Goodwin v. Cardwell

• Decision Date: 19 October 1970
• Docket Number: No. 19878.,19878.
• Citation: 432 F.2d 521
• Parties: Thomas GOODWIN, Jr., Petitioner-Appellant, v. H. J. CARDWELL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

432 F.2d 521 (1970)

Thomas GOODWIN, Jr., Petitioner-Appellant, v. H. J. CARDWELL, Warden, Respondent-Appellee.

No. 19878.

United States Court of Appeals, Sixth Circuit.

October 6, 1970.

As Corrected October 19, 1970.

James W. Carpenter, Columbus, Ohio, on brief for petitioner-appellant.

Stephen M. Miller, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee; Paul W. Brown, Atty. Gen., Columbus, Ohio, on brief.

Before PHILLIPS, Chief Judge, McCREE, Circuit Judge and O'SULLIVAN, Senior Circuit Judge.

PHILLIPS, Chief Judge.

This is a habeas corpus action which was dismissed by the District Court without an evidentiary hearing.

In the State court of Ohio petitioner was tried before a jury and found guilty of rape. He was sentenced to a term of three to twenty years. He did not perfect an appeal within thirty days, but thereafter exhausted all available post conviction remedies in the State courts, including an application for delayed appeal, which was denied.

Petitioner contends that he was deprived of the effective assistance of counsel as guaranteed by the Sixth Amendment. It is asserted that petitioner was represented in the State court by an attorney employed by his mother and that this attorney never advised him of his right of appeal.

In Henderson v. Cardwell, Warden, 426 F.2d 150 (6th Cir.), the petitioner for a writ of habeas corpus contended that he was deprived of the effective assistance of counsel because his court-appointed attorney failed to advise him that he was entitled to appeal as a matter of right. This Court, speaking through Judge Cecil, remanded the case to the District Court for an evidentiary hearing to determine whether appellant was denied an appeal by reason of his lack of knowledge of his right and the failure of his counsel to advise him of his right to appeal with the aid of counsel, citing with approval the majority opinion in United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir., in banc), cert. denied, 397 U.S. 925, 90 S.Ct. 929, 25 L.Ed.2d 105.

To like effect see Benoit v. Wingo, 423 F.2d 880 (6th Cir.); Yates v. Wingo, 425 F.2d 1167 (6th Cir.); Lewis v. Henderson, 381 F.2d 523 (6th Cir.).

In Smartt v. Bomar, 340 F.2d 593 (6th Cir.), and Horton v. Bomar, 335 F. 2d 583 (6th Cir.), this Court held that the failure of the State trial judge to appoint counsel to prosecute an appeal did not deprive the defendant of any constitutional right. We do not read these decisions as authority for the proposition that a defendant who has no knowledge of his right to appeal may not be deprived of the effective assistance of counsel by the failure of his attorney to advise him of this right.

We hold that the petitioner in his application for a writ of habeas corpus in the present case has alleged facts which, if true, may have constituted a violation of his right to the effective assistance of counsel and that he was entitled to an evidentiary hearing. Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473.

The dissenting opinion suggests the drawing of a distinction between court-appointed and privately retained attorneys with respect to the right of a defendant to the effective assistance of counsel in the form of advice as to the right to appeal. We follow the majority opinion in United States ex rel. Smith v. McMann, supra, in holding that a defendant may be deprived of the effective assistance of privately retained counsel. See also Atilus v. United States, 406 F.2d 694 (5th Cir.).

We remand the case to the District Court with instructions to appoint counsel to represent petitioner and to conduct an evidentiary hearing to determine whether petitioner was denied an appeal by reason of his lack of knowledge of his right and the failure of his counsel or the court to advise him of his right to appeal with the aid of counsel.

Vacated and remanded.

O'SULLIVAN, Senior Circuit Judge (dissenting).

I regret my need to dissent. This matter involves but another of the now multitudinous, and most often meritless, applications for habeas corpus relief by state prisoners. Here petitioner Goodwin asks the District Judge to command the State of Ohio to entertain, out of time, a plenary appeal from his conviction of the crime of rape. He was convicted of such offense upon a jury trial in the Court of Common Pleas of Hamilton County, Ohio, at which trial Goodwin was represented by privately retained counsel. On April 11, 1963, he was sentenced to serve a term of three to twenty years. The petition before us was filed in the United States District Court for the Southern District of Ohio, Eastern Division, on August 2, 1968, upwards of eight years after petitioner entered prison. On August 21, 1969, the District Judge, upon motion of the Attorney General of Ohio, dismissed the petition, supporting his ruling by an extensive and carefully prepared opinion. Section 2953.05 of the Ohio Revised Code provides:

"Appeal under section 2953.04 of the Revised Code, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from sentence and judgment, such appeal may be filed only by leave of the court or two of the judges thereof."

Goodwin's claim is that, having been given such right of appeal, he was deprived of it, contrary to the Fourteenth Amendment to the United States Constitution, because neither his retained counsel, the trial judge, nor anyone else told him of this right and of the time within which he was required to assert it. There is nothing in the petition for writ of habeas corpus, prepared by appointed counsel, to suggest that Goodwin was the slightest bit interested in appealing his conviction within said thirty day period, nor at any time prior to about three years thereafter when, in the state court, he began the extended proceedings which culminated in the matter before us. The District Judge concluded:

"In Ohio, the appeal as of right within thirty days of conviction is equally available to all persons who assert the right, even those who assert the right to appeal informally. See State v. Catlino, 10 Ohio St. (2nd) 183 226 N. E.2d 109.

"Therefore, the Court holds the state has no federal constitutional obligation to inform defendants of their state created rights.

"The Court also holds that the petitioner has no constitutional right to appeal as of right after the expiration of the thirty day period following appeal."

I would affirm.

My brothers would reverse and remand for an evidentiary hearing, citing Henderson v. Cardwell, Warden, 426 F. 2d 150 (6th Cir.1970); Yates v. Wingo, 425 F.2d 1167 (6th Cir.1970); Benoit v. Wingo, 423 F.2d 880 (6th Cir.1970), and Lewis v. Henderson, 381 F.2d 523 (6th Cir.1967).

In each of these cases the petitioners were represented by court-appointed counsel or a public defender. I consider that this distinction is of controlling importance, and the cases are otherwise in-apposite here.

I point out their distinctions as follows:

In Henderson the petitioner charged that he was denied a fair and impartial trial, that the indictment upon which he was tried was void, and that his state court-appointed counsel failed to adequately represent him at trial. Goodwin makes no such claim here.

In Yates the petitioner was represented by state court-appointed counsel. The opinion states, "His counsel filed a motion for a new trial. Petitioner alleged that he then requested his counsel to appeal but the lawyer refused to discuss an appeal and walked away from him." He further alleged that his "counsel had abandoned him." 425 F.2d at 1167.

InBenoit petitioner's court-appointed counsel did file a notice of appeal and began processing the same, but later abandoned it, telling Benoit that such an appeal would be without merit. This advice came to Benoit, "When the time for perfecting the appeal had either expired or was so near to expiration that appellant couldn't have been expected, on his own, to have processed the appeal." 423 F.2d at 882.

In Lewis the petitioner was represented by a state public defender who conceded his own failure to properly protect the rights of Lewis.

"In spite of this regrettable situation that the petitioner was a person with a low degree of intelligence the statements made by the Public Defender that, due to no fault of his own but due to the overwhelming amount of work in his office and his limited staff, he had furnished inadequate representation to this petitioner * * *." 381 F.2d at 528.

In two cases decided earlier we have, by clear implication, held that where an accused was represented by retained counsel at trial, who neglected or refused to take or effectively prosecute an appeal, it was not the duty of a state trial judge to inquire into the continuing relationship between the client and his lawyer and thus to make sure that the accused's right to appeal was effectively asserted. See Horton v. Bomar, 335 F.2d 583 (6th Cir.1964), and Smartt v. Bomar, 340 F.2d 593 (6th Cir.1965).

In Horton, we took occasion to say:

"There is no constitutional right to an appeal. There must be some bona fide ground for it, otherwise an appeal would be frivolous. Neither the appellant nor counsel on his behalf make any claim that any of the appellant\'s constitutional rights were violated in the trial court. The alleged failure of the trial judge to appoint counsel to prosecute an appeal presents no Federal Constitutional question to this court. (Emphasis supplied.) 335 F.2d at 584.

In Smartt, where accused also had been represented by retained counsel, we said:

"He Smartt contends that the Tennessee trial judge should have appointed counsel to perfect and carry on his appeal. No request therefor was made by Smartt. Neither was the trial court informed of Smartt\'s indigency, if such was the fact. * * * He contends, however, that the state trial judge should have assumed such from his dispute over fees with his own retained counsel and should have appointed counsel

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