Moffitt v. Ross

Decision Date29 August 1973
Docket NumberNo. 72-1720,72-2480.,72-1720
Citation483 F.2d 650
PartiesClaude Franklin MOFFITT, Appellant, v. Major Fred R. ROSS and State of North Carolina, Appellees. Claude F. MOFFITT, Appellant, v. Major Fred R. ROSS and State of North Carolina, Appellees.
CourtU.S. Court of Appeals — Fourth Circuit

Thomas B. Anderson, Jr., Durham, N. C. Court-appointed counsel (Loflin, Anderson, Loflin & Goldsmith, Durham, N. C., on brief), for appellant Claude F. Moffitt.

Jacob L. Safron, Asst. Atty. Gen. (Robert Morgan, Atty. Gen., Richard N. League, Asst. Atty. Gen., on brief), for appellees Major Fred R. Ross and State of North Carolina.

Before HAYNSWORTH, Chief Judge and CRAVEN and BUTZNER, Circuit Judges.

Certiorari Granted January 7, 1974. See 94 S.Ct. 864.

HAYNSWORTH, Chief Judge:

We are met with the questions reserved by the Court in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L. Ed.2d 811.

In Douglas, the Supreme Court held that an indigent, convicted of a felony, was entitled to the assistance of assigned counsel in presenting his appeal to the state's intermediate appellate court. It reserved the question of entitlement to assigned counsel in subsequent permissive review proceedings and limited its holding to counsel in "the one and only appeal an indigent has as of right" emphasis in original. These cases present the questions whether, after affirmance of a felony conviction by a state's intermediate appellate court, an indigent defendant is entitled to the assistance of assigned counsel in seeking further permissive review (1) in the state's highest court, and (2) in the Supreme Court of the United States. We conclude that he is, for, in this context, we find no basis for differentiation between appeals as of right and permissive appeals or between first appeals and second or third stage review.

No. 72-2480

The first of Moffitt's two convictions of forgery and uttering forged instruments was had in Mecklenburg County, North Carolina. With the assistance of appointed counsel, he took an appeal to the North Carolina Court of Appeals, which affirmed the conviction. North Carolina v. Moffitt, 9 N.C.App. 694, 177 S.E.2d 324. His lawyer then informed Moffitt that the court would not appoint him to prepare and file a petition for a writ of certiorari in the North Carolina Supreme Court. In his letter to Moffitt, he stated that he had sought such an appointment from the Superior Court, but that it had been refused on the ground that assignment of counsel was not required to handle an application to the North Carolina Supreme Court for permissive review.

Moffitt alleges he then sought to prepare and file such an application himself, but it was denied because of tardiness.

After an aborted federal petition, Moffitt exhausted his state postconviction remedies and then sought a writ of habeas corpus in the District Court for the Western District of North Carolina on the ground, among others, that refusal to provide assigned counsel to prepare and file an application for a writ of certiorari in the North Carolina Supreme Court was a denial of a federal constitutional right to counsel.

No. 72-1720

Moffitt's second conviction was in Guilford County, North Carolina, where he was represented by a lawyer in the office of the Greensboro Public Defender. With the assistance of that lawyer, he took an appeal to the North Carolina Court of Appeals, which affirmed the conviction. North Carolina v. Moffitt, 11 N.C.App. 337, 181 S.E.2d 184. In this case the Public Defender was authorized to prepare and file an application for a writ of certiorari in the Supreme Court of North Carolina. He did so, and the Attorney General countered with a motion to dismiss on the ground that no substantial constitutional question was presented. The motion was granted on that ground. North Carolina v. Moffitt, 279 N.C. 396, 183 S.E.2d 247.

Moffitt unsuccessfully petitioned the Superior Court and the North Carolina Court of Appeals for the provision of legal assistance in preparing and filing a petition for a writ of certiorari in the Supreme Court of the United States. Denied that assistance, he then sought habeas relief in the District Court for the Middle District of North Carolina. Denied relief there, his appeal presents the question of his constitutional right to the assistance of counsel in seeking a writ of certiorari from the Supreme Court of the United States to the Supreme Court of North Carolina.

I

In North Carolina, there is an appeal as of right from the Superior Court to the North Carolina Supreme Court in criminal cases, if the sentence is death or life imprisonment. N.C.G.S. § 7A-27(a). In all other criminal cases such as these, there is an appeal as of right from the Superior Court to the North Carolina Court of Appeals. N.C.G.S. § 7A-27(b). There is an appeal of right from the Court of Appeals to the Supreme Court of North Carolina only if the case involves a substantial question arising under the Constitution of the United States or under the Constitution of North Carolina, and in other cases if one of the judges of the Court of Appeals has dissented. N.C.G.S. § 7A-30. In all other cases, such as these, there is only a discretionary right of review by the Supreme Court of North Carolina of judgments of the North Carolina Court of Appeals. N.C.G.S. § 7A-31.

By statute, North Carolina has provided for the assignment of a lawyer to represent an indigent on "direct review of any judgment or decree, including review by the United States Supreme Court of final judgments or decrees rendered by the highest court of North Carolina in which decision may be had." N.C.G.S. § 7A-451(b)(6).

To us, the reasonable interpretation of that statute would provide a statutory right of counsel to Moffitt in each instance in which it was denied. We would read "direct review" of a criminal conviction as including permissive review proceedings in the North Carolina Supreme Court and in the Supreme Court of the United States, but North Carolina, seemingly, and her Attorney General, expressly, interprets the statute as excluding not only collateral civil proceedings but permissive appellate procedures in direct review as well. As construed by the state, "direct review" includes only such appellate procedures as may be taken as a matter of right. Under the state's construction, the statutory obligation was fully performed when Moffitt was provided with legal assistance in taking his two appeals to the North Carolina Court of Appeals.

In our habeas jurisdiction, we review only federal constitutional questions. We have no jurisdiction to enforce state statutory rights. For the purposes of these appeals, therefore, we need not pause to determine whether the Attorney General's assertion about the prevailing state construction of the statute is authoritatively supported. Ultimately, of course, whatever our inclination, the authoritative construction of the North Carolina statute would be for the North Carolina courts, but since in this case we have no jurisdiction to enforce statutory rights, we simply lay aside the statute upon the Attorney General's assertion of the prevailing construction in practice wit out further inquiry as to whether that practice has the authoritative sanction of North Carolina's appellate courts.

Against the background of the statute, however, it is relevant to note that, despite the state's claim that it is not required to provide counsel for permissive appellate procedures, it does so with great frequency. This fact was established by the Assistant Director of North Carolina's Administrative Office of the Courts. It was admitted by counsel for North Carolina during oral argument of these cases. In the Guilford County case, Moffitt, himself, was provided with legal assistance by North Carolina as he sought certiorari in the North Carolina Supreme Court. Counsel for North Carolina could suggest no reason why legal assistance was provided Moffitt in seeking certiorari in the North Carolina Supreme Court in the one case, but not in the other. Inquiry was made of the Assistant Attorney General as to the existence of any guidelines to be followed by state judges in deciding whether or not assigned counsel should be provided to assist indigents in seeking permissive review. He responded that he knew of none.

This record provides an insufficient basis for a finding or a conclusion that North Carolina's administration of her statute works a denial of equal protection of the laws to some indigent appellants. It may not be amiss, however, to note that such a problem may be lurking in this case, for, if judges of courts whose judgments are sought to be reviewed are deciding whether or not to assign counsel to prepare and file an application for permissive review, and there are no standards or guidelines to govern their determination, it may well be that some indigents are denied the assistance of counsel in situations entirely comparable to those in which other indigents are furnished the assistance of counsel.

II

At the outset we have observed that the Supreme Court in Douglas v. California confined its holding that an indigent had a constitutional right to the assistance of counsel in appellate procedures to appeals which were taken by right. It disclaimed consideration of subsequent permissive appellate procedures. Indeed, no such question was presented in Douglas, and it was natural for the Court to limit its holding to the particular question before it.

On principle, however, we can find no logical basis for differentiation between appeals of right and permissive review procedures in the context of the Constitution and the right to counsel.

Discretionary and permissive procedures by which a high appellate court is given the means of control of its own docket have largely been born of necessity in order to permit the highest appellate court to...

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  • Frazer v. South Carolina
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • December 8, 2005
    ..."selectively choosing to hear only those cases which seem to it to come within its primary purposes and functions." See Moffitt v. Ross, 483 F.2d 650, 653 (4th Cir.1973) (emphasis added). In so doing, it effectively forces state supreme courts to grant review and decide the claim on the mer......
  • Mitchell v. Johnson
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    • U.S. Court of Appeals — Sixth Circuit
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    ...with conflicting guidance from our brethren in other circuits that have considered the issue presented here. Compare Moffitt v. Ross, 483 F.2d 650 (4th Cir. 1973), with United States ex rel. Pennington v. Pate, 409 F.2d 757 (7th Cir. In Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.......
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    • June 17, 1974
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    ...quite reached that question. The rulings from the federal courts appeared to be in conflict, but the latest ruling, Moffitt v. Ross, 483 F.2d 650 (4th Cir. 1973), indicated that the defendant had a federal constitutional right to the assistance of appointed counsel in seeking a rehearing he......
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