Evitts v. Lucey Page 2

Evitts v. Lucey general information

Media for Evitts v. Lucey

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

J. Gerald Henry:

That was an intervening thing, and when that commenced--

Byron R. White:

And if we held that the case was moot, we would vacate the District Court's judgment, the Court of Appeals and direct the District Court's judgment to be vacated, in which event there would be no threat to the state.

The slate would be wiped clean.

J. Gerald Henry:

--Perhaps not in this particular case but this issue has, if I might be frank, been quite burdensome to us.

Byron R. White:

Well, that may indeed be, but nevertheless, the precedential value of the Court of Appeals' judgment would be eliminated, certainly.

J. Gerald Henry:

That may be the case, and it was that possibility, Your Honor, which prompted me to bring in--

Byron R. White:

Wiping the slate clean would also leave the Defendant subject to these collateral consequences.

J. Gerald Henry:

--It would indeed.

Byron R. White:

Which he is not subject to now unless we... if we affirmed, he would not be subject to those collateral consequences.

J. Gerald Henry:

Well--

Byron R. White:

Unless the state--

J. Gerald Henry:

--Depending on how the state did it, the possibility of an appeal could go forward and be affirmed.

At least there would--

Byron R. White:

--But if the state didn't, he would be in effect discharged from those collateral consequences.

J. Gerald Henry:

--That is arguably what could happen, Your Honor.

I could not deny that.

Byron R. White:

Yes, thank you.

J. Gerald Henry:

The facts underlying the questions are straightforward.

Mr. Lucey was tried before a jury in a Kentucky Circuit Court, and he was found guilty of trafficking in LSD and cocaine.

He timely appealed to the Court of Appeals of Kentucky.

He filed a brief on appeal in that court in which he raised three claims of error in the trial court.

His retained appellate attorney, however, did not comply with the rule regarding statement of appeal, and because of that, the appeal ultimately was dismissed without making a decision on the claim Mr. Lucey raised.

His attempts to combat that in the Kentucky courts were unavailing.

He then went into the District Court with his habeas corpus claim that he was deprived of effective assistance of counsel on appeal.

The Petitioners appealed to the Sixth Circuit Court, and the ultimate result of that is the holding of that Court, which is that there is a due process right to effective assistance of appellate counsel on state appeal.

We disagree with that, as we have set out, and our argument will be based in two ways, examining what we see as the reality of the Sixth Amendment, and examining the two lines of cases that I mentioned earlier.

But before doing that, if I may, I think it would be helpful to briefly examine Mr. Lucey's brief for what we consider some important agreements by him with some of our basic positions.

Harry A. Blackmun:

Mr. Henry, in the opposing brief is a citation of a case from the Kentucky Court of Appeals called England v. somebody, Spalding.

J. Gerald Henry:

Dealing with the statement of appeal.

Harry A. Blackmun:

And it is not cited in either of your briefs.