Harris v. Rees, 85-5662

• Decision Date: 16 July 1986
• Docket Number: No. 85-5662,85-5662
• Citation: 794 F.2d 1168
• Parties: Walter McKinley HARRIS, Plaintiff-Appellee, v. John D. REES, Superintendent, Kentucky State Reformatory, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1168

794 F.2d 1168

Walter McKinley HARRIS, Plaintiff-Appellee, v. John D. REES, Superintendent, Kentucky State Reformatory, et al., Defendants-Appellants.

No. 85-5662.

United States Court of Appeals Sixth Circuit.

Argued Feb. 28, 1986.

Decided July 16, 1986.

David L. Armstrong, Atty. Gen. of Ky., Frankfort, Ky., Greg Holmes argued, for defendants-appellants.

Ed W. Tranter argued, Ft. Thomas, Ky., for plaintiff-appellee.

Walter McKinley Harris, pro se.

Before JONES and WELLFORD, Circuit Judges; and GILMORE, District Judge. ^*

GILMORE, District Judge.

This appeal from the issuance of the writ of habeas corpus raises two questions: whether appellee exhausted his state remedies, and, if so, whether he was denied equal protection of the law when the Kentucky trial court refused to allow him to proceed on appeal in forma pauperis.

Appellee was convicted by a Boone County, Kentucky circuit court jury of armed robbery and murder, and was sentenced on January 4, 1974 to two consecutive life terms.

At the hearing before the district court's magistrate, the parties stipulated to the following facts:

1. In late 1973, John C. Anggelis, Esq., was retained to represent petitioner by members of petitioner's family on charges of armed robbery and murder pending in the Boone circuit court.

2. Anggelis was retained with the express understanding that his representation would be limited to representing petitioner at trial only.

3. William M. Zevely, Esq. was appointed by the Boone circuit court to assist the defense at petitioner's trial. After petitioner was convicted of the charged offenses, Zevely was responsible for requesting the Boone circuit court to enter an order allowing petitioner to appeal his convictions in forma pauperis.

4. At the sentencing hearing on January 4, 1974, after petitioner was informed of his right to appeal and his right to appointed counsel on appeal if he could not afford to retain counsel, Anggelis, on the petitioner's behalf, informed the court that petitioner desired to appeal but that he was without funds, and that he wished to appeal in forma pauperis. The sentencing judge refused to grant an in forma pauperis appeal on the grounds that petitioner's family had raised enough money for his trial defense.

5. Zevely represented petitioner at the hearing on the motion for a new trial on January 22, 1974. At that time, the Boone circuit court judge refused to sign an order allowing petitioner to appeal his convictions in forma pauperis.

6. No Notice of Appeal was filed.

7. At his sentencing hearing, petitioner, through Anggelis, informed the court that he was without funds to appeal his convictions.

Based on these stipulated facts, the magistrate found merit in both of appellee's arguments: that the refusal to allow him to appeal in forma pauperis effectively barred an appeal due solely to his indigent status, and that the retained and appointed counsels' failure to perfect his appeal or obtain review of the order denying appeal in forma pauperis constituted ineffective assistance of counsel, in violation of appellee's due process rights. Therefore, the magistrate recommended that the writ of habeas corpus issue, but be stayed for 120 days to allow the Commonwealth a chance to grant appellee an appeal or retry him.

Appellant filed objections to the Magistrate's report and Recommendation. On June 3, 1985 the district court adopted the Magistrate's Report and Recommendation and ordered the writ to issue, but stayed the writ for the 120 days recommended by the magistrate.

I

The first issue is whether appellee has exhausted his claim in state court. Although the parties did not raise this issue on appeal, it may not be waived or conceded, and may be raised by this Court sua sponte. Bowen v. State of Tennessee, 698 F.2d 241, 243 (6th Cir.1983) (en banc). To decide this issue, a brief review of the procedural history of the case is necessary.

Appellee's family had retained an attorney named John Anggelis to represent him at trial. At trial, the state circuit judge appointed a Wilbur M. Zevely to assist in the defense. The reasons for this appointment never appear on record. There is evidence on record that at the January 4, 1974 sentencing hearing retained counsel Anggelis informed the court that appellee wished to appeal in forma pauperis. This request was denied.

A motion for new trial was heard and denied by the state circuit judge on January 22, 1974. There is evidence that appointed counsel Zevely requested the circuit judge to sign an order allowing Harris to appeal in forma pauperis. The trial judge refused to do so, stating that, since Harris had been able to afford private counsel for the trial, he should be able to get private counsel on appeal. At that time, no appeal was processed because of the failure of the judge to authorize the proceeding in forma pauperis.

The record is silent until December 27, 1977 when appellee filed a pro se "Motion for Attested Copies of Court Documents for Belated Appeal" in the state's circuit court. Citing Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), appellee asked for an order directing the court stenographer to provide him with attested copies of the indictment, transcript of the record, a transcript of the evidence, and other material on the record.

On the same day, appellee also filed a pro se "Motion for Leave to Proceed In Forma Pauperis and for Appointment of Counsel," stating he was without funds, and attaching an affidavit of poverty.

On January 30, 1978, a state circuit judge signed an order listing the motions appellee had filed. The order states that appellee moved for belated appeal, although no such motion appears on record. The court denied all except the motion for appointment of counsel. The court appointed the Office of the Public Defender to represent appellee.

On February 6, 1978, a notice of appeal to the Kentucky Court of Appeals was filed, followed by a letter from the Public Defender asking the clerk to certify the record.

On October 27, 1978, the Kentucky Court of Appeals affirmed the circuit court's order in part and reversed in part. The court held that, through his pro se motions, appellee had been trying to obtain the right to proceed in forma pauperis, the right to an attorney, and the right to copies of the record, before making a motion attacking his sentence. The court decided that Harris was not precluded by these motions from actually making a proper motion to vacate his sentence under the Kentucky Rules of Criminal Procedure, saying "To insure Harris's right to file an RCr 11.42 motion, ¹ we reverse that part of the trial court's order denying the motion for a belated appeal."

The court further determined that Harris was not entitled to an attorney or free transcript prior to filing his motion for post conviction relief, and held that under RCr 11.42(5) a prisoner was entitled to appointed counsel only if the state's answer to the prisoner's motion for relief raised a material fact that could ot be determined on the face of the record.

Similarly, the court held that under Kentucky law a prisoner was entitled to a free transcript only if his RCr 11.42 motion stated grounds that, if true, would furnish a basis for relief. Since appellee had not yet filed his RCr 11.42 motion, the determination of his right to free transcript was premature.

Finally, the court held that nothing in the United States Supreme Court cases indicated that there was a federal constitutional requirement to provide appointed counsel or a free transcript before the filing of a motion for collateral relief, and concluded:

The part of the order denying Harris's motion for belated appeal is reversed. The remainder of the order is affirmed. Upon a proper RCr 11.42 motion, the court should appoint an attorney if the Commonwealth's answer to the motion raises a material issue of fact which cannot be determined from the record, and if Harris is without counsel and unable to employ counsel. A copy of the transcript should be provided if the motion states grounds which, if true, would furnish a basis for relief.

On April 3, 1979, the Supreme Court of Kentucky denied appellee's motion for discretionary review of this court of appeals decision.

The record is silent until November 13, 1981 when appellee launched another collateral attack on his conviction by filing a pro se "Motion to Amend, Modify or Vacate Judgment" under CR 60.02. ² Appellee argued that he had been denied his constitutional right to appeal when the trial court overruled his motion to proceed in forma pauperis and his motion for appointment of counsel solely because he had retained counsel at trial. The circuit court overruled this motion, noting that Harris had never filed a motion to vacate or amend the judgment under RCr 11.42, and that the motion stated no grounds for relief under CR 60.02.

On January 8, 1982, appellee finally moved in the circuit court, pro se, pursuant to RCr 11.42, to vacate the judgment of conviction on the basis that he had been denied his constitutional right to appeal from the judgment. The motion stated:

Movant was denied his constitutional right to appeal from the judgments of this Court when the trial judge refused to appoint counsel to perfect a timely and proper appeal in movant's behalf solely because counsel had been retained for movant during the trial; a Notice of Appeal was tendered at the conclusion of the proceedings--in conjunction with movant's motion for appointment of counsel on appeal--but said appeal was denied for failure to perfect a timely and proper appeal.

On March 1, 1982, the circuit court entered the following order:

It is ordered that the defendant's motion to proceed in forma pauperis is hereby sustained.

It is further ordered that the office of public advocacy, Frankfort, Kentucky, is appointed to represent the defendant in his motion to set aside the previous judgment under...