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PERRY v. CHIEF OF POLICE OF MARIANNA

May 27, 1987

Joseph Perry, Jr., Petitioner
v.
Chief Of Police Of the City Of Marianna, Arkansas, Respondent



The opinion of the court was delivered by: HOWARD

 George Howard, Jr., United States District Judge

 The Court has received Proposed Findings and Recommendations from Magistrate John F. Forster, Jr. After careful review of those findings and recommendations, the Court adopts them in their entirety.

 IT IS, THEREFORE, ORDERED that the petition for writ of habeas corpus should issue; the Respondent shall grant Petitioner an in forma pauperis appeal within sixty (60) days or vacate the conviction.

 IT IS SO ORDERED this 27 day of May, 1987.

 PROPOSED FINDINGS AND RECOMMENDATIONS

 The "able-bodied and educated" test used to determine whether a criminal defendant should be permitted to proceed in forma pauperis, by the Lee County (Arkansas) Circuit Court *fn1" and affirmed by the Arkansas Supreme Court, *fn2" violates the Due Process and Equal Protection Clauses of the United States Constitution. Petitioner, Joseph Perry, Jr., was effectively denied his right to appeal from a 15-day jail sentence and $150.00 fine imposed against him by the Lee County Circuit Court for driving while intoxicated (D.W.I.), because he was financially unable to employ counsel to represent him on appeal and lodge a transcript of his trial within the time period required under Arkansas law. *fn3" His requests to proceed in forma pauperis were denied by the Lee County Circuit Court and the Arkansas Supreme Court despite his financial inability. Therefore, the writ of habeas corpus should issue.

 FACTS

 Petitioner lives five miles northwest of Marianna, Arkansas (Lee County) in a house consisting of about 600 square feet on one acre of land. *fn4" He has a 1962 Chevrolet Nova that was last licensed in 1982. He is unmarried, 35 years old, and has a bachelor's degree *fn5" in vocational arts, but is not certified to teach in the public school system. Petitioner's last full-time employment was in 1981. *fn6" Since that time, he has looked for work, but has only received odd jobs and short-term employment. *fn7" Petitioner earned approximately $1,100.00 during the summer of 1983, and again in 1984, by growing peas and okra for sale. He had no income during the winter months of those years. Petitioner has no money in the bank. *fn8" He obtains food by receiving food stamps. Petitioner was unemployed and without funds at the time of his trial and subsequent court proceedings. He received $63.00 in May, 1985 to conduct a survey for a local non-profit organization. Petitioner used these funds to pay his light bill. *fn9" The unemployment rate in Lee County, Arkansas is 20 percent. Petitioner is still unemployed.

 On March 5, 1985, Petitioner was found guilty, by a jury, of driving while intoxicated, in the Circuit Court of Lee County. He was represented by counsel prior to and during his trial. *fn10" The jury sentenced Petitioner to 15 days in the city jail and assessed a fine of $150.00. On March 25, 1985, Petitioner's attorney wrote him a letter *fn11" stating that it was agreed that he (Petitioner's attorney) had "withdrawn as your Attorney of Record and I no longer represent you . . . ." *fn12" No leave of court for such a withdrawal was sought or granted. *fn13" Petitioner avoided incarceration by renewing the $500.00 bond that he posted before his trial *fn14" and filed his own notice of appeal on April 3, 1985. *fn15"

 On April 3, 1985, Petitioner also filed a petition to proceed in forma pauperis and an affidavit of indigency in the Lee County Circuit Court, and wrote a letter to the court reporter requesting a transcript of his trial. *fn16" Petitioner's motion was denied without hearing on April 19, 1985. *fn17" Petitioner moved to set aside the order *fn18" and a hearing was conducted on May 20, 1985. *fn19"

  At the hearing, Petitioner stated the following: (1) he was unemployed; (2) his only real estate was his homestead, consisting of a 600 square foot house on one acre of land, with water fixtures, but no running water; (3) he had no income; (4) he received food stamps to acquire food; (5) he has a four-year Bachelor of Science degree in vocational arts; (6) he has been unemployed since 1981; (7) he was Acting Director of the East Arkansas Produce Marketing Association for three years before becoming unemployed; (8) his attorney told him after the trial that he needed to proceed in forma pauperis and that he (the attorney) would no longer represent him; (9) he was unmarried and lived alone; (10) he borrows money or does odd jobs to pay his light bills; (11) he has driven a tractor and worked on a farm in the past, but had not done so in 1985; (12) he had talked to people who said they possibly could use him for labor later on, but told him nothing was available immediately; (13) he paid his April, 1985 light-bill by conducting a 2-day survey for a local organization for $63.00; (14) he did not know how he would pay his May, 1985 light bill for $20.00; (15) he had $14.00 in an account at Planters & Merchants Bank in Forrest City, Arkansas; (16) he had no other bank accounts and $2.00 in cash; (17) he had no cash at home and no one was holding any cash for him; (18) he was 33 years old and in good health; (19) he was registered at the unemployment office, but had not been there recently; (20) he had never received a job through the unemployment office; (21) he believed that the unemployment office in Marianna was a temporary one; (22) he had registered with the unemployment office and to his knowledge was still registered; (23) he was not living the type of life that he wants to live; (24) he actively seeks jobs when jobs are available; (25) the last job that he had in which he had confidence was working the agriculture co-ops; (26) he had talked to neighbors and people that hire tractor drivers about work; (27) he did not go to the unemployment office to inquire about work driving a tractor; (28) he has worked for the Cooperative and in vegetable production in the past, and earlier, while still in school, had received experience as "order pulling" in a warehouse; (29) he did not know whether the Douglas & Lomason factory was hiring; (30) he had not recently tried to get a job at Sanyo in Forrest City; (31) he has put his name on file at the Arkansas Employment Security Division in Forrest City, but never received notice of a job as a result (the only jobs he has gotten were through his own initiative). The unemployment office always told him that they didn't have any jobs available.; (32) he might have current job applications pending, but had not filled one out in months; (33) he was not sure whether he had filled out an application for employment since the first of the year; (34) he was not sure of where he might have filed an application if he had in fact done so since the first of the year (He would go to places and ask if they were hiring, if they told him to fill out an application, he would do so. They usually told him they were not hiring.); and finally, (35) he wanted a lawyer to represent him on appeal and that he could not afford attorney fees.

 Johnny McClendon, the Lee County Tax Assessor, also testified at Petitioner's state court indigency hearing. Mr. McClendon brought the records in his custody concerning Petitioner's property ownership to Court. Mr. McClendon said that Petitioner owned one acre of land that he had valued at $750.00. He said that two old houses were on the land but were too run down to give any value. Mr. McClendon said the ...


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