Lucey v. Kavanaugh, No. 82-5596
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | Before EDWARDS and CONTIE, Circuit Judges, and SPIEGEL; GEORGE CLIFTON EDWARDS, Jr. |
| Citation | 724 F.2d 560 |
| Parties | Keith E. LUCEY, Petitioner-Appellee, v. Paul KAVANAUGH, Supt., et al., Respondents-Appellants. |
| Docket Number | No. 82-5596 |
| Decision Date | 12 January 1984 |
Page 560
v.
Paul KAVANAUGH, Supt., et al., Respondents-Appellants.
Sixth Circuit.
Decided Jan. 12, 1984.
Page 561
Steven L. Beshear, Atty. Gen., Gerald Henry, Asst. Atty. Gen., argued, Frankfort, Ky., for respondents-appellants.
William M. Radigan, Asst. Public Advocate, argued, Frankfort, Ky., William M. Nixon, Richmond, Ky., for petitioner-appellee.
Before EDWARDS and CONTIE, Circuit Judges, and SPIEGEL, District Judge. *
GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.
In this appeal the State of Kentucky appeals an order entered by Chief Judge Bernard Moynahan of the Eastern District of Kentucky granting a petition for writ of habeas corpus to appellee Keith E. Lucey. The essential facts and issue at law are set forth effectively in the opinion entered after a remand to Judge Moynahan, which opinion reads, in part, as follows:
Petitioner, following his conviction in the Circuit Court of Madison County, Kentucky of the offenses of trafficking in a Schedule I Controlled Substance (LSD) and trafficking in a Schedule II Controlled Substance (cocaine), was sentenced to periods of confinement of five years and ten years, to be served concurrently. He sought to collaterally attack the legality of his confinement by the filing of a Petition for Writ of Habeas Corpus, claiming denial of his Constitutional right to the effective assistance of counsel on appeal. In a Judgment entered on November 6, 1979, this Court adopted the Magistrate's Report and Recommendation which stated that "the petitioner was denied the effective assistance of counsel on appeal when his retained attorney failed to file a Statement of Appeal, thereby resulting in the dismissal of the petitioner's appeal." The petitioner was granted a conditional Writ of Habeas Corpus.
Upon appeal, the United States Court of Appeals, 645 F.2d 547, for the Sixth Circuit rendered a decision on April 2, 1981 in which the petitioner's cause was remanded to this Court for the purpose of determining whether the dismissal of the petitioner's state appeal constituted a denial of equal protection of law.
In a subsequent hearing before this Court, counsel for both parties agreed an evidentiary hearing was unnecessary. A stipulation was filed wherein the parties stated that no equal protection issue exists in this action.
On March 19, 1982, the petitioner filed a motion requesting the reissuance of the conditional Writ of Habeas Corpus heretofore granted. The sole issue upon consideration of said motion is whether the petitioner was denied his due process right to the effective assistance of counsel on appeal
Page 562
when his state appeal was dismissed because of a procedural error of his attorney.The Sixth Circuit Court of Appeals has recognized a due process right to the effective assistance of appellate counsel. Gilbert v. Sowders, 646 F.2d 1146 (6th Cir.1981); Cleaver v. Bordenkercher, 634 F.2d 1010 (6th Cir.1980).
* * *
* * *
In the instant case, the failure of petitioner's attorney to file a Statement of Appeal resulting in the foreclosure of state appellate review denied him the effective assistance of counsel. Beasley v. United States, 491 F.2d 687 (6th Cir.1974). Accordingly,...
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Evitts v. Lucey, No. 83-1378
...due process and equal protection concerns were implicated in Griffin and Douglas and both Clauses supported those decisions. Pp. 402-405. 724 F.2d 560 (CA 6, 1984), affirmed. Justice BRENNAN delivered the opinion of the Court. J. Gerald Henry, Frankfort, Ky., for petitioners. William M. Rad......
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Bowen v. Foltz, No. 83-1558
...of an attorney." Evitts v. Lucey, --- U.S. ----, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985) (footnote omitted); Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir.1984). However, since in Lucey the parties stipulated that counsel was ineffective, the Court concluded that "[w]e therefore need not deci......
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State v. Hurt, No. 19263-6-III.
...Hurt cites to Lucey v. Kavanaugh for the proposition that due process and equal protection demand the result he seeks. Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir. 1984), aff'd sub nom. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). But Kavanaugh is distinguishable. That......
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US v. McFarlane, No. 88-186-CR-T-17C.
...right to appeal a jury conviction and, therefore, deprives him of his right to effective assistance of counsel. Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir.1984); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 A guilty plea, however, is a very different matter. By offering a gui......
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Evitts v. Lucey, No. 83-1378
...due process and equal protection concerns were implicated in Griffin and Douglas and both Clauses supported those decisions. Pp. 402-405. 724 F.2d 560 (CA 6, 1984), affirmed. Justice BRENNAN delivered the opinion of the Court. J. Gerald Henry, Frankfort, Ky., for petitioners. William M. Rad......
-
Bowen v. Foltz, No. 83-1558
...of an attorney." Evitts v. Lucey, --- U.S. ----, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985) (footnote omitted); Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir.1984). However, since in Lucey the parties stipulated that counsel was ineffective, the Court concluded that "[w]e therefore need not deci......
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State v. Hurt, No. 19263-6-III.
...Hurt cites to Lucey v. Kavanaugh for the proposition that due process and equal protection demand the result he seeks. Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir. 1984), aff'd sub nom. Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). But Kavanaugh is distinguishable. That......
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US v. McFarlane, No. 88-186-CR-T-17C.
...right to appeal a jury conviction and, therefore, deprives him of his right to effective assistance of counsel. Lucey v. Kavanaugh, 724 F.2d 560 (6th Cir.1984); Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821 A guilty plea, however, is a very different matter. By offering a gui......