Leventhal v. Gavin

• Decision Date: 03 December 1968
• Docket Number: Misc. Civ. No. 68-24-G.
• Citation: 309 F. Supp. 197
• Parties: William J. LEVENTHAL, Petitioner, v. John A. GAVIN, as he is Commissioner, Department of Correction, Commonwealth of Massachusetts, Respondent.
• Court: U.S. District Court — District of Massachusetts

309 F. Supp. 197

William J. LEVENTHAL, Petitioner, v. John A. GAVIN, as he is Commissioner, Department of Correction, Commonwealth of Massachusetts, Respondent.

Misc. Civ. No. 68-24-G.

United States District Court, D. Massachusetts.

December 3, 1968.

Julian Soshnick and Herbert N. Goodwin, Boston, Mass., for petitioner.

Willie J. Davis, Asst. Atty. Gen., Criminal Division, Boston, Mass., for respondent.

OPINION

GARRITY, District Judge.

This case arises on the petition of William J. Leventhal for a writ of habeas corpus. Leventhal was tried in the Superior Court, Suffolk County, Massachusetts, on several indictments charging him with, in substance, larceny in excess of $100 and conspiracy. He was convicted on March 10, 1965. On May 12, 1965 he was sentenced to a term of five to seven years and is presently imprisoned. On November 12, 1965 Leventhal moved for a new trial, alleging that he had been deprived of his right of appeal through the mistake or inadvertence of counsel in failing to obtain an extension of time within which to file a bill of exceptions, and had thus been denied the effective assistance of counsel. Under Mass.G.L. c. 278, § 31, a bill of exceptions must be filed within twenty days after the verdict unless further time is allowed by the court. A hearing was held on December 10, 1965 and the motion was denied. On bill of exceptions from denial of the motion the Supreme Judicial Court found no error. Commonwealth v. Hamblen et al., 1967, 352 Mass. 438, 225 N.E.2d 911.

On March 1, 1968 Leventhal filed the present petition for a writ of habeas corpus. Defendant's motion to dismiss was granted without hearing and petitioner appealed. In a per curiam opinion, 396 F.2d 441, the Court of Appeals for the First Circuit vacated the judgment of dismissal and remanded for an evidentiary hearing to determine whether petitioner had been denied rights under the Sixth Amendment of the United States Constitution. This court held an evidentiary hearing.

State Court Proceeding

It is provided in 28 U.S.C. § 2254(d) that a determination of a factual issue made by a state court after a hearing on the merits and evidenced by some form of "reliable and adequate written indicia" shall be presumed to be correct unless one of eight specified defects appears. In the present case we have before us a complete and official transcript of the hearing on Leventhal's motion for a new trial at which his claim now asserted here was considered. This meets the standard of reliability required by the statutory provision just cited.¹ The question arises whether the state proceeding must be denied the presumption of correctness because of one of the specified defects.

The hearing in the state court was based upon the petitioner's motion for a new trial which raised the factual question whether through the mistake or inadvertence of his trial counsel a bill of exceptions in his behalf was not timely filed. Petitioner's trial attorney had been engaged by the petitioner and had been a member of the bar for over 25 years; associated with him in representing the petitioner but not otherwise was junior counsel who had been admitted to the bar in 1961. Plaintiff's initial contention is that, in the words of 28 U.S.C. § 2254(d) (1), "the merits of the factual dispute were not resolved in the state court hearing." The court finds that they were. True, the judge made no formal findings. But these are not required by § 2254(d). The judge's determination appears in the following colloquy toward the end of the hearing:

MR. AUERBACH. The rights are gone because of failure of counsel to do something.

The COURT. I don't think it was failure of counsel at all. I am not convinced it was failure of counsel.

By stating that it was not the failure of counsel the court found implicitly that the failure was chargeable to Leventhal. In this court the petitioner has suggested that the word "counsel" is ambiguous in that it may have referred to the prosecuting attorney who, according to one of the two trial attorneys for the defendant who testified in support of the motion in the state court, undertook to file with the court a motion extending the time within which a bill of exceptions might be filed. The court rejects this contention. It is clear from the context of the state judge's remarks that in referring to "counsel" he meant counsel for the defendant. The judge who heard the motion had presided at the trial and stated during argument on the motion that the petitioner "was directing the trial" and that "he knew all the law, he knew everything; he was telling the lawyers what to to and so forth, and all that."

Petitioner also relies upon § 2254(d) (8) and has asked the court to consider the record on the motion for a new trial as a whole and to conclude that the trial judge's factual determination was not fairly supported by the record. On this issue the nature of the hearing in the state court is significant. The only witnesses called on behalf of the petitioner were the two attorneys who had represented him at the trial. Petitioner's counsel at the hearing, an attorney of over 30 years' experience at the bar, had succeeded the witnesses in representing him. The witnesses were summoned to appear without advance notice of the purpose of their testimony. As a result they did not have their files with them and testified vaguely from memory. When one of the witnesses testified, "I have quite a few papers on this, copies of papers, in my office" the prosecuting attorney asked if he wanted an opportunity to bring the papers to court, whereupon petitioner's counsel interposed, "Not unless the court would think it would be helpful." The only documentary evidence submitted was a one-sentence letter of withdrawal by prior counsel dated May 1, 1965 and addressed To Whom It May Concern. The only other evidence was the petitioner's request, which was granted, that the judge take judicial notice of the docket entries in the case. The petitioner himself did not testify although he was present in the courtroom throughout the hearing.

The lack of evidence elicited before the trial judge on the motion for a new trial was as significant as what was produced. The evidence before him related almost exclusively to the question whether trial counsel had prepared a second motion extending the time within which a bill of exceptions might be filed beyond April 26, 1965, to which date the time for filing had been extended by motion allowed on March 26. One of the trial lawyers testified that he visited the prosecuting attorney in his private law office and had obtained his assent to the motion and had left the original with him for filing with the clerk. The prosecutor made a representation to the judge in lieu of testimony that he recalled assenting to such a motion but not keeping the original and that as a matter of office procedure he never accepted the original of such a motion. At no point did either witness testify that the petitioner wished to appeal. This gap in the evidence was consistent with the motion, which also failed to allege that the petitioner wished to appeal. The tacit assumption at the hearings before the trial judge and in this court was that extension of the time within which to file a bill of exceptions presupposes an intention to appeal. The court disagrees. Extension of the time within which to file a bill of exceptions is not necessarily proof of an intention to appeal. It may be obtained in order to defer a decision whether or not to appeal.

Other aspects of the record as a whole before the trial judge on the petitioner's motion for a new trial also support his determination. There was no evidence that anyone had put pen to paper toward drafting a bill of exceptions previous to April 26, which was 47 days after the verdict. The trial had lasted 42 days and the transcript comprised 32 volumes. Bills of exceptions in such protracted cases do not come out of thin air. There was no indication that trial counsel had been engaged or compensated for preparation of a bill of exceptions. The motion for new trial alleged implicitly that a bill of exceptions in petitioner's behalf would have been filed within the time prescribed by the court, i. e., on or before April 26, but for the mistake or inadvertence of counsel. The evidence adduced upon hearing the motion disproved this allegation. Moreover, on March 11, the day after the verdict, the petitioner moved that the cases be treated for purposes of appeal as brought under Mass. G.L. c. 278, §§ 33A-33G, under which the defendant files assignments of error on the basis of the stenographic transcript. The judge took the motion under advisement and never ruled upon it. The petitioner did not file a claim of appeal within 20 days after verdict, March 30, as required by § 33B. Unlike the extendible time limit for filing bills of exceptions, the deadline for appeals under the so-called felony appeals provisions of c. 278 may not be extended. Commonwealth v. Rodriquez, 1956, 333 Mass. 501, 131 N.E.2d 774. There was no indication that counsel requested a ruling by the trial judge on petitioner's motion under c. 278 or that they sought to file a claim of appeal under that chapter. See Commonwealth v. Dorius, 1962, 343 Mass. 533, 535, 179 N.E.2d 885. On the other hand, between the time of the verdict on March 10 and sentencing on May 12, 1965, petitioner's trial counsel endeavored to settle related civil actions brought by victims of the larcenies for which the petitioner was convicted. If the judge were aware of these efforts — and it appears very likely that he was — this...