In the Matter of the Application for a Writ of Habeas Corpus for Larry C. High v. B. J. Rhay, Superintendent, Washington State Penitentiary

(dissenting):

Respectfully, I dissent. Judge Lum-bard has skillfully recited the facts and has commented on the worth of the brief filed with the Washington Court of Appeals. I agree that the brief is not an example of appellate advocacy at its' *114 best. But, I see in this record that Mr. Munro found himself in a dilemma.

He could not say that the appeal taken by his client was frivolous, or lacked all merit. In such a case he would, we presume, have petitioned for withdrawal. Rather, counsel set forth the arguments of his client, and stated that he had “carefully read” the record, and had given “due consideration” to his client’s arguments.. Counsel then went on to set forth as the “sole question,” whether or not there was sufficient evidence to sustain the verdict.

Obviously he did not feel that there was any merit to any of the points raised by his client, for if he had, he would have raised such issue, together with the evidentiary one, in his brief. Yet counsel at the same time may not have been able to find the appeal to be wholly without merit or frivolous, so as to justify a petition for withdrawal under Anders.

I certainly cannot say, in any event, that counsel did…

Larry C. High, who is presently serving a sentence of twenty years in a Washington state prison following his convictions in August 1971 for rape, sodomy, and assault in the second degree, appeals from an order of the district court for the Western District of Washington, Sharp, J., denying his petition for a writ of habeas corpus.

After hearing argument on November 14, 1974, this court, on February 4, 1975, affirmed the order of the district court, with one judge dissenting. Thereafter, High petitioned for re-hearing and upon reconsideration this court is of the opinion that the petition should be granted and that the order of the district court should be reversed. Accordingly the opinion of February 4, 1975 is vacated.

We find that High has not been accorded due process and equal protection of the laws, in view of the state’s failure to see that on his criminal appeal High had legal representation which complied with the requirements of Anders v. California, 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), and accordingly, we reverse.

I.

High was tried in August 1971‘ in the Superior Court of Kitsap County, Wash *111 ington, and was represented by retained…

519 F.2d 109 In the Matter of the Application for a Writ of Habeas Corpus for Larry C. HIGH, Petitioner-Appellant, v. B. J. RHAY, Superintendent, Washington State Penitentiary, Respondent-Appellee. No. 74-1161. United States Court of Appeals, Ninth Circuit. June 18, 1975. Barbara A. Isenhour, Seattle, Wash., John Stait, Univ. of Puget Sound School of Law, Tacoma, Wash., Allen Ressler, Prison Legal Services, Seattle, Wash., for petitioner-appellant. Slade Gorton, Atty. Gen., Olympia, Wash., for respondent-appellee. OPINION Before LUMBARD, * KOELSCH and WRIGHT, Circuit Judges. LUMBARD, Circuit Judge: Larry C. High, who is presently serving a sentence of twenty years in a Washington state prison following his convictions in August 1971 for rape, sodomy, and assault in the second degree, appeals from an order of the district court for the Western District of Washington, Sharp, J., denying his petition for a writ of habeas corpus. After hearing argument on November 14, 1974, this court, on February 4, 1975, affirmed the order of the district court, with one judge dissenting. Thereafter, High petitioned for re-hearing and upon reconsideration this court is of the opinion that the…