William E. Zellers v. Jack Duckworth, Warden, Indiana State Prison , 763 F.2d 250 ( 1985 )

ESCHBACH, Circuit Judge.

William Zellers appeals the dismissal of his petition for a writ of habeas corpus. The district court concluded that Zellers had failed to establish cause for his failure to appeal the denial of his state-court petition for post-conviction relief, and that the failure to appeal that denial was a procedural default barring review of Zellers’s constitutional claims in federal court. We affirm.

I.

The facts, as stated by the Indiana Supreme Court, Zellers v. State, 271 Ind. 22, 389 N.E.2d 299 (1979), are these. Petitioner entered a plea of guilty to a charge of first degree murder in 1966 and received a sentence of life imprisonment. In 1969, he filed a motion to vacate the judgment and withdraw his guilty plea, contending that he was coerced by police officers into giving an incriminating statement and that he did not receive effective assistance of counsel. The trial court took the motion under advisement on January 17, 1971, and on August 15, 1972, the court denied the motion. No appeal was taken. Three years later, on October 17, 1975, petitioner filed in the trial court a petition for permission to file a belated motion to correct errors addressed to the August 15, 1972 order denying post-conviction relief. The petition was denied. On appeal, the Indiana Supreme Court ruled that the petitioner had alleged facts that, if true, would support the filing of a belated motion to correct errors, and remanded the case to the trial court for an evidentiary hearing. Zellers v. State, 266 Ind. 111, 361 N.E.2d 143 (1977).

On remand, a hearing was conducted, and the petition was again denied. The petitioner again appealed, and the Indiana Supreme Court affirmed, 271 Ind. 22, 389 N.E.2d 299 (1979). The Court evaluated petitioner’s motion under Indiana Post-Conviction Remedy Rule 2, § 1. Under that rule, the trial court will permit a defendant to file a belated motion to correct errors if

(a) no timely and adequate motion to correct error was filed for the defendant; and

(b) the failure to file a timely motion to correct error was not due to the fault of the defendant; and

(c) the defendant has been diligent in requesting permission to file a belated motion to correct error under [the] rule.

271 Ind. at 24, 389 N.E.2d at 301. The Supreme Court first found that the trial court’s conclusion that Zellers had been at fault in failing to file a timely motion to correct errors was not supported. It was undisputed that Zellers had, on May 1, 1972, written his attorney advising her that he desired to appeal any adverse ruling on his motion and requesting that she take any steps necessary to do so. It was also undisputed that Zellers received no notice from the court or his counsel when, on August 15, 1972, the trial court rendered a decision adverse to him, and that his counsel did receive notice. The Indiana Supreme Court noted that Zellers had 60 days after the August 15 adverse ruling in which to appeal, and that “there is no finding or evidence to support a finding that [Zellers] was aware of a legal duty to file a motion within the sixty-day period following August 15, 1972, or that he obstructed or impeded a timely filing.” 271 Ind. at 25, 389 N.E.2d at 301.

The Court did sustain the trial court’s finding that Zellers had not been diligent in requesting permission to file a belated motion to correct errors as required by the rule. The Court stated that the “burden was upon [Zellers] to show that he maintained that degree of care and attentiveness towards his claim and the progress of it in the court which one might reasonably expect from a party represented by counsel and under the particular circumstances shown.” 271 Ind. at 26, 389 N.E.2d at 302. The Court noted that Zellers did not contact his attorney concerning the progress of his case from May 1, 1972 until February 18, 1975. During that period, Zellers was either in prison in Indiana or living in Indiana after having escaped custody. (Zellers escaped from prison on July 20, 1973 and was returned to custody on February 11, 1975.) It developed at the hearing before the trial court that Zellers’s failure to receive notice of the August 15, 1972 adverse ruling was due in part to Zellers’s status as an escapee. Noting that Zellers had been an adult throughout the pendency of the case, that he was a person of ordinary skill and intelligence, and that he had represented himself during 1969 and 1970, the Court found that Zellers had not met his burden of showing that he had been diligent in filing his petition.

Zellers then filed a petition for a writ of habeas corpus in federal district court. The district court concluded that no evidentiary hearing was necessary. Petitioner claimed in his habeas petition that (1) his due process rights were violated when he entered his guilty plea and (2) he received ineffective assistance of counsel at the time of the plea. Because of the disposition of petitioner’s claims by the Indiana Supreme Court, the district court first addressed the issue of whether petitioner’s constitutional claims were barred from habeas review under the law of waiver as stated in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982). The court observed that petitioner had failed to address the required showing of cause and prejudice, other than to claim that he was unaware of the Indiana trial court’s adverse ruling on his post-conviction relief petition until after his return to custody. Noting that the time for taking an appeal had expired before petitioner’s escape, the district court found that the petitioner’s two and one-half year delay in pursuing an appeal was inexcusable, and dismissed the petition.

II.

In Indiana, a person convicted of a crime who claims that the conviction was in violation of the United States Constitution may file a motion for post-conviction relief pursuant to Indiana Rules for Post-Conviction Relief, Rule PC 1. This Zellers did in August 1969. In his PC 1 petition, Zellers alleged that he was deprived of effective assistance of counsel at the time of his 1966 guilty plea, and that a confession that induced his plea was the product of police coercion. A hearing on these contentions was held and, after various (sometimes inexplicable) delays, Zellers’s petition was denied on August 15, 1972. Zellers then had 60 days in which to appeal the denial, and no timely appeal was filed. Indiana also provides a remedy for those, like Zellers, who fail to take a timely appeal from the denial of their petition for post-conviction relief: they can petition the court for permission to file a belated motion to correct errors pursuant to Rule PC 2. In order to qualify for relief under Rule PC 2, the petitioner must show not only that he was not at fault for failing to take a timely appeal but also that he has been diligent in his request for permission to file a belated motion to correct errors under PC 2. The Indiana Supreme Court found that Zellers met the first of these requirements; that is, he was not at fault for failing to file a timely appeal. It was uncontested that Zellers had requested his attorney in May 1972 to prosecute an appeal in the event of an adverse judgment, and she had simply failed, through negligence, to do so. Moreover, Zellers had received no notice of the denial, and his attorney had. However, the Court found that Zellers could not qualify for relief under PC 2 because he had not been diligent in pursuing that relief. The State argues that Zellers’s failure to take a timely appeal from the denial of his PC 1 motion or diligently to seek relief under PC 2 constitutes a procedural default that bars review of petitioner’s constitutional claims under the principles announced in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) and Engle v. Isaac, 456 U.S. 107, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982).

The petitioner does not argue that the failure to take an appeal, or to request timely relief under Rule PC 2 from the consequences of that failure, does not constitute a procedural default for which he must account before presenting his claims to the federal courts for review on the merits. See, e.g., Jackson v. Cupp, 693 F.2d 867 (9th Cir.1982) (failure to appeal denial of post-conviction relief constitutes waiver); Hammer v. Meachum, 691 F.2d 958 (10th Cir.1982), cert. denied, 460 U.S. 1042, 103 S.Ct. 1439, 75 L.Ed.2d 796 (1983); Rodgers v. Wyrick, 621 F.2d 921 (8th Cir.1980); United States ex rel. Savino v. Flood, 482 F.Supp. 228, 237 (E.D.N.Y.1979). Cf. United States v. Correa-De Jesus, 708 F.2d 1283 (7th Cir.) (suggesting that failure to appeal denial of motion to vacate sentence precluded later review of grounds of motion in § 2255 proceeding), cert. denied, — U.S.-, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983). Nor does petitioner contend that the “cause and actual prejudice” standard of Wainwright v. Sykes, supra, is inappropriate under the facts of this case. See Williams v. Duckworth, 724 F.2d 1439 (7th Cir.) (applying Wainwright standard to failure to raise issue in post-conviction proceeding), cert. denied, — U.S.-, 105 S.Ct. 143, 83 L.Ed.2d 82 (1984); United States ex rel. Spurlark v. Wolff, 699 F.2d 354 (7th Cir.1983) (en banc) (applying Wainwright standard to failure to take direct appeal). Rather, he contends that he has shown the requisite cause for his failure to appeal.

It is uncontested, and the Indiana Supreme Court found, that the reason no timely appeal was filed was because Zellers’s attorney failed to file one, although she had been requested to do so. Were this the only reason that the Indiana courts refused to entertain Zellers’s appeal, we might be persuaded that the inexcusable negligence of Zellers’s counsel provided cause for the default. See Clay v. Director, Juvenile Div., 749 F.2d 427 (7th Cir.1984). However, Zellers was not barred from appeal merely because he failed to file a timely notice, for the Indiana Supreme Court would still have been willing to entertain an appeal had Zellers been diligent in pursuing relief under Rule PC 2. In fact, the Indiana courts have allowed belated appeals after considerable lengths of time have passed upon a showing that petitioners have diligently sought relief. See, e.g., Cottingham v. State, 266 Ind. 64, 360 N.E.2d 189 (1977); Brandon v. State, 264 Ind. 177, 340 N.E.2d 756 (1976).

The Indiana Supreme Court found that Zellers made no attempt to contact the trial court or his counsel from May 1, 1972 (the date of his letter to counsel requesting an appeal) until February 18, 1975 (when he conferred again with a public defender), a period of almost three years. Consequently, the Court found that Zellers could not establish his diligence in seeking an appeal under PC 2. Of course, the question whether Zellers has established cause for his failure to seek relief diligently is a question of federal law, see, e.g., Rodgers v. Wyrick, 621 F.2d 921, 927 (8th Cir.1980), so the Indiana Supreme Court’s finding does not end our inquiry.¹

Zellers contends that he was entitled to rely on his May 1972 instructions to his attorney to pursue an appeal in the event of an adverse judgment, especially since his attorney — a public defender — was required by law to prosecute an appeal if asked to do so. In effect, Zellers asks us to hold that a prisoner may ignore the progress of his case for almost three years in reliance on an attorney whom he does not again contact. This we decline to do. We need not adopt any per se rule concerning the amount of attention a prisoner represented by counsel must show to the progress of his case to find that complete inattention for a period of almost three years is inexcusable. We can think of no reason in support of the petitioner’s position, for to agree with petitioner would be to encourage the sort of neglect and delay illustrated by the instant case.² Accordingly, we find that Zellers has not established cause for his procedural default, and so conclude that the district court correctly dismissed Zellers’s petition.³

III.

For the reasons stated above, the judgment of the district court is affirmed.

1 . Because the question of cause is federal, we deem irrelevant Zellers’s contention that the two opinions of the Indiana Supreme Court contain inconsistent legal conclusions.

2 . We also note that Zellers’s status as an escapee for the year and one-half preceding his belated attempt to appeal might well account for his inattention to his case. It requires little imagination to conclude that Zellers’s failure to contact his attorney or the court during that period was due less to any reliance on his May 1972 request than to his desire to avoid revealing his location.

3 . We also note that Zellers made no attempt in the district court to establish actual prejudice.

1 . In Clay, 749 F.2d at 430-32, we held that a similar failure to perfect an appeal fell below an objective standard of reasonable legal care. In order to state a claim of ineffective assistance, however, it is also necessary to show prejudice. Strickland v. Washington, — U.S. -, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). The discussion of prejudice for sixth amendment purposes may be merged with the discussion of prejudice for the purposes of the cause and prejudice standard, infra. Although the threshold of prejudice is probably greater in the former context, compare Strickland, 104 S.Ct. at 2068 (requiring a "reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different”) with Reed v. Ross, — U.S.-,-, 104 S.Ct. 2901, 2907, 82 L.Ed.2d 1 (1984) (cause and prejudice standard met if but for the error, petitioner “might not have been convicted”), for the reasons discussed infra at 255-256, I conclude that there is a reasonable probability that but for counsel’s incompetence, Zellers would have received a lesser sentence.