Moye v. Highsmith, 71-3568.

• Decision Date: 13 June 1972
• Docket Number: No. 71-3568.,71-3568.
• Citation: 460 F.2d 1388
• Parties: James N. MOYE, Petitioner-Appellee, v. N. L. HIGHSMITH, Acting Warden, Macon Correctional Institution, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 1388 (1972)

James N. MOYE, Petitioner-Appellee, v. N. L. HIGHSMITH, Acting Warden, Macon Correctional Institution, Respondent-Appellant.

No. 71-3568.

United States Court of Appeals, Fifth Circuit.

June 13, 1972.

Arthur K. Bolton, Atty. Gen., Atlanta, Ga., Harold N. Hill, Jr., David L. G. King, Jr., Courtney Wilder Stanton, Asst. Attys. Gen., for respondent-appellant.

Jerome A. Zivan, Atlanta, Ga., Glenn Zell, Atlanta, Ga. (Court Appointed), for petitioner-appellee.

Before WISDOM, THORNBERRY and GODBOLD, Circuit Judges.

PER CURIAM:

Petitioner was convicted in a Georgia state court of theft. He appealed through his court-appointed attorneys to the Georgia Court of Appeals. The Court of Appeals rendered its decision affirming the conviction of June 11, 1970.

By letter dated June 14, 1970, petitioner asked the presiding judge of the Court of Appeals to grant him a rehearing, and if the Court of Appeals would not rehear the case he asked that he be appointed counsel to pursue his case to the Georgia Supreme Court. On June 16, 1970, the presiding judge of the Court of Appeals who received petitioner\'s letter sent a note to the Clerk of the Court asking him to advise petitioner "that we will consider a motion for rehearing if one is filed, and that if it is denied, he can file an application for certiorari to the Georgia Supreme Court, either by his attorney or acting as his own attorney." The Clerk, by letter dated June 16, 1970, wrote to petitioner:

"The Court wishes me to advise you that a motion for rehearing is proper and will be considered by the Court if it is filed in accordance with the rules. Under the rules of this Court, a motion for rehearing must be filed within ten days of the judgment. Your last day for filing such a motion in this case is June 22.

"In the event the motion for rehearing is denied an application for a writ of certiorari may be filed in the Supreme Court, either by you or your attorney.

"Since you were represented in this Court by competent counsel, there is no provision in the law for the appointment for additional counsel by this Court."

Upon receipt of this letter petitioner says, and respondent does not deny, that he sent a special delivery letter to one of his court-appointed attorneys requesting that he file a motion for rehearing. Petitioner did not hear further from his counsel. On July 12, 1970, petitioner wrote to the Clerk of the Georgia Supreme Court applying for the writ of certiorari. In a series of letters the Clerk pointed out that in order to apply for the writ of certiorari petitioner should have: (1) moved for a rehearing in the Court of Appeals; (2) upon adverse disposition there given notice to the Clerk of that Court within ten days of the final judgment of his intention to apply for the writ of certiorari; and (3) applied to the Clerk of the Supreme Court for the writ within 30 days of the final judgment by the Court of Appeals. Since petitioner met none of these requirements, the Clerk of the Supreme Court could not entertain petitioner\'s application.

Moye v. Georgia, 330 F.Supp. 290 (N.D. Ga.1971).

After exhausting his state remedies, petitioner filed this habeas corpus proceeding in the district court. The court ruled against petitioner on all his points except one. The court held that the course of events described above, which resulted in two steps in the Georgia appellate process being foreclosed to petitioner, amounted to a denial of due process and a denial of effective assistance of counsel.

The district court based its decision on alternative grounds. First, it concluded that the constitutional requirement of counsel for indigents on appeal, Byrd v. Smith, 5th Cir. 1969, 407 F.2d 363, extends to the petition for rehearing stage at the first appellate level, especially when filing a petition for rehearing is a prerequisite for appeal to a higher court. Since petitioner's counsel did not assist him after the original decision of the Court of Appeals was handed down, the court concluded petitioner was denied effective assistance of counsel. Alternatively, the court held that even if appointed counsel is not required to file a petition for rehearing, petitioner was denied due process by the failure of the Court of Appeals of the State to adequately notify him of his right to file the petition pro se. We express no opinion on the ineffective assistance of counsel issue, but affirm on the ground that petitioner was denied due process. We are in agreement with the rationale set out in the district court's excellent opinion on this issue.

Even if the rehearing were not considered part of the first appeal of right petitioner has been denied

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