Curtis LANGFORD, Plaintiff-Appellant, v. STATE OF ALABAMA, Defendant-Appellee, 422 F.2d 760

LEWIS R. MORGAN, Circuit Judge: This is an appeal from an order of the United States District Court denying appellant’s petition for writ of habeas corpus. After exhausting all comparable state remedies, appellant Curtis Lang-ford filed on November 30, 1966, a petition for writ of habeas corpus in the United States District Court. The petition was dismissed without a hearing; however, upon appeal this Court remanded for a plenary hearing, 387 F.2d 647.

After such hearing, the District Court again denied the petition for writ of habeas corpus, and the appeal from this second denial after a hearing is the one presented to us for consideration. Curtis Langford was convicted of robbery on December 16, 1964, and sentenced to a term of ten years in the Alabama State Penitentiary. He did not perfect an appeal from this conviction. During the trial Langford was represented by retained counsel who was employed for him by his father, Ben Lang-ford.

The attorney who was representing Curtis Langford withdrew from the ease without giving notice of appeal, although he knew of Langford’s desire to appeal. This desire to appeal was communicated to the State Trial court oil several occasions and was verified by several witnesses. During cross-examination, the following testimony was elicited from appellant Langford: Q. Did you ask for an appeal after your conviction? A. Yes, sir. Q. To whom did you note this appeal, to the Court? A. I addressed it to the Court, yes, sir. Q. Did you ask for an appeal as a pauper ? A. No, sir.

I just stated that I would like to appeal the conviction. I had also stated it before to my lawyer that if I was convicted I would like to carry the case all the way. That was in the little room there on the side. Curtis Langford’s father, Ben Langford, responded under redirect examination as follows: Q. Did he [Curtis Langford] say anything in court at that time to the Judge? Did he make any statement? A. Yes, sir, he did. Q. Was it a short statement or was it a lengthy statement ? A. It was a short statement. Q. In that statement did he say anything about wanting to appeal the conviction ? A. Yes, sir.

He was asking for that. Mr. Robert Lee Eggleston, who was present in court when Curtis Langford was convicted, stated under oath that he heard the appellant express his desire in the courtroom for an appeal. The record is quite lucid on this point and there is no doubt that Langford’s desire to appeal was communicated to the Judge. The other principal factual question concerns whether a responsible state official was made cognizant of Curtis Langford’s indigency. The only evidence that such was communicated to the state is the discussion of Ben Lang-ford with the Trial Judge concerning a transcript.

After the December 16th trial, Ben Langford testified that the following occurred: Q. (Mr. Clark) * * * Well, do you remember which response the Judge made when he [Curtis Lang-ford] said something to him about an appeal, if any? A. (Ben Langford) — Well, I don’t know what he told him. But he told me. If you want me to state that, I will. THE COURT: The Judge told you what? A. That I could go to the Clerk and ask him for $75.00 and get the transcript. That he would do it for me if I get up $75.00. THE COURT: Now, the Judge told you this? A.

That’s right. ****** THE COURT: Judge Archer told you you could go to the Clerk and get a transcript for $75.00 ? A. He told me I could go and speak to the Clerk and the Clerk would tell me what it would cost, about $75.00. THE COURT: What did the Judge say to you about a lawyer, if anything? The Judge knew you had Mr. Hamm retained, that you would pay him. And the Judge, when you were talking with him, assumed, I’m sure, you were interested in an appeal and that you were going to hire a lawyer and get whatever it took.

You didn’t tell the Judge that you all didn’t have any money at that time? (Emphasis supplied). A. No. (Emphasis supplied). THE COURT: And you didn’t tell the Judge that. Well, at that time you really had not had any discussion with Mr. Hamm about the appeal? A. Yes, he had. If you want me to finish. THE COURT: All right. Finish it. A. Well, with the Judge, I asked him about it, he told he I would have to get one. I told him I didn’t have any money. He said, you have to get it in thirty days. I didn’t know nothing about the six months at the time.

I could have raised it in that length of time, but I didn’t know nothing about it. But, now, the thirty days, that made me give up. And that’s the only thing lacking, not knowing. (Emphasis supplied). “For a petitioner to be entitled to post-conviction relief, it is not enough to show that indigency occasioned the petitioner’s inability to employ counsel or to appeal; the petitioner must show that the State deprived him of his Fourteenth Amendment rights.

State action is shown when a responsible official in the State’s system of justice rejects a request for counsel or fails to take proper steps toward appointment of counsel for a convicted defendant when he has knowledge of the defendant’s indigency and desire for appellate counsel. When an accused person retains counsel on the original trial, the State may rely on the presumption that the accused's lawyer will protect his client’s rights on appeal. But that presumption is rebuttable.” Pate v. Holman, 341 F.2d 764 (5 Cir., 1965); Worts v. Dutton, 395 F.2d 341 (5 Cir., 1968); Edge v.

Wainwright, 347 F.2d 190 (5 Cir., 1965). There is no question but that the Trial Judge was given notice that Langford desired to appeal. The District Court in its opinion denied Langford’s petition stating that he failed to give notice to a state official he wished to appeal. The district Court opined: “Title 15, Section 314(4) [318(4)], Code of Alabama 1940 (Recomp. 1958), requires the court to cause to be entered on its minutes a recital or notice of appeal.

No such notice appears on the minutes of this case.” That Court was in error to conclude from the above that no notice of appeal was given to a state official. The testimony of three individuals concurred in the fact that Langford informed the Trial Court he wished to appeal. No requirement has been established that the notice of appeal must be formal. On the contrary, the law is pellucid that if a state official has “knowledge” of the desire to appeal this is sufficient. Pate v. Holman, 341 F.2d 764 (5 Cir., 1965). It is quite immaterial how the state official acquires this knowledge.

The signal issue confronting the Court is a factual one as to whether “a responsible official in the state’s system of justice” was made aware of Lang-ford’s indigent status on appeal. The District Court did not discuss this question. Most eases concerning appointment of counsel on appeal for an indigent who retained his attorney at trial have been concerned with whether a state official knew of the desire to appeal. In the case at bar, Curtis Langford stated in court he wished to appeal.

In this appeal, it is the second part of the double criterion of communication to a state official which appears to be absent, viz., indigency. The right to counsel on appeal is fundamental. It is not dependent upon the use of magic words such as “pauper” or “indigent”; however, the thought contained in these terms must be conveyed to a state authority, i.e., the lack of money. In this case, it is not clear that this thought was brought home to the Trial Judge. The testimony of Ben Langford contains a conti’adiction on this point.

When asked directly by the District Judge whether he stated to the Trial Judge that they didn’t have any money, Ben Langford answered, “No.” However, when later discussing on the stand what he told the Trial Judge, Ben Langford said he informed him that he didn’t have any money. The testimony is not certain on this point. There is no other testimony in the record concerning indigency and we cannot rely solely on these opposing statements. Therefore, as to the results reached by the District Court on this contention, we must affirm.

Curtis Langford’s final contention is that he was denied assistance of counsel during his 1964 trial. The case of Howard v. Beto, 375 F.2d 441 (5 Cir., 1967), is the latest pronouncement of the law by this Court on this point. To reiterate the Court’s view in that case: “The district court found, however, based upon the admission of Howard and the state trial judge’s docket entries which were admitted in evidence, that Howard’s mother had retained counsel to represent Howard and that such counsel did, in fact, represent him when he entered guilty pleas at his first trial.

There is, of course, a distinction to be made between the lack of effective assistance of competent counsel and being denied the right to have the effective assistance of competent counsel. It is the latter that opens a judgment to challenge by habeas corpus. Here the attorney’s alleged incompetence cannot be imputed to the state.” (Cases omitted). A thorough discussion of the cases concerned with this problem is contained in dictum of Breedlove v. Beto, 404 F.2d 1019 (5 Cir., 1968). However, as the most recent and exacting case on the question, we adhere to Howard, supra.

Accordingly, the appellant’s petition for writ of habeas corpus was correctly denied, and the final judgment of the District Court is affirmed. Affirmed.