Jones v. Cowley

• Decision Date: 30 June 1994
• Docket Number: No. 93-6277,93-6277
• Citation: 28 F.3d 1067
• Parties: Cecil C. JONES, Petitioner-Appellant, v. Jack COWLEY; Attorney General of the State of Oklahoma, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1067

28 F.3d 1067

Cecil C. JONES, Petitioner-Appellant, v. Jack COWLEY; Attorney General of the State of Oklahoma Respondents-Appellees.

No. 93-6277.

United States Court of Appeals Tenth Circuit.

June 30, 1994.

Cecil C. Jones, pro se.

Susan B. Loving, Atty. Gen., Diane L. Slayton, Asst. Atty. Gen., Oklahoma City, OK, for respondents-appellees.

Before LOGAN and SETH, Circuit Judges, and KELLY, ^* District Judge.

LOGAN, Circuit Judge.

Petitioner Cecil C. Jones appeals from an order of the district court adopting the findings and recommendation of the magistrate judge and denying his petition for a writ of habeas corpus. In his pro se application, filed pursuant to 28 U.S.C. Sec. 2254, petitioner contended that he was denied a direct appeal of his criminal convictions through no fault of his own when his retained counsel failed to perfect his appeal. ¹

In examining the district court's order, we review conclusions of law de novo. Martin v. Kaiser, 907 F.2d 931, 933 (10th Cir.1990). State court factual findings, with specified exceptions, carry a presumption of correctness. 28 U.S.C. Sec. 2254(d); see Lujan v. Tansy, 2 F.3d 1031, 1034 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1074, 127 L.Ed.2d 392 (1994). We review petitioner's pro se pleadings under a liberal standard, Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972). Applying that standard we construe his arguments as claims of ineffective assistance of counsel. See Osborn v. Shillinger, 997 F.2d 1324, 1328 n. 1 (10th Cir.1993).

I

Petitioner was convicted on eight counts by an Oklahoma court and is currently serving an aggregate sentence of 340 years. He was represented by retained counsel at trial. At sentencing, petitioner and his counsel certified to the state court that petitioner did not seek appointed counsel or a trial transcript at public expense. Counsel stated that he was willing to represent petitioner on appeal. Counsel subsequently filed a notice of intent to appeal, but did not perfect the appeal.

Proceeding pro se, petitioner filed a state post-conviction application alleging that counsel had failed to perfect his appeal. That same counsel represented petitioner at a post-conviction hearing, where the state trial court found that petitioner had "and has [had] since his arrest on these charges, [a] willing and able attorney." I R. tab 8, Ex. C, Post Conviction Findings. The court denied the post-conviction application, concluding that petitioner was not denied an appeal through no fault of his own, ² and that he was not entitled to appointment of counsel or an appeal out of time at public expense. Petitioner appealed this determination, and the Oklahoma Court of Criminal Appeals remanded, directing the trial court to set out its findings of fact and conclusions of law. The state trial court's amended post-conviction findings included findings that petitioner (a) had paid $130 for his preliminary hearing transcript, (b) had failed to comply with Okla.Stat.Ann. tit. 20, Sec. 106.4(b), and (c) had never requested a trial transcript at public expense. The court reiterated its earlier finding that petitioner's counsel had "expressed an ever present and continued willingness to represent defendant on appeal." Id., Ex. F.

The Oklahoma Court of Criminal Appeals perceived a conflict between counsel's expressed willingness to proceed and his failure to perfect petitioner's appeal, and again remanded for clarification. The state trial court again filed amended post-conviction findings, stating: "Petitioner's counsel did not perfect the appeal because Petitioner never did make it possible for his counsel to obtain a transcript of the trial for his counsel to use in preparing a brief on appeal." Id., Ex. G. The court concluded: "Petitioner's failure to provide his counsel with a trial transcript relieved his counsel of any obligation to perfect an appeal." Id. On appeal, the Oklahoma Court of Criminal Appeals affirmed the state court's order. The state trial court subsequently granted petitioner's counsel leave to withdraw as attorney of record.

Petitioner filed a second pro se application for post-conviction relief, requesting an appeal out of time, appointed counsel, and a trial transcript at public expense. The state trial court denied the application because it raised the same issues petitioner had raised in his first post-conviction application. The Oklahoma Court of Criminal Appeals affirmed on the basis of res judicata and waiver.

Petitioner then filed for habeas relief in the federal district court, and the state responded that petitioner had waived his right to a direct appeal by failing to pay for a transcript. The district court found that petitioner was not denied an appeal through no fault of his own, either as a result of the state court's finding that he had not shown indigence, or as a result of counsel's failure to perfect his appeal, again relying on petitioner's failure to obtain a transcript of the trial.

II

In Abels v. Kaiser, 913 F.2d 821 (10th Cir.1990), as here, the defendant's retained trial counsel filed a notice of intent to appeal following the defendant's criminal sentencing. However, counsel did not file a brief within the time for perfecting an appeal, apparently because the defendant had not paid for services counsel had already performed. Counsel notified the court clerk that he would no longer represent the defendant, although subsequently he assisted the defendant in an unsuccessful attempt to establish indigence and secure appointed counsel. On review of the district court's denial of the defendant's habeas petition, we held that, once the defendant indicated his desire to appeal, counsel's failure to perfect the appeal, "when he had not been relieved of his duties through a successful withdrawal," constituted a violation of the defendant's constitutional right to effective assistance of counsel on appeal. Id. at 823 (citing Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37, 83 L.Ed.2d 821 (1985)).

Counsel, whether retained or appointed, has a duty to protect a defendant's right to appeal. See Evitts, 469 U.S. at 399, 105 S.Ct. at 837. Counsel cannot discharge this duty by allowing a defendant's appeal time to expire without taking proper action. See Baker v. Kaiser, 929 F.2d 1495, 1499 (10th Cir.1991) (if defendant wants to appeal "counsel must perfect an appeal").

In a decision issued contemporaneously with our Abels v. Kaiser decision the Oklahoma Court of Criminal Appeals affirmed denial of an application for appeal out of time based on retained counsel's refusal to file a petition in error in the appellate court because the defendant-appellant had not paid his attorney's fee. Pueblo v. State, 799 P.2d 141 (Okla.Crim.App.1990). That court said, "Appellant cannot yoke retained trial counsel into involuntary servitude by merely saying he wants to appeal after trial counsel has fulfilled his trial duties and Appellant fails to compensate him for additional services." Id. at 142.

In the instant case the state court rulings do not mention either Abels v. Kaiser or Pueblo v. State. The magistrate judge in the instant case, however, attempted to distinguish our opinion in Abels v. Kaiser on the basis of the Oklahoma Court of Criminal Appeals comments on remand in Abels v. State, 804 P.2d 454 (Okla.Crim.App.1991). In Abels v. Kaiser we cited Rule 3.6 A of the Rules of the Oklahoma Court of Criminal Appeals, which "requires that, once an attorney makes an appearance, he must 'diligently proceed with the appeal including the filing of a brief, until and unless withdrawal as the attorney of record is granted by' the court." 913 F.2d at 823 (quoting Okla.Crim.App.R. 3.6 A). We noted that Abels' counsel had filed a notice of intent to appeal, and said this "apparently constitute[d] an appearance sufficient to bind him to this duty." Id.

On remand in Abels the Oklahoma Court of Criminal Appeals commented on our citation to Rule 3.6 A:

The Court of Appeals, 10th Circuit, did not seek a determination of state law prior to rendering this decision and based its decision on what, in their view, was "apparently" the law in Oklahoma. Had a determination of state law been requested the Court would have been provided the interpretation we rendered in Pueblo v. State, 799 P.2d 141 (Okl.Cr.1990), wherein we stated that "the general rule of law in Oklahoma is that the last act required of trial counsel is the filing of all jurisdictional documents required to be filed in the district court to perfect an appeal, if an appeal is to be initiated." We further determined that "[a]n appearance before this Court for purposes of perfecting an appeal is not made until the filing of the Petition in Error, with supporting original record and transcript of evidence" as required by our rules. 799 P.2d at 141.

Abels v. State, 804 P.2d at 455.

Abels v. State can be read as reaching the following conclusions: (1) that as a matter of state law trial counsel, retained or appointed, has no duty to act for the defendant beyond filing a notice of intent to appeal; (2) that this is not in conflict with Oklahoma Rule 3.6 A which requires an attorney who "makes an appearance" to proceed, including filing a brief, until relieved by an order of the court; and (3) that is not in conflict because until the attorney files a Petition in Error, with supporting original record and transcript of the evidence he has not "appeared" in the appellate court. ³ If the attorney fails to appear in the appellate court but the defendant is not at fault--e.g., he hired and paid a lawyer for an appeal the attorney never perfected--presumably the state's "through no fault of his own" standard would permit the defendant to appeal out of time.

The magistrate judge in the case before us appears to have analyzed the case in the manner described. He concluded that the nonindigent petitioner's failure to pay...