Macon v. Lash

• Decision Date: 06 April 1972
• Docket Number: No. 18611.,18611.
• Parties: Peter P. MACON, Petitioner-Appellant, v. Russell E. LASH, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

458 F.2d 942 (1972)

Peter P. MACON, Petitioner-Appellant, v. Russell E. LASH, Warden, Respondent-Appellee.

No. 18611.

United States Court of Appeals, Seventh Circuit.

April 6, 1972.

Michael J. Smith, Chicago, Ill., for petitioner-appellant.

Theodore L. Sendak, Atty. Gen., Mark Peden, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellee.

Before HASTINGS, Senior Circuit Judge, and STEVENS and SPRECHER, Circuit Judges.¹

STEVENS, Circuit Judge.

In his application for a writ of habeas corpus petitioner alleged that his right to appeal from his murder conviction was lost because of the "incompetence and fatal negligence" of his court-appointed counsel. The question for us is whether his federal claim had been "fairly presented" to the Indiana courts before it was denied by the district court. To answer this question we must (1) state the claim in detail; (2) review petitioner's numerous, futile attempts to obtain a hearing from an Indiana court; and (3) test these attempts against the exhaustion requirement as defined in Picard v. Connor, 404 U.S. 270, 92 S.Ct. 509, 30 L.Ed.2d 438.

I.

On December 9, 1961, after a jury trial, petitioner was convicted of second degree murder and was later sentenced to life imprisonment for that offense. As a matter of Indiana law, he could not appeal unless a motion for a new trial was filed within 30 days of his conviction²; that time limitation was jurisdictional and could not be extended.³

On January 5, 1962, petitioner's court-appointed counsel filed a "Motion for Transcript to be Prepared at County Expense and for Extension of Time in Which to File Motion for New Trial." This motion was denied on May 1, 1962, and a few days later petitioner's counsel withdrew.

On January 8, 1962, as a matter of Indiana law, petitioner's right to appeal expired. His allegations indicate that a timely appeal would have had arguable merit. He does not assert that any constitutional error was committed during the trial itself, or that any procedural defect is evident from matter dehors the record. He simply alleges that the evidence was insufficient to establish his guilt beyond a reasonable doubt,⁴ and that the court erred in denying him a continuance needed to obtain the testimony of an absent witness and in permitting the prosecutor to testify These allegations provide proper grounds for a motion for a new trial and for a direct review of the merits of his conviction; they are plainly insufficient as a basis for a collateral attack as a matter of either Indiana or federal law.

Petitioner's attack on the "competency" of his counsel is not directed at the adequacy of his representation during the trial itself. It focuses on the lawyer's failure to protect his right to appeal by either (a) filing a timely motion for a new trial, or (b) advising petitioner of the need for such a timely motion to enable petitioner to take the necessary steps himself. It is evident, if the allegations are accepted as true, that an otherwise thoroughly competent lawyer overlooked a critical procedural point, possibly because it was his first criminal case and his office was over 50 miles away from a law library adequate for an appellate practitioner.⁵ Be that as it may, petitioner alleges that neither his lawyer nor the trial judge advised him of the crucial importance of filing a motion for a new trial in 30 days. For that reason, and that reason alone, an indigent defendant allegedly lost his right to appeal his conviction for murder.

Except for the inferences which the Indiana Supreme Court has drawn from the fact that trial counsel did not file a timely motion for a new trial, there is nothing in the record to indicate that either petitioner or any court has been advised, either orally or in writing, that an appeal would have been frivolous; that counsel evaluated the issues which might be raised on appeal;⁶ or that petitioner intended to waive his right to appeal.

In support of his claim predicated on the Fourteenth Amendment to the Federal Constitution, petitioner contends that he was denied (1) due process of law, in not having the effective assistance of counsel as guaranteed by the Sixth Amendment; and (2) the equal protection of the laws. He has not specifically relied on the trial court's failure to advise him of his right to appeal or of the need for prompt action to preserve that right.

II.

The allegations contained in the application for a federal writ of habeas corpus had been included in a petition for permission to file a belated motion for a new trial which Macon had filed in the Circuit Court of Orange County on June 19, 1968. That petition was denied without a hearing. Petitioner did not take an appeal to the Indiana Supreme Court from that denial. It is that omission on which the Attorney General primarily relies in urging a failure to exhaust state remedies. We must evaluate that omission in the context of petitioner's other attempts to obtain relief from an Indiana court.

In the eight-year period between his conviction and the filing of this petition in the district court, petitioner filed five petitions in the Circuit Court of Orange County and seven applications in the Indiana Supreme Court. Since it is undisputed that his claims were adequately presented to the Circuit Court, we confine our review to the question whether the Indiana Supreme Court had a fair opportunity to allow petitioner to take an appeal from his conviction for the reasons set forth in support of his federal petition.

The Indiana Supreme Court has filed four written opinions explaining its reasons for rejecting petitioner's claim.⁷ In addition, it has denied petitions for rehearing and for an extraordinary writ without opinion.

On October 23, 1962, the Indiana Supreme Court held that the trial court had correctly denied the motion for an extension of time to file a motion for a new trial and the motion for a transcript. The ruling was made in response to a pleading prepared pro se entitled "Motion for Appointment of Counsel." The court held that a transcript was not needed for the preparation of a motion for a new trial, and assumed that counsel's failure to file such a motion warranted the conclusion that no meritorious grounds for such a motion existed. The court did not comment on counsel's request for an extension of time to file such a motion. It refused to assume "without a showing , that a motion for a new trial should have been filed or that counsel was incompetent because such a motion was not filed." 185 N.E.2d at 621.

From that decision petitioner applied for a writ of certiorari. The United States Supreme Court in Macon v. Indiana, 375 U.S. 258, 84 S.Ct. 362, 11 L.Ed.2d 311, granted the writ, vacated the judgment of the Indiana Supreme Court, and remanded for further consideration in light of Lane v. Brown, 372 U.S. 477, 83 S.Ct. 768, 9 L.Ed.2d 892. In Lane the Court affirmed our holding that the Indiana coram nobis procedure was defective because an indigent's right to appeal could be entirely cut off at the unreviewable discretion of the public defender. See 302 F.2d 537, 539; 372 U.S. 477, 481, 83 S.Ct. 768, 9 L.Ed.Ed.2d 892. The majority opinion rested on equal protection grounds, but Justices Harlan and Clark concurred on the ground that the requirements of due process were not met.

On January 17, 1964, the Indiana Supreme Court analyzed petitioner's claim in the light of Lane v. Brown. The court held as a matter of Indiana law that a defendant's failure to file a motion for a new trial conclusively established that he has no grounds for an appeal.⁸ It then held that since that rule "is applicable alike to the rich man and the pauper in this state," there was no denial of equal protection.⁹

Having held that petitioner had no basis for direct review of his conviction, the court noted that it had adopted new rules which allowed a belated motion for a new trial based on matter dehors the record which had not come to the attention of counsel during the trial. It directed the trial court to appoint counsel to prepare such a motion, pointing out that there could be no necessity for ordering a transcript at public expense in view of the limited office of the belated motion.

On May 17, 1964, the Indiana Supreme Court denied rehearing and filed another opinion, explaining that counsel other than the public defender should be appointed. That opinion reflects a consideration of the fairness of the Indiana procedure as compared with federal practice and reiterated the court's holding that the failure to file a motion for a new trial established the absence of merit in any possible appeal.¹⁰

On November 29, 1966, the Indiana Supreme Court filed its fourth opinion, this time denying a petition for a writ of certiorari. The opinion indicates that at least two pleadings which had been filed in the Circuit Court were before the Supreme Court: (1) a belated motion for a new trial filed on November 19, 1965, and (2) a petition for appointment of co-counsel which was apparently filed on June 24, 1966.

The former set forth petitioner's grounds for a new trial, again reiterated the denial of an extension of time to file a motion for a new trial, and complained that the Supreme Court's refusal "to provide Appellate counsel for the defendant herein in subsequent proceedings was unconstitutional and in derogation of defendant's right to due process and equal protection of the law."

The latter was an affidavit prepared by court-appointed counsel, who had also represented petitioner at the trial. He stated that he had no appellate experience; that the matter involved due process issues; that he did not have access to "an adequate legal library with which to prepare and perfect such an appeal"; that appellate practice in the State of Indiana involves specialization; and that "in order to properly protect the defendant's interest herein, the said defendant should be represented by co-counsel with...