Boykin v. Huff, 7667.

• Decision Date: 07 April 1941
• Docket Number: No. 7667.,7667.
• Citation: 73 App. DC 378,121 F.2d 865
• Parties: BOYKIN v. HUFF, General Superintendent, District of Columbia Penal Institutions.
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 App. DC 378, 121 F.2d 865 (1941)

BOYKIN v. HUFF, General Superintendent, District of Columbia Penal Institutions.

No. 7667.

United States Court of Appeals for the District of Columbia.

Decided April 7, 1941.

COPYRIGHT MATERIAL OMITTED

William E. Richardson, of Washington, D. C., for appellant.

Edward M. Curran, U. S. Atty., and George E. McNeil, Dennis McCarthy, and Charles B. Murray, Asst. U. S. Attys., all of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and VINSON and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The District Court denied appellant's petition for a writ of habeas corpus. He sought release from imprisonment pursuant to a sentence on conviction for violating the pandering act.¹ The petition alleged that appellant had been deprived unconstitutionally of his right of appeal, by action of the trial judge subsequent to the verdict. The present appeal is from the court's denial of the petition, appellant being represented on appeal by counsel appointed by this court.

At the criminal trial and subsequently in the proceedings relating to the motion for a new trial, appellant was represented by two attorneys. One, Parmele, was appointed by the court. The other, Tedrow, volunteered to serve without compensation, and did so with appellant's consent. The motion for new trial was denied and sentence was imposed October 18, 1938. Two days later, and therefore within the period allowed for noting an appeal, the appellant wrote to the trial judge the following letter, which appears in the record as Exhibit A:

"District Jail "200 19th St., S.E. "Washington, D. C., October 20, 1938.

"Dear Sir: I do not know if I am represented by counsel at this date, as I have not had any communication from Mr. Tedrow since the hearing on the motion for a new trial.

"So, to safeguard my interests, I wish at this date to notify you of my desire to appeal the decision of the Court, as given September 22, 1938, and to the decision of the Court, as given by Your Honor on October 18, 1938.

"I am asking Messrs. Parmele and Tedrow to continue acting in my interests, and at this date am asking them to note an appeal for me.

"Very respectfully "(S) Robert Boykin."

Thereafter ensued a course of correspondence, important parts of which are set forth in the margin.² In summary, Exhibit B acknowledged the court's receipt of appellant's letter, notified him that "matters of this sort must be taken care of by counsel" and that the court was forwarding appellant's letter to counsel who had represented him at the trial. This reply was sent two days after the time for noting appeal had expired. Exhibit C was appellant's reply to the court's letter, stating that counsel had withdrawn, though advised of appellant's desire to appeal, and reiterating the request that the court note his appeal, or appoint counsel to do so. Notwithstanding appellant's assertion that counsel had withdrawn, the court responded, in Exhibit D: "While I am willing to confer with your counsel about matters of this sort, you will understand that matters of this character have to be taken care of by counsel rather than by the Court." Thereafter the court notified the two attorneys and the Assistant District Attorney who prosecuted the cause concerning appellant's desire to preserve his rights on appeal and suggested a conference concerning the matter. The conference was had, following which the court wrote to the appellant:

"Dear Sir: I have taken up with Assistant District Attorney McNeil and Messrs. Tedrow and Parmele the matter of the possibility of taking an appeal from the judgement entered against you in the above-entitled case.

"It seems to be the opinion of all the parties concerned that the possibility of obtaining a reversal in your case is remote, inasmuch as counsel, as well as the Court, feel that you were granted a fair trial. Under the circumstances, I do not feel justified in requesting assigned counsel to prosecute an appeal in your behalf. If you desire this should be done, it will be necessary for you to employ private counsel." (Italics supplied.)

Appellant at once responded, in part:

"When I spoke to your Honor of my financial inability to prosecute an appeal, you told me from the bench that counsel for such would be provided for by the Court in such a contingency. There can be no question that such a contingency exists at this date. I can only remind Your Honor of this statement and that to deny me counsel, or the right to act as my own counsel, is a violation of my constitutional rights as a citizen.

"I am forced to take issue with your Honor on the second paragraph of the above-mentioned letter in the order of its subjects:

"In regard to the conference with my former attornies, you mention the opinion of all the parties concerned. Am I to understand that I was not concerned in a subject dealing with the next ten years of my life? It appears to me that such a procedure is highly irregular — that of inviting two attornies whose only interest in my case is to avoid being given an unprofitable assignment; an Assistant District Attorney who has won a conviction, and would not care to chance a reversal — all invited to confer with the Justice who might easily be of the same opinion as the District Attorney. It would seem just a bit incongruous to have expected any other conclusion to have been reached other than the admission that the possibility of a reversal is remote. I believe that is an admission of a possibility.

I wish to prosecute an appeal, inasmuch as there is an admitted possibility, however remote, of a reversal of a decision. I fail to see wherein Your Honor, Mr. McNeil, or Messrs. Tedrow and Parmele have the right to anticipate the United States Court of Appeals for the District of Columbia. There would be no need for a Court of Appeals if it was legal to band together an undesignated body of men for the disposition of such matters.

"Although Your Honor has not refused me my Constitutional Right of appeal, your subsequent action is tantamount to refusal. Your Honor has said I must appeal through counsel and has refused to appoint counsel. May I quote, "The Courts of the land are for the rich and poor alike." I know of no law that precludes a person the right to defend himself, so I must reiterate my previous requests to Your Honor to note that I appeal the decision of the Court in view of the fact that I have no counsel and am financially unable to employ same.

"Personally, I think I have an excellent possibility of a reversal, and the Court's efforts to prevent a review by the Court of Appeals but serves to strengthen that belief.

"I beg Your Honor's continued indulgence in this matter.

"Very respectfully," (Italics supplied.)

The final communication was one from the court to appellant:

"I have given careful consideration to your letter of the 9th instant, as well as previous correspondence which you had with me in reference to your desire to take an appeal in the above-entitled case.

"I do not think there is any obligation on the part of the Court to appoint counsel to prosecute an appeal in every criminal case and it is only in cases where the Court or possibly those who are involved in the case might feel the law points involved possibly would be of such character as might require a reversal that the Court would appoint an attorney to prosecute an appeal without compensation and at the expense of the government. Had either of your two attornies, whom I regard as quite conscientious, in the matter, felt there were substantial points of law involved, I might have been in a position to take some action for you. However, since they nor I feel that you were deprived of any rights, I am constrained to adhere to my position that the Court is not in a position to take further action in the premises and that if you wish to prosecute an appeal you will have to arrange to secure counsel of your own employment." (Italics supplied.)

Appellant appears to have accepted this letter as conclusive and no further steps to perfect or present an appeal were taken. In denying the petition for habeas corpus, the trial court said, in part, in a memorandum opinion: "It seems to me that petitioner was bound by the acts of his counsel during the trial of the case and with reference to taking an appeal. I do not think it was incumbent upon the trial court to act as attorney for the petitioner in preparing the necessary papers to perfect an appeal from the judgment, nor to assign other counsel to perfect and prosecute an appeal for him." (Italics supplied.)

On these facts appellant asserts that the court's action deprived him of the right of appeal in propria persona as well as by counsel; that the effect was to do so solely on account of his poverty; and that this constituted an unconstitutional discrimination which renders his conviction, sentence and further detention invalid. It is claimed also that under the indictment and the statute pursuant to which it was returned, appellant was not guilty of the offense charged or of any criminal act, for the reason that the indictment charges only isolated and distinct instances of procuring, while the statute, because it is drawn in terms of cohabitation, requires more than this.

On the other hand, the Government says that the court's action did not in fact or effect deprive appellant of his rights on appeal, but amounted only to an entirely proper refusal to act as counsel or advise appellant as to his course; that the court had discretion under the forma pauperis statute, which it exercised, to deny his request for assigned counsel and to proceed with the appeal as a poor person; that an appeal in forma pauperis is not a matter of absolute or constitutional right, but only of grace or qualified statutory privilege; that an appeal in any event arises only from statutory, not from constitutional, provision, and therefore there can be no denial of...