Evitts v. Lucey

LOCATION: New Mexico State Police Headquarters

DOCKET NO.: 83-1378
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 469 US 387 (1985)
ARGUED: Oct 10, 1984
DECIDED: Jan 21, 1985

J. Gerald Henry - on behalf of the Petitioners
William M. Radigan - on behalf of the Respondent

Facts of the case


Media for Evitts v. Lucey

Audio Transcription for Oral Argument - October 10, 1984 in Evitts v. Lucey

Warren E. Burger:

Mr. Henry, I think you may proceed when you are ready.

J. Gerald Henry:

Mr. Chief Justice, and may it please the Court:

This matter comes for review from the 6th Circuit Court of Appeals, and involves a state prisoner's habeas corpus claim of constitutional deprivation on state appeal.

The question presented for resolution today is whether there is any constitutional impediment to dismissal of a state appeal for failure of retained appellate counsel to follow the rules of procedure, and a specific portion of that question is whether under the Constitution there is any entitlement to effective assistance of appellate counsel on state appeal.

The holding of the Sixth Circuit was that indeed there is a right to effective assistance of appellate counsel on state appeal.

Before we list the facts, we would submit to the Court that we in arguing this matter will address the Sixth Amendment as to the possible right of effective assistance on state appeal, and as to the due process implications, we will look at two lines of cases of this Court, the McKane line and the Griffin-Douglas line, and we would suggest harmonizing of those lines, apparent differences in cases like Ross v. Moffitt.

Warren E. Burger:

You have just informed the Court by letter a day or so ago that this man has now been placed on parole, and you call the Court's attention to it.

But you will address the question at some point as to whether or not this renders this moot.

J. Gerald Henry:

I learned about it, Your Honor, I learned of this last week for the first time and submitted authority with my letter.

Our position is that the question may be considered by the Court, that it is not moot even though Mr. Lucey, the Respondent, has been finally discharged from parole, and indeed, his civil rights have been restored.

The reason for that is... there are several reasons.

When this action started in the District Court, when his petition for habeas corpus was filed, he in fact at that time was in custody.

There exists the possibility of some collateral consequences as long as this conviction remains.

If he were to go to trial, there's the possibility of impeachment from that conviction, could be considered at sentencing, and in terms of Kentucky procedure, if the trial were there, under our persistent felony offender statute, any sentence he might receive could be enhanced.

In addition, the Commonwealth is under orders which are stayed in this matter to either grant Mr. Lucey a new trial or to somehow reinstate his appeal.

And as we read the cases submitted, Strickland especially, and the ones following, it appears that there almost exists perhaps a presumption that under these circumstances collateral legal consequences will occur, not that they definitely will, but a presumption perhaps.

We think--

William J. Brennan, Jr.:

Would it make any difference in your answer if he were to get up today and say my client's no longer interested in the habeas petition?

J. Gerald Henry:

--It would make a difference from--

William J. Brennan, Jr.:

Or perhaps so far as I'm concerned I'm not going to press it.

J. Gerald Henry:

--the way you, the way you look at it from his point of view, but I think a what happens should be uniquely within the knowledge of Mr. Lucey, and if he were going to go down and say that today, hopefully that position would have been taken long ago rather than having him come in today.

William J. Brennan, Jr.:

Well, now, as I understand it, as you said that he has been restored to his civil rights and finished his sentence, and he's been discharged, hasn't he?

J. Gerald Henry:

Yes, Your Honor.

William J. Brennan, Jr.:

Well, in that circumstance, he might have no further interest in this habeas petition, might he not?

I should perhaps be asking him.

J. Gerald Henry:

The possibility--

William J. Brennan, Jr.:

But I just wondered if he were to do that, whether your answer to us would be any different.

J. Gerald Henry:

--It would not from our point of view, Your Honor, particularly because we are under orders to do a definite act, and particularly because at this stage of the proceedings, the conviction is there to be dealt with.

We think those are valid interests.

Byron R. White:

Well, the only thing that interfered with the state's interest in this case was the federal habeas corpus proceedings, right?