Galloway v. Stephenson

• Decision Date: 25 March 1981
• Docket Number: No. C-80-231-G.,C-80-231-G.
• Citation: 510 F. Supp. 840
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Anthony Mature GALLOWAY, Petitioner, v. L. V. STEPHENSON et al., Respondents.

510 F. Supp. 840

Anthony Mature GALLOWAY, Petitioner, v. L. V. STEPHENSON et al., Respondents.

No. C-80-231-G.

United States District Court, M. D. North Carolina, Greensboro Division.

March 25, 1981.

Anthony Mature Galloway, pro se.

Thomas J. Ziko, Associate Atty. Gen. of North Carolina, Raleigh, N. C., for respondents.

JUDGMENT

HIRAM H. WARD, District Judge.

On February 19, 1981, the United States Magistrate's Findings and Recommendation was filed and notice was served on the parties pursuant to 28 U.S.C. § 636. No response has been received by the Court within the time limits prescribed by Section 636.

The Court hereby accepts the Findings and Recommendation which it adopts as its own.

IT IS THEREFORE ORDERED AND ADJUDGED that the writ of habeas corpus issue and that petitioner's judgment and conviction in the case of State v. Galloway, 75 CR 4303, in Rockingham County, North Carolina, be vacated and set aside and petitioner be released from custody, unless within 60 days petitioner has been afforded a right to direct review of his conviction by the North Carolina appellate courts, or unless petitioner's conviction is vacated and he is given the right to a retrial, released or agrees to some other disposition.

IT IS FURTHER ORDERED that, within 10 days after the expiration of the 60-day period, the parties shall inform the Court as to whether there has been compliance with its orders.

MAGISTRATE'S FINDINGS AND RECOMMENDATION

Feb. 19, 1981.

RUSSELL A. ELIASON, United States Magistrate.

Petitioner, a prisoner of the state of North Carolina, seeks relief pursuant to 28 U.S.C. § 2254. In 1975, petitioner was charged with armed robbery and burglary. The jury found petitioner guilty of armed robbery but not of burglary. He was sentenced to 30 years' imprisonment.

On December 10, 1975, petitioner gave notice of appeal and counsel was appointed to represent him. He was given 60 days to prepare and serve the case on appeal. On February 15, 1976, petitioner, upon motion of counsel, was given up to 150 days to complete his appeal. Petitioner's counsel did not file his appeal within that time limit, thus on June 18, 1976, the prosecution moved, pursuant to N.C.Gen.Stat. § 287.1 (repealed), to dismiss the appeal for failure to perfect it within the time allotted. On that same day, the motion was granted and the appeal was dismissed.

On June 22, 1976, petitioner's counsel filed a handwritten petition for a writ of certiorari. Therein, he stated that, on June 18, 1976, a motion dismissing the appeal was granted but that he had not been advised of the motion nor had he been present at its presentation. He further stated that the appeal had been prepared and that there were two assignments of error contained in the record on appeal. He asked that the assignments of error be considered in the interests of justice. The North Carolina Court of Appeals denied petitioner any relief. Thereafter, petitioner drafted several pro se motions for post-conviction relief. The state admits that all the contentions presented in the instant petition were presented to the state courts and that petitioner has exhausted his state court remedies.

In the instant case, petitioner claims that his constitutional rights were violated because he was denied his right to appeal, he received ineffective assistance of counsel with respect to the appeal, and the motion to dismiss granted by the state judge was illegal since it was based upon a repealed statute.

The state filed an answer and a motion to dismiss. It urges that relief be denied claiming petitioner was not unconstitutionally deprived of his right to appeal because he has no constitutional right to such, and, even though N.C.Gen.Stat. § 1-287.1 had been repealed, Rule 12 of the North Carolina Rules of Appellate Procedure permitted the same result. With respect to the charge of ineffective assistance of counsel, the state, while not vouching for the actions of the attorney, urges that no relief should be given since the two errors raised by his attorney in the Record on Appeal would not entitle petitioner to relief under state law and therefore petitioner allegedly has suffered no prejudice.

Contrary to respondent's contentions, the recited facts show that petitioner was deprived of his constitutional right to his first direct appeal.¹ It will be assumed, without deciding, that petitioner's claim was properly dismissed. (But see n.1, supra.) The state contends that petitioner has no right to a direct appeal. The contention is inaccurate. The law is that, while the state has no duty to provide for appellate review of criminal convictions, when it does, it must assure indigent defendants an adequate opportunity to present their claims. Ross v. Moffitt, 417 U.S. 600, 607, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974).

In 1977, the Supreme Court decided two cases which govern the decision to be made here. First, in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), court-appointed counsel concluded that the appeal would be without merit. He advised the state court of this fact and also informed it that defendant wanted to file a brief. The court denied defendant's request for another attorney. The defendant filed a pro se brief and the court, after examining the record, affirmed the conviction. The Supreme Court found that the defendant's right to assistance of counsel had not been adequately met. It concluded that: "The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client ...." 386 U.S. at 744, 87 S.Ct. at 1400.²

On the same day, the Supreme Court decided Entsminger v. Iowa, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501 (1967). There, court-appointed counsel filed notice of appeal. Apparently believing the appeal was without merit, counsel failed to file the entire trial record. Even though the state supreme court had directed the case to be submitted on the full record, briefs, and arguments of counsel, it considered the appeal on the basis of the clerk's transcript, which under Iowa law merely included the pleadings and filings but not the transcript of evidence. The state court found no error. The Supreme Court held the procedure defective because defendant was precluded from obtaining a complete and effective appellate review of his conviction. It noted that the state court procedure automatically deprived him of a review, of the evidentiary record, based on briefs and arguments. It concluded by referring to Anders v. California, supra, with respect to the responsibilities incumbent on both the appellate court and appointed counsel to ensure a complete appeal.

In the instant case, petitioner did not receive adequate assistance of counsel in the presentation of his appeal. Both the concepts of "substantial equality and fair process" (Anders, 386 U.S. at 744, 87 S.Ct. at 1400), derived from the Fourteenth Amendment, and the more specific right to assistance of counsel contained in the Sixth Amendment, demand competent appellate representation from counsel. Passmore v. Estelle, 607 F.2d 662, 663 (5th Cir. 1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980). In Passmore, the court found counsel's one-sentence brief inadequate, even though the state appellate court had said it reviewed the record. In Cantrell v. State of Ala., 546 F.2d 652 (5th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977), appellate counsel did not provide effective representation when the original appeal was dismissed because of counsel's failure to have the trial transcript certified as required by state procedure. In the instant case, counsel's failure to timely file the Record on Appeal likewise amounts to inadequate assistance of counsel. The loss of one's only direct appeal because of counsel's neglect constitutes a far more serious deprivation than the truncated reviews disapproved in Anders and Entsminger.

When counsel unnecessarily jeopardizes petitioner's right to an appeal, it is incumbent on the state courts to take prophylactic action to prevent forfeiture of the appeal.³ No good reason exists to penalize petitioner for his counsel's failure. Upon discovering a dereliction of duty by counsel, the state court would have been better advised to have disciplined counsel rather than visit the retribution on petitioner. As pointed out in Flanagan v. Henderson, 496 F.2d 1274, 1278 (5th Cir. 1974), where counsel's error limited the appeal to one based on the minute entries of the trial court clerk,

when a court discovers that an attorney has been derelict in the performance of a court duty which could forfeit a legal right accorded to a defendant in a criminal case is sic significant as the right to an appeal on the merits, disciplinary measures against the attorney — rather than deprivation of the defendant's rights — may be the only constitutional remedy. At least that is true in this case.

Even though petitioner was denied an effective and complete appellate review, the state still argues that no relief should issue because the two assignments of errors contained in the Record of Appeal (prepared but not filed by the attorney) would not support relief under state law. In essence, the state contends that any error was harmless inasmuch as petitioner suffered no prejudice from the loss of his appeal. The contention does not bear up under scrutiny.

When a defendant has been deprived of his right to a complete and effective appeal, he need not demonstrate that he was prejudiced or that he has arguable grounds for a successful appeal.⁴ Thus, in determining whether petitioner's constitutional rights have been violated, the federal court should not examine the merits of the issues to be raised in a belated appeal. In Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340 (1969), the Court first applied this rule in a ...