Cohen v. WARDEN, MONTGOMERY CO. DETEN. CTR., ROCKVILLE, MD.

• Decision Date: 19 April 1966
• Docket Number: Civ. No. 17111.
• Citation: 252 F. Supp. 666
• Parties: Philip A. COHEN, Petitioner, v. WARDEN, MONTGOMERY COUNTY DETENTION CENTER, ROCKVILLE, MARYLAND, Respondent.
• Court: U.S. District Court — District of Maryland

252 F. Supp. 666

Philip A. COHEN, Petitioner, v. WARDEN, MONTGOMERY COUNTY DETENTION CENTER, ROCKVILLE, MARYLAND, Respondent.

Civ. No. 17111.

United States District Court D. Maryland.

April 19, 1966.

Fred E. Weisgal, Baltimore, Md., and Robert C. Heeney, Rockville, Md., for petitioner.

Thomas B. Finan, Atty. Gen. of Maryland, and Morton A. Sacks and Donald Needle, Asst. Attys. Gen., Baltimore, Md., for respondent.

THOMSEN, Chief Judge.

Petitioner is now in the custody of the Warden of the Montgomery County Detention Center at Rockville, Maryland, (1) under indictment awaiting trial in the Circuit Court for Montgomery County on a charge of attempted burglary, and (2) subject to a rendition warrant issued by the Governor of Maryland, after an extradition hearing, directing that petioner be turned over to Virginia authorities to answer a charge of burglary in that State. He has filed a petition for a writ of habeas corpus in this Court, contending that he was denied due process of law under the Fourteenth Amendment because the Court of Appeals of Maryland refused to appoint counsel to represent him or to pay for the costs of his brief on appeal from an order of the Circuit Court for Montgomery County denying him relief after a hearing in a habeas corpus proceeding challenging the rendition warrant.

Upon the filing of the petition herein, this Court issued a writ of habeas corpus, and granted a hearing to petitioner, who was represented by two counsel of his own choosing, Fred E. Weisgal, Esq., and Robert C. Heeney, Esq. The record of the proceedings in the Circuit Court and other documentary evidence was offered in evidence, and the case was fully argued. There is no substantial dispute about any of the facts stated below. Indeed, most of them have been stipulated.

Facts

Some time before February 4, 1965, the Wheaton-Glenmont Police Station in Montgomery County had received a teletype indicating that a white man, whose description generally fitted petitioner, was wanted for burglary, rape and molestation in Arlington, Virginia, and in Montgomery County and the Baltimore area. On February 4 the Montgomery County police answered a call reporting an attempted break-in near Wheaton, in the vicinity of 3115 University Boulevard West, Apartment U-1, Silver Spring, Maryland, and found petitioner on the property, about 10 ft. from the door and 500 ft. from the public road. He was identified by the occupant, who had reported the attempt, and was arrested without a warrant. He was taken to Wheaton-Glenmont Police Station, where he was formally charged with an attempted burglary of the above premises. About 12:30 p. m., on February 5, an arrest warrant calling for petitioner's arrest on the attempted burglary charge was issued by Justice of the Peace Edward C. Feakes, pursuant to an affidavit made by Officer John Queen, one of the Montgomery County policemen who had made the arrest.

Later that day Detective Lieutenant Norman Grimm of the Alexandria Police Station, Alexandria, Virginia, arrived at the Wheaton-Glenmont Police Station with a Virginia warrant calling for petitioner's arrest on a charge of burglary, alleged to have occurred in Alexandria, Virginia, on January 5, 1965. Thereafter, a fugitive warrant was issued by Justice Feakes, charging petitioner with the Alexandria, Virginia, burglary.

On the same day, February 5, Detective Sergeant Kadel of the Arlington County Police Department, arrived at the Wheaton-Glenmont Police Station, accompanied by the alleged victim of a rape and robbery in Arlington, Virginia, on November 3, 1964, and a fugitive warrant was signed by Justice Feakes, charging the petitioner with the Arlington, Virginia, rape and robbery.

After having been advised by Justice Feakes of his rights with respect to the fugitive warrants, petitioner refused to sign waivers of extradition thereon; and on the same day, February 5, bail was set by Justice Feakes in the amount of $20,000 on each of the three charges.

On February 15, petitioner was brought before Judge H. Ralph Miller of the People's Court of Montgomery County for a preliminary hearing on the attempted burglary charge in Montgomery County. He was represented by Jack Levin, Esq. Petitioner thereupon waived the preliminary hearing and was bound over for grand jury action. On March 3, the Montgomery County Grand Jury returned Indictment No. 6762, charging petitioner with the attempted burglary.

On March 17, 1965, Robert C. Heeney, Esq., an experienced criminal lawyer, was appointed by Chief Judge Anderson of the Circuit Court for Montgomery County to represent petitioner in that case. On March 18, 1965, pleas of not guilty and not guilty by reason of insanity were filed by Mr. Heeney on behalf of the petitioner.

On March 29, pursuant to a request by the State of Maryland, a continuation of the Alexandria fugitive warrant to May 4 was granted by the Court. On April 2, on the authority of an order of Court, petitioner was transferred to the Clifton T. Perkins State Hospital for examination and evaluation under his plea of not guilty by reason of insanity.

On May 27, while petitioner was still in the hospital, Governor Harrison of Virginia forwarded formal extradition papers to Governor Tawes of Maryland, requesting petitioner's extradition on the Alexandria charge.

On June 21, Dr. John M. Hamilton, Superintendent of the Clifton T. Perkins State Hospital, filed the Institution's evaluation report, which concluded that petitioner did not meet the Maryland test of criminal responsibility on the night of February 4, although he was deemed competent to stand trial on the date of the filing of the report. In a progress note dated June 15, attached to the report, the concluding sentence read: "* * * I think that it should be clear that, in my opinion, this psychotic decompensation probably began to occur shortly before the night of February 4th and is, therefore only valid for that offense."

On June 23, Mr. Heeney, on behalf of the petitioner, filed a motion for a speedy trial on the Montgomery County indictment.

On June 24, an extradition hearing was held in Annapolis, Maryland, at which petitioner was present and was represented by Mr. Heeney as his privately retained counsel. After the hearing, a rendition warrant, calling for petitioner's return to Virginia, was executed by Governor Tawes.

On the same day, June 24, petitioner, again represented by Mr. Heeney, filed a petition for a writ of habeas corpus in the Circuit Court for Montgomery County, in which he contended that he was being illegally detained, without specifying any ground.

On June 20, a nolle prosequi was entered by the State of Maryland on Indictment No. 6762.

On July 7, a hearing on the habeas corpus petition, which was intended to test the extradition order, was held before Judge Ralph B. Shure, at which petitioner was again represented by Mr. Heeney. Petitioner appeared and testified, as did a number of witnesses called by the State. The points raised by petitioner were (1) illegal arrest, (2) delay in the extradition proceedings, and (3) absence from Virginia at the time of the alleged crime. Judge Shure decided against petitioner on all three points, for reasons which will be discussed below, and directed that petitioner be returned to Virginia in accordance with the executive order of the Governor of Maryland.

On July 8, petitioner, through Mr. Heeney, who was still privately retained, filed an appeal from Judge Shure's denial of habeas corpus relief, as permitted by Article 41, section 25 of the Maryland Code.

Subsequently, Mr. Heeney was appointed by Judge Anderson to prosecute petitioner's appeal from the denial of habeas corpus relief. The record was prepared and forwarded and Mr. Heeney advanced the $20 filing fee on October 6. On the same day, the Circuit Court entered an order "that all court costs including, but not limited to, all clerks' fees, the cost of preparing the transcript of testimony, the cost of preparing and transmitting the record, and the costs of the briefs, appendices and printed record extract necessary in connection with this appeal shall be paid by the State of Maryland, and that the record be transmitted to the Court of Appeals at the expense of the State." Despite that order, Mr. Heeney wrote the Chief Deputy Clerk of the Court of Appeals, asking for a clarification of his status, and requesting either a hearing on his right to be paid or relief from further responsibility. The Clerk replied as follows:

"The Court has considered your letter enclosing an order of the Circuit Court for Montgomery County. The Court has requested me to notify you that they do not know of any authority by statute or rule which would allow the courts to authorize payment of costs of briefs, etc. by the State in appeals from a civil proceeding.

"The appeal has, therefore, been docketed as a paid case, and it is suggested that you may wish to take this matter up with Judge Anderson."

On October 27, 1965, Mr. Heeney filed a petition to be removed as counsel in the Court of Appeals. A few days later, the Court of Appeals entered the following order:

"Upon consideration of the Petition of Robert C. Heeney to be relieved as counsel and it appearing to the satisfaction of the Court that there is no authority by statute or rule which would allow the Circuit Court for Montgomery County to appoint counsel in this case, or to authorize the payments of costs of briefs and transcripts, that Robert C. Heeney's name be stricken as counsel for the appellant."

No further action was taken on the appeal by anyone until February 16, 1966, when petitioner, through Fred E. Weisgal, Esq., as his attorney, filed a motion for the appointment of counsel and payment of costs. On February 19 the State filed a motion to dismiss the appeal for failure to submit a timely brief. On March 1 petitioner's motion was denied and the State's motion to dismiss the appeal was...