Lewis v. Duckworth, 81-1139

• Decision Date: 11 June 1982
• Docket Number: No. 81-1139,81-1139
• Citation: 680 F.2d 508
• Parties: Arthur James LEWIS, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, Indiana State Prison, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 508

680 F.2d 508

Arthur James LEWIS, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, Indiana State Prison, Respondent-Appellee.

No. 81-1139.

United States Court of Appeals, Seventh Circuit.

Argued March 2, 1982.

Decided June 11, 1982.

Herbert L. Zarov, Friedman & Koven, Chicago, Ill., for petitioner-appellant.

Charles N. Braun, II, Deputy Atty. Gen., Linley E. Pearson, Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before BAUER, CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

We consider in this case a claim that the State of Indiana denied an indigent criminal defendant a free transcript of the trial record for use in appealing his conviction and refused to appoint counsel to assist him in his appeal, thereby violating his rights under the due process and equal protection clauses of the Fourteenth Amendment.

Arthur James Lewis was convicted of second-degree murder for killing a sheriff who was trying to prevent him from escaping from jail. On September 26, 1968, he was sentenced to life imprisonment. He had until January 22, 1969, to file a notice of appeal. On November 18 he moved for a transcript and for appointment of counsel on appeal. The same day he escaped from prison. He was not returned to the prison until May 31, 1969. His motion for a transcript and appointment of counsel had been denied, because of his fugitive status, on November 27, 1968. No notice of appeal was ever filed.

In 1970 Lewis filed a petition for postconviction relief in the Indiana courts, asking for a belated appeal of his conviction. The petition was denied; the Supreme Court of Indiana affirmed the denial sub nom. Lewis v. State, 268 Ind. 398, 375 N.E.2d 1102 (1978); and Lewis then filed a petition for federal habeas corpus. It too was denied and this appeal followed.

Under Indiana law a fugitive is not permitted to perfect an appeal from his conviction until he is returned to custody, so that if he is not returned until the deadline for perfecting the appeal has passed he cannot appeal at all. See, e.g., Irvin v. State, 236 Ind. 384, 139 N.E.2d 898 (1957). That was Lewis's situation if he was a fugitive on January 22, 1969, as everyone thought until shortly before this appeal was argued. The Supreme Court has repeatedly upheld this type of rule against constitutional challenge, most recently in Estelle v. Dorrough, 420 U.S. 534, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975). Since the rule is valid, Lewis's complaint about being denied a transcript and appointed counsel, both of which he wanted purely for purposes of appealing his conviction, is moot. No appeal could have been perfected while he was a fugitive, no matter how many lawyers had been representing him.

It is true that in Ruetz v. Lash, 500 F.2d 1225 (7th Cir. 1974), this court refused to apply the Indiana rule to the following facts. Ruetz had, through appointed counsel, filed a timely motion that was a prerequisite to appeal, but then he had decamped, and although he was returned to custody before the state court ruled on his motion, that court denied the motion because he had been a fugitive for part of the time that it was pending. This court held that in these circumstances Ruetz had not waived, and therefore could not constitutionally be denied, his right under state law to appeal his conviction.

Ruetz may no longer be good law even if one accepts the proposition, fundamental to Ruetz, that it is unreasonable for the state to deny an appeal to anyone who has not waived his right to appeal; for the court in Ruetz used the very narrow definition of waiver ("deliberate bypass") that the Supreme Court had adopted in Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), see 500 F.2d at 1228-29, and this definition was rejected several years after the Ruetz decision, in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The basic premise of the Ruetz decision-that waiver is the only constitutionally permissible basis for denying an appeal that is otherwise a matter of right-is also shaky. One year after Ruetz was decided, the Supreme Court in Estelle v. Dorrough, supra, upheld a Texas rule rather similar to that involved in Ruetz. The Texas rule provided for automatic dismissal of any pending appeal if the criminal defendant escaped from custody, even if he was returned to custody almost immediately. This is not identical to but has the same effect as the Indiana rule...