Horsley v. Simpson, 25557.

• Decision Date: 16 September 1968
• Docket Number: No. 25557.,25557.
• Citation: 400 F.2d 708
• Parties: William Leon HORSLEY, Appellant, v. C. M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

400 F.2d 708 (1968)

William Leon HORSLEY, Appellant, v. C. M. SIMPSON, Warden, Kilby Prison, Montgomery, Alabama, Appellee.

No. 25557.

United States Court of Appeals Fifth Circuit.

September 16, 1968.

Charles Stakely, Montgomery, Ala., for appellant.

David W. Clark, Asst. Atty. Gen., Montgomery, Ala., for appellee.

Before GEWIN and THORNBERRY, Circuit Judges, and EDENFIELD, District Judge.

GEWIN, Circuit Judge:

Appellant was convicted by a jury on September 27, 1962, in the Circuit Court of Saint Clair County, Alabama, of having carnal knowledge of his seven-year-old daughter. He was sentenced to the state penitentiary for a term of twenty years. After the adverse jury verdict, Appellant's counsel neither moved the court for a new trial nor appealed the case to the state appellate court. Appellant twice petitioned the sentencing court for a writ of error coram nobis but was unsuccessful. Having exhausted his state remedies, Appellant filed in forma pauperis a petition for a writ of habeas corpus in the United States District Court for the Middle District of Alabama, alleging that his conviction was due to inadequate assistance of counsel and that he was unlawfully denied his right to appellate review in violation of his sixth and fourteenth amendment rights. The district court denied the relief sought in the habeas corpus petition and Appellant perfected an appeal to this court. We reverse the judgment of the district court.

On June 19, 1962, Appellant's wife swore out a warrant for the arrest of her husband. Appellant was taken into custody the following day and thereafter retained attorney Thurston Starnes to defend him. Although the counsel fee was set at $500, Appellant was able to pay only $80 to $100 and, subsequently, the court appointed both Starnes and H. E. Holladay to represent him. Appellant's wife and daughter were the principal witnesses against him at the trial. Mrs. Horsley testified that the alleged crime occurred around noon on the last Sunday in May. She stated that she had not complained to the authorities until June 19 because she had not had an earlier opportunity.¹

In the habeas corpus proceeding below, Appellant's first contention was that his attorney at the criminal trial had failed adequately to cross-examine his wife as to her alleged inopportunity to file a complaint against him earlier. The district court conducted a plenary hearing, in which numerous witnesses, including attorney Starnes, were called to testify. The court found from the evidence that detailed cross-examination of Appellant's wife would necessarily have injected evidence of another criminal violation into the case and, therefore, that Starnes' election not to pursue cross-examination was a matter of judgment. The district court concluded that Appellant had adequate and effective defense counsel at all times in the state court prosecution.

We agree with the district court's conclusion that Appellant was adequately represented at trial. The evidence in the record does reflect that Mrs. Horsley was in error when she testified at trial that she did not have an opportunity to complain until June 19. Several officials testified in the habeas corpus proceeding that on June 6 Appellant's wife and children were present at his hearing before the county court on a whiskey charge, and that Mrs. Horsley made no attempt at that time to bring a complaint against her husband. This fact, however, was not brought out at trial. Instead, Starnes tried to discredit Mrs. Horsley's testimony by emphasizing the length of time between the alleged offense and the arrest and by stressing the fact that Mrs. Horsley had continued to live with Appellant until the day of his arrest. At the habeas corpus hearing, Starnes testified that he did not question Mrs. Horsley about her appearance at Appellant's hearing on the whiskey charge because he thought it was in the best interest of his client to keep testimony regarding whiskey violations out of the trial.

In Williams v. Beto, this court stated the controlling principles in determining the adequacy of legal counsel:

It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.²

The federal appellate courts are not in the business of rating legal performance. Our function is merely to ensure that the representation of criminal defendants is not so inadequate as to violate due process of law. We think that the district court's finding that Starnes represented Appellant with devotion and faithfulness is amply supported by the record.

Appellant also argued in the district court that he was denied his right to a direct appeal by his counsel's failure to appeal the conviction. The district court found that Appellant and his attorney had discussed in some detail the question of an appeal shortly after his conviction. Finding that Starnes had advised against appealing, the court concluded that Appellant,

whether upon this advice or not, intelligently and deliberately failed to appeal from the conviction. There was no reliance by Horsley upon Starnes to appeal the case, or to take any other steps in connection with an appeal of the case.

After a careful review of the entire record, we are of the opinion that the district court's finding that Appellant intelligently and deliberately waived his right to appeal was clearly erroneous.

During the hearing in the court below Appellant testified that, when he retained Starnes, the attorney had agreed to take the case through the state appellate courts if necessary. Appellant further stated that, following his conviction, Starnes told him, his mother and brother that he was going to appeal the case. Although he never talked to Starnes again, Appellant testified that he thought Starnes was taking care of his appeal. In addition, Appellant stated that after he had been in jail for two or three months, he wrote to Starnes several times but received no reply. He then wrote to the Clerk of the Court of Appeals of Alabama inquiring about his appeal. The Clerk answered Appellant by letter, advising him that no appeal had been filed and suggesting that he write to the Circuit Clerk of Saint Clair County and to his lawyer. Appellant testified that he wrote to both the Clerk and Starnes but received no answer.

Starnes testified that when Appellant retained him as defense counsel, he told Appellant that he would only handle the trial. He stated that he assumed that Appellant understood what he had told him. According to Starnes, after the conviction Appellant had inquired about an appeal and he informed him that he could take an appeal but that it would not be worthwhile because the chances of success were slim. He stated that he told Appellant that transcripts were needed on appeal and that Appellant would have to bear the expense. Starnes testified that Appellant told him that he did not have any money. He admitted that he did not inform Appellant about time limits for filing a motion for a new trial or for perfecting an appeal. At one point Starnes testified that he advised Appellant that he would not represent him further. However, Starnes was asked if Appellant was expecting him to appeal and he indicated that he was not certain that Appellant had understood it.³ Starnes stated that he did not recall receiving any letters from Appellant asking about an appeal. However, he testified that one of Appellant's relatives came to see him after the trial inquiring about an appeal.

There can be no question that an indigent who manifests a desire to appeal his conviction is entitled to the services of a court-appointed attorney.⁴ In Anders v. State of California,⁵ the Supreme Court held that, if counsel determines that an appeal would be wholly frivolous, he should notify the appellate court and request to withdraw. The request must be accompanied by a brief referring to any legal points arguable on appeal and the appellate court, not counsel, must then examine the record to decide whether the case is devoid of merit. It is true that in Worts v. Dutton⁶ we held that where appointed counsel unequivocally refuses to handle the appeal and makes this decision clear to his indigent client, if the client does not thereafter indicate to some responsible state official that he wishes to appeal or to have counsel on appeal, there has been no denial of his constitutional right to a direct appeal. We are of the opinion, however, that there are material factual differences between Worts and the instant case which compel our conclusion that Appellant was denied his right to a direct appeal.⁷

First, we are convinced that Appellant never clearly understood that Starnes was not taking an...