408 F.2d 1186 (3rd Cir. 1969), 17219, United States ex rel. Chambers v. Maroney

Docket Nº:17219.
Citation:408 F.2d 1186
Party Name:UNITED STATES of America ex rel. Frank CHAMBERS, Appellant, v. James F. MARONEY, Superintendent State Correctional Institution, Pittsburgh, Pennsylvania.
Case Date:January 22, 1969
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1186

408 F.2d 1186 (3rd Cir. 1969)

UNITED STATES of America ex rel. Frank CHAMBERS, Appellant,

v.

James F. MARONEY, Superintendent State Correctional Institution, Pittsburgh, Pennsylvania.

No. 17219.

United States Court of Appeals, Third Circuit.

January 22, 1969

Submitted Nov. 7, 1968.

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Frank Chambers, pro se.

Charles B. Watkins, Asst. Dist. Atty., County of Allegheny, Pittsburgh Pa. (Robert W. Duggan, Dist. Atty., of Allegheny County, Pittsburgh, Pa. on the beief), for appellee.

Before KALODNER, FORMAN and STAHL, Circuit Judges.

OPINION

STAHL, Circuit Judge.

Appellant Chambers, having exhausted his state remedies, unsuccessfully sought a writ of habeas corpus in the district court. 1 No evidentiary hearing was held below. This appeal followed.

In his petition, appellant alleged that his state convictions on charges of armed robbery and receiving stolen goods 2 were

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constitutionally defective for a number of reasons:

(1) There was no probable cause for his arrest;

(2) The search of the car in which he was a passenger at the time of his arrest was invalid on the ground that it was made without a warrant and was not incident to the arrest, even if the arrest was lawful;

(3) The search of his home was invalid, even though a search warrant had been obtained, because the warrant did not describe the product of the search which was admitted in evidence; and

(4) 'The belated appointment of counsel rendered his services ineffective in that he was delegated to represent petitioner en route to the courtroom the day of the trial.' 3

The district court concluded that the first three grounds did not violate appellant's constitutional rights.

With respect to the Sixth Amendment claim of ineffectiveness of counsel, the court said that this 'contention * * * is without merit,' citing In re Petition of Ernst, 294 F.2d 556 (3d Cir. 1961), and United States ex rel. Peterson v. Russell, 266 F.Supp. 93 (W.D.Pa.1967). 4 The same contention as to ineffective counsel had been made in the habeas corpus proceeding in the state court 5 and was rejected in an opinion, dated December 2, 1966, 6 by Judge Graff, who had also been the trial judge.

We would dispose of this appeal on the well-reasoned opinion of Judge Marsh below were it not for the fact that following the date of that opinion (March 6, 1968), we established for the first time a definite standard for determination of the issue of ineffective counsel in belated appointment cases: United States ex rel. Mathis v. Rundle, 394 F.2d 748 (May 7, 1968). In a supplemental brief filed by appellant, he relies directly on Mathis for the requested relief. Neither the lower state court opinion nor the decision below discussed specifically the late appointment aspect of appellant's petitions.

Prior to Mathis this court had not dealt expressly with the issue of burden of proof where the claim of ineffective counsel was bottomed on hasty appointment. 7 In Mathis, 8 following the lead of

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the Fourth Circuit, 9 we said that the belated appointment of counsel is inherently prejudicial and makes out a prima facie case of denial of effective counsel,

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with the burden of proving absence of prejudice shifted to the prosecuting authorities.

At first blush it would appear that only an evidentiary hearing, in which the state adduces the testimony of the trial counsel and other evidence to rebut the taint of prejudice, can be sufficient to overcome the prima facie presumption of ineffective counsel. A closer examination of the full scope of the Fourth Circuit rule we have chosen to follow discloses that denial of effective representation may also be refuted where the 'record' contains 'adequate affirmative evidence to overcome the presumption of harm from the lack of time for preparation' 10 by appointed counsel: Fields v. Peyton, 375 F.2d 624, 628 (4th Cir. 1967). 11 We construe this to mean that the prima facie ineffectiveness or the inherent prejudice due to late appointment of counsel may properly be overcome either by evidence produced by the state in an evidentiary hearing showing that there was no prejudice or by adequate affirmative proof otherwise appearing in the record demonstrating that the appellant was not prejudiced. We believe this is a logical approach which is fair to a petitioner seeking relief and at the same time comports with sound judicial administration.

the alternative methods of negating the prima facie harm from a belated appointment are of particular importance in the present case because the Commonwealth made no attempt in either the state or federal habeas corpus proceeding (as had been done in Mathis) to produce evidence showing that the appellant was not prejudiced by the late appointment of counsel. 12 Therefore, this court must either find from an examination of the record before us that there is adequate affirmative proof to rebut possible prejudice to the appellant or remand the petition to the district court for an evidentiary hearing.

With the foregoing guidelines in mind, we now turn to a review of the various

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proceedings culminating in the instant appeal.

Appellant alleged in his state and federal habeas corpus petitions that he first met his counsel on the way to the courtroom on the day of the trial. 13 This was not denied by the District Attorney in his answer in the state court. The appointed defense counsel was Vincent A. Tamburo, Esq., of the Allegheny County Legal Aid Society, who was described by the state court as 'an attorney of great experience in the trial of criminal cases.' 14

This was not the first time appellant had seen a lawyer, however, as this was a new trial on the same charges, the first one having ended in a mistrial. In the first trial appellant had been represented by another member of the Legal Aid Society staff. Also, in the habeas corpus hearing in the state court, in which appellant appeared, 15 the following colloquy took place:

Mr. Abromson (Assistant District Attorney): Q. So you have been in Jail for some five months, is that correct, before your trial? A. Yes. Q. And during that time, did anybody come to see you in your own behalf? A. Which way do you mean? Did an attorney come to see me? Q. Did anyone come to see you in own behalf? A. Yes. 16

While it would appear from the foregoing that Mr. Tamburo had access to the Legal Aid Society files in this case, and that an attorney or a representative of Legal Aid may have visited appellant in jail, the plain fact is that appellant did not have the opportunity to consult previously with the counsel who came to defend him on the morning of the second trial. We do not know what preparation, if any, counsel was able to accomplish prior to the date of the trial as he did not testify in the state habeas corpus proceeding and there was no evidentiary hearing in the district court. From the lower court opinion, as will appear later, we are led to believe that counsel was not wholly familiar with all aspects of the case before trial.

Appellant asserts as the prejudicial effect of the late appointment the failure to present pre-trial motions to suppress several items of evidence admitted at the trial. The district court concluded from an examination of the transcript of trial that Mr. Tamburo probably had no knowledge of the manner in which some of the evidence was obtained by the police. 17

Appointed counsel in the state habeas corpus proceeding, Mr. Dixon, did not pursue the belated appointment allegation as an independent ground for issuance of the writ, even though it was stressed in appellant's pro se petition. Mr. Dixon said:

I want to make clear to the District Attorney it is not our intention to attack the effectiveness of counsel here.

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The only reason I brought out this particular circumstance was in relationship, and I will develop it, to the District Attorney's contention that our issue of the suppression of the evidence not being timely, that's the only reason I brought that out. The Court: You are not raising-- Mr. Dixon: I am not raising the issue of the ineffectiveness of counsel. The Court: It is in his statement here, his petition, but you are not raising it now? Mr. Dixon: No. 18

Mr. Dixon emphasized that he was referring to the belated appointment only to show why no pre-trial suppression motions had been filed. In his brief (p. 7) the District Attorney construes counsel's statement as indicating 'that petitioner was abandoning the contention that his trial counsel was ineffective.' In light of our disposition of this appeal we need not decide what effect, if any, the state habeas corpus counsel's statement had on appellant's Sixth Amendment claim which he raised again in the district court. 19

It is fairly clear that Mr. Tamburo's appearance as defense counsel on the morning of the trial constitutes tardy appointment so as to raise the prima facie presumption of ineffective counsel under the Mathis standard. With no attempt by the state to rebut this presumption by the production of countervailing evidence, does the record otherwise contain adequate affirmative proof of lack of prejudice? We believe that it does.

Appellant's contention that his arrest without a warrant was invalid is not involved with the question of ineffective counsel. Judge Marsh's opinion below thoroughly recites the information which the police had from eyewitnesses 20 to support the arrest of appellant without a warrant for the commission of a felony: McCray v. Illinois, 386 U.S. 300, 304, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967).

The evidence as to which appellant contends pre-trial suppression motions should...

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