Shiflett v. Commonwealth of Virginia

• Decision Date: 24 June 1971
• Docket Number: 13392,No. 12355,13522.,12355
• Parties: William C. SHIFLETT, Appellant, v. COMMONWEALTH OF VIRGINIA, and C. C. Peyton, Superintendent of the Virginia State Penitentiary, Appellees. John Henry LOVE, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee. Orrillion D. JAMES, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

447 F.2d 50 (1971)

William C. SHIFLETT, Appellant, v. COMMONWEALTH OF VIRGINIA, and C. C. Peyton, Superintendent of the Virginia State Penitentiary, Appellees.

John Henry LOVE, Appellant, v. COMMONWEALTH OF VIRGINIA, Appellee.

Orrillion D. JAMES, Appellant, v. C. C. PEYTON, Superintendent of the Virginia State Penitentiary, Appellee.

Nos. 12355, 13392, 13522.

United States Court of Appeals, Fourth Circuit.

Resubmitted November 19, 1970.

Decided June 24, 1971.

No. 12355:

Frank C. Maloney, III, Richmond, Va. (Court-assigned counsel) Joseph L. Lewis, and Hirschler & Fleischer, Richmond Va., on the brief, for appellant, Shiflett.

Reno S. Harp, III, Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen. of Virginia, on the brief), for appellees.

No. 13392:

Benjamin Lerner, Philadelphia, Pa. (Court-assigned counsel), for appellant Love.

W. Luke Witt, Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen. of Virginia, on the brief), for appellee.

No. 13522:

Louis M. Natali, Jr., Philadelphia, Pa. (Court-assigned counsel), for appellant, James.

Vann H. Lefcoe, Asst. Atty. Gen. of Virginia (Andrew P. Miller, Atty. Gen. of Virginia, on the brief), for appellee.

Before HAYNSWORTH, Chief Judge, and SOBELOFF, BOREMAN, BRYAN, WINTER, CRAVEN and BUTZNER, Circuit Judges.

Resubmitted En Banc November 19, 1970.

HAYNSWORTH, Chief Judge:

The question is whether our decision in Nelson v. Peyton, 4 Cir., 415 F.2d 1154 should be applied retroactively. A divided panel earlier held Nelson retroactive, affording the right to habeas corpus relief to any indigent prisoner who had not been fully advised by his attorney or the court of his right to appeal as an indigent and of the manner and time in which an appeal could be taken. 433 F.2d 124. On reconsideration en banc of the relevant criteria for determining the application of new constitutional standards, we conclude, to the contrary, that Nelson's application should be prospective only.

The facts will be discussed only as necessary to supplement the original opinion.

Shiflett was convicted in 1963 of second degree murder. He was represented by attorneys retained by his parents. At a state habeas corpus hearing he testified that the lawyers told him that he could appeal if he wished, but "that it would cost a large sum of money." He conceded that he never told either lawyer that he wished to appeal. In contrast, attorney Timberlake¹ testified that money was never discussed with Shiflett. He said that he discussed funds only with the parents, since it was to them that he looked for compensation. He understood that they would pay for an appeal if one were taken. His advice was against an appeal, since he believed one would be fruitless.² Because decision was based on the application of standards before Nelson was decided, the conflict in testimony was not resolved by the state judge.

Love was convicted in 1965 of second degree murder. He was represented by court-appointed counsel who was also appointed to represent him in another trial on another charge which took place a week later. Love testified that he did not know that he could appeal as a pauper, relying, he said, on statements of other jail inmates that "you had to have so much money before you could appeal." These statements were allegedly made to him in the interim between the two trials at a time when he was seeing his lawyer, but he claimed he did not mention them to the lawyer or inquire about their accuracy. He stated that the lawyer at no time discussed the question of an appeal with him. However, the state court found, to the contrary, that the matter was discussed on two occasions between the trials, and that the lawyer had told Love that he believed an appeal would be futile, as no error had been committed in the trial. At no time did Love indicate that he would like to take an appeal despite his lawyer's opinion.

James was convicted of murder in 1958. He was represented by a lawyer retained by his mother. James testified that he knew nothing of appeals and did not learn of them until seven years later.³ His lawyer, he said, never mentioned the subject of an appeal. The lawyer testified that he had been paid $100 by James' mother, and he knew this to be the extent of her resources. No transcript of the trial proceedings was made, although the lawyer made notes during the trial which could have served as the basis for a narrative statement had an appeal been taken. Immediately after the trial he reviewed the notes to determine if they showed any basis for an appeal. He concluded that no basis could be found.⁴ He had no indication that James desired to appeal. "At that time, I would have happily made an appeal even though it wasn't feasible, but because he wanted one; but that wasn't asked me, as I recall. It wasn't asked me at all." Because he knew James had no money, and his mother had exhausted hers, he did not discuss the cost of an appeal with either. There is no indication that the state of their finances played any part in his conclusion that an appeal should not be taken.⁵ Apart from the question of expense, he may have discussed his opinion that there was no ground for an appeal with James or his mother, or both, but he could not remember, and his notes on the case had since been destroyed by fire. James, himself, however, testified that there was one interview with his lawyer after the trial. The most likely subject of conversation at such a time would be the appropriateness of some effort to obtain a new trial by motion or appeal.

As in Shiflett's case, the testimonial conflicts were not resolved at the state hearing.

In none of the cases were the defendants advised of their right to appeal as indigents, nor were they advised of the required procedures for instituting an appeal under Virginia law.

The post-trial events in all three cases were consistent with the almost universal practice of lawyers at the time. A lawyer retained or appointed to represent a defendant ordinarily was prepared to advise his client to appeal, and to assist him on appeal, if he believed there was a reasonable prospect of success. In the absence of such a belief, he considered his duty done at the conclusion of a trial unless he was informed by his client, or otherwise had reason to believe, that he wished to appeal nonetheless. Our former cases recognized and upheld this practice. Repeatedly we declined to attach constitutional significance to an attorney's failure to take steps leading to appellate review where the defendant had made no contemporaneous expression of dissatisfaction with the trial's result and had failed to indicate any affirmative desire for an appeal. See Allred v. Peyton, 4 Cir., 385 F.2d 360.

In requiring as part of any competent trial representation that a lawyer inform his client fully of his appeal rights, Nelson is in accord with the trend of recent decisions recognizing that although matters of strategy and tactics are principally for the lawyer to determine, the decision to exercise or forego a guaranteed right is for the defendant alone to make. Although he will, it is hoped, be guided by counsel's advice, he must be unfettered by improper hindrances, North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138, and he must be provided full information on which to make an informed choice, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694, although he need have no good or rational reason for his decision. To assure that the decision to take or forego an appeal would depend only on the defendant's own informed choice, we required in Nelson that he be given complete information, by his lawyer or by the court, about his right to appeal and the conditions he must meet in order to exercise it.

That the rationale on which Nelson proceeded was based largely on the Sixth Amendment right to counsel is not determinative, or even of significant assistance, in considering whether the rule it announced should be given retroactive effect. It is settled that the retroactivity of a new rule does not depend on the particular section of the constitution on which it is based.⁶ What is important is the purpose to be served in requiring the presence of counsel at a particular point. Numerous cases expanding the right to counsel have been limited to prospective application, particularly in situations where a lawyer was required to serve some function other than the performance of his traditional role of advocate.⁷

The advocate's function is the concern of such cases as Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L. Ed.2d 799 (trial), Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (sentencing) and Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (presenting appeals). They recognize that an untutored defendant is helpless, without the assistance of a professional advocate, to meet legal arguments he does not understand and to present evidence he knows not how to adduce. The denial of a professionally trained advocate "must almost invariably deny a fair trial * * *" Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199.

The lawyer's function at the post-trial pre-appeal stage is more limited. His role here is as adviser. His function is to ensure that the defendant's decision whether to exercise his right to appeal will be an informed one. In this he performs a task quite similar to that the police are required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 to perform before questioning a suspect.

Analysis of the purpose Nelson sought to achieve reveals the rule as a largely, if not exclusively, prophylactic one. As in Miranda, it intends to guarantee that no defendant will waive his right without full awareness of its existence and extent, by imposing an absolute requirement on court or counsel to furnish the information....