Pisani v. Warden, Maryland Penitentiary

• Decision Date: 16 September 1968
• Docket Number: Civ. No. 18519.
• Citation: 289 F. Supp. 232
• Parties: Umbert M. PISANI, Jr. v. WARDEN, MARYLAND PENITENTIARY.
• Court: U.S. District Court — District of Maryland

289 F. Supp. 232

Umbert M. PISANI, Jr. v. WARDEN, MARYLAND PENITENTIARY.

Civ. No. 18519.

United States District Court D. Maryland.

September 16, 1968.

Weldon Leroy Maddox, Baltimore, Md., for petitioner.

Francis B. Burch, Atty. Gen. of Maryland, and Alfred J. O'Ferrall, III, Asst. Atty. Gen., Baltimore, Md., for respondent.

HARVEY, District Judge:

On November 18, 1952, Umbert M. Pisani, Jr., petitioner, was charged in separate indictments handed down in the Criminal Court of Baltimore City with various offenses involving his minor daughter, including incest, perverted practice and statutory rape. Represented by court-appointed counsel, petitioner entered a plea of guilty to the incest charge. The rape and perverted practice charges were tried on December 4, 1952 before Judge E. Paul Mason, sitting without a jury. Following his conviction on both charges, petitioner filed a motion for a new trial which was granted by the Supreme Bench of Baltimore City on February 2, 1953.

Petitioner was tried again on February 17, 1953 before Judge James K. Cullen, also sitting without a jury. After finding petitioner guilty under the two indictments that were tried, Judge Cullen sentenced petitioner on all three charges, imposing consecutive sentences of 10 years on the incest charge, 10 years on the perverted practice charge and 21 years on the rape charge. No appeal was noted by petitioner from these convictions and sentences, but he did file a motion for a reduction of sentence which was denied by Judge Cullen on June 5, 1953. In 1960, petitioner was released from confinement on parole. However, in June of 1963 his parole was revoked, and he was returned to prison for violating the terms and conditions of his parole.

On February 2, 1966, petitioner filed in the Criminal Court of Baltimore City an application for relief under the Maryland Post Conviction Procedure Act. Two hearings were held before Judge Dulaney Foster on March 16 and April 7, 1966, and petitioner as well as his trial counsel testified at such hearings. Judge Foster entered an order dated June 30, 1966 denying relief. An application for leave to appeal from such order was denied by the Court of Special Appeals of Maryland in a per curiam opinion dated June 21, 1967. Pisani v. Warden, No. 70, Initial Term, 1967.

Petitioner now seeks habeas corpus relief in this Court, relying on the same points presented to the state courts in his post-conviction petition. He claims (1) that the evidence to support his conviction of statutory rape was insufficient; (2) that he was indicted by an illegally constituted grand jury; (3) that because of his indigency he was unconstitutionally denied his right to appeal his original convictions; and (4) that he was not effectively represented by his counsel. Pursuant to a show cause order, the Attorney General of Maryland has filed an answer to the pending petition, attaching copies of the transcript of the original trial before Judge Mason in 1952, of the transcript of the post-conviction hearing held before Judge Foster, of Judge Foster's opinion denying petitioner post-conviction relief, and of the per curiam opinion of the Court of Special Appeals of Maryland denying petitioner's application for leave to appeal from Judge Foster's order. The transcript of the second trial before Judge Cullen is not available in that the court reporter died before the transcript was prepared and the record of such trial cannot be adequately reconstructed.

A hearing has been held before this Court at which petitioner was represented by Weldon L. Maddox, Esq., the same attorney who represented petitioner at the original trial and at the retrial. No further testimony was adduced at such hearing, counsel having agreed that a decision should be rendered in this case on the basis of the available transcripts of the prior proceedings and the pleadings, briefs and oral arguments in this Court. At the hearing, counsel for petitioner formally withdrew points (2) and (4).¹

As his first point, petitioner claims that the evidence before the trial court at his second trial was insufficient to support the charge of statutory rape. The sufficiency of the evidence in a state trial is a matter of state law and procedure not involving a federal constitutional issue, and it is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. Grundler v. State of North Carolina, 283 F.2d 798, 802 (4th Cir. 1960); Harrison v. Boles, 307 F.2d 928 (4th Cir. 1962). As stated in Young v. Boles, 343 F.2d 136, 138 (4th Cir. 1965), the sole inquiry in a habeas corpus proceeding is whether the conviction "rests upon any evidence at all." A review of relevant portions of the transcript of the 1952 trial, which formed the basis for the second trial in 1953, discloses ample legally admissible evidence to support petitioner's rape conviction.²

Petitioner's daughter, Patricia Pisani, who was nineteen years old at the time of the first trial, testified that from the time that she was about eleven years old until she was seventeen and left home because of the continuing abuse, petitioner forced here to have intercourse with him approximately once a week. She further testified that both before and after she was eleven, her father forced her to commit perverted acts with him.

The daughter's testimony was corroborated in part by that of petitioner's wife who testified that on one occasion in 1946 she caught her husband having intercourse with her daughter. Mrs. Pisani further testified that when her daughter decided to leave home on December 16, 1950, she had called her mother and said "she was leaving home and I would know the reason why." Besides Mrs. Pisani, three friends of Patricia Pisani testified that on December 16, 1950 Patricia had told them of her father's sexual attack on her that very day and that she had previously told them of similar attacks. Without considering the testimony of three police officers and of petitioner himself as to the voluntariness of the written confession of petitioner that was introduced in evidence at the first trial,³ it is clear from the other testimony that the statutory rape conviction is not so devoid of evidentiary support as to infringe any constitutional right of petitioner. In particular, the evidence shows that Patricia was 14 years of age or less at the time of some of these acts as required by the Maryland statute defining statutory rape.⁴ See Article 27, § 462, Md. Ann.Code (1967 Repl.Vol.)

The other attack on his convictions pressed by petitioner in this Court raises more substantial questions. Relying on Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956), petitioner contends that he is entitled to his release because he was denied his right of appeal solely because of his indigency. In Griffin the petitioner had been convicted of armed robbery and immediately after his trial had moved that a transcript of the testimony be furnished to him without cost so that he could pursue an appeal. At that time in Illinois, only indigent defendants who had been sentenced to death were entitled to free transcripts at State expense. As a result of the denial of his request for a free transcript, he was unable to secure appellate review of his conviction. The Supreme Court held that on such facts it was a violation of the Fourteenth Amendment to deprive a person because of his indigency of any rights of appeal afforded all other convicted defendants. In Eskridge v. Washington State Board, etc., 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958), this rule, first enunciated in 1956, was held to be retroactive.

The facts here indicate that following the convictions and sentences of February 17, 1953, petitioner was advised by Mr. Maddox, his attorney, that money would have to be raised to take an appeal from the judgments and sentences of the lower court. Mr. Maddox further told petitioner that he would represent him on appeal without fee but that it would be necessary to have money to defray other appeal costs. Petitioner was advised that the law of Maryland at that time did not provide for the furnishing of a transcript at State expense except in capital cases. Pursuant to instructions from petitioner, Mr. Maddox contacted petitioner's wife and other named individuals in an effort to raise money for the appeal. When no cash could be raised within the time required by Maryland law for filing a notice of appeal, the appeal was abandoned. Under these circumstances, this Court finds that in 1953 petitioner did not prosecute an appeal because he could not afford to pay for one.

The Court of Appeals of Maryland has recognized the right of a defendant to a belated appeal where a timely appeal has been taken but not perfected because of his indigency. Lloyd v. Warden of Maryland Penitentiary, 217 Md. 667, 143 A.2d 483 (1958). Relying on McCoy v. Warden, Maryland Penitentiary, 1 Md.App. 108, 227 A.2d 375 (1967), the State here argues that no belated appeal is warranted in this case because to be entitled to one a defendant must attempt a timely direct appeal but be thwarted by state officials.⁵ In its per curiam opinion denying this petitioner's application for leave to appeal, the Court of Special Appeals likewise relied upon McCoy in holding that the petitioner here was not entitled to a belated appeal because no action taken by state officials had prevented the appeal. Pisani v. State, supra.

The precise question presented here has never been ruled upon by the Court of Appeals of Maryland. It is doubtful in view of State v. Shoemaker, 225 Md. 639, 171 A.2d 468 (1961), that the Court of Appeals would hold that under the facts here present a timely direct appeal must first have been attempted by an indigent defendant and then thwarted by state officials before such defendant would be entitled to a belated appeal. In Shoem...