Allen Dale Canary v. Dr. David H. Bland, Commissioner of Corrections, Commonwealth of Kentucky , 583 F.2d 887 ( 1978 )

LIVELY, Circuit Judge.

This habeas corpus action challenges a habitual criminal conviction based in part upon a prior guilty plea entered by petitioner following transfer of his case from juvenile court. It is claimed that failure of the juvenile court to make certain determinations and give reasons for its waiver of jurisdiction as required by applicable Kentucky statutes constituted a denial of petitioner’s right to due process. It is also claimed that subsequent failure of petitioner’s attorney to object to use of the guilty plea as a basis for habitual criminal charge constituted ineffective assistance of counsel. The district court held that the guilty plea to the adult charges following transfer from the juvenile court cut off any right to complain of constitutional deprivations which occurred prior to entry of the guilty plea, citing Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); and that it was “hardly incompetence” for counsel to fail to do the useless act of challenging the conviction.

In 1968, at age 16, the appellant Allen Dale Canary was charged with storehouse breaking. A hearing was held in the Da-viess County, Kentucky juvenile court after which the juvenile judge entered the following order:

July 16, 1968

IN THE INTEREST OF ALLEN DALE CANARY, A JUVENILE

STOREHOUSE BREAKING

This cause coming on for hearing on a warrant charging the above child with storehouse breaking and said juvenile (16-years of age) being represented by his attorney, the Honorable David Yewell, (along with his mother, Mrs. Wanda Canary) and on advice of his attorney he entered a plea of guilty and;

THE COURT BEING SUFFICIENTLY ADVISED, Allen Dale Canary is held to await the action of the August, 1968, Grand Jury. Said juvenile is under $1000.00 bond and being unable to make bond is therefore committed to Juvenile Detention.

/s/ WILLIAM L. BENNETT

Juvenile Judge

I, Charmaine Baird, Clerk of the Daviess Juvenile Court, do hereby certify that the above is a true and correct copy of order entered in Juvenile Book # 4, Page 147, this the 16th day of July, 1968.

/s/ CHARMAINE BAIRD

/s/ Illegible

Following indictment by the grand jury Canary entered a guilty plea in the Daviess Circuit Court to the charge of storehouse breaking and was sentenced to one year. Canary was represented by retained counsel in the juvenile court and by appointed counsel in circuit court.

In 1973 Canary was convicted of the crime of storehouse breaking and of being a habitual criminal. His punishment was fixed by a jury at life imprisonment, as provided by a Kentucky statute which has since been repealed. One of the prior convictions upon which his conviction as a habitual criminal was based was the 1968 guilty plea. The 1973 conviction was appealed by the Kentucky public defender and affirmed by the State’s highest court. No issue was raised which challenged reliance upon the 1968 conviction to invoke the habitual criminal statute. Subsequently Canary attacked the 1973 conviction in two separate collateral proceedings. In one case it was contended that Canary had been denied effective assistance of counsel in 1973 because his counsel did not defend on the ground that his 1968 conviction followed a defective transfer from juvenile court and was not a proper predicate for a habitual criminal charge. In the other action it was contended that the Daviess Circuit Court had no jurisdiction to try Canary in 1968 because of an improper waiver by the juvenile court. Both motions were denied and the Supreme Court of Kentucky affirmed, holding that infirmities in prior convictions must be raised in the recidivist proceedings rather than in subsequent collateral attacks. It further ruled that failure of counsel to raise this issue at the proper time did not deprive Canary of the effective assistance of counsel. In denying the ineffective assistance claim the Kentucky court found that counsel’s failure did not reduce the trial to the level of a “farce and a mockery of justice,” a test which this court no longer applies to Sixth Amendment claims. See Beasley v. United States, 491 F.2d 687 (6th Cir. 1974).

In his application for a writ of habeas corpus in the district court Canary sought relief on the same two grounds which he had relied upon in the state post-conviction proceedings. We examine first the claim that failure of the juvenile court in 1968 to comply with statutory requirements in waiving jurisdiction and transferring his case to circuit court denied the petitioner due process of law. The transfer order from the juvenile court clearly did not comply with the requirements of Kentucky Revised Statutes (KRS) 208.170. Hubbs v. Commonwealth, 511 S.W.2d 664 (Ky.1974). The order failed to set forth reasons for the juvenile court’s waiver of jurisdiction and it made no finding “that the best interests of the child and of the public require that the child be tried and disposed of under the regular law governing crimes . . . .” In Whitaker v. Commonwealth, 479 S.W.2d 592, 594-95 (Ky.1972), a similarly deficient order was held invalid as failing to “satisfy the basic requirements of due process and fairness” as well as failing to conform to the statutory requirements. This holding is in accord with our understanding of Kent v. United States, 383 U.S. 541, 557, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), particularly in the light of In Re Gault, 387 U.S. 1, 12, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In Whitaker the transfer order was questioned on direct appeal from a conviction following transfer. See also Bingham v. Commonwealth, 550 S.W.2d 535 (Ky. 1977). In Hamilton v. Commonwealth, 534 S.W.2d 802 (Ky.1976), on facts very similar to those in the present case it was held that a defendant who pled guilty in circuit court was not barred from contesting the validity of transfer from juvenile court in subsequent recidivist proceedings. Hamilton also holds that the validity of transfer proceedings may be contested on direct appeal from a conviction following transfer, in a traditional habeas corpus action and by use of Kentucky post-conviction remedies. But see Schooley v. Commonwealth, 556 S.W.2d 912 (Ky.Ct.App.1977). However, one convicted as a habitual criminal who does not raise the issue on direct appeal may not thereafter base a collateral attack on that conviction upon an assertion that one of the prior convictions upon which the habitual criminal conviction was based was void. Thomas v. Commonwealth, 437 S.W.2d 512 (Ky.1969), cert. denied, 397 U.S. 956, 90 S.Ct. 949, 25 L.Ed.2d 142 (1970); Copeland v. Commonwealth, 415 S.W.2d 842 (Ky. 1967).

Since Kentucky permits one who has pled guilty after transfer from a juvenile court to contest the legality of the transfer proceedings, by direct appeal and otherwise, we conclude that Tollett v. Henderson, supra, is not controlling. The “break in the chain of events” rule of Tollett has been held not to prohibit a federal habeas challenge to claimed constitutional deficiencies when state procedure permits appellate review of those issues after a guilty plea. In Lefkowitz v. Newsome, 420 U.S. 283, 293, 95 S.Ct. 886, 891, 43 L.Ed.2d 196 (1975), this holding was stated as follows:

when state law permits a defendant to plead guilty without forfeiting his right to judicial review of specified constitutional issues, the defendant is not foreclosed from pursuing those constitutional claims in a federal habeas corpus proceeding.

We believe the Lefkowitz exception applies to the present case. In Lefkowitz, the right of appeal was established by statute and Kentucky does not have a statute permitting appeals following guilty pleas. However, the Kentucky courts have consistently permitted such appeals to challenge the validity of juvenile transfer proceedings. Hamilton v. Commonwealth, supra; and this practice is sufficient to satisfy the Lef-kowitz rule. The court in Martinez v. Rodriguez, 552 F.2d 390 (1st Cir. 1977), cited by appellee, did not discuss the applicability of Lefkowitz v. Newsome.

Though Kentucky does permit an appeal following a guilty plea in cases such as this, it limits the stage at which a challenge to the validity of transfer proceedings may be mounted. It does not permit a “flank attack” on a prior conviction which has been relied upon to obtain a habitual criminal conviction. The last opportunity to contest such a prior conviction comes in the recidivist proceedings themselves. Thomas v. Commonwealth, supra. This limitation does not deprive one in the petitioner’s position of a fair opportunity to contest the legality of the transfer proceedings and order. We conclude that failure to assert this constitutional challenge within the limitation prescribed by Kentucky practice forecloses reliance upon the same claim of constitutional deprivation in federal habeas corpus proceedings absent a showing of “cause” and “prejudice.” See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

A claim of ineffective assistance of counsel constitutes the second ground for habeas relief. This was not an issue in Wainwright v. Sykes, where the habeas applicant expressly waived any contention of ineffective assistance of counsel. 433 U.S. at 75 n.4, 97 S.Ct. 2497. Canary is not charging his 1968 attorney with ineffective assistance in failing to attack the transfer proceeding and permitting him to plead guilty. Rather, he claims ineffective assistance at his 1973 trial in the failure of his attorney at that time to challenge use of the 1968 conviction to enhance his punishment for the 1973 charge. No reasonable trial strategy could have warranted failure to challenge introduction of proof of a prior conviction which had the effect of increasing the punishment from a maximum of five years to life imprisonment. The failure must be presumed to have been inadvertent. It is not clear whether this is sufficient “cause” under the rule of Wainwright v. Sykes, supra, to permit habeas relief on due process grounds. See The Supreme Court, 1976 Term, 91 Harv.L.Rev. 70,217-21 (1977). However, in view of the clear prejudice which resulted to the petitioner, we consider the second ground stated in the habeas petition as a separate claim of a Sixth Amendment violation.

At least as early as 1971 the Kentucky Court of Appeals (now the Supreme Court) interpreted Kent and Gault as teaching “that proceedings at a juvenile’s waiver (to be tried as an adult) must measure up to the essentials of due process and fair treatment.” Anderson v. Commonwealth, 465 S.W.2d 70, 73-74 (Ky.1971). See also Whitaker v. Commonwealth, 479 S.W.2d 592, 594—95 (Ky.1972). Some of the very violations which occurred in Kent and were referred to there and in Gault as deprivations of due process occurred in the 1968 transfer proceedings in Canary’s case. Furthermore, the decision of the Supreme Court of the United States in Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), mandated a careful examination for constitutional errors of prior convictions relied upon to enhance punishment in recidivist proceedings.

If the defects in the transfer proceedings had been relied upon in the habitual criminal prosecution to challenge use of the 1968 conviction, that conviction would have been eliminated as a basis for enhancement. Hamilton v. Commonwealth, supra. In view of the holdings of the Supreme Court of the United States and of the highest court of Kentucky, counsel in the 1973 proceedings was obliged to bring the infirmities in the 1968 proceedings to the attention of the court in the recidivist prosecution or, at the latest, on appeal from the habitual criminal conviction. Canary was represented in 1973 by the public defender’s office, an organization which may be presumed to have particular competence in the area of criminal law. The deficiencies in the transfer proceedings were manifest from the face of the juvenile court order. We conclude that it was a denial of the Sixth Amendment right to counsel as defined in Beasley v. United States, 491 F.2d 687 (6th Cir. 1974), to fail to challenge use of the 1968 felony conviction as a basis for the 1973 habitual criminal charge.

Noting that the 1968 order of the juvenile court recited that Canary “entered a plea of guilty” in that court, we requested counsel to advise in supplemental briefs whether there was a double jeopardy issue in this case. See Holt v. Black, 550 F.2d 1061 (6th Cir. 1977). It is clear that this issue was not raised in any state court proceedings and the exhaustion requirements of 28 U.S.C. § 2254(b) have not been met.

The judgment of the district court is reversed and the ease is remanded to the district court for entry of a writ discharging petitioner from custody of respondent to the extent that confinement is based upon the 1973 conviction as a habitual criminal.