Joyce v. United States, 6250.

• Decision Date: 13 February 1964
• Docket Number: No. 6250.,6250.
• Citation: 327 F.2d 531
• Parties: Martin Joseph JOYCE, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

327 F.2d 531 (1964)

Martin Joseph JOYCE, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 6250.

United States Court of Appeals First Circuit.

February 13, 1964.

Martin Joseph Joyce, pro se, on motion for appointment of counsel.

W. Arthur Garrity, Jr., U. S. Atty., and Thomas P. O'Connor, Asst. U. S. Atty., on opposition to appellant's motion.

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

WOODBURY, Chief Judge.

The matter immediately before us is a petition, supported by an affidavit of poverty, for appointment of counsel to prosecute an appeal from an order of the United States District Court for the District of Massachusetts denying a motion under Title 28 U.S.C. § 2255 to vacate, set aside or correct a sentence.

The petitioner and two others were charged in a one count indictment with theft from an interstate shipment of freight. Upon arraignment the petitioner's co-defendants appeared with counsel and pleaded not guilty. The petitioner, appearing without counsel, requested a continuance of four days to obtain counsel. His request was granted, and on the day fixed he appeared with his counsel and also pleaded not guilty. The three defendants were subsequently tried together by Judge Caffrey and a jury, were found guilty, and each was sentenced to imprisonment for five years. An appeal by the petitioner was dismissed by this court for lack of diligent prosecution.

The present motion under § 2255, with an application for leave to proceed in forma pauperis supported by an affidavit of poverty was filed by the petitioner pro se on August 12, 1963. In the motion he alleged in general terms that counsel for a co-defendant had acted as chief defense counsel at the trial and that this counsel, because of serious illness in his family, had been unable "to devote his unlimated sic attention" to the defense. Wherefore he asserted that in effect he had been denied his constitutional right to representation by counsel at his trial. In his affidavit of poverty he asked the court to provide him at public expense with copies of a transcript of the proceedings at his trial, the indictment and all docket entries "or an attorney."

The court below, by Judge Wyzanski, granted leave to proceed in forma pauperis, but denied all other relief without prejudice finding that neither the motion under § 2255 itself, nor the affidavit of poverty nor his own inspection of the docket indicated that any of the documents requested were relevant to Joyce's claim of inadequate representation by counsel. However, Judge Wyzanski gave Joyce leave to file a specific affidavit by himself, or by his counsel, or "by any affiant having personal knowledge" that Joyce's counsel was absent at any stage of the trial or had specifically revealed at any time during the trial his inability to devote appropriate attention to Joyce's defense. The court said that upon receipt of such an affidavit it would "further consider whether it is suitable to provide at public expense a copy of the indictment, the transcript, and docket entries."

Subsequently Joyce filed an affidavit in which he alleged that at a point in the trial after a "heated debate" between Mr. Sax, who appeared for a co-defendant but who Joyce alleged had acted as chief defense counsel, and the court, Mr. Sax announced to the court that his wife was undergoing major surgery that morning and that he was under grave mental strain and could not concentrate or properly defend the petitioner. Joyce also alleged in the...