PEOPLE OF UNITED STATES v. Fay

• Decision Date: 06 May 1965
• Parties: The PEOPLE OF the UNITED STATES of America ex rel., Edward MITCHELL, Relator, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

241 F. Supp. 165

The PEOPLE OF the UNITED STATES of America ex rel., Edward MITCHELL, Relator, v. Edward M. FAY, Warden of Green Haven Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

May 6, 1965.

Edward Mitchell, pro se.

Louis J. Lefkowitz, Atty. Gen. of New York, for respondent, Michael H. Rauch, Deputy Asst. Atty. Gen., of counsel.

WYATT, District Judge.

This petitioner (sometimes for convenience "Mitchell") for a writ of habeas corpus (28 U.S.C. § 2241) is presently confined in Green Haven Prison, Stormville, Dutchess County, New York, serving a sentence to a term of imprisonment of from ten to twenty years. The sentence was imposed on Mitchell by the Nassau County Court (Collins, J.) on November 17, 1952 after conviction by a jury of assault in the first and second degrees (New York Penal Law, McKinney's Consol.Laws, c. 40, §§ 240, 242).

The present petition is presented by Mitchell in forma pauperis under authority of an order of Judge Murphy filed October 29, 1964.

Mitchell was represented at his trial in the State court by assigned counsel, assigned on the basis of indigency. Mitchell so states in his sworn petition and there is no denial for the State.

When Mitchell was being sentenced in the State court, assigned counsel was present. The stenographic minutes include the following colloquy (pages 1, 2):

"THE CLERK: Have you any legal cause to show why sentence should not be imposed?

"THE DEFENDANT: I have.

"THE CLERK: Address your remarks to the Court, please.

"THE DEFENDANT: Your Honor, I am innocent of this assault charge. I have three witnesses that will testify to that effect. As an innocent man I don't think I ought to be sentenced justifiably.

"THE COURT: Is there anything further you wish to tell the Court?

"THE DEFENDANT: No. Judge, your Honor.

* * * * * *

"THE COURT: * * * Now, Edward Mitchell, is there anything further you care to say to the Court before the Court makes a final disposition?

"THE DEFENDANT: I would love to have an appeal, but I have no means. I have no way of doing it, so I have to take it."

Sentence was then pronounced.

The minutes show that nothing further was said on the subject of appeal by Court, counsel or anyone else.

Mitchell did not appeal. He was not assigned counsel for an appeal and was obviously ignorant of any steps which an indigent might take in New York to secure an appeal.

After serving his sentence for many years and perhaps stimulated by Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (March 18, 1963), rehearing denied 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200 (April 29, 1963), Mitchell applied to the State court for a writ of error coram nobis for failure of the State to make possible an appeal from his November 17, 1952 judgment of conviction. His application was denied without hearing and without opinion by order dated June 14, 1963, which order was unanimously affirmed by the Appellate Division. People v. Mitchell, 20 A.D.2d 722, 247 N.Y.S.2d 499 (2d Dept. February 17, 1964). Mitchell avers that leave to appeal to the New York Court of Appeals was denied on May 18, 1964 by Chief Judge Desmond. There is no denial for the State.

While the Appellate Division did not state its reasons for withholding coram nobis relief, it cited People v. Kling, 19 A.D.2d 750, 242 N.Y.S.2d 977 (2d Dept. 1963). This decision was affirmed (4-3) ten days after the Appellate Division decided petitioner's appeal. People v. Kling, 14 N.Y.2d 571, 248 N.Y. S.2d 661, 198 N.E.2d 46 (February 27, 1964). Under the Kling decision and others, the law of New York appears to be this: assigned counsel to an indigent defendant in the trial court has no duty respecting an appeal in a non-capital case, either to advise the defendant or to file a notice of appeal. Counsel on the appeal of an indigent defendant can only be assigned by the Appellate Division and only after a proper notice of appeal has been filed. See, for example, Bloeth v. Cyrta, 21 A.D.2d 979, 243 N.Y.S.2d 490 (2d Dept. 1963); People v. Ashe, App. Div., 164 N.Y.S.2d 842 (4th Dept. 1957).

In any event, it seems clear that Mitchell has exhausted his presently available State remedies within the meaning of 28 U.S.C. § 2254 because he has presented his federal constitutional claim (the same claim that is here presented) to the sentencing court in a collateral proceeding and appealed from its denial on the merits. See generally Fay v. Noia, 372 U.S. 391, 420-422, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

The claim is thus reached that the constitutional rights of petitioner were violated in that neither the trial court, the court clerk, nor Mitchell's assigned trial counsel — all of whom were aware of his desire to have an appeal — filed a notice of appeal for him, or saw that counsel was assigned to him for an appeal, or even informed him of a procedure for an appeal as a poor person.

There is no need for any evidentiary hearing because the facts are not in dispute; there are no "contested factual issues". Townsend v. Sain, 372 U.S. 293, 310, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

While a state is not required by the Fourteenth Amendment to provide appellate courts or for any appeal (Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 100 L.Ed. 891 (1956)) it is now familiar law that if a state does provide appellate review, the right to appeal, as well as the state procedures on appeal, becomes constitutionally protected (Griffin, above, at 18, 76 S.Ct. 585).

At least since Griffin, it has been clear that a state cannot, in the administration of its appellate procedures, discriminate on the basis of the financial condition of the defendant; "destitute defendants must be afforded as adequate appellate review as defendants who have money * * *." 351 U.S. at 19, 76 S. Ct. at 591. In Griffin, the indigent's right to a free transcript was in issue.

In Douglas v. People of State of California, above, by asserting (372 U.S. at 355, 83 S.Ct. at 815) that the denial of counsel on appeal to indigents is "a discrimination at least as invidious" as the denial of free transcripts, the Supreme Court held that an indigent defendant is entitled to the benefit of assigned counsel to prosecute an appeal given him by the state as of right. Mr. Justice Douglas, speaking for the majority of the Court, said (372 U.S. at 357-358, 83 S. Ct. at 817):

"There is lacking that equality demanded by the Fourteenth Amendment where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent * * * is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual, while the rich man has a meaningful appeal."

Douglas v. People of State of California therefore affirms that an indigent defendant has a constitutional right to the assistance of counsel on appeal.

The conviction of petitioner was in 1952; Douglas was decided in 1963. Does it have retrospective effect? This Court concludes that it does.

The Supreme Court, in at least three cases subsequent to Douglas, has reversed with a citation to Douglas state court convictions had before Douglas. All three were short, per curiam decisions. Mr. Justice Harlan dissented in all three because he felt that the cases should be set for argument of the question of the retrospective effect of Douglas. Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Shockey v. Illinois, 375 U.S. 22, 84 S.Ct. 83, 11 L.Ed.2d 43 (1963); Daegele v. Kansas, 375 U.S. 1, 84 S.Ct. 89, 11 L.Ed.2d 44 (1963). This is a strong indication that Douglas v. People of State of California is to be given retrospective effect. The Court of Appeals for the Fifth Circuit has recently so held. Pate v. Holman, 341 F.2d 764 (1965).

Our Court of Appeals has given retrospective effect to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). United States ex rel. Durocher v. LaVallee, 330 F.2d 303 (2d Cir.) cert. denied, 377 U.S. 998, 84 S.Ct. 1921, 12 L.Ed.2d 1048 (1964). The reasons for such a holding are the same in regard to the Douglas decision:

"We do not deal here, however, with considerations of res judicata and vested rights, but with the question whether, consonant with our society's conceptions of due process and general constitutional law, we could deny the constitutional right enunciated in Gideon to those who happened to be tried before the decision was handed down. Thus to hold would be to assign a lower constitutional status to pre-Gideon prisoners who were denied the right to counsel, a right so `fundamental and essential to a fair trial' that it is made obligatory upon the States by the Fourteenth Amendment * * *." (United States ex rel. Durocher v. LaVallee, above, 330 F.2d at 312).

The question here thus becomes a narrow one: does the New York decisional rule as to indigent appeals — namely, that trial counsel assigned to an indigent in a non-capital case has no responsibility for advising as to an appeal or filing a notice of appeal while the indigent may not secure counsel for an appeal except from the appellate court after timely filing of a notice of appeal — violate the constitutional rights of convicted indigents? This Court concludes that it...