Sutton v. Lash
| Decision Date | 22 May 1978 |
| Docket Number | No. 77-1852,77-1852 |
| Citation | 576 F.2d 738 |
| Parties | Robert Glen SUTTON and Paul S. Sutton, Petitioners-Appellees, v. Russell E. LASH, Warden, Indiana State Prison, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Seventh Circuit |
David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for respondent-appellant.
Jerald L. Kendrick, Harlan, Ky., Gregory A. Adamski, Chicago, Ill., Eugene C. Hollander, Indianapolis, Ind., for petitioners-appellees.
Before CUMMINGS, PELL and SPRECHER, Circuit Judges.
The warden of the Indiana State Prison at Michigan City appeals from an order granting the petitions for writs of habeas corpus by Paul and Robert Sutton. District Judge Robert Grant ordered the two prisoners, who are brothers, released as a result of the failure to provide a transcript of their trial which occurred over twenty-one years ago.
In order to understand the issues raised by petitioners it is necessary to review the extended procedural history of the Suttons' case. The litigation underlying this habeas corpus proceeding dates back to 1956. On December twentieth of that year, Paul and Robert Sutton were found guilty of kidnapping, auto banditry and rape. Both were indigents and both were represented by a court-appointed attorney. The Suttons were sentenced to life imprisonment for kidnapping, 25 years for auto banditry, and 2 to 21 years for rape. The Suttons timely moved for a new trial. Their motions challenged the judgment, the jury composition, and the admission of certain evidence.
On January 21, 1957, Robert Sutton requested an interview with the Indiana Public Defender. The Suttons' motions for a new trial were denied on May 1, 1957. On that date, the 90-day period prescribed by Indiana law at the time for filing notice of appeal began.
On May 28, 1957, the Suttons timely filed a pro se affidavit of paupership and verified motion to obtain their trial transcript. In their verified motion, they cited the then recent case of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), 1 and stated:
Petitioners herein desire to file an appeal of their conviction, and having insufficient funds to secure their Transcript of their Trial file this motion within the sound discretion of this court, requesting that this court intercede upon their behalf and issue an order directed to the clerk of said court to prepare a complete and certified copy of the Transcript and court journal entries, and that same be mailed to petitioners respective address, and that cost thereof be assessed to the county for same.
The Suttons further stated that they were
unable to pay the necessary cost to secure their transcript of their trial, and without said transcript petitioners shall be unable to properly prepare their appeal before the court, and would thereby be deprived of right to properly defend their cause, which deprivation thereof would constitute a flagrant violation of their constitutional rights.
On June 3, 1957, the trial judge denied the Suttons' request for the trial transcript, citing the Indiana Supreme Court's decision in State ex rel. Fryer v. Murray, 236 Ind. 704, 141 N.E.2d 700 (1957), which reaffirmed Indiana's practice that in all post-conviction proceedings by indigents after their direct appeal rights had expired (emphasis added), trial records were available only upon the request of the Indiana Public Defender after he or she determined that the prospective appeal was meritorious. 2 Based on this precedent, the trial judge advised the Suttons by letter:
If you desire to appeal this matter, it will be necessary that you communicate witht (sic) the Public Defender who is employed by the State of Indiana for this purpose. 3
Paul Sutton, by letter dated June 18, 1957, requested the Public Defender's assistance in securing a transcript, expressly basing this request, and quoting from, the letter of the trial judge. The letter stated, in regard to the transcript that he did "not have sufficent (sic) funds to secure same, in the matter of counsel to represent me in this matter of appeal." He further states "I desire to reserve this right until I have examined the transcript of the trial. . . . " A reading of the letter clearly indicates that the Suttons wished to appeal their convictions, that they wished to do so pro se, and that they only desired the assistance of the Public Defender in obtaining a transcript of their trial. The Public Defender did not respond prior to the running of the period to file a timely appeal. 4
On August 26, 1957, shortly after their deadline to perfect a timely direct appeal of their convictions, the Suttons filed in the Indiana Supreme Court a pro se petition entitled "Belated Appeal from Grant Circuit Court." They requested preparation of a transcript "for use to perfect their appellants brief."
The Supreme Court of Indiana rejected the petition, holding that a requisite prima facie case showing merit in the proposed appeal was lacking. Sutton v. State, 237 Ind. 308, 145 N.E.2d 425 (1957). In regard to a request for their transcript, the court responded:
Since the State has created the office of Public Defender to represent pauper prisoners after the regular time for appeal has expired, their record must be obtained through the Public Defender as prescribed by statute. (Citations omitted.) 5
In 1964 the Suttons again contacted the Public Defender who filed a petition to correct an erroneous sentence and a motion for a new trial. The trial court denied the petition and the motion. The Indiana Supreme Court reversed and corrected the sentence, 6 but affirmed the denial of the new trial.
In 1970 the Suttons contacted the clerk of the court where they were originally tried and attempted to purchase a copy of their trial transcript. On September 8, 1971, Paul Sutton filed for post-conviction relief in the state court. When no action was taken for two years he filed a petition for a writ of habeas corpus in the federal district court. On October 24, 1973, Robert Sutton's petition, filed July 23, 1973, was consolidated with his brother's petition. Their petitions asserted that the failure of Indiana to allow them a transcript was a denial of their constitutional rights to due process and equal protection.
On January 11, 1974, a Grant County Circuit judge revealed by letter to the Suttons that, some time in 1968 or 1969, matters essential to the trial record, including the stenographic notes, were destroyed by order of the Grant County Board of Commissioners. Apparently without knowledge of this letter, the district court, on March 11, 1974, denied the petitions for failure to exhaust state remedies, noting that it appeared that he "will soon be able to order a copy of his transcript." It invited Indiana to submit evidence that Paul Sutton had rejected the Public Defender's assistance and that he either had not petitioned for or had received his transcript.
On April 1, 1974, Indiana advised the district court that there was no transcript, but that Paul Sutton's petition was nevertheless defective because he had not exhausted his state remedies.
On April 5, 1974, Robert Sutton again began post-conviction relief proceedings in Grant County Circuit Court.
On July 17, 1974, the district court agreed with Indiana on Paul Sutton's petition, holding that unexhausted state remedies existed and that
(t)he effect of the loss of the transcript of petitioner's trial upon his claims should be decided in the first instance by the state courts.
At this point, federal proceedings ceased while the Suttons further pursued their state remedies.
On October 29, 1974, an Indiana Circuit judge ruled that the Suttons were entitled to no post-conviction relief because their 1957 timely-filed motion for new trial had been denied by Judge Caine and because they had not perfected, and therefore waived, a direct appeal in 1957. The Indiana judge also held that the proper procedure would be to file a belated appeal to the Indiana Supreme Court.
The Suttons did file another petition for a belated appeal on December 31, 1974. The Indiana Supreme Court denied relief on April 7, 1977, holding that the Suttons'
failure to have ever had a complete record of all of the evidence in the case does appear directly to have been the fault of petitioners in not having long ago followed the directions of both the trial court and of this Court. Their actions, by not seeking the appellate services of the Public Defender, have effectively prevented the exhaustion of normal appellate state court remedies.
The Suttons moved the district court to reinstate their habeas corpus petitions. On June 13, 1977, the district court granted the writs. This appeal followed.
The primary issue raised by the State of Indiana is that the Suttons long ago waived any right to direct appeal and to a transcript. It is uncontroverted that there was no timely notice of appeal filed following the Suttons' conviction. Indiana contends, therefore, that the Suttons waived their acknowledged right to appeal. It is argued that this right was waived because
two courts had pointed out that the Public Defender of Indiana was available to prosecute a belated appeal, and that by statute only the Public Defender could obtain a free transcript for use on appeal.
The two courts referred to are the Grant County Circuit Court and Indiana Supreme Court.
The letter from the Grant County trial judge did advise the Suttons to contact the Public Defender, which is what they immediately did. Yet no response was received. Under Griffin, supra, at the time, the Suttons were entitled to secure a transcript or, alternatively, the state was obligated to provide adequate appellate review, due to their undenied indigency. Their letter made it apparent that they wished to appeal, yet the Public Defender failed to respond within the notice period.
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