Langford v. State of Alabama, 27006.
Decision Date | 19 February 1970 |
Docket Number | No. 27006.,27006. |
Citation | 422 F.2d 760 |
Parties | Curtis LANGFORD, Plaintiff-Appellant, v. STATE OF ALABAMA, Defendant-Appellee. |
Court | U.S. Court of Appeals — Fifth Circuit |
Curtis Langford, pro se.
Drayton Nabers, Jr., Court appointed, Frank P. Samford, III, Cabaniss, Johnston, Gardner & Clark, Birmingham, Ala., for appellant.
David W. Clark, Asst. Atty. Gen. of Ala., Macdonald Gallion, Atty. Gen. of Ala., Montgomery, Ala., for appellee.
Before RIVES, COLEMAN and MORGAN, Circuit Judges.
Rehearing Denied and Rehearing En Banc Denied February 19, 1970.
This is an appeal from an order of the United States District Court denying appellant's petition for writ of habeas corpus. After exhausting all comparable state remedies, appellant Curtis Langford filed on November 30, 1966, a petition for writ of habeas corpus in the United States District Court. The petition was dismissed without a hearing; however, upon appeal this Court remanded for a plenary hearing, 387 F.2d 647. After such hearing, the District Court again denied the petition for writ of habeas corpus, and the appeal from this second denial after a hearing is the one presented to us for consideration.
Curtis Langford was convicted of robbery on December 16, 1964, and sentenced to a term of ten years in the Alabama State Penitentiary. He did not perfect an appeal from this conviction. During the trial Langford was represented by retained counsel who was employed for him by his father, Ben Langford. The attorney who was representing Curtis Langford withdrew from the case without giving notice of appeal, although he knew of Langford's desire to appeal. This desire to appeal was communicated to the State Trial court on several occasions and was verified by several witnesses. During cross-examination, the following testimony was elicited from appellant Langford:
Curtis Langford's father, Ben Langford, responded under redirect examination as follows:
Mr. Robert Lee Eggleston, who was present in court when Curtis Langford was convicted, stated under oath that he heard the appellant express his desire in the courtroom for an appeal. The record is quite lucid on this point and there is no doubt that Langford's desire to appeal was communicated to the Judge.
The other principal factual question concerns whether a responsible state official was made cognizant of Curtis Langford's indigency. The only evidence that such was communicated to the state is the discussion of Ben Langford with the Trial Judge concerning a transcript. After the December 16th trial, Ben Langford testified that the following occurred:
Pate v. Holman, 341 F.2d 764 (5 Cir., 1965); Worts v. Dutton, 395 F.2d 341 (5 Cir., 1968); Edge v. Wainwright, 347 F.2d 190 (5 Cir., 1965). There is no question but that the Trial Judge was given notice that Langford desired to appeal. The District Court in its opinion denied Langford's petition stating that he failed to give notice to a state official he wished to appeal. The district Court opined:
That Court was in error to conclude from the above that no notice of appeal was given to a state official. The testimony of three individuals concurred in the fact that Langford informed the Trial Court he wished to appeal. No requirement has been established that the notice of appeal must be formal. On the contrary, the law is pellucid that if a state official has "knowledge" of the desire to appeal this is sufficient. Pate v. Holman, 341 F.2d 764 (5 Cir., 1965). It is quite immaterial how the state official acquires this knowledge.
The signal issue confronting the Court is a factual one as to whether "a responsible official in the state's system of justice" was made aware of Langford's indigent status on appeal. The District Court did not discuss this question.
Most cases concerning appointment of counsel on appeal for an indigent who retained his attorney at trial have been concerned with whether a state official knew of the desire to appeal. In the case at bar, Curtis Langford stated in court he wished to appeal. In this appeal, it is the second part of the double criterion of communication to a state official which appears to be absent, viz., indigency.
The right to counsel on appeal is fundamental. It is not dependent upon the use of magic words such as "pauper" or "indigent"; however, the thought contained in these terms must be conveyed to a state authority, i.e., the lack of money. In this case, it is not clear that this thought was brought home to the Trial Judge. The testimony of Ben Langford contains a contradiction on this point. When asked directly by the District Judge whether he stated to the Trial Judge that they didn't have any money, Ben Langford answered, "No." However, when later discussing on the stand what he told the Trial Judge, Ben Langford said he informed him that he didn't have any money. The testimony is not certain on this point. There is no other testimony in the record concerning indigency and we cannot rely solely on these opposing statements. Therefore, as to the results reached by the District Court on this contention, we must affirm.
Curtis Langford's final contention is that he was denied assistance of counsel during his 1964 trial. The case of Howard v. Beto, 375 F.2d 441 (5 Cir., 1967), is the latest pronouncement of the law by this Court on this point. To reiterate the Court's view in that case:
(Cases omitted).
A thorough discussion of the cases concerned with this problem is contained in dictum of Breedlove v. Beto, 404 F.2d 1019 (5 Cir., 1968). However, as the most recent and exacting case on the question, we adhere to Howard, supra.
Accordingly, the appellant's petition for writ of habeas corpus was correctly denied, and the final judgment of the District Court is...
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