Kitchens v. Smith, No. 6131

CourtUnited States Supreme Court
Writing for the CourtPER CURIAM
Citation401 U.S. 847,28 L.Ed.2d 519,91 S.Ct. 1089
PartiesJames Melvin KITCHENS v. S. Lamont SMITH, Warden
Decision Date05 April 1971
Docket NumberNo. 6131

401 U.S. 847
91 S.Ct. 1089
28 L.Ed.2d 519
James Melvin KITCHENS

v.

S. Lamont SMITH, Warden.

No. 6131.
April 5, 1971.

PER CURIAM.

Petitioner pleaded guilty to robbery in a Georgia state court in 1944. He was not represented by counsel at any time. While serving his sentence, petitioner escaped and did not return to Georgia until 1969, when he was returned to finish the remainder of his sentence. He then brought this habeas corpus action in county court, alleging that his conviction was void under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The county court denied relief because Gideon was 'recent law and under the law at the time of his sentence, the sentence met the requirements of the law at that time.' This was error since as we have often noted, Gideon is fully retroactive. See, e.g., Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); Desist v. United States, 394 U.S. 244, 250 n. 15, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); McConnell v. Rhay, 393 U.S. 2, 3, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); Stovall v. Denno, 388 U.S. 293, 297—298, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

Page 848

On appeal, the Georgia Supreme Court affirmed the denial of habeas corpus on different grounds, saying that petitioner did not testify at the habeas corpus hearing that he 'wanted a lawyer, asked for one, or made any effort to get one' or that 'because of his poverty, or for any other reason, he was unable to hire a lawyer.' 226 Ga. 667, 177 S.E.2d 87—88 (1970).

As this Court has said, however, '(I)t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request.' Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 889, 8 L.Ed.2d 70 (1962). This applies to guilty pleas as well as to trials. Uveges v. Pennsylvania, 335 U.S. 437, 441, 69 S.Ct. 184, 93 L.Ed. 197 (1948).

Of course, to establish his right to appointed counsel in 1944, petitioner had the burden of proving his inability at that time to hire an attorney. His petition for habeas corpus specifically averred that he was unable to obtain counsel 'because of his impoverished condition' at that time. The respondent denied this allegation and thus put the matter in issue. At the hearing, petitioner testified, 'I was a lot younger and I didn't have any money and I didn't have a lawyer * * *.' (Emphasis added.) The State made no effort whatever to contradict petitioner's...

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98 practice notes
  • Lewis v. United States, No. 78-1595
    • United States
    • United States Supreme Court
    • February 27, 1980
    ...waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U.S. 847 (1971). Page 60 The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the Court held that a conviction invalid under Gideon could no......
  • Mitchell v. United States, No. 72-3661.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 1, 1973
    ...the party collaterally attacking a conviction has the burden of proving his indigency during the relevant period. Kitchens v. Smith, 1971, 401 U.S. 847, 91 S.Ct. 1089, 28 L. Ed.2d 519; accord Goodwin v. Smith, 5th Cir. 1971, 439 F.2d 1180. Generally, when the collateral attacker alleges and......
  • Schick v. Reed 8212 5677, No. 73
    • United States
    • United States Supreme Court
    • December 23, 1974
    ...right to counsel in state felony trials. See Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963); Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S......
  • Simmons v. Kapture, No. 03-2609.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 15, 2008
    ...the holding of Gideon itself, 372 U.S. at 344-45, 83 S.Ct. 792, which was judged to be retroactively applicable in Kitchens v. Smith, 401 U.S. 847, 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). The right to counsel at plea hearings, recognized in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, ......
  • Request a trial to view additional results
98 cases
  • Lewis v. United States, No. 78-1595
    • United States
    • United States Supreme Court
    • February 27, 1980
    ...waiver of counsel, was unconstitutional under the Sixth and Fourteenth Amendments. That ruling is fully retroactive. Kitchens v. Smith, 401 U.S. 847 (1971). Page 60 The second case is Burgett v. Texas, 389 U.S. 109 (1967). There the Court held that a conviction invalid under Gideon could no......
  • Mitchell v. United States, No. 72-3661.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 1, 1973
    ...the party collaterally attacking a conviction has the burden of proving his indigency during the relevant period. Kitchens v. Smith, 1971, 401 U.S. 847, 91 S.Ct. 1089, 28 L. Ed.2d 519; accord Goodwin v. Smith, 5th Cir. 1971, 439 F.2d 1180. Generally, when the collateral attacker alleges and......
  • Schick v. Reed 8212 5677, No. 73
    • United States
    • United States Supreme Court
    • December 23, 1974
    ...right to counsel in state felony trials. See Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963); Kitchens v. Smith, 401 U.S. 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); United States v. Tucker, 404 U.S......
  • Simmons v. Kapture, No. 03-2609.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 15, 2008
    ...the holding of Gideon itself, 372 U.S. at 344-45, 83 S.Ct. 792, which was judged to be retroactively applicable in Kitchens v. Smith, 401 U.S. 847, 847, 91 S.Ct. 1089, 28 L.Ed.2d 519 (1971). The right to counsel at plea hearings, recognized in White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, ......
  • Request a trial to view additional results

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