Leventhal v. Gavin, 7141.
| Decision Date | 11 June 1968 |
| Docket Number | No. 7141.,7141. |
| Citation | 396 F.2d 441 |
| Parties | William J. LEVENTHAL, Petitioner, Appellant, v. John A. GAVIN, as he is Commissioner, Department of Corrections, Commonwealth of Massachusetts, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Herbert N. Goodwin, Brookline, Mass., upon motions and memorandum for petitioner-appellant.
Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.
This habeas corpus matter is before us on a request for a certificate of probable cause for appeal, such a certificate having been denied by the district court. Briefly, the facts are these. Petitioner was tried in the Massachusetts Superior Court for conspiracy and larceny. After conviction he allegedly wished to appeal. A bill of exceptions, however, was not seasonably filed, and after one extension the time was allowed to expire, for reasons that do not presently conclusively appear. Some months later petitioner filed a motion for new trial, alleging that a bill of exceptions was not filed because of counsel's failure to follow his instructions. This motion was denied by the Superior Court, after hearing, and petitioner appealed. The appeal was dismissed, the Supreme Judicial Court stating simply that there was no abuse of discretion because "it could have been found that the failure on the part of counsel to perfect the exceptions was neither due to his inadvertence or mistake nor was contrary to the desire of his client." Commonwealth v. Hamblen, 1967 Mass.A.S. 727, 734, 225 N.E.2d 911, 916 (emphasis ours). What the court meant by the italicized words does not appear. We do not know whether the trial judge expressly so found and the court meant that the evidence warranted the findings, which petitioner alleges it would not, or whether the trial judge denied the motion without making findings and the court was saying that error did not affirmatively appear.
In his petition for a writ of habeas corpus and accompanying affidavit filed in the district court, petitioner asserted that in fact counsel's failure to file a bill of exceptions, and allowing the time to lapse, was contrary to his express instructions and understanding, and that he had been denied the effective representation of counsel. The district court dismissed the petition without hearing and without an opinion. In so doing the district court, so far as its files reveal, had no record permitting it, under the rules of Townsend v. Sain, 1963, 372 U.S. 293, 310-319,...
To continue reading
Request your trial
-
Shipman v. Gladden
...to a convicted defendant whose retained counsel has failed to timely file a notice of appeal include the following: Leventhal v. Gavin, 396 F.2d 441 (1st Cir. 1968); Kinsey v. Wainwright, 251 F.Supp. 30 (M.D.Fla.1965) (appeal dismissed by retained counsel without client's consent); Hines v.......
-
Com. v. Leventhal
...his client.' 352 Mass. at 446, 225 N.E.2d at 916. Thereafter the defendant sought habeas corpus in the Federal courts. Leventhal v. Gavin, 396 F.2d 441 (1st Cir. 1968), on remand 309 F.Supp. 197 (D.Mass.1968), affd. 421 F.2d 270 (1st Cir. 1970), cert. den. 398 U.S. 941, 90 S.Ct. 1857, 26 L.......
-
Kime v. Brewer, 54179
...pertinent guiding statement: 'Under certain circumstances failure to perfect an appeal is denial of effective counsel. Leventhal v. Gavin, 1 Cir., 1968, 396 F.2d 441. See, also, Entsminger v. Iowa, 1967, 386 U.S. 748, 87 S.Ct. 1402, 18 L.Ed.2d 501. Indeed, failure by appointed or retained c......
-
Grooms v. State, 13562
...constitutional right to effective assistance of counsel. See, e.g., Blanchard v. Brewer, 429 F.2d 89 (8th Cir. 1970); Leventhal v. Gavin, 396 F.2d 441 (9th Cir. 1968); Dillane v. United States, 350 F.2d 732 (D.C.1965); Hines v. United States, 237 A.2d 827 (D.C.1968); State v. Scott, 492 S.W......