Morgan Kirby Watkins v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 344 F.2d 927, 10th Cir. (1965)
Uploaded by
Scribd Government DocsMorgan Kirby Watkins v. Sherman H. Crouse, Warden, Kansas State Penitentiary, Lansing, Kansas, 344 F.2d 927, 10th Cir. (1965)
Uploaded by
Scribd Government Docs344 F.
2d 927
Morgan Kirby WATKINS, Appellant,
v.
Sherman H. CROUSE, Warden, Kansas State Penitentiary,
Lansing, Kansas, Appellee.
No. 8028.
United States Court of Appeals Tenth Circuit.
April 22, 1965.
James W. Schroeder, Denver, Colo., for appellant.
Richard H. Seaton, Asst. Atty. Gen. of Kansas (Robert C. Londerholm,
Atty. Gen. of Kansas, on the brief), for appellee.
Before LEWIS and SETH, Circuit Judges, and DOYLE, District Judge.
PER CURIAM.
Appellant filed a petition for a writ of habeas corpus in the United States
District Court for the District of Kansas. A hearing was held during which
appellant was represented by a court-appointed counsel. The relief was denied,
and this appeal has been taken.
The record shows that appellant is presently confined in the Kansas State
Penitentiary pursuant to a conviction by the District Court of Wilson County,
Kansas. Following the conviction, evidence was presented of two prior felony
convictions, and appellant was sentenced to a term of not less than fifteen years
as an habitual criminal.
Following his conviction, appellant took an appeal to the Kansas Supreme
Court pro se, and the judgment of conviction was affirmed. Thereafter the
appellant upon several occasions sought relief by post-conviction remedies, all
of which were denied. He then filed for a writ of habeas corpus in the court in
which he was originally tried, and the court there treated the application as a
motion for post-conviction relief under a Kansas statute comparable to the
federal 2255. An attorney was appointed to represent appellant in such
proceeding. Two principal points were there raised, the first being that he was
inadequately represented by his court-appointed counsel in his original trial,
and secondly that he had been denied his constitutional rights in that an attorney
had not been appointed for him on the appeal of his original conviction to the
Kansas Supreme Court although he was an indigent. The State District Court
ruled against appellant's petition on the basis of Smith v. Crouse, 192 Kan. 171,
386 P.2d 295. This ruling was however amended to grant relief following the
reversal of Smith v. Crouse by the United States Supreme Court at 378 U.S.
584, 84 S.Ct. 1929, 12 L.Ed.2d 1039. The Kansas District Court in this ruling
did not spell out in detail the remedy that was then open to appellant, but did
proceed as far as it could under the circumstances. The court said in effect that
the case was then in the same situation as if the trial court had just overruled a
motion for new trial and sentenced the defendant. The court also stated that
application of 'some sort' should be made to the Kansas Supreme Court for
appellate review of the judgment and sentence, and that 'some way will have to
be found to invoke the jurisdiction of that Court.' The Kansas District Court
thus acknowledged that appellant had a right to petition the Kansas Supreme
Court. When this is read with the construction given by the Kansas Supreme
Court of the mandate in Smith v. Crouse, supra, the relief available is clear
because the court there held that the appeal be reinstated and counsel
appointed. Smith v. Crouse, 386 P.2d 295.
4
The Kansas court's recognition of the right of a person in appellant's position to
have counsel appointed on appeal is in accordance with Douglas v. California,
372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. The holding in Smith v. Crouse,
supra, that the appeal be reinstated and counsel appointed is the method to
correct the previous denial of constitutional rights in accordance with Dowd v.
United States ex rel. Cook, 340 U.S. 206, 71 S.Ct. 262, 95 L.Ed. 215, and the
District Court of Wilson County on appellant's petition followed the same
authority.
Thus it is clear from the record that appellant was granted the right to appeal
his original conviction to the Kansas Supreme Court and to have an attorney
appointed. This was the relief sought by his petition to the Wilson County
District Court. The appellant having been advised of the action of the state
court then wrote to the attorney who had been appointed to represent him in
connection with the relief so granted. In this letter, appellant instructed the
attorney not to file notice of appeal in the Kansas Supreme Court. In this letter,
appellant stated: 'Don't file notice of appeal in Kansas Supreme Court for new
trial. I will not file notice of appeal in Kansas v. Watkins because there is not
one thing to accomplish in this action for the plaintiff and all to gain for the
respondent. I will not file a motion for appellate review nor notice of appeal for
new trial.' The appellant thereafter again wrote the attorney stating that
appellant had exhausted all remedies in the state courts, and that he had filed an
application for a writ of habeas corpus in the United States District Court. He
also stated that he believed this was the only remedy he had available, and
recited his prior unsuccessful petitions for post-conviction relief in the state
courts. Thereafter his attorney responded by a letter stating in part: '* * * I am
inclined to agree with you that having me file an appeal or to reinstate the
original appeal * * * would be just a waste of effort.' As indicated in appellant's
letter, he filed a petition in the United States District Court for the District of
Kansas which was heard as above described, and is here on appeal.
6
It is apparent that the appellant recognized that he had a right to appeal to the
Kansas Supreme Court, and it is likewise apparent that he knew that an attorney
had been appointed to so represent him. His first letter to this attorney leaves no
doubt that he did not wish to pursue such an appeal. His evaluation was that
such remedy would not accomplish anything for him and the state had all to
gain. Thus when the relief which he had sought in the state courts was made
available to him, he refused it. It is clear from the record that this choice was
made by appellant. His attorney, as above indicated, agreed with him after
appellant's intention had been expressed. The letters of the appellant and of his
attorney amount to an independent evaluation by each of the possible success of
the state remedy which was then available. Appellant's reference to the only
remedy available in the second letter with mention of prior failures in the state
court must be taken to mean an expression of opinion as to a successful
outcome.
Under the circumstances disclosed by the record, it was well within the
discretion of the habeas corpus court to deny the appellant relief as described in
Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. The Supreme Court
there stated that such discretion lies where the applicant has deliberately
bypassed the orderly procedure of the state courts, and in so doing has forfeited
his state court remedies. The test for such 'deliberate bypass' of course includes
an awareness of the availability of state remedy and a decision not to use it
made by the petitioner himself. We do not read Fay v. Noia, supra, to mean as
appellant urges that the petitioner has to have some improper motive in
bypassing the state procedure, but only that it be a clear avoidance or evasion of
the adjudication by the state court made deliberately by petitioner. The
disposition of the petition as made by the trial court is likewise in accordance
with Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770.
The trial court's finding of deliberate bypass of state remedies available to
appellant is supported by the record, and there was no abuse of discretion by
the court in its denial of relief for such reason. Appellant in this appeal has
raised no other issues as to the disposition of the case by the trial court, and the
case is affirmed.
