Kirby v. Dutton

• Decision Date: 08 July 1986
• Docket Number: No. 84-5757,84-5757
• Citation: 794 F.2d 245
• Parties: Johnny Lee KIRBY, Petitioner-Appellant, v. Michael DUTTON, Warden; William Leech, Attorney General, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 245

794 F.2d 245

Johnny Lee KIRBY, Petitioner-Appellant, v. Michael DUTTON, Warden; William Leech, Attorney General Respondents-Appellees.

No. 84-5757.

United States Court of Appeals Sixth Circuit.

Argued June 3, 1986.

Decided July 8, 1986.

W.J. Michael Cody, Atty. Gen., Bettye Springfield-Carter, argued, Michael Dutton, Warden Tennessee State Penitentiary, Nashville, Tenn., for respondents-appellees.

Thomas W. Brothers (CJA), argued, Nashville, Tenn., for petitioner-appellant.

Before MARTIN, KRUPANSKY and GUY, Circuit Judges.

BOYCE F. MARTIN, Jr., Circuit Judge.

Johnny Lee Kirby appeals the district court's denial of his petition for habeas corpus. Kirby was convicted in Tennessee state court of two counts of assault with intent to commit murder. The Tennessee Court of Criminal Appeals affirmed Kirby's conviction and the Tennessee Supreme Court denied leave to appeal. Kirby is now an inmate serving two concurrent sentences of twenty years.

Kirby's appeal before this Court stems from a state post-conviction proceeding which Kirby filed in an attempt to overturn his conviction. In that collateral proceeding, the state court appointed counsel to represent Kirby pursuant to Tennessee Code section 40-14-204 which provides that a court must "appoint counsel, if necessary" for indigents in post-conviction proceedings. See also Tenn.Code Ann. Sec. 40-30-121. The court later granted the State's motion to dismiss the post-conviction action. Kirby then filed a pro se notice of appeal and his attorney sought permission to withdraw because Kirby no longer desired his representation. The trial court denied the attorney's request. Kirby filed a motion to discharge counsel and appoint new counsel for purposes of Kirby's appeal in the Tennessee Court of Criminal Appeals. Kirby claimed that his attorney had rendered ineffective assistance in the collateral post-conviction action. The Court of Criminal Appeals denied the motion and the Tennessee Supreme Court has denied Kirby leave to appeal to that court.

Kirby filed this federal habeas corpus action under 28 U.S.C. Sec. 2254 claiming that he was deprived of effective assistance of counsel in the post-conviction proceeding because his attorney did not subpoena all of the witnesses Kirby thought should be subpoenaed, the attorney did not call the witnesses that Kirby thought he should have called, and the attorney did not object to the State's motion to dismiss. Kirby claims that his attorney's inaction deprived him of effective assistance of counsel in violation of the sixth amendment. The district court concluded that the sixth amendment did not apply to this case because the post-conviction proceeding was civil in nature, not criminal. The sixth amendment requires effective assistance of counsel only in criminal proceedings. The district court summarily dismissed the action.

On appeal, Kirby indicates that he claims in his petition that he was denied due process and equal protection when the court refused to replace his counsel and forced him to continue with unwanted counsel. Kirby argues that once the trial court determined that Kirby was entitled to representation in the collateral attack proceeding because he was an indigent, then Kirby was entitled to effective and meaningful representation in order to satisfy the requirements of fundamental fairness guaranteed by the due process clause of the fifth and fourteenth amendments of the United States Constitution. Kirby further argues that he is entitled to effective and meaningful representation pursuant to the equal protection clause of the fourteenth amendment and was denied this because a solvent petitioner could have replaced his counsel immediately with counsel willing to zealously and competently represent his interests. The government claims that Kirby has not exhausted available state remedies because he did not present the substance of his claims in the state courts.

We are not required to analyze the substance of Kirby's equal protection and due process arguments or the government's exhaustion argument. Nor are we required to determine the correctness of the district court's conclusion that the sixth amendment cannot apply to Kirby's post-conviction proceeding because the post-conviction proceeding is civil, not criminal in nature. ¹ We need not reach these issues because we hold that Kirby's claims cannot be brought under the federal habeas corpus provision, 28 U.S.C. Sec. 2254.

Section 2254(a) states that a federal court "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." The writ, traditionally, has been available when the petitioner is in custody or threatened with custody and the detention is related to a claimed constitutional violation. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court analyzed the scope of the applicability of the writ of habeas corpus, stating:

It is clear, not only from the language of ... Sec. 2254(a), but also from the common-law history of the writ, that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody.

411 U.S. at 484, 93 S.Ct. at 1833. In Preiser, three prisoners had brought a suit under 42 U.S.C. Sec. 1983, claiming that they were unconstitutionally deprived of good-time credits as a result of disciplinary proceedings. In each case, restoration of the goodtime credits would result in immediate release. Id. at 476, 93 S.Ct. at 1829. The Court held that habeas corpus was the exclusive mode of relief because this situation "fell squarely within [the] traditional scope of habeas corpus." Id. at 487, 93 S.Ct. at 1833. The deprivation of the good-time credits would cause the prisoners to be illegally detained longer than they would otherwise be detained if the good-time credits were awarded. Id.

In contrast, Kirby claims a denial of the sixth amendment right to effective assistance of counsel, a denial of due process, and a denial of equal protection in the State post-conviction proceedings--claims unrelated to his detention. Kirby has raised no other claims deriving from the conviction or sentencing proceeding. If we were to allow Kirby to proceed on his petition and if we were to hold in favor of Kirby, the result would not be release or a reduction in Kirby's time to be served or in any other way affect his detention because we would not be reviewing any matter directly pertaining to his detention.

The analysis of the writ of habeas corpus in Preiser directs us to the conclusion that habeas corpus should not be available to Kirby. However, in Preiser, the analysis was in the context of whether 42 U.S.C. Sec. 1983 could be used if the prisoner was challenging the fact or length of his incarceration. The Court held that habeas corpus was the only available relief, but did not address the question of whether habeas corpus was not available if the fact or length of the incarceration was not being challenged by the petition on the writ.

Our conclusion that habeas corpus is not applicable to Kirby is bolstered by the decisions of other circuits facing the question of whether habeas corpus can be used to challenge state post-conviction proceedings....