sentence.

On July 6, 1963, in the Third Judicial District Court in and for Salt Lake County, petitioner filed his application for a writ of habeas corpus, asserting, among other things, that his plea had been coerced through threats of great bodily harm.⁴ The writ was heard on September 9, 1963, and denied on September 24, 1963. On October 7, 1963, a Notice of Appeal to the Supreme Court was filed by appointed counsel who represented petitioner in the lower court. Before anything further could be done in the prosecution of this appeal this attorney was appointed to a public office which disqualified him from continuing as petitioner's counsel, and he withdrew with the approval of the State Supreme Court. The appeal was dismissed by the Supreme Court without any consideration of its merits on or about April 1, 1964.

The reason for the dismissal was stated in a letter from L. M. Cummings, Clerk of the Supreme Court of Utah, as failure of the petitioner to file his brief on appeal by April 1, 1964.

We find that petitioner has exhausted his State remedies in view of Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed. 837 (1963), not only with reference to the validity of his conviction in the first instance but concerning the claimed denial of counsel on appeal from the denial of a writ of habeas corpus by the State district court. For the reasons, and by reason of the authorities, hereinafter discussed it is not believed that the failure of the defendant to proceed with his appeal without counsel constituted such a clear waiver of his constitutional rights as would preclude his maintaining the present petition in this court. Nor do we think that there is any other sufficient showing upon which to base a finding of waiver.

However, the real question, which is sharply at issue, is whether petitioner was afforded his constitutional rights under the Fourteenth Amendment — equal protection and due process — in effectuating his appeal from the denial of the writ of habeas corpus in the State courts. Upon the basis of petitioner's admitted impecuniosity, counsel was appointed to represent the petitioner in the State habeas corpus proceedings. Following the denial of the writ, counsel filed on petitioner's behalf a notice of appeal to the Supreme Court of the State of Utah. Thereafter counsel was appointed Deputy County Attorney of Salt Lake County. By reason of the possible conflict of interest, appointed counsel was permitted by the Supreme Court to withdraw. Upon petitioner's request for other counsel to effectuate the appeal already pending, petitioner was sent the following letter by the Clerk of the Utah Supreme Court:

"Your letter of December 28 addressed to Mr. Chief Justice Henriod requesting appointment of counsel has been handed to me with directions to inform you that inasmuch as this appeal is from a denial of a writ of habeas corpus, it is a civil case and there is no obligation for appointment of counsel except in appeals in criminal cases."

By reason of petitioner's subsequent failure to timely file his brief on appeal, the appeal was dismissed. It is that denial of counsel which petitioner now contends⁵ prevented him from filing his brief on appeal and deprived him of an effective appeal because of his indigency.

We have considered whether the refusal of the State Supreme Court to appoint counsel to proceed with the appeal could have been other than the controlling factor in the dismissal of his appeal. It has been argued by the State that petitioner could have prepared and filed his own brief, and if this had been done, the appeal would have been considered by the State on its merits. We think this is placing too slight a value upon the right to counsel, if it otherwise existed.⁶ Nor do we believe that there could have been any waiver of an appeal by petitioner's failure to proceed without counsel any more than in People v. Douglas, Cal., 38 Cal.Rptr. 884, 392 P.2d 964, where the petitioner had refused to go to trial represented by a public defender expousing possibly conflicting interests on behalf of a co-defendant.

We do not reach the question of whether there were grounds for appeal except to note that the grounds alleged and established were not frivolous. It seems enough to recognize that their validity should be determined, if a review is necessary, not by a Federal court but by the State Supreme Court.

Deprivation of the right to counsel in a habeas corpus proceeding may not be considered ipso facto a denial of a constitutional right. But under the circumstances of this case, a person cannot be constitutionally deprived of any consideration whatsoever of his case on appeal merely by reason of his indigency. The blanket application of the State court of the proposition that the appointment of counsel in a habeas corpus proceeding, being a "civil case" is not necessary, applies a label, innocuous under some circumstances,⁷ under the facts of the present case in impingement of constitutional rights of the petitioner.

The answer to our present problem seems inexorably presaged, if not completely structured, by the four decisions of the Supreme Court of the United States cited in footnote 2.

Dowd v. United States, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215, supra, holds that the discriminatory denial of the right to appeal is a violation of the Equal Protection Clause of the Fourteenth Amendment, and that "under the peculiar circumstances of this case, nothing short of an actual appellate determination of the merits of the conviction —according to the procedure prevailing in ordinary cases—would cure the original denial of equal protection of the law."

Smith v. Bennett, supra, indicates that denial by the State to those unable to pay filing fees of postconviction remedies available to others in habeas corpus proceedings is a denial of the equal protection of the laws in violation of the Fourteenth Amendment. This case points out that while a habeas corpus proceeding is procedurally a "civil remedy" as the Utah Supreme Court has emphasized, it does not follow that its availability may be made to depend upon the financial ability of petitioner. This case also has persuaded me that I should not undertake to pass upon the ultimate merits of petitioner's claim of a coerced plea beyond what already has been stated, by the following language of Mr. Justice Clark, speaking for a unanimous court:

"The Attorney General of Iowa also argues that indigent prisoners in the State's custody may seek `vindication of federal rights alleged to have been denied by the state' in the federal courts. But even though this be true—an additional point not involved or passed upon here—it would ill-behoove this great State, whose devotion to the equality of rights is indelibly stamped upon its history, to say to its indigent prisoners seeking to redress what they believe to be the State's wrongs: `Go to the federal court.' Moreover, the state remedy may offer review of questions not involving federal rights and therefore not raisable in federal habeas corpus."⁸ (Smith v. Bennett, supra).

In Douglas v. California, the Supreme Court reiterated with approval the words of Justice Traynor of the California Supreme Court in his dissent before the lower court 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 * * *."⁹

And in Lane v. Brown, supra, it was held that Indiana had deprived a petitioner of a right secured by the Fourteenth Amendment by refusing him appellate review of the denial of a writ of error coram nobis solely because of his poverty.¹⁰ Thus if our present conclusion is not a part of the ground already actually reached by the Supreme Court of the United States it now lies well under the next step to which there already has been a commital. And with the steps already definitely taken, whether we like them or not, it would be incongruous and...