Petitioner, Leon Havrilenko, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is incarcerated at the Indiana State Prison in Michigan City, Indiana. Respondents filed their Return to Order to Show Cause on March 9, 1987, and complied with the dictates of Lewis v. Faulkner, 689 F.2d 100 (7th Cir.1982). Petitioner filed his traverse with this court on March 23, 1987. The petitioner exhausted his available state remedies when his belated motion to correct errors was denied by the Supreme Court of Indiana. See Havrilenko v. State of Indiana, 500 N.E.2d 750 (Ind.1986). The state court record has been filed and examined here under the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963). This cause is now ripe for adjudication.
Petitioner presents two issues for review:
Ground One: Denial of Amendment ONE (Right of Petition) to the U.S. Constitution; to seek redress of violation of constitutional rights in a state criminal proceeding. Amendment FOURTEEN to the U.S. Constitution.
Ground Two: Under circumstances of petitioner's case; denial of assistance of counsel at time of sentencing of forty (40) years before the state Trial Court.
The petitioner discusses the supporting facts on pages 5A-5C of his habeas petition. Petitioner basically asserts that he was denied assistance of counsel at his sentencing and that a third psychiatrist should have examined him prior to trial, in addition to the two psychiatrists who did examine him, in order to determine the issue of his sanity.
Petitioner was convicted on April 16, 1981, for the offense of murder in the Elkhart Superior Court. Petitioner appeared before the court on May 14, 1981, with his court-appointed counsel, Joanne Graham, for sentencing. At that time, the petitioner informed the court that he did not wish to be represented any longer by the court-appointed counsel. He further informed the court that he had refused to discuss the presentence report with his court-appointed counsel. The presentence report was then read to petitioner by the Elkhart County Sheriff's Department. The petitioner requested new counsel and the court continued the sentencing until May 28, 1981.
On May 22, 1981, Joanne Graham, the court-appointed counsel from the Public Defender's Office, was granted leave to withdraw her appearance as counsel for the petitioner. R.W. Mehl and R.L. Mehl of Mehl, Mehl, Beeson and Leatherman filed their appearance as co-counsel for the petitioner. Mehl and Mehl were retained by the petitioner. The trial court then granted the new counsel's motion to continue the sentencing to June 4, 1981.
At the sentencing on June 4, 1981, the petitioner informed the court that he did not want to be represented by the newly retained counsel, but instead wished to represent himself. The court then discharged the Mehls as counsel:
Q I understand between (sic) the time of your conviction and today's date that you had at least made arrangements for Mr. Mehl to be your attorney and he has, in fact, appeared for you; is that correct?
A Not quite.
Q Well, the record shows he has appeared as your lawyer; is that correct?
A Do you want me to explain?
Q Just answer my questions first. Did you retain Mr. Mehl as your lawyer?
A (Defendant shakes head negatively)
Q Who did retain him?
A I asked Mr. Mehl for help.
Q Okay, and Mr. Mehl offered to help you?
A Yes.
Q And his son and Mr. Brennen also agreed to serve as counsel, correct?
A Yes; to help.
Q I understand today you desire to not be represented by Mr. Brennen? You fired him"
A Mr. Brennen don't say much. I didn't fire him.
Q You do want Mr. Brennen as your attorney?
A No. I don't want neither of them. I don't want Mr. Mehl to start with. Then I ask him to be my attorney; Mr. Brennen and he said no, if they're not in, I don't want to be your attorney either.
Q Who do you want as your attorney?
A I don't want any.
Q You did, in fact, pay money to Mr. Mehl's office to represent you, correct?
A Yes.
Q And they did prepare for sentencing; is that correct?
A What?
Q They prepared to be here today; correct?
A I don't ask them to be here today.
Q You don't want Mr. Mehl to represent you today?
A No.
Q Are you prepared to represent yourself in sentencing then?
A Yes.
THE COURT: First of all, Mr. Mehl, you were, in fact, retained privately?
MR. MEHL: Yes, Your Honor.
THE COURT: And you were paid a fee?
MR. MEHL: Yes, Your Honor.
THE COURT: And that fee, I assume, was in contemplation not only of sentencing but of contemplating an appeal?
MR. MEHL: That's correct, sir.
THE COURT: And do I understand that the fee that was, in fact, paid was sufficient to have perfected an appeal or at least a substantial portion of the costs of the appeal?
MR. MEHL: We made an agreement with him and would have taken care of the appeal through the Supreme Court, all costs included; attorney's fees for the Brennen office and the Mehl office in Goshen.
THE COURT: State versus Havrilenko. Cause coming on for sentencing. The Sheriff now produces the defendant in open court. Present, Richard W. Mehl and R.L. Mehl as counsel for the defendant; Max Walker, Deputy Prosecuting Attorney. The defendant now, in person, informs the Court that he does not desire to be represented by counsel and that he now desired to represent himself. Counsel for the defendant further represents to the Court that they had, in fact, entered into an agreement to appear for the defendant for sentencing and for purposes of perfecting an appeal and that the defendant had, in fact, paid sufficient sums of money within which to complete all sentencing procedures and all appeal procedure to the Indiana Supreme Court and the defendant having now discharged his counsel and having indicated that he now desires to represent himself, the Court now grants the request and now discharges Richard W. Mehl and R.L. Mehl as counsel for the defendant and now further finds that the defendant is, in fact, not an indigent person and therefore, not entitled to the appointment of counsel either for purposes of sentencing or for the purposes of perfecting an appeal.
See Tr. Transcript, pp. 565-568. It is evident from this colloquy that petitioner wished to represent himself.
The state trial court then sentenced petitioner and informed him of his right to appeal and the procedures involved therein:
BY THE COURT:
Q Okay, Mr. Havrilenko, having been found guilty, and the Court having sentenced you to 40 years, I now must inform you that you have the right to take an appeal from this conviction, if you desire to do so. I would further indicate to you that it's necessary that you file a motion to correct errors within 60 days from this date. The motion to correct errors sets forth what mistakes or errors at law you believe were committed or anything that you believe was not proper that occurred during the time of the trial. You must set those things forth in a motion to correct errors. That must be on file within 60 days from this date. Thereafter, the Court will conduct a hearing and make a ruling on the motion to correct errors. If that ruling is overruled, then you will have 30 days from that date in which to file a request for a praecipe with the Clerk directing exactly what part of the record you wish prepared to use for an appeal. Okay, also do you understand that for purposes of preparing an appeal, you are entitled to be represented by an attorney. If you do have any money, you are entitled to be represented by a lawyer without cost to you. The Court has already held a hearing today and it's already determined that you had, in fact, made sufficient arrangements with Mr. Mehl to represent you during the sentencing and in fact, paid him enough money to perfect an appeal. That indicates to me that you are not an indigent person. You are not a pauper. You are not a poor person. This Court is under no obligation to appoint a public defender or any other lawyer paid for by state funds for purposes of your appeal. If you wish to appeal this case, you may do so, but you have to hire and pay for your own lawyer. Do you know, at this time, whether or not you wish to appeal?
A I (sic) think about it.
Q Do you understand what I said about the lawyer?
A (Witness nods head affirmatively)
Q You are not sure, at this time, whether you do or you don't?
A Oh, I'm pretty sure, if you say so.
Q Do you remember the crucial time limit? If you desire to appeal, you must present and file with this Court a motion to correct errors setting forth all the things that you consider to be mistakes within 60 days from this date. Do you understand that?
A Yeah.
THE COURT: The Court now informs the defendant that he has the right to an appeal and that if he desires to perfect an appeal, he must file a written motion to correct errors within 60 days from this date and that following ruling on said motion will have 30 days within which to file a praecipe directing the Clerk to prepare the record necessary for appeal. The Court now inquires of the defendant whether he desires to perfect an appeal, and the defendant responds that he will think about it. The Court further informs the defendant of his right to counsel and further readvises the defendant that because he has made arrangements to hire private counsel for purposes of appearing for sentencing this date and that he had, in fact, paid sufficient monies to perfect an appeal, the Court now finds that the defendant is not an indigent person and is not entitled to pauper counsel and that any appeal transcript as well as attorney fees must be paid for by the
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