No. 83-1958.United States Court of Appeals, Eighth Circuit.Submitted May 16, 1984.
Decided August 23, 1984.
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Wendell L. Griffen, Little Rock, Ark., for appellant.
Alice Ann Burns, Deputy Atty. Gen., Little Rock, Ark., for appellee.
Appeal from the United States District Court for the Eastern District of Arkansas.
Before HEANEY, BRIGHT and ARNOLD, Circuit Judges.
ARNOLD, Circuit Judge.
[1] Tommy Lee Thompson, a state prisoner, appeals the District Court’s dismissal of his petition for writ of habeas corpus. The only issue he raises on appeal is that the District Court erred by not providing him with a transcript of his entire state trial. Thompson argues that he needed the transcript in order to show that he did not receive effective assistance of counsel during his state trial. We agree and therefore reverse and remand. I.
[2] On March 21, 1974, Thompson was convicted in the Circuit Court of Lee County, Arkansas, of assault with intent to rob, burglary, and rape. He was sentenced to three years for assault with intent to rob, ten years for burglary, and sixty years for rape. His court-appointed counsel was relieved after sentencing.
II.
[6] In Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) (plurality opinion) the Supreme Court held
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that “[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts.” Lane v. Brown, 372 U.S. 477, 484, 83 S.Ct. 768, 772, 9 L.Ed.2d 892 (1963) extended “the Griffin principle [to] appl[y] to state collateral proceedings.” Indigents must be furnished a copy of the transcript for appellate review of an adverse decision in post-conviction proceedings. Long v. District Court, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290
(1966) (per curiam). This principle is equally applicable to proceedings in federal courts collaterally attacking state convictions, and we do not understand the state to contend otherwise in the present case.
pleadings liberally. In Thompson’s pro se Motion for Designation of Record filed November 6, he said he needed the record of “the intire [sic] proceeding of Tommy Lee Thompson v. State of Arkansas.” In the December 4 Motion to Produce Transcript, he requested the record and transcript, including:
[10] And in the hearing before the magistrate, Thompson complained that Ms. Miller did not cross-examine prosecuting witnesses concerning their identification of him; the sheriff concerning fingerprint findings; and the physician who examined the prosecuting witness concerning injuries the witness supposedly sustained. Tr. 30-33. It is difficult, if not impossible, to know whether these claims have any merit without reading the transcript of the trial. [11] In short, Thompson raised the issue of ineffective assistance of counsel during his state trial several times below in his habeas case. The state argues that an amended petition should have been filed in accordance with Fed.R.Civ.P. 15(a). There was no need to file an amended petition, because the issue had been raised already. The state also argues that Thompson’s state petition is almost identical to his federal petition, and that since the issue wasthe complete opening statements by both gene raff [sic] prosecuting attorney, for the state to the jury and his attorney of record Ms. Sharon b. [sic] Miller opening statements for the defense. The complete testimony, and evidence of every witness which was presented in cases number 7289, 7290, 7291 at his trial until the jury reached it’s [sic] verdict and renderring [sic] that decision to the circuit court, on March 21, 1974 by Lee County in Marianna, Arkansas 72360 inquires [sic] it to be transferred to the United States district court [sic], for the eastern district [sic] of Arkansas in Little rock, arkansas [sic] 72203.
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not raised in the state court, he is barred from raising it in a federal petition. The same words, however, that we have found in the federal petition to state Thompson’s claim are also located in the state petition. Thus, he did sufficiently raise the issue of ineffectiveness at trial in state court.
III.
[12] Having decided that the claim of ineffective assistance of counsel during trial was raised below, we must next decide whether the claim is frivolous on its face. Thompson argues that his counsel was ineffective at trial:
[13] Appellant’s Brief at p. 12. [14] A review of the record and the transcript is necessarily the only way to determine the weakness of the identification of petitioner by the witnesses, the manner of the cross-examination of prosecution witnesses, and the prejudicial nature of the opinion evidence. On its face, Thompson’s claim is not frivolous. Depending on the extent of the alleged errors, Thompson may very well be able to make a “rational argument . . . to support his claim for relief.” Corgain, supra, 708 F.2d at 1247. [15] The judgment is reversed, and the cause remanded to the District Court for further proceedings consistent with this opinion. We certify that the suit is not frivolous (at least not on the present record) but presents a substantial question, and that a transcript is needed to decide the issues presented. The United States will therefore pay for the transcript. See 28 U.S.C. § 753(f). We thank Thompson’s appointed counsel in this Court for his diligent service. [16] It is so ordered.(1) by failing to seek a change of venue given the state of racial tension that existed in Lee County, Arkansas, at the time of his trial and in view of the fact that he was a black man charged with the rape of a white woman; (2) by failing to seek suppression of the identification made of him by the prosecuting witnesses; (3) by failing to vigorously cross-examine prosecution witnesses; (4) by failing to object to prejudicial opinion evidence; and (5) by failing to inform Thompson of his appeal rights.