Dankert v. Wharton

¶5PER CURIAM:

¶6Richard L. Dankert appeals the district court’s denial of his habeas corpus petition. In February of 1978, Dankert pled guilty in state court to charges of child molestation and is now serving three concurrent 20-year sentences in state prison. We affirm the district court’s denial of his habeas petition.

¶7Dankert raises three issues for consideration on appeal.1 He claims that: (1) he received ineffective assistance prior to his ■guilty plea; (2) his guilty plea was not voluntary; and (3) he was denied the assistance of counsel to pursue his post-conviction motion to withdraw his guilty plea. On the first two issues we affirm for the reasons set out in the unpublished Magistrate’s Report & Recommendation as adopted by the district court.2 We discuss only the third issue.

¶8Dankert argues that his right to counsel was violated when the state trial court refused to appoint counsel for him to argue his motion to withdraw his guilty plea.3 It is well established that an indigent criminal defendant must be appointed counsel on appeal if that appeal is allowed as a matter of right. Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). However, this court has long held that the state need not appoint counsel for indigent defendants in post-conviction and collateral proceedings. See Norris v. Wainwright, 588 F.2d 130, 132 (5th Cir.)4 (“there is no constitutional right to an appointed counsel at a state habeas corpus action”), cert. denied, 444 U.S. 846, 100 S.Ct. 93, 62 L.Ed.2d 60 (1979); Ardister v. Hopper, 500 F.2d 229, 233 (5th Cir.1974) (same); Stanley v. Wainwright, 406 F.2d 8, 10 (5th Cir.1969) (“there is no absolute constitutional right to counsel at post-conviction proceedings [in state court]”). The instant case involves the petitioner’s attempt to obtain post-conviction relief by withdrawal of his guilty plea. Under Georgia law a petitioner has an absolute right to withdraw a guilty plea before pronouncement of judgment. Off. Code Ga. Ann. § 17-7-93 (1982). However, after sentence is pronounced, withdrawal of a plea is discretionary. See generally, Dankert v. State, 154 Ga.App. 392, 268 S.E.2d 435, 436 (1980) (after guilty plea and sentencing, the withdrawal of the plea by a post-conviction motion is a matter of discretion with the trial court); Weathers v. State, 149 Ga.App. 617, 255 S.E.2d 90, 91 (1979) (same). By analogy to the cases holding that there is no right to counsel in post-conviction and collateral proceedings, we hold that Dankert had no absolute right to counsel at the post-conviction, discretionary plea withdrawal proceeding.5 In the *1539absence of an absolute right to counsel, there was no constitutional error in declining to appoint counsel under the circumstances here.

¶9For the foregoing reasons, the district court judgment denying habeas relief is

¶10AFFIRMED.