Green v. United States, 6253.

• Citation: 334 F.2d 733
• Decision Date: 25 June 1964
• Docket Number: No. 6253.,6253.
• Parties: Theodore GREEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

334 F.2d 733 (1964)

Theodore GREEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 6253.

United States Court of Appeals First Circuit.

June 25, 1964.

Manuel Katz, Boston, Mass., for appellant.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before WOODBURY, Chief Judge, and HARTIGAN and ALDRICH, Circuit Judges.

WOODBURY, Chief Judge.

This is an appeal from orders of the United States District Court for the District of Massachusetts denying motions and petitions variously entitled filed by the appellant, pro se, in further efforts to have his sentence for armed bank robbery set aside, or at least reduced by making it commence as of the date of its imposition. We allowed Green to prosecute his appeal in forma pauperis on the original papers and at his request appointed counsel to represent him on appeal.

In the fall of 1952 Green was tried by jury in the court below and found guilty of armed bank robbery in violation of Title 18 U.S.C. § 2113(a) and (d). On October 27, 1952, the court below imposed sentences to begin upon Green's release from state prison where he was then serving a state court sentence. Throughout his trial and at post-trial proceedings Green was represented by two members of the Massachusetts bar of his own choice, both well known by this court to be men of experience and competence in the defense of persons accused of crime. Notice of appeal signed by both of Green's counsel was timely filed in duplicate in the court below. The duplicate notice and a statement of the docket entries were forwarded to this court as required by Criminal Rule 37(a) (1) (2).

On December 10, 1952, the court below on application of counsel enlarged the time for filing and docketing Green's appeal to January 12, 1953 — the 70th day — and on December 29, 1952, the court below further enlarged the time for filing and docketing the appeal to February 2, 1953 — the 90th day. On December 31, 1952, the court below granted Green leave to prosecute his appeal in forma pauperis and ordered that he be furnished with a transcript of the evidence at his trial at government expense.¹ Green's appeal was not docketed by February 2, 1953, and no further applications for enlarging the time for filing and docketing were made in either the court below or in this court, although such applications might have been made in either court under Criminal Rule 39 (c), since under that Rule the time for filing and docketing appeals may be extended indefinitely.

Over two months after the time of docketing expired, on April 9, 1953, an assistant United States Attorney filed a motion in this court to docket and dismiss Green's appeal for want of prosecution with proof of service upon both counsel of record for Green in the court below. The motion was accompanied by the certificate of the clerk of the district court as required by our Rule 21(3) and was returnable under our then Rule 26 on April 15, 1953. Neither counsel for Green having filed any memorandum in opposition or counter-motion, the government's motion to docket and dismiss was submitted to this court on its return day and two days later, April 17, the court entered an order docketing the case and dismissing Green's appeal for want of diligent prosecution. Over the intervening years this court has heard nothing further on behalf of Green from either of his counsel of record in the court below, both of whom, although they withdrew their appearances for a co-defendant, remain to this day Green's counsel of record in that court.²

But this does not mean that we have not heard from Green. On the contrary, since 1955 Green has resorted to one legal maneuver after another in the endeavor to have his sentence set aside or reduced. See Green v. United States, 238 F.2d 400 (C.A.1, 1956); Id., 256 F.2d 483, cert. denied, 358 U.S. 854, 79 S.Ct. 83, 3 L.Ed.2d 87 (1958); Id., 273 F.2d 216 and 274 F.2d 59, respectively (1959) and (1960); affirmed, 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961). See also 313 F.2d 6, cert. dismissed, 372 U.S. 951, 83 S.Ct. 948, 9 L.Ed.2d 976 (1963), wherein we directed that Green be given a hearing in the court below at which he was not successful, 219 F.Supp. 750 (D. Mass.1963). In addition see 198 F.Supp. 380 (D.Mass.1961), 201 F.Supp. 804 (D. Mass.1962). So far, as this court noted the last time Green was here, "his efforts have not been crowned with conspicuous success." While he is not still in Alcatraz, he is still in confinement, now at Lewisburg, Pennsylvania.

There is no need to catalogue the allegations and contentions made and advanced in the various motions and petitions considered only to be rejected by the court below. Passing those that have been considered and rejected by this court on previous occasions and those that are clearly insufficient as a matter of law, we come directly to the primary contention advanced on this appeal. That contention is that this court deprived Green of his federal constitutional rights to representation by counsel, to due process of law and to the equal protection of the laws when it dismissed his original in forma pauperis appeal for want of diligent prosecution in April 1953 without first advising Green of his right to counsel and then, unless satisfied that Green had either voluntarily and intelligently elected to abandon his appeal or to proceed without counsel, assigning counsel to represent him on appeal. In short, we are asked to strike the default entered against Green eleven years ago, reinstate his appeal and appoint counsel to prosecute it now.

It is true that inasmuch as Green's appeal was docketed only to be dismissed there was no formal appearance of counsel for him in this court. But he had fully competent counsel of his own choice in the court below who had filed notice of appeal on his behalf as this court well knew from the copy of that document in its files. There being nothing to indicate that Green's counsel might no longer be representing him, the government properly served them with notice of its motion to dismiss, and this court properly notified them of the action taken on that motion after hearing nothing from either of them. This court thought then and still thinks that Green's rights were fully protected by treating his counsel in the court below as still representing him on appeal. To have assumed otherwise and to have appointed counsel in their place would have been to assume that Green's counsel were so derelict in their duty as members of the bar as to abandon their client without notice in mid-course of litigation. We cannot believe that counsel of the calibre involved would cease to represent their client without withdrawing their appearances in the court below, or, after notice of the government's motion and this court's action thereon, without notifying this court that they no longer represented Green. Having every reason to believe and no reason to doubt that Green was represented by competent counsel of his own choice, this court saw no occasion to appoint counsel for him. Indeed, to have done so under the circumstances would have been only to invite confusion in the prosecution of the appeal.

Moreover, the point is made far too late. Had counsel in fact abandoned Green without notice, which we can hardly believe, Green surely must have known that fact many years ago. He certainly could not have been unaware for over a decade that his appeal had not been prosecuted. Yet, in spite of the fact that over the intervening years Green has shown remarkable ingenuity in thinking up reasons for setting aside or reducing his sentence, and in spite of the fact that on some previous occasions he has been represented by court-appointed counsel, this is the first time the suggestion has been made that his appeal should be reinstated.³ The strong public policy favoring prompt disposition of criminal appeals embodied in Criminal Rules 37(a) (2) and 39(d) is not to be frustrated and set at naught without the best of reasons.⁴

Ignoring technical deficiencies in the pleadings, as this court has done in Green's cases in the past, we come directly to the second contention presented on this appeal. That is that Green should be given credit on the sentence he is now serving for time served on the state court sentence he was serving when he was convicted in the court below.

A catalogue of the sentences imposed upon Green in the Massachusetts Superior Court and in the court below appears in the opinion of the latter court reported 198 F.Supp. 380 (D.Mass.1961) wherein the contention presently under consideration was made and rejected. It will suffice to say that on October 2, 1952, Green was sentenced in the Massachusetts Superior Court to 15½ to 20 years and that the sentence imposed upon Green in the court below on October 27, 1952, which he is now serving, was pronounced "to begin upon release from prison upon sentence you are now serving under order of the state court." The state court sentence was reversed sub nomine, Commonwealth v. Domanski, 332 Mass. 66, 123 N.E.2d 368, on December 22, 1954, and on May 16, 1955, Green was released from state custody on bail only to be picked up by a federal marshal to commence serving his present sentence imposed in the court below on October 27, 1952.

Certainly there is no impropriety, indeed no impropriety is suggested, in imposing a federal sentence to commence upon completion of a state sentence...