U.S. ex rel. Cleveland v. Warden, New Jersey State Prison, 75-2004

• Decision Date: 11 November 1976
• Docket Number: No. 75-2004,75-2004
• Citation: 544 F.2d 1200
• Parties: UNITED STATES of America ex rel. James Willie CLEVELAND 28598, Appellant, v. WARDEN, NEW JERSEY STATE PRISON.
• Court: U.S. Court of Appeals — Third Circuit

Page 1200

544 F.2d 1200

UNITED STATES of America ex rel. James Willie CLEVELAND 28598, Appellant, v. WARDEN, NEW JERSEY STATE PRISON.

No. 75-2004.

United States Court of Appeals Third Circuit.

Argued May 28, 1976.

Reassigned Sept. 16, 1976.

Decided Nov. 11, 1976.

Robert J. Schmitt, Jr., Aronsohn, Kahn & Springstead, Hackensack, N. J., for appellant.

Burrell Ives Humphreys, Passaic County Prosecutor, Paterson, N. J., for appellee; John P. Goceljak, Asst. Prosecutor, of counsel.

Before ADAMS and HUNTER, Circuit Judges, and SCHWARTZ, District Judge.

OPINION OF THE COURT

ADAMS, Circuit Judge.

In this appeal from a denial of a writ of habeas corpus, the primary issue is whether a state court, in failing to provide petitioner, James Willie Cleveland, with a free transcript of his trial in effect aborted his opportunity for appeal and thus violated his equal protection rights. ¹

I.

Cleveland was convicted of first degree murder in the Passaic County (N.J.) Court in 1951, and sentenced to life imprisonment. Previously, he had been convicted of the same crime and condemned to death. But the New Jersey Supreme Court reversed that judgment and ordered a new trial, which resulted in a second conviction. ²

After the second trial, Cleveland's appointed counsel filed a notice of appeal. Immediately thereafter, however, the attorneys who had represented petitioner at both trials, notified the State Supreme Court of their desire to retire as counsel. They informed the court of Cleveland's repeated requests for an appeal, his state of destitution, and the lack of statutory authorization for payment of the costs of appeal. Cleveland's counsel also expressed their opinion that they perceived no meritorious grounds for an appeal. Subsequently, on the advice of the New Jersey Supreme Court that they need not pursue an appeal they deemed useless, the attorneys withdrew from the case. In a letter terminating their representation, the attorneys informed Cleveland that appointed counsel was unavailable to him and that he personally would have to finance any appeal. After receiving that advice, petitioner did not independently pursue the appeal.

When Cleveland attempted to initiate his appeal in 1951, immediately after his conviction, the State of New Jersey was providing free transcripts only to indigent persons condemned to death. Hence, because he had been sentenced to life imprisonment, Cleveland, though clearly indigent, could not obtain a copy of his trial transcript without charge. A trial transcript, however, constituted a prerequisite for the type of appeal applicable in Cleveland's situation. As the petitioner lacked a transcript, and could not afford one, his appeal could not be prosecuted. The State therefore moved to dismiss the appeal, and an order so providing was entered on February 11, 1952.

In September of 1966, with newly appointed counsel, Cleveland applied for post-conviction relief in the Passaic County Court which had tried and sentenced him. Rather than decide the case on the merits, the county court, in May, 1968, reserved judgment but directed the petitioner to seek certification of his case by the New Jersey Supreme Court. Cleveland appealed to the Appellate Division of the Superior Court, which affirmed the county court in February of 1969. He then filed a petition for certification by the New Jersey Supreme Court in October, 1969, but that court denied the petition.

During the course of the state proceedings for post-conviction relief, Cleveland's assigned counsel requested the court reporter, who had taken notes at the second trial, to prepare a transcript. However, the reporter informed him that the trial notes had been discarded in 1959. The disposal of the stenographic record occurred even though the Supreme Court for New Jersey had issued, in 1958, an order instructing court reporters to preserve all notes. Despite the absence of a trial transcript, Cleveland proceeded with his petition for relief, asserting deprivation of his right to a trial transcript as well as his right to counsel.

After two earlier applications for habeas corpus relief were dismissed for want of jurisdiction, ³ the present petition was submitted. Adopting, without reservation, the report and recommendation of the magistrate who reviewed the petition, the District Court for New Jersey again dismissed without an evidentiary hearing. It is from this last dismissal that Cleveland appeals.

Because the former New Jersey court rule, denying a free transcript to indigents not facing the death penalty but requiring a transcript to perfect an appeal, may have sufficiently violated Cleveland's equal protection rights so as to warrant post-conviction relief in the case at hand, we reinstate the petition and remand to the district court. ⁴

II.

In Griffin v. Illinois, ⁵ the United States Supreme Court established that, if appellate review is afforded to any criminal defendant, equal protection demands that indigents have the same opportunity as non-indigents to appeal. The Court stated: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts." ⁶ The Supreme Court then deemed unconstitutional an Illinois statute that required a transcript as a condition of appeal but barred free copies to indigents unless they were condemned to death. Virtually identical with the Illinois statute, the New Jersey rule at issue in this action seemingly suffers from the same constitutional infirmities that were extirpated in Griffin. Since the principles enunciated in Griffin have been extended retroactively, ⁷ they would appear to control the present case.

The magistrate's report, which the district court adopted, sought to distinguish the Griffin case, noting that Cleveland, unlike Griffin, neither requested a transcript nor alleged that specific substantive errors had infected his second trial. However, given the special factual context that confronted Cleveland, the attempted distinction between Griffin and the present case is not convincing.

Petitioner's failure to request the transcript in 1951 is quite understandable. No longer represented by counsel, he had been informed that free transcripts were accorded only to indigents sentenced to death. It is highly questionable, therefore, whether Cleveland can be said to have waived his right to an appeal. Waiver, it is well settled, requires the voluntary and intelligent relinquishment of a known right. ⁸ Not only did petitioner fail to realize that he had the right to appeal, despite the then existing New Jersey rule which indicated otherwise, but it also is doubtful whether he voluntarily surrendered any such right.

Moreover, to insist that Cleveland must have demanded formally what he knew he would not receive, as the district court apparently would require before conferring the benefits of Griffin on him, would appear to place a premium on empty rituals. If we penalized Cleveland simply because he did not make a request which would have proved futile in 1951, we might well encourage criminal defendants, in general, to engage in a plethora of procedural exercises in the hope of qualifying for the rewards wrought by evolving constitutional interpretations. To do so would overburden a criminal justice system which already strains to process charges that are now necessarily lodged with it. We cannot say, therefore, that the petitioner should have, or could have, anticipated Griffin by requesting a transcript so as to secure the constitutional protection eventually mandated by that decision.

Similarly, we do not believe that Cleveland should be denied relief for failure to allege substantive trial mistakes in his habeas petition. Just as his vulnerable position explains the absence of a request for a transcript, so may it account for his silence as to the alleged trial errors. Evidently, petitioner did wish to challenge aspects of the second trial in 1951, as indicated at least by his filing of the notice of appeal.

With respect to substantive errors in his trial, Cleveland contends that the same coerced confession which caused reversal of the first trial was admitted in the second proceeding. He also raises questions concerning his identification by a witness and the admissibility of evidence involving bloodstains. While petitioner's original counsel expressed their view that no reversible error occurred in Cleveland's second trial, we are unable, at least at this stage, to evaluate their opinion without benefit of a transcript or the possible reconstruction of the trial record through an evidentiary hearing. ⁹ The State argues that the confession could not have been admitted in the second trial, since that confession constituted the very grounds for reversal of the first trial. Without even a synopsis of the trial, or any attempt by either party to develop an evidentiary record, it is next to impossible to ascertain what actually occurred at the trial. Nor are we willing to speculate as to what transpired.

As there is an insufficient factual foundation with which to determine whether the grant of habeas corpus relief is justified, at least at this level, we remand to the district court for a hearing at which the State of New Jersey may, for example, reconstruct a record of the trial. ¹⁰ Of course, such replication may prove impossible; if so, the district court may have no choice but to grant the writ unless a new trial is ordered within a reasonable time. Nevertheless, we believe that the State of New Jersey should have an opportunity to demonstrate, factually and legally, that the petitioner is not entitled to the relief he seeks. While the district court may well have to grant that relief on remand, mere supposition that the trial was unfair does not warrant summary reversal of the conviction at this point in...