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ARENDALL v. DUTTON

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE


February 5, 1987

William David Arendall, Petitioner,
v.
Michael Dutton, etc., et al., Respondents

The opinion of the court was delivered by: NEESE

MEMORANDUM OPINION, FINDING AND ORDERS

 C. G. Neese, United States Senior Judge, District judge by designation and assignment.

 The petitioner Mr. William David Arendall applied pro se to this Court for the federal writ of habeas corpus. He claims he is in the custody of the respondent-warden pursuant to the judgment of conviction and sentence of October 23, 1972 of the Criminal Court of Tennessee for its (now) 20th judicial district (comprising Davidson County) in violation of the federal Constitution, Sixth Amendment, Right to the Assistance of Counsel Clause, 28 U.S.C. §§ 2241(c)(3), 2254(a).

 Mr. Arendall concedes that the claims he seeks to present to this Court were never presented to the courts of Tennessee. He claims, however, that he no longer has available a remedy under the laws of Tennessee.

 T.C.A. § 40-30-102 requires that a prisoner of Tennessee seeking to petition for post-conviction relief under T.C.A. title 40, chapter 30, after July 1, 1986, must do so within 3 years of the date of the final action of the highest appellate court of the state to which an appeal has been taken "or consideration of such petition shall be barred." The final action on the applicant's appeal from the aforementioned judgment (in so far as it appertained to Mr. Arendall) was on March 18, 1974. See, Arendall v. State, 509 S.W.2d 838 (Tenn. Cr. App. 1974), cert.den. by S. Ct. Tenn. (1974).

 It appears tentatively, therefore, that there is an absence of available state-corrective process to protect the applicant's rights as a prisoner. 28 U.S.C. § 2254(b). Mr. Arendall claims that he was deprived of his federal right to the assistance of counsel because his appointed attorney failed to adequately prepare and present his case on appeal.

 Mr. Arendall's federal right to the assistance of counsel is his right to the effective assistance of competent counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449 [10], 25 L. Ed. 2d 763 (1970). "The determination of whether the assistance rendered by counsel is reasonably effective * * * is not to be based solely upon his performance at trial. Consideration of the 'totality of circumstances' encompasses the quality of counsel's assistance from time of appointment * * * through appeal. At the heart of effective representation is the independent duty to investigate and prepare." Goodwin v. Balkcom, 684 F.2d 794, 805 (11th Cir. 1982).

 Mr. Arendall claims also that he was deprived of his right of a (first) appeal as of right from his judgment of conviction, Constitution, Fourteenth Amendment § 1, Right to the Due Process of Law Clause. If, as alleged by Mr. Arendall, "the full and complete record of trial was not submitted to the appellate court preventing [it] from hearing certain issues on appeal," there may have been a frustration of his right to this particular appeal. Cf. Rodriquez v. United States, 395 U.S. 327, 330, 89 S. Ct. 1715, 1717 [1], 23 L. Ed. 2d 340, (1969) (relating to an appeal from a judgment of conviction in a federal court in a criminal action); furthermore, "[a] first appeal as of right * * * is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney." Evitts v. Lucey, 469 U.S. 387, 396, 105 S. Ct. 830, 836, 83 L. Ed. 2d 821 (1985).

 Therefore, it not appearing plainly on preliminary consideration of the face of the applicant's petition that he is not now entitled to relief in this Court, Rule 4, Rules --- § 2254 Cases, it hereby is

 ORDERED that the respondent-warden file an answer in accordance with Rule 5, Rules --- § 2254 Cases, within 23 days herefrom, and that a copy of the petition herein and of this order be served forthwith by the clerk of this Court by certified-mail on the respondent-warden and the attorney-general and reporter of Tennessee. Rule 4, Rules --- § 2254 Cases. The noticed slow movement of the mail provides good cause for the additional time allowed. 28 U.S.C. § 2243; Rule 81(a)(2), F.R.Civ.P.

 Should it be the respondent's contention that the petitioner has not exhausted his available state remedies, he may limit his answer to such issue, in which event the Court will consider first the exhaustion matter and thereafter will allow the respondent additional time in which to file a supplemental answer, addressing the merits of the petition, as may be indicated. It hereby is

 DETERMINED that Mr. Arendall is unable financially to obtain representation of counsel herein and that the interests of justice require that he be furnished such representation. 18 U.S. C. § 3006A(g). Accordingly, it further hereby is

 ORDERED that the federal public defender for this District, or his designee, furnish representation herein to the petitioner pursuant to the Plan of this District for furnishing representation for persons unable financially to obtain adequate representation. Id.

 It is also ORDERED that the clerk of this Court provide such defender with copies of the pleadings herein and of this order and to allow him or her to withdraw in preparation, the entire court file.

19870205

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