Farnsworth v. United States

• Decision Date: 02 February 1956
• Docket Number: No. 12669.,12669.
• Citation: 98 US App. DC 59,232 F.2d 59
• Parties: James Bufford FARNSWORTH, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

98 US App. DC 59, 232 F.2d 59 (1956)

James Bufford FARNSWORTH, Appellant, v. UNITED STATES of America, Appellee.

No. 12669.

United States Court of Appeals District of Columbia Circuit.

Argued December 16, 1955.

Decided February 2, 1956.

Mr. Harold D. Cohen, Washington, D. C., appointed by this Court, for appellant.

Mr. Carl W. Belcher, Asst. U. S. Atty., with whom Messrs. Leo A. Rover, U. S. Atty., Lewis Carroll, Alexander L. Stevas, and Mrs. Kitty Blair Frank, Asst. U. S. Attys., were on the brief, for appellee.

Before EDGERTON, Chief Judge, and WILBUR K. MILLER and FAHY, Circuit Judges.

FAHY, Circuit Judge.

On May 3, 1935, upon his pleas of guilty to each of two counts of an indictment for housebreaking and larceny, a judgment of conviction was entered against appellant in this District. Thereafter, in 1946, he was convicted of attempted burglary in the courts of the State of New York. The earlier judgment in this jurisdiction was considered by the New York courts in sentencing appellant as a fourth offender, and he is still imprisoned in New York under that sentence. On July 29, 1953, long after he had completely served his sentence under the judgment of May 3, 1935, appellant filed in our District Court a petition for writ of error coram nobis to set aside the judgment on the ground that in the proceedings leading up to it he had been deprived of his constitutional right to counsel.¹ After a hearing, findings of fact and conclusions of law, the petition was denied, followed by this appeal.

The District Court properly assumed jurisdiction to consider the validity of the 1935 judgment by writ of error coram nobis. Such a procedure was approved by the Supreme Court in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248. In that case, as in this one, petitioner had served the sentence and attacked the judgment imposing it upon the ground that his constitutional right to counsel, as defined in Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 had been denied. The latter case held that compliance with the Sixth Amendment mandate that an accused is entitled to the assistance of counsel "is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty." 304 U.S. at page 467, 58 S.Ct. at page 1024. The Court also said that while an accused may waive the right it must be an intelligent and competent waiver, otherwise a judgment of conviction will be void and subject to collateral attack.

In the present case the District Court found no violation of the Sixth Amendment. In support of affirmance the United States relies upon two of the reasons given by this court when it affirmed denial of relief to this petitioner in an earlier case, Farnsworth v. United States, 91 U.S.App.D.C. 121, 198 F.2d 600, certiorari denied, 344 U.S. 915, 73 S.Ct. 338, 97 L.Ed. 706. We there held that a writ of error coram nobis was properly denied because "1) there had been no showing that a retrial would result in a different judgment; 2) appellant had slept too long upon his rights * * *. United States v. Moore, 7 Cir., 1948, 166 F.2d 102."² A few other jurisdictions also followed Moore and erected these same barriers to redress by way of coram nobis. See Bice v. United States, 4 Cir., 177 F.2d 843, affirming D.C.Md., 84 F.Supp. 290; United States v. Rockower, 2 Cir., 171 F.2d 423, certiorari denied, 337 U.S. 931, 69 S.Ct. 1484, 93 L.Ed. 1738. But other courts apparently did not so circumscribe the writ, holding that relief should be granted wherever there has been such a denial of a constitutional right as invalidates the conviction. See Garrison v. United States, 5 Cir. 154 F. 2d 106, certiorari denied, 320 U.S. 751, 64 S.Ct. 55, 88 L.Ed. 446; Pierce v. United States, 5 Cir., 157 F.2d 848, certiorari denied, 329 U.S. 814, 67 S.Ct. 631, 91 L. Ed. 694; United States v. Steese, 3 Cir., 144 F.2d 439.

In United States v. Morgan, supra, decided subsequently to these cases, the federal conviction under attack had been rendered in 1939. A four-year sentence had been imposed and served. In 1950 Morgan was convicted by a New York court on a state charge and sentenced to a longer term because of the 1939 federal conviction. Approximately 14 months later he filed his application for a writ of error coram nobis. The dissenting Justices maintained that the writ should not have been entertained because, among other things, the petition therefor contained no allegations indicating any acceptable reason for the delay in seeking redress, nor any probability that Morgan was innocent of the federal crime. The majority, however, held that the district court had jurisdiction to issue the writ and should have granted a hearing to give Morgan "an opportunity to attempt to show that this conviction was invalid." 346 U.S. at page 513, 74 S.Ct. at page 253. Invalidity apparently would be established in Morgan's case by a showing that he did not have counsel and had not competently and intelligently waived his right thereto, in which event, as had been held in Johnson v. Zerbst, supra, the conviction was not merely invalid but void and, therefore, subject to collateral attack.³

The Second Circuit even more clearly repudiated the Moore doctrine in its second decision of the Morgan case after remand by the Supreme Court. United States v. Morgan, 2 Cir., 222 F.2d 673. The court held that the only consideration in deciding whether relief should be granted was whether the defendant intelligently waived his right to counsel, that if a person is deprived of this constitutional right "his release does not depend on his establishing his innocence," and that "passage of many years does not cure a void conviction." 222 F.2d at page 675.

We think this position of the Second Circuit is more consonant with the reasoning of the Supreme Court in Morgan than is the Moore rule.⁴ We are therefore unable in view of Morgan to apply now the reasons assigned in our earlier Farnsworth decision for denial of the relief sought. The test should be whether appellant's constitutional right to the assistance of counsel has been abridged. If it has, an "essential prerequisite" to the conviction is lacking under Johnson v. Zerbst, supra, and it should be set aside.⁵ If a defendant without good reason waits a long time before asserting his claimed right, with the consequence that many witnesses are dead, he might have difficulty maintaining his burden of proof, or a heavier burden of proof might be imposed upon him. See United States v. Morgan, 222 F.2d at page 675. But where the fundamental constitutional right has been denied, an accused should not be precluded from relief because he cannot satisfy a court that he had good cause for any delay in seeking it. "To permit a defense of laches to the writ would, in effect, denude it of one of its essential characteristics — the power to hurdle a time factor." Haywood v. United States, D.C.S.D.N.Y., 127 F.Supp. 485, 488. Moreover, in this case appellant's delay was excusable in the circumstances. His sentence under the federal conviction did not extend much beyond the date of the Zerbst decision, which for the first time clearly decided that every defendant in a criminal case in the federal courts could have counsel appointed to represent him.⁶ From the time of his release until his conviction in New York in 1946 he had no compelling reason to seek to have his federal conviction vacated. Finally, until the Supreme Court decision in Morgan in 1954 there was uncertainty over whether the writ of coram nobis would even be available to defendant in the federal courts.⁷ Appellant's first petition culminated in July of 1952 with our earlier Farnsworth decision.

The Government also argues that relief should be denied because the Zerbst doctrine should not be applied retroactively,⁸ citing our decision in Durham v. United States, 94 U.S.App.D.C. 228, 214 F.2d 862, where the principle of non-retroactivity was recognized. However, we explicitly stated in Durham that the rule there adopted was not to be effective retroactively. 94 U.S.App.D.C. at page 240, 214 F.2d at page 874. In Zerbst, on the other hand, the Supreme Court did no such thing. Rather its language indicates that it was simply enforcing a constitutional right which courts always should have recognized. This view is confirmed by the fact that the Supreme Court itself applied the Zerbst rule retroactively in Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830. And this court seems committed to such an interpretation of Zerbst. In McKinney v. United States, 93 U.S.App.D.C. 222, 208 F.2d 844, we applied the Zerbst principle to an alleged violation of the Sixth Amendment during proceedings which occurred several months before the Supreme Court decision. See, also, United States v. Di Martini, D.C.S.D.N.Y., 118 F.Supp. 601.

The final question is whether in any event the finding of the District Court that appellant had competently and intelligently waived his right to counsel should be disturbed by us. The Supreme Court in Zerbst pointed out that defendant carries the burden of establishing that he did not competently and intelligently waive his right, for "When collaterally attacked, the judgment of a court carries with it a presumption of regularity." 304 U.S. at page 468, 58 S.Ct. at page 1025. "It is presumed the proceedings were correct and the burden rests on the accused to show otherwise." United States v. Morgan, 346 U.S. at page 512, 74 S.Ct. at page 253. But in Zerbst the Court also said that "`courts indulge every reasonable presumption against waiver' of fundamental constitutional rights." 304 U.S. at page 464, 58 S.Ct. at page 1023. While, therefore, the burden is upon appellant to establish he did not waive the right, his burden is lightened by the indulgence of every reasonable presumption against waiver. See Evans v. Rives, 75 U.S.App.D.C. 242, 126 F.2d 633; McKinney v. United...