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Victor v. Lane

May 6, 1968


Castle, Swygert and Fairchild, Circuit Judges. Swygert, Circuit Judge (dissenting).

Author: Fairchild

FAIRCHILD, Circuit Judge.

Joseph Muncie Victor is in custody in an Indiana prison, pursuant to conviction and sentence in an Indiana court. He petitioned the district court for habeas corpus. The district court decided, without an evidentiary hearing, that Victor had failed to assert a deprivation of constitutional rights, and dismissed the petition. Victor has appealed.

Victor was indigent, and was represented by court-appointed counsel at his trial. He was convicted July 15, 1960. His trial counsel filed a timely motion for a new trial, which was overruled September 23, 1960. It is undisputed that under Indiana practice appointed trial counsel was neither obliged nor authorized to proceed further.

Victor had 90 days after September 23 within which to appeal. It is undisputed that he would have been provided a transcript and counsel for the purpose of appeal, without expense to him, had he made a request to the trial court.*fn1 He failed to make the request.

Several years later Victor acquired enough money to purchase a transcript and employ counsel. In 1965, with the assistance of counsel, he petitioned the Supreme Court of Indiana for a belated appeal. He alleged that he had not known that he had a right to have counsel appointed to prosecute an appeal, and that the trial court erred in overruling the motion for new trial. As to the merits of his appeal he said only that the motion contained 18 specifications of error and raised substantial questions of law.

The Supreme Court of Indiana denied his petition. The court stated that under its decisions allowing a belated appeal, "there must be sufficient cause shown to excuse the delay, and there must be a prima facie showing that there is merit in the appeal sought." It decided, without an evidentiary hearing, that Victor's petition made neither showing.*fn2

Victor's petition to the district court, also made with assistance of counsel, contained allegations similar to his state petition.

With respect to his knowledge of his rights, he alleged that he is blind, that until recently he was unaware that he had a right to have an appeal prosecuted at public expense, that he believed he could only obtain an appeal by payment of expenses and attorney fees, and that his trial counsel did not inform him of his right to prosecute an appeal at public expense.

He disclosed nothing more concerning alleged errors in his trial than he had said in his state petition.

It is now axiomatic that at the trial stage (and certain pre-trial stages) it is not presumed that an unrepresented defendant knows his rights with respect to retained or appointed counsel.

There is, however, a presumption of some force that a completed trial has been properly conducted, and that reversible error is more improbable than probable. In many cases an appeal would be futile effort. Although most would agree that it is good practice for a trial court to inform a convicted defendant of his right to appeal, and to be furnished counsel if he is indigent,*fn3 the absence of such advice is not deemed a denial of due process or equal protection.*fn4

The thread of Victor's argument appears to be that the state had a duty to dispel Victor's ignorance, and is therefore responsible for his failure to take a timely appeal. Had he requested counsel for an appeal, he would have had the same opportunity to appeal as a defendant with means to employ counsel. Victor wants us to assume (although he does not specifically allege) that he would have taken a timely appeal had he known how to go about it, and argues that since his tardiness was due to his poverty and ignorance, the state must afford him belatedly the same appeal of right (without a showing of merit) which it would have granted to any defendant who took an appeal within ninety days.

Victor had the assistance of counsel by the time he sought leave to take a belated appeal. His petition made the bald assertion that his appeal would raise substantial questions, but made no more palpable or specific claim that it had arguable merit. The Supreme Court of Indiana could, without any question, properly decide that no merit had been shown. And even if the state must bear responsibility for the lateness of the appeal, we deem ...

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