433 F.

2d 124

William C. SHIFLETT, Appellant,

v.
COMMONWEALTH OF VIRGINIA, and C. C. Peyton,
Superintendent of the Virginia State Penitentiary, Appellees.
James Curtis WEATHERMAN, Appellant,
v.
C. C. PEYTON, Superintendent, Virginia State Penitentiary,
Appellee.
Orillion D. JAMES, Appellant,
v.
C. C. PEYTON, Superintendent of the Virginia State
Penitentiary, Appellee.
John Henry LOVE, Appellant,
v.
COMMONWEALTH OF VIRGINIA, Appellee.
No. 12355.
No. 12761.
No. 13522.
No. 13392.

United States Court of Appeals, Fourth Circuit.

Argued June 4, 1970.
Decided October 19, 1970.

No. 12,355. Frank C. Maloney, III, Richmond, Va. (Court-assigned),

(Joseph L. Lewis, and Hirschler & Fleischer, Richmond, Va., on the
brief), for appellant. Reno S. Harp, III, Asst. Atty. Gen. of Va. (Andrew P.
Miller, Atty. Gen. of Va., on the brief) for appellees. No. 12,761. Robert
A. Pustilnik, Richmond, Va. (Court-assigned), for appellant. Vann H.
Lefcoe, Asst. Atty. Gen. of Va., (Andrew P. Miller, Atty. Gen. of Va., on
the brief) for appellee.

No. 13,522. Louis M. Natali, Jr., Philadelphia, Pa. (Court-assigned), for

appellant. Vann H. Lefcoe, Asst. Atty. Gen. of Va., (Andrew P. Miller,
Atty. Gen. of Va., on the brief) for appellee. No. 13,392. Benjamin
Lerner, Philadelphia, Pa. (Court-assigned), for appellant. W. Luke Witt,
Asst. Atty. Gen. of Va. (Andrew P. Miller, Atty. Gen. of Va., on the
brief), for appellee.
Before BOREMAN and WINTER, Circuit Judges, and LEWIS, District
Judge.
WINTER, Circuit Judge:

In Nelson v. Peyton, 415 F.2d 1154 (4 Cir. 1969), we held that an accused's
right to counsel was violated when, after conviction, his attorney failed to
advise him of his right to appeal and the manner and time in which to appeal.
We said "[w]here counsel * * * treat their representation as terminated without
having imparted such advice, a defendant's right to counsel has been effectively
denied; or, where counsel have not treated their representation as terminated but
fail to impart such advice, a defendant's right to effective assistance of counsel
has been effectively denied. In either event, if the omissions of counsel have not
been supplied by advice imparted by the trial court * * a defendant's Sixth
Amendment right, as made applicable to the states by the Fourteenth
Amendment, has been violated." 415 F.2d at 1158. We reserved the question of
retroactive application of the rules thus stated.

In these four appeals, the question of the retroactivity of Nelson is claimed to be

presented. In three (Nos. 12,355, 13,392 and 13,522), we agree that the
question must be decided, and we hold that Nelson is retroactive in application.
In No. 12,761, we think that the decision may rest on the more settled rule that
trial counsel was ineffective by failing to perfect the appeal that the defendant
requested.

* The facts necessary to state for decision are as follows:

James Curtis Weatherman. In 1961, Weatherman was tried by a jury in

Virginia on a charge of robbery, convicted and sentenced to fifty years'
imprisonment. Thereafter, he discussed the trial with his retained attorney, a
member of the North Carolina bar. According to Weatherman and his mother,
the attorney told him that the attorney would take steps to get him a new trial.
The attorney admitted that he discussed the question of a new trial with
Weatherman, and while "I didn't say I'd try to appeal as such," he told

Weatherman "I'd try to help him in any way I can." The attorney also said that
he had a discussion with Mrs. Weatherman, that he told her he believed there
was possible error in the trial and that while he was not familiar with getting an
appeal, he would help in any way that he could. The attorney thought that he
may have told Mrs. Weatherman about the sixty-day time limit for taking an
appeal, but he knew that he had not given this information to Weatherman. The
attorney was specific that Weatherman and his mother got the impression that
"I would appeal," but he added and this may be the explanation for his
subsequent inaction "I didn't feel that I had a legal duty to do it, I don't think
I was `employed' for the purpose of appeal."
5

No appeal was taken within sixty days.

Weatherman admitted that he did not request an appeal. He knew that appeals
were taken to the Supreme Court of Appeals of Virginia, but he knew nothing
about appellate procedure, including the time limit within which an appeal must
be taken.

The district judge denied a writ of habeas corpus, without plenary hearing, on
the basis of the state habeas corpus record. Without deciding whether the
attorney was or was not to perfect an appeal, the district judge ruled that there
could be no denial of the right to appeal without state action, and since there
was no evidence that the state or the trial court was ever aware that
Weatherman desired an appeal, Weatherman was not entitled to relief.

John Henry Love. In 1965, Love was convicted by a jury of second degree
murder and sentenced to a term of eighteen years. He was represented at trial
by a court-appointed attorney. Neither Love nor his attorney took an appeal.

Following his conviction, Love talked to his attorney several times concerning
his forthcoming trial on another charge for which the same attorney also
represented him. The subject of the murder trial, then completed, was discussed
on two occasions. Love did not express any desire to appeal, but he did ask how
he could be released on parole. At the state habeas corpus hearing, the attorney
testified that he told Love that he had no grounds for appeal, but he freely
admitted that he did not explain to Love that he had a right to appeal,
irrespective of his counsel's view of the merits, and that, if indigent, counsel
would be supplied him. In his own words, the attorney said "I didn't go into it
any further than that since I felt that the Court had made no error."

10

At his state habeas corpus hearing, Love testified that he wanted to appeal after

he was taken to jail following imposition of sentence, but he did not know that
he could appeal, and "[e]veryone in jail said you had to have so much money
before you could appeal * * *." Love did not discuss this with his counsel; nor
did he communicate with the judge or any other attorney.
11

The district judge, relying on the transcript of the state habeas corpus hearing,
summarily denied relief, apparently on the ground that Love failed to articulate
a desire to appeal to his attorney or to the court: "By petitioner's own testimony
it was only after he arrived at the penitentiary that he decided to appeal, but that
he never made this desire known to his counsel or to the court. This, in addition
to the testimony of court-appointed counsel to the effect that the petitioner was
satisfied with the verdict, and showed no indication that he wanted to appeal
leads this court to the conclusion that there was no denial of any constitutional
rights concerning an appeal. * * * in order to be granted relief upon a habeas
corpus petition, the petitioner must prove by a preponderance of the evidence
that he is entitled to such relief. * * * the petitioner has clearly failed to carry
this burden * * *."

12

William C. Shiflett. In 1963, Shiflett was convicted of second degree murder

and sentenced to twenty years' imprisonment. His trial was before a jury, and
he was represented by counsel employed by his parents. After the trial Shiflett
was told by his attorneys that he could appeal if he wanted to, "but that it would
cost a large sum of money." Shiflett told his counsel "I didn't know, I didn't
have any money."

13

At the time of this exchange, Shiflett's lawyers knew that he was indigent and
that his parents had exhausted their resources to pay trial fees. Counsel were of
the view that error had been committed during the trial in that the only evidence
that Shiflett was at fault in the homicide testimony of the sheriff as to
statements made by Shiflett's wife was improperly admitted, and that there
was, therefore, a basis for overturning the conviction on appeal. They did not
advise Shiflett that he had a right to appeal in forma pauperis, a right to a courtappointed attorney and a right to a transcript at state expense. Shiflett was
unaware of these rights and did not learn of them until a year after he began
service of his sentence at the state penitentiary.

14

The district judge granted a plenary hearing and also relied on the transcript of
state post conviction proceedings. He concluded that because "petitioner gave
no indication to his trial counsel that appellate review was desired * * *
petitioner has not been denied his right of appeal * * *."

15

Orillion D. James. James was convicted of murder in 1958 and sentenced to life

15

Orillion D. James. James was convicted of murder in 1958 and sentenced to life
imprisonment. He had pleaded not guilty and was tried by a jury. At trial he
was represented by a lawyer retained by his mother for a fee of $100. No
transcript of the trial was made because neither James nor his mother could
provide the money to pay a stenographer.

16

After sentence was pronounced, the lawyer terminated his services. He did not
tell James that he had a right to appeal, that he had a right to court-appointed
counsel on appeal or that he had a right to a transcript at state expense to perfect
his appeal. At one of the two state habeas corpus hearings, the lawyer advanced
as one reason for his inaction his belief that James' mother could not bear the
costs of an appeal. James was unaware of these rights until 1965, when he
learned of them from another prisoner.

17

No appeal was ever taken. Based upon the state habeas record, the district
judge denied relief because James had never requested an appeal. The district
judge added that "[w]hile under today's procedure, counsel may have the duty
to advise a defendant of his right to appeal, nothing in the state or federal rules
or decisions required it in 1958."

18

In none of the four cases summarized above is there any claim of failure to
exhaust available state remedies. Accordingly, the various descriptions of the
exhaustion processes have been omitted.

II
19

In No. 12,761, James Curtis Weatherman, the record makes clear that after
sentencing Weatherman desired posttrial relief. As one untrained in the law, he
relied on his attorney. The attorney understood that Weatherman and his mother
thought that the attorney would appeal. Yet he did nothing to perfect an appeal,
nor, being unfamiliar with Virginia appellate practice, did he advise his client
to seek other counsel or even that, being unfamiliar with Virginia practice, he
was unable to act. The constitutional right to the assistance of counsel for
purposes of appeal was abridged. Caton v. Alabama, 392 U.S. 645, 88 S.Ct.
2298, 20 L.Ed.2d 1354 (1968); Swenson v. Bosler, 386 U.S. 258, 87 S.Ct. 996,
18 L.Ed.2d 33 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9
L.Ed.2d 811 (1963); Allred v. Peyton, 385 F.2d 360 (4 Cir. 1967); Magee v.
Peyton, 343 F.2d 433 (4 Cir. 1965); Boles v. Kershner, 320 F.2d 284 (4 Cir.
1963). We disagree with the district judge that the right to effective counsel is
denied in only those instances in which counsel defaults after the defendant's
desire to appeal is communicated to the state court or some other state
representative. United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2 Cir.

1967). See also Snead v. Smyth, 273 F.2d 838 (4 Cir. 1959). The notion that
state participation, state action or state default is an essential element of a case
for relief in this situation confuses a case in which denial of a right of appeal
constitutes a denial of equal protection or a violation of due process with one,
like the instant case, in which the right denied is the right to effective assistance
of counsel guaranteed by the Sixth Amendment. In the latter case no element of
state involvement need be proved to warrant relief.
III
20

In each of the remaining cases, there was either a failure to advise the defendant
that he had a right of appeal or a failure to advise the defendant fully of the
constituent elements of the right of appeal. In each there was, under the rule of
Nelson, either a denial of counsel or a denial of the right to effective counsel.

21

In reserving the question of the retroactive effect of the rule stated in Nelson,
we remarked that "the rules in right to counsel cases are generally applied
retroactively. McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968)
(per curiam)." 415 F.2d at 1158. Full consideration of the retroactivity of
Nelson leads us to conclude that it, too, must be applied retroactively.

22

McConnell v. Rhay, to which we referred in Nelson, is controlling authority for

this result. In it, the retroactive application of Mempa v. Rhay, 389 U.S. 128, 88
S.Ct. 254, 19 L.Ed.2d 336 (1967), which held that counsel must be provided at
a hearing concerning the revocation of probation, was considered. The Mempa
rule was held retroactive in the following statement:

23

This Court's decisions on a criminal defendant's right to counsel at trial, Gideon

v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, [93 A.L.R. 2d 733]
(1963); at certain arraignments, Hamilton v. State of Alabama, 368 U.S. 52, 82
S.Ct. 157, 7 L.Ed.2d 114 (1961); and on appeal, Douglas v. People of State of
California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), have been
applied retroactively. The right to counsel at sentencing is no different. As in
these other cases, the right being asserted relates to "the very integrity of the
fact-finding process." Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731,
14 L.Ed.2d 601, 614 (1965); cf. Roberts v. Russell, 392 U.S. 293, 88 S.Ct.
1921, 20 L.Ed.2d 1100 (1968). As we said in Mempa, "the necessity for the aid
of counsel in marshaling the facts, introducing evidence of mitigating
circumstances and in general aiding and assisting the defendant to present his
case as to sentence is apparent." 389 U.S., at 135, 88 S.Ct., at 257, [19 L.Ed.2d
at 341]. The right to counsel at sentencing must, therefore, be treated like the
right to counsel at other stages of adjudication. 393 U.S. at 3-4, 89 S.Ct. at 33-

34.
24

As the quotation discloses, the rationale of holding retroactive the decisions in

right to counsel cases is that the presence and effective participation of counsel
is essential to the integrity of the fact-finding process. Recently, we found this
factor to be of paramount importance in holding that the right to counsel of a
juvenile at a waiver hearing must be applied retroactively. Kemplen v.
Maryland, 428 F.2d 169 (4 Cir., decided May 22, 1970). There we noted that "
[t]here is a very real danger in any waiver proceeding that, without the presence
of counsel for the accused, juvenile jurisdiction will be waived on the basis of
unreliable or untrue information." (emphasis supplied.) 428 F.2d at 176.

25

The period between sentencing and effective presentation of an appeal is a part

of the appeal process. Indeed, it is a very necessary part of the appeal, because
that is the time that a decision whether to appeal is made. If the decision be in
the affirmative, it is at this time that the various steps necessary to perfect an
appeal are taken. As we said in Nelson, "[w]here appellate review is provided it
becomes an `integral part of the * * * trial system for finally adjudicating the
guilt or innocence of a defendant,' and denial of the right has been analogized to
denying a fair trial. Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100
L.Ed. 891 (1956)." 415 F.2d at 1159. Understandably, those cases which have
failed to hold retroactive various new holdings applicable to the administration
of criminal law have carefully delineated the appeal process from their
respective decisions.

26

Thus, in Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15
L.Ed.2d 453 (1966), which held that Griffin v. California, 380 U.S. 609, 85
S.Ct. 1229, 14 L.Ed.2d 106 (1965), deciding that the guarantee against selfincrimination forbade either comment by the prosecution on an accused's
silence or instructions by the court that such silence is evidence of guilt, was
not retroactive, the Court carefully noted:

27

As in Mapp, therefore, we deal here with a doctrine which rests on

considerations of quite a different order from those underlying other recent
constitutional decisions which have been applied retroactively. The basic
purpose of a trial is the determination of truth, and it is self-evident that to deny
a lawyer's help through the technical intricacies of a criminal trial or to deny a
full opportunity to appeal a conviction because the accused is poor is to
impede that purpose and to infect a criminal proceeding with the clear danger of
convicting the innocent. (emphasis supplied.) 382 U.S. at 416, 86 S.Ct. at 465.

28

Similarly, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199

28

Similarly, in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199
(1967), which considered the retroactivity of the holding that there is a right to
counsel at police lineups and held it not retroactive, the statement was made:

29

It is true that the right to the assistance of counsel has been applied
retroactively at stages of the prosecution where denial of the right must almost
invariably deny a fair trial, for example, at the trial itself * * * or at some forms
of arraignment * * * or on appeal. (emphasis supplied.) 388 U.S. at 297, 87
S.Ct. at 1970.

IV
30

There remains only the question of relief to be granted in each case. The effect
of the denial of the right to counsel and the effective assistance of counsel was
a denial of the right of appellate review. The granting of writs of habeas corpus
should be withheld for a reasonable period in which to permit the
Commonwealth to grant belated appellate review. If, however, belated
appellate review is not granted, or cannot be granted because of the
impossibility of obtaining a transcript of the original trial or an adequate
substitute, then the writs should issue. However, their effect should be stayed a
reasonable period to permit the Commonwealth an opportunity to retry the
petitioners if it be so advised.

31

Reversed and remanded.

32

LEWIS, District Judge (dissenting).

33

The majority here goes further than I am willing to go in giving these stateconvicted defendants a belated appeal or new trial.

34

In order to reach this end result the majority retroactively applied the rulings
first enunciated in Nelson. In so doing they judicially condemned the attorneys
who represented these defendants for failing to expressly advise their clients
that they had the right to appeal and the manner and time in which to appeal.
They called it "ineffective assistance of counsel."

35

How they can thus declare a lawyer "professionally incompetent" for not doing
what he was not then required to do by law or custom is beyond my
comprehension.

36

These were Virginia criminal cases tried in 1958, 1961, 1963 and 1965

under then existing Virginia law. Appellate procedure was spelled out by
Virginia statute Virginia law statute and case did not then or now
require either court-appointed or retained lawyers to so advise their clients and,
as far as I know, there are no federal statutes requiring attorneys to so do.
37

Instead of disclosing incompetency on the part of these trial attorneys, the

record discloses that each of them talked with their clients about the possibility
of a new trial and the advisability of an appeal. Weatherman's retained counsel
discussed the question of a new trial with him and his mother in fact they
talked about an appeal Weatherman admits that he did not request an appeal
even though he knew that appeals were taken to the Supreme Court of Appeals
of Virginia. The retained attorney says he did not feel he had a legal duty to take
an appeal because he was not employed for that purpose.

38

Love was represented by court-appointed attorney. He discussed the trial with

his client on several occasions. In fact, he told Love that he had no grounds of
appeal. Love admits he never told his lawyer he desired to appeal in fact he
had not decided to appeal until after he had arrived at the penitentiary and he
did not then make this desire known to his lawyer or to the court. This courtappointed attorney said Love was satisfied with the verdict and never at any
time indicated he wanted to appeal.

39

Shiflett was represented by retained counsel. He was told by his attorney after
trial that he could appeal but that it would cost a lot of money. Shiflett now
says that he did not learn that he had the right to a free appeal until a year after
he was sent to the penitentiary.

40

James was represented by retained attorney. His mother was poor and could not
provide money for a court reporter (the State did not then furnish one) The
attorney did not discuss the possibility of an appeal because he knew these
people could not afford the costs. James never asked for an appeal He did
not learn until 1965 and then from another prisoner that he could have a
free appeal.

41

Many of today's expanded appellate rights were unknown when these cases
were tried.

42

Until Nelson no court had held that a convicted defendant was entitled to a
belated appeal or a new trial solely because his attorney failed to advise him of
his right to appeal and the manner and time in which to appeal. See Lovvorn v.
Johnston, 118 F.2d 704 (9th Cir. 1941), cert. den. 314 U.S. 607, 62 S.Ct. 92, 86

L.Ed. 488 (1941).

43

Licensed lawyers are presumed to be competent. They should advise their

clients in accordance with existing law not what it might be in the future.

44

Here the majority determines these attorneys' professional competence on the

basis of the duties first enunciated in Nelson not by the standards followed
by most, if not all, lawyers prior to that decision.

45

By so doing they conclude these defendants were denied the effective

assistance of counsel a denial of their Sixth Amendment rights.

46

Since the rulings in all of the "right to counsel" cases have been applied
retroactively Nelson must be applied retroactively.

47

My inability to follow such logic is predicated on the fact that all of the cited
so-called right-to-counsel cases involved state action and/or inaction not the
failure of the lawyer to properly advise his client. The question of the attorney's
competency was neither raised nor determined by any of those courts.

48

Effective assistance [of counsel] should never be determined on whether the

legal advice given (or not given) was right or wrong but whether it was within
the range of competence demanded of criminal attorneys at the time it was
given. See King v. Wainwright, 368 F.2d 57 (5th Cir. 1966), cert. den. 389 U.S.
995, 88 S.Ct. 499, 19 L.Ed.2d 492 (1967), and McMann v. Richardson, 397
U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).

49

Whatever these lawyers did or did not do occurred in 1958, 1961, 1963 and
1965. They should not now be judicially declared incompetent for not then
doing what was neither required nor deemed proper prior to June of 1966, the
date of the Nelson decision.

50

If I read Nelson correctly, this Court there held: "* * * if the omissions of
counsel [in re the right to appeal] have not been supplied by advice imparted by
the trial court * * * a defendant's Sixth Amendment right, as made applicable to
the states by the Fourteenth Amendment, has been violated."

51

Had the majority here granted the belated appeals in these cases because the
Virginia trial judge had failed to give such advice although I doubt if this
Court has authority to require state judges1 to so do that would have been a

different thing. But that is not what is being done here.

52

If the majority here deems it proper to give every state-convicted defendant in

the Fourth Circuit, tried prior to June of 1969, a belated appeal or new trial
because the State trial judge did not advise them of the right to appeal and the
manner and time in which to appeal, I might go along with them, but I cannot
concur in granting belated appeals at the expense of their lawyers' professional
reputation.

Notes:
1

The duty of federal judges to so do prior to the 1966 amendment of Rule 32,
F.R. Crim.P., was limited to those situations in which sentence was imposed
after trial upon a not guilty plea of a defendant not represented by counsel. See
Moore, Federal Practice 32.01 [3]; Wright, Federal Practice and Procedure:
Criminal 528; Orfield, Criminal Procedure Under the Federal Rules, 32:11