Greene v. Brigano

• Decision Date: 10 October 1995
• Docket Number: No. C-1-93-816.,C-1-93-816.
• Citation: 904 F. Supp. 675
• Court: U.S. District Court — Southern District of West Virginia
• Parties: Drexell GREENE, Petitioner, v. Anthony BRIGANO, Respondent.

904 F. Supp. 675

Drexell GREENE, Petitioner, v. Anthony BRIGANO, Respondent.

No. C-1-93-816.

United States District Court, S.D. Ohio, Western Division.

October 10, 1995.

Gregory Lawrence Ayers, Ohio Public Defender Commission, Columbus, OH, for plaintiff.

Mary L. Hollern, Ohio Attorney General, Capital Crime Section, Columbus, OH, for respondent.

ORDER AFFIRMING MAGISTRATE'S REPORT AND RECOMMENDATION

SPIEGEL, Senior District Judge.

This matter is before the Court on the Magistrate Judge's Report and Recommendation (doc. 10), and the Respondent's objections (doc. 11).

The petitioner, an inmate at the Warren Correctional Institution, filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (doc. 1). The matter was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b)(1)(B) and Western Division Local Rule No. 1.

The Court has reviewed the complete file de novo, pursuant to 28 U.S.C. § 636, and concurs with the findings and conclusions contained in the Report and Recommendation of the United States Magistrate Judge.

BACKGROUND

Drexell Greene was convicted of murder and sentenced to fifteen years to life on May 4, 1990. On June 4, 1990, Mr. Greene filed pro se a notice of appeal. Mr. Greene also requested assignment of counsel. The Ohio Court of Appeals denied the request since Greene already had counsel of record from the trial.

Upon court order, Greene's trial counsel filed a request that the trial transcript be prepared. While waiting for the transcript to be prepared, trial counsel moved for an extension of time to file appellate brief. The Court of Appeals granted an extension to October 5, 1990.

In late September 1990, Mr. Greene filed a motion to dismiss counsel and for leave to proceed pro se. Petitioner's counsel also filed a motion to withdraw. The Court of Appeals granted both motions.

The trial transcript was subsequently filed with the Court of Appeals. Greene requested the trial court send him a copy of the transcript at the Warren Correctional Institute in order to prepare his brief. Ohio law, however, only calls for the preparation of one transcript which is filed with the Court of Appeals.¹

Greene filed a motion to extend time to file the brief which was granted until November 6, 1990. Greene never received a copy of the transcript. Greene's appeal was dismissed for want of prosecution when he failed to file an appellate brief by the deadline established by the Court of Appeals.

Greene filed an application to reconsider and a writ of mandamus ordering the trial court send him a copy of the transcript. The Ohio Court of Appeals denied both requests. The Ohio Supreme Court affirmed the decisions. State ex rel. Greene v. Enright, 63 Ohio St.3d 729, 590 N.E.2d 1257 (1992), cert. denied, 506 U.S. 1025, 113 S.Ct. 667, 121 L.Ed.2d 591 (1992). The Ohio courts concluded that Greene relinquished his right of access to the transcript by knowingly and intelligently waiving assistance of counsel on appeal.

DISCUSSION

The question raised by the petitioner's habeas corpus petition is whether an indigent prisoner's equal protection and due process rights are violated when a state refuses to provide him access to the trial transcript when he seeks to proceed pro se on appeal. The Magistrate Judge found that the denial of the transcript was a constitutional violation. This Court agrees with the Magistrate Judge's determination. Ohio's refusal to provide an incarcerated indigent pro se defendant access to his trial transcript violates the long standing constitutional right of access to a trial transcript in two fundamental ways. First, the Ohio policy discriminates against those defendants too poor to afford transcripts in violation of equal protection and due process. Second, the denial effectively defeats the petitioner's right to counsel upon appeal.

Equal Protection and Due Process

The Equal Protection Clause protects indigent defendants from procedural rules that unfairly affect their right to an effective defense. See e.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (requiring the State to provide indigent defendants counsel in criminal trials); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (holding that state must provide free copy of transcript to indigent defendants for appeals as a matter of right). The Equal Protection Clause requires that state appellate procedures be "free of unseasoned distinctions." Rinaldi v. Yeager, 384 U.S. 305, 310, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (1966). Essentially, the integrity of the criminal justice system requires that everyone — rich or poor — receive an equal chance to use the system's mechanisms. As Justice Black so eloquently put it, "there can be no equal justice where the kind of trial a man gets depends on the amount of money he has." Griffin, 351 U.S. at 19, 76 S.Ct. at 590. "Unfairness results if indigents are singled out by the state and denied meaningful access to the appellate system because of their poverty." Ross v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341 (1974). Therefore, the Equal Protection Clause is offended when poor defendants are required to appeal without the benefit of a transcript because they cannot afford to reproduce it.

Prisoners have a constitutional right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 1494, 52 L.Ed.2d 72 (1976). The Due Process Clause requires that prisoners have "meaningful access." Id. at 823, 97 S.Ct. at 1495 (citations omitted). The only way to assure an adequate and effective appeal is to provide a transcript of the proceedings to indigent defendants. Griffin, 351 U.S. 12, 76 S.Ct. 585.

The United States Supreme Court has consistently held that denial of a transcript to indigent defendants violates both the Due Process and Equal Protection Clauses. Id. Without a transcript the defendant is denied meaningful access to the appellate system. See Hardy v. United States, 375 U.S. 277, 288, 84 S.Ct. 424, 431, 11 L.Ed.2d 331 (1964) (stating that transcript is "the most basic and fundamental tool" of effective appellate advocacy). In addition, the principles of equal protection require that poor defendants have the same access to the procedures of the criminal justice system. Griffin, 351 U.S. at 19, 76 S.Ct. at 590 ("Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts."); Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963) (extending the indigent defendant's right to transcripts to state post-conviction proceedings). Accordingly, when the State provides an appeal as a matter of right, the Equal Protection and Due Process Clauses require that the State not discriminate in allowing access to the trial transcript on the basis of indigence.

The importance of access to the trial transcript for making an effective appeal cannot be overstated. This is especially so for pro se litigants.

We deal with an adversary system where the initiative rests with the moving party. Without a transcript the petitioner ... would only have his own lay memory of what transpired before the Superior Court. For an effective presentation of his case he would need the findings of the Superior Court and the evidence that had been weighed and rejected in order to present his case in the most favorable light. Certainly a lawyer, accustomed to precise points of law and nuances in testimony, would be lost without such a transcript.... A layman hence needs the transcript even more.

Gardner v. California, 393 U.S. 367, 369-70, 89 S.Ct. 580, 582-83, 21 L.Ed.2d 601 (1969) (emphasis added).

In Gardner, a pro se habeas petitioner was denied a copy of the transcript from his original habeas proceeding. While at the same time, both the State attorney and the appellate court were supplied copies of the transcript. The Court found that it was improper for transcripts to be supplied to some, but not to those who cannot afford them. Id. at 370, 89 S.Ct. at 582. Mr. Greene's situation is even more compelling. Mr. Greene was denied access to the trial transcript on his direct appeal.

Straightforward application of Griffin and its progeny require that Ohio provide a transcript to Mr. Greene. In fact, the United States Supreme Court answered the question presented here more than thirty years ago. The Supreme Court found that state procedures which deny a pro se defendant access to a transcript are unconstitutional. Lane, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892 (1963). At issue in Lane, was an Indiana policy which required filing of a transcript for appeals from the denial of a writ of error coram nobis. Id. at 481, 83 S.Ct. at 770. The Supreme Court overturned an Indiana law which denied a defendant a transcript when he wished to proceed pro se after being denied representation by the public defender's office. Id. at 484-85, 83 S.Ct. at 772. Under the "Public Defender Act, only the Public Defender can procure a transcript of a coram nobis hearing for an indigent, an indigent cannot procure a transcript for himself and appeal pro se...." Id. at 481, 83 S.Ct. at 770. The Supreme Court concluded that such a system violated the principles of Equal Protection as stated in Griffin v. Illinois. Id. 372 U.S. at 483, 83 S.Ct. at 772.

More recently, two circuit courts have also concluded that a pro se criminal defendant is entitled to trial transcript. See Lumbert v. Finley, 735 F.2d 239, 244, 246 (7th Cir.1984); Byrd v. Wainwright, 722 F.2d 716, 719 (11th Cir.1984) cert. denied, 469 U.S. 869, 105 S.Ct. 217, 83 L.Ed.2d 147 (1984). Neither court conditioned the right to a transcript on the acceptance of court appointed counsel.

In Lumbert, the pro se defendant complained that a delay in receiving his trial transcript based on state procedures violated his rights by denying him access to the appellate process and his right to self-representation....