Palumbo v. State of New Jersey
| Decision Date | 30 June 1964 |
| Docket Number | No. 14572.,14572. |
| Citation | 334 F.2d 524 |
| Parties | Anthony PALUMBO, Appellant, v. STATE OF NEW JERSEY, Howard Yeager, Warden, New Jersey State Prison. |
| Court | U.S. Court of Appeals — Third Circuit |
Anthony Palumbo, pro se, appellant.
James A. Tumulty, Jr., Prosecutor; William A. O'Brien, Asst. Prosecutor, Jersey City, N. J., for appellee.
Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.
This is an appeal by Anthony Palumbo from a single order by the United States District Court for the District of New Jersey denying his two petitions for writs of habeas corpus.1
On January 22, 1962, Palumbo filed a petition for habeas corpus in the District Court. It alleged that his conviction, on retrial, of May 29, 1959, in the Hudson County Court of New Jersey for armed robbery and the use of firearms under indictment 631 violated his constitutional protection against double jeopardy.2
On January 28, 1963, Palumbo filed a second petition in the District Court. It alleged that his plea of guilty on January 11, 1956 in the Hudson County Court for armed robbery under indictments 632 and 720 violated his constitutional protection of fundamental justice under the fourteenth amendment. He specifically contended, moreover, that the Hudson County Court failed to provide him with the assistance of counsel.
Palumbo is presently imprisoned under the sentence he received for his guilty plea to indictments 632 and 720.3 His sentence for conviction under 631 will begin at the completion of his present incarceration.4
The District Court has the power to consider the merits of a habeas corpus petition that challenges present custody.5 But it does not have the power to consider the merits of a habeas corpus petition attacking conviction on which the service of sentence has yet to commence.6
Accordingly, the District Court incorrectly entertained consideration of the merits of Palumbo's habeas corpus petition challenging the validity of his conviction under indictment 631. We, nevertheless, affirm the dismissal of this petition, but solely on the ground that the District Court was without requisite jurisdiction to consider the matter. Palumbo, in fact, has based his appeal exclusively on disagreement with the refusal of the court to grant his petition for the writ on sentences received on indictments 632 and 720.7
Thus, before us for determination is the sole question whether the decision of the District Court — that Palumbo waived his right to counsel when he pleaded guilty to indictments 632 and 720 — is in error.8
The pertinent facts and circumstances concerning his convictions on these two indictments are: On June 17, 1955, Palumbo and co-defendant Harry Wines pleaded not guilty to indictments 631 and 632, and on October 7, 1955, they pleaded not guilty to robbery indictment 720.
The Hudson County Court appointed Thomas J. Armstrong, Esquire, to represent Palumbo and John J. Flaherty, Jr., Esquire, to represent Wines on indictment 631. On November 24, 1955, a jury found them guilty of that charge.9
Following Palumbo's defense on indictment 631, his attorney in that case, Mr. Armstrong, received a letter from the Hudson County Prosecutor asking him to defend Palumbo on armed robbery indictments 632 and 720. He went to the office of the Prosecutor in Hudson County and advised one of the assistant prosecutors that there had been no assignment of these cases to him by the court.
Mr. Armstrong, notwithstanding his lack of assignment, felt that it was his duty to visit and interview Palumbo at the Hudson County Jail. Yet, while conversing with the imprisoned Palumbo, he told him that he had not been assigned to defend him on indictments 632 and 720.
Subsequently, Mr. Armstrong received another communication from the Prosecutor, advising him that the two cases concerning Palumbo would soon be up for trial. He again visited the jail and there suggested to Palumbo that since he was not his attorney, Palumbo should obtain one.
Mr. Armstrong, nevertheless, appeared in court with Palumbo on January 11, 1956. In addition, Mr. Flaherty accompanied Wines. At the commencement of the proceedings, the court observed:
"The record will note that Mr. Thomas Armstrong appears for the defendant Palumbo and Mr. Jack Flaherty or John J. Flaherty is appearing for Wines."
Mr. Armstrong requested that the record show that Michael Breitkopf, Esquire, had appeared in the case, although he understood Mr. Breitkopf had filed no formal appearance in the office of the prosecutor, and hence, had received no official notice of Palumbo's present appearance. Nonetheless, he pointed out that he had notified Mr. Breitkopf by letter and discussed the matter personally with him.
Additionally, he apprised the court that this morning he had telephoned the office of Mr. Breitkopf, who, however, was elsewhere. Up "to this minute," according to Mr. Armstrong, Mr. Breitkopf had failed to return the telephone call, even though his son in answering the call stated that he would do so.
Next, Mr. Flaherty informed the court, in effect, that he was not serving as counsel for Wines,10 since he was neither appointed to represent Wines nor advising him how to plead. Rather, he was, to quote him, "merely here this morning for the pleadings."
Wines then changed his plea to guilty. The court asked Wines, among other things: To which Wines answered: "Yes." The court thereupon accepted Wines's plea of guilty.
Thereafter, Mr. Armstrong made known his non-representation of Palumbo by adopting, as if he "had reiterated them," the remarks of Mr. Flaherty regarding his not serving as counsel for Wines.11 The assistant prosecutor, at this point, asked Palumbo if he wished to retract his former plea of not guilty to indictment 720 and now enter a plea of guilty. He answered: "That's right." A discussion concerning the pleas of Palumbo and Wines then occurred among the court, the assistant prosecutor, Mr. Armstrong, Palumbo and Wines.12 It is apparent therefrom that Palumbo's age was 45; that he knew "the implication of withdrawing the plea of not guilty and pleading guilty"; that his plea was "not made through any threat, fear or any promises of any kind"; and that he already had been furnished copies of the indictments. The same determinations, in general, also were made pertaining to Wines.
At no time did the court or anyone else ask Wines if he wanted representation by counsel. Moreover, at no time did Palumbo comment that he wanted or did not want counsel. In short, even though the court thoroughly queried Palumbo on the voluntariness of his plea, no one said anything about whether Palumbo desired counsel. The court then remanded Palumbo and Wines until sentencing, which took place on June 15, 1956.13
Palumbo subsequently filed a habeas corpus petition in the Hudson County Court on which hearing was held June 13, 1958. In orally dismissing his petition, the court, among other things, rejected the argument that Palumbo did not have the assistance of effective counsel when he changed his pleas to guilty on indictments 632 and 720. From this ruling Palumbo appealed. The New Jersey Superior Court, Appellate Division, in denying his appeal, said that it would "affirm the judgment forthwith on the basis of Palumbo's waiver" of the right to counsel, were there no question as to the effect of the alleged inducement and promises by the prosecutor.14 It then remanded for additional Trial Court findings on the question whether Palumbo had entered his pleas on the basis of threats or promises.15
After a rehearing, the Hudson County Court on April 26, 1960 made an unreported factual finding that there had been no threats or promises by the prosecutor. In an unreported decision the Superior Court, Appellate Division, on September 28, 1961, affirmed the Hudson County Court's denial of Palumbo's habeas corpus petition; the New Jersey Supreme Court denied certification on the merits on December 11, 1961 in an unreported order. Certiorari was also denied.16 And thereafter the District Court for New Jersey, as already has been stated, denied Palumbo's petition for habeas corpus.17
A. Before considering the District Court's conclusion that Palumbo waived his right to counsel, we must first determine if, indeed, he had such a right under the facts and circumstances of this case.
The Superior Court, Appellate Division, stated: "It was necessary that defendant Palumbo, as an indigent, be provided with counsel for the purpose of advice on deciding how to plead to the indictments."18 Immediately afterwards it cited five state decisions whose nature made it appear that the court based its statement affording Palumbo the right to counsel on Art. I, par. 10 of the New Jersey Constitution of 1947 and on New Jersey Supreme Court Rule 1:12-9(a). The former, which is practically identical with the sixth amendment to the Federal Constitution, states: "In all criminal prosecutions the accused shall have the right * * * to have the assistance of counsel in his defense." The latter provides for the assignment of counsel for indigent persons charged with a crime.
Moreover, Gideon v. Wainwright19 has established that an indigent defendant in a state criminal prosecution has an unqualified Federal Constitutional right to be represented by counsel, unless he competently, intelligently, and voluntarily waives this right.20 This decision expressly overrules Betts v. Brady,21 which held that an indigent defendant in a state criminal prosecution had a constitutional right to be represented by counsel at trial only where special circumstances would make a denial thereof offensive to the common and fundamental ideas of fairness.
The right to counsel attaches not only at trial, but at any step of the proceedings where...
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