Wynn v. Page, 9020.

• Decision Date: 20 December 1966
• Docket Number: No. 9020.,9020.
• Citation: 369 F.2d 930
• Parties: Earl WYNN, Appellant, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

369 F.2d 930 (1966)

Earl WYNN, Appellant, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, Appellee.

No. 9020.

United States Court of Appeals Tenth Circuit.

December 20, 1966.

Otto Pluess, III, Oklahoma City, Okl., for appellant.

Charles Nesbitt, Atty. Gen. of Oklahoma, and Charles L. Owens, Asst. Atty. Gen., for appellee.

Before BREITENSTEIN and ALDRICH, Circuit Judges, and KERR, District Judge.

KERR, District Judge.

Appellant is presently confined in the Oklahoma State Penitentiary, McAlester, Oklahoma, serving a sentence of twenty years imposed by the District Court of Muskogee County, Oklahoma. He appeals from the order of the United States District Court for the Eastern District of Oklahoma which denied the writ of habeas corpus on the ground that appellant knowingly and with full understanding of his constitutional rights decided not to exercise his right to appeal from the judgment and conviction.

At the trial by jury, appellant was represented by counsel of his own choosing. He was found guilty of the crime of Robbery with Firearms, and the jury assessed his punishment at twenty years imprisonment. Accordingly, judgment and sentence were pronounced by the court on November 2, 1964. Thereafter appellant filed with the Oklahoma Court of Criminal Appeals a petition for writ of habeas corpus which was denied, that court holding that petitioner raised appealable questions and that habeas corpus is not a substitute for appeal.¹ Subsequently appellant filed another petition for writ of habeas corpus with the Oklahoma Court of Criminal Appeals, alleging he had not perfected his appeal through his ignorance of the law, and asking leave to file an appeal out of time. Pursuant to its Rule 25, the court sent appellant its form of interrogatories which appellant completed and returned to the court. Upon a review of the answers to the interrogatories, the court denied the writ, finding that appellant had been represented by counsel of his own choosing during the trial and at the time judgment and sentence were imposed, that the questions raised in the petition for writ of habeas corpus were reviewable only by appeal, and that appellant had given no notice of appeal and had made no effort to appeal within the time prescribed by law.

Thereafter appellant filed a petition for writ of habeas corpus with the United States District Court for the Eastern District of Oklahoma. That court appointed counsel to represent appellant, conducted an evidentiary hearing, and entered its order containing its findings and conclusions, and denying the writ. In substance the District Court found that appellant did in fact knowingly forego an appeal of his conviction, fully understanding his constitutional rights in the matter. The court concluded that a habeas corpus proceeding is not a substitute for an appeal, and that it is not available to appellant at such a late date to secure a review of the legality of the evidence used against him at the trial.

It is the state's position that appellant had retained counsel during the trial and that after the judgment and sentence appellant did not make a timely request for a free case-made of the trial proceedings and for the free assistance of counsel.² We have said that the time for filing an appeal does not commence to run until the defendant has been advised of his right to appeal and the effective assistance of counsel has been afforded, and that a convicted, confined person may collaterally attack his judgment of sentence if he has not been afforded the assistance of counsel concerning his right of appeal and the exercise thereof.³

A full examination of the record on appeal convinces this court that appellant was convicted and confined, that he was not afforded the assistance of counsel concerning his right of appeal...