Daniel Duane Gilbert v. Dewey Sowders, Superintendent, Kentucky State Penitentiary, Respondent

646 F.2d 1146, 1981 U.S. App. LEXIS 14681

• Court: Court of Appeals for the Sixth Circuit
• Decided: April 2, 1981
• Docket: 79-3597
• Status: Published

Opinions

PER CURIAM.

In this case Warden Sowders appeals from a District Judge’s decision granting defendant Gilbert’s petition for writ of habeas corpus after the District Court determined that he had been denied his constitutional right to effective assistance of counsel during the appeal of his Kentucky conviction for kidnapping.

This proceeding arises from a situation where retained counsel violated a highly technical procedural rule which resulted in Gilbert’s case being dismissed.

Counsel had performed every requirement of the Kentucky appellate rules, except one. He had petitioned for an extension of 60 days for filing the record on appeal while there was time for the extension to be granted. The rules allowed such a 60-day extension. Actually, the extension had been granted by the order, but had not been entered by the clerk of court. Gilbert’s counsel’s¹ technical violation was that he failed to insure that the order was timely entered as is required by the Kentucky case law.

Kentucky has, of course, a right to enforce its own rules of procedure, including the unusual requirement that the lawyer see to it that the clerk performs his public obligation.

We cannot, however, avoid the conclusion that the failure of the Kentucky Supreme Court to grant appellant’s counsel’s motions for reconsideration of the dismissal of the appeal was arbitrary and capricious, and an abuse of due process of law, as protected by the United States Constitution. By these motions the Supreme Court had been fully advised as to the obviously sincere attempt to perfect an appeal and the miniscule nature of the defect. Appellant had been sentenced to sentences totaling 105 years. Kentucky’s Constitution grants such a person a direct appeal to the Supreme Court of Kentucky. Ky.Const. § 110(2)(b).

The judgment of the District Court granting the writ is affirmed.

1 . Gilbert’s counsel at this juncture was the attorney who had been retained for his trial and who undertook the Kentucky Supreme Court appeal without compensation. His counsel on this federal appeal is Kentucky’s public defender.