United States ex rel. Di Rienzo v. State of New Jersey

• Decision Date: 16 March 1970
• Docket Number: No. 17683.,17683.
• Citation: 423 F.2d 224
• Parties: UNITED STATES of America ex rel. Joseph A. DI RIENZO, Appellant, v. STATE OF NEW JERSEY.
• Court: U.S. Court of Appeals — Third Circuit

423 F.2d 224 (1970)

UNITED STATES of America ex rel. Joseph A. DI RIENZO, Appellant, v. STATE OF NEW JERSEY.

No. 17683.

United States Court of Appeals, Third Circuit.

Submitted on Briefs January 9, 1970.

Decided March 16, 1970.

Joseph A. Di Rienzo, pro se.

Joseph P. Lordi, County Prosecutor of Essex County, Robert L. Podvey, Newark, N. J., for appellee.

Before BIGGS, VAN DUSEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from the District Court order of October 3, 1968, dismissing relator's petition for a writ of habeas corpus.

Relator was convicted of robbery, after trial to a jury, and sentenced on January 5, 1961, to 7 to 10 years in the state penitentiary. He was released on parole on February 15, 1966, but allegedly violated parole on July 24, 1966, and, as a result, was returned to prison as a parole violator on December 5, 1966. He was granted an unconditional release from the 1961 sentence on May 19, 1967. Sometime after the violation of parole on July 24, 1966, which apparently resulted from his arrest on "new (criminal) charges," he was convicted of and sentenced for such "new (criminal) charges resulting in a new prison term as a second offender."¹ Since January 1968, he has been serving the sentence imposed as a result of that second conviction.

On September 30, 1965, five months before his release on parole, relator filed a petition for post-conviction relief under New Jersey Rule 3:10A-1 ff. now R. 3:22-1 et seq., challenging his first conviction. He alleged, inter alia, that he had been denied his right to effective counsel at the trial, that he had been denied the right to appointed counsel on appeal, and that he had been denied his right to due process by the introduction of his juvenile record during his trial and by certain conduct of the trial judge. After a hearing, at which relator was represented by counsel and evidence was taken on two days, his petition was denied by the lower court in June 1966 and its order was affirmed by the Superior Court on December 8, 1967. Relator's petition for certification to the Supreme Court of New Jersey was denied on May 28, 1968. He then filed a petition for a writ of habeas corpus in the District Court on August 12, 1968, alleging the same constitutional defects as stated in his New Jersey post-conviction petition. The District Court, after examination of the transcripts of the trial and post-conviction hearing, found relator's contentions without merit and further found that it had no jurisdiction to consider the petition since the 1961 sentence had expired before the petition had been filed.

Since we have concluded that the relator's contentions on the merits must be rejected, a lengthy discussion of the jurisdictional issue is not necessary. It is sufficient that the recent decisions of the Supreme Court indicate that a district court has jurisdiction, under Chapter 153 of Title 28,² of this petition for a writ of habeas corpus on this record. See, for example, Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). Assuming the invalidity of the 1961 sentence as alleged by relator, these cases support his contention that, when his District Court petition was filed in August 1968, he was in custody under a February 1968 sentence which violated the Constitution since it failed to give him credit, clearly mandated by N.J. Crim.Prac. Rule 3:7-10(h) now R. 3: 21-8, for the time he had served on the allegedly unconstitutional 1961 sentence between December 5, 1966, and May 19, 1967. In Carafas v. LaVallee, supra, the Supreme Court said, while holding that discharge of a prisoner following the filing of his petition did not oust the federal courts of jurisdiction:

"The statute does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted. It provides that `the court shall * * dispose of the matter as law and justice require.\' 28 U.S.C. § 2243. The 1966 amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody." Id. at 239, 88 S.Ct. at 1560.

In Peyton v. Rowe, supra, the Supreme Court held that a state prisoner could challenge future consecutive sentences regardless of which sentence he was presently serving.

In the instant case, it would appear that there is relief that a federal court could effectively grant to relator. If his first conviction were now set aside, the time spent under that sentence subsequent to his arrest for the crime for which he is now committed (December 5, 1966, to May 19, 1967) would be credited, apparently, to the sentence presently being served.³ Rule 3:7-10(h) of the N.J. Crim.Prac. Rules (1968), effective at the dates of both of relator's sentencings on the second conviction, provides:

"In all custodial sentences the prisoner shall receive credit on the term imposed for any time he may have served in custody between his arrest and the imposition of sentence."⁴

In Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir.), cert. den. 396 U.S. 846, 90 S.Ct. 55, 24 L.Ed.2d 96 (1969), the court was faced with a similar jurisdictional issue. The petitioner claimed that setting aside his fully served sentence would entitle him to immediate release from a second sentence he was then serving. The court reversed the District Court's dismissal for want of jurisdiction and remanded the case for a determination whether the setting aside of the fully served sentence "would result in the petitioner receiving credit in some degree" on his second sentence. 406 F.2d at 1239 (emphasis added).⁵ Similarly, here, since invalidation of the first conviction would eventually lead to a shortening of the second, present sentence, the District Court has jurisdiction to grant review of relator's 1961 conviction. Cf. Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966); Williams v. Peyton, 372 F.2d 216 (4th Cir. 1967).

The two principal contentions of relator allegedly requiring the grant of a writ of habeas corpus are these:

A. ALLEGED DENIAL OF CONSTITUTIONAL RIGHT TO THE APPOINTMENT OF COUNSEL TO FILE AND PROSECUTE AN APPEAL FROM RELATOR'S JANUARY 1961 CONVICTION

At the time of relator's sentence, he stated to the trial judge: "I would like to have another lawyer and have a new trial" (p. 8 of 1/5/61 sentencing transcript). Also he testified that he wrote the Essex County Court Clerk for assistance in filing an appeal without success. Relator argues that because the state authorities knew of his desire to appeal, they were constitutionally required to appoint an attorney to represent him; their failure to do so deprived him of due process. See Swenson v. Bosler, 386 U.S. 258, 260, 87 S.Ct. 996, 18 L.Ed.2d 33 (1967); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963); cf. United States ex rel. Smith v. McMann, 417 F.2d 648 (2nd Cir. 1969). However, relator has been granted what was in effect an appeal nunc pro tunc, since the New Jersey Superior Court Appellate Division,⁶ in its December 8, 1967, opinion affirming the denial of relator's post-conviction petition by the Essex County Court, said:

"* * * To be certain that no injustice is done defendant we have examined not only the record of the post-conviction proceeding but the record of the trial itself, and defendant\'s contentions as if this were appeals from both. We have found nothing in the trial or in the post-conviction proceeding which would justify setting aside the conviction."⁷

Under these circumstances, this contention does not justify reversal of the District Court order. Cf. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).

B. ALLEGED DENIAL OF THE EFFECTIVE ASSISTANCE OF COUNSEL

Relator first complained,⁸ at the time of sentencing (January 5, 1961), that assigned counsel was not an experienced criminal trial lawyer and had been ineffective. The trial judge rejected this claim at that time, saying:

"Let the record also reflect that during the course of the trial Mr. Pietrucha handled himself as an old time trial lawyer, if we may use the term, and he made the proper objections at the proper time and he did everything he could to protect his client\'s interest. Where the Court thought the rights of the defendant were prejudiced the court would encourage an objection from defense counsel because the Court is as jealous of the rights of the defendant as anyone in the courtroom."

As noted above, relator took no further action concerning this complaint until more than 4½ years later, when he filed his state court application for post-conviction relief on September 30, 1965.⁹ This contention was rejected by the Essex County Court judge in an opinion of over 10 pages in June 1966 (pp. 31-42 of June 10, 1966, transcript), by the Appellate Division of the New Jersey Superior Court in its December 8, 1967, opinion, and by the District Court opinion of October 3, 1968.

After a careful review of the record at the December 1960 trial and the May-June 1966 post-conviction relief application hearing, we have concluded that the following language of this court in In re Ernst's Petition, 294 F.2d 556, 558 (3rd Cir. 1961), is applicable:

"Petitioner now criticizes various actions and omissions of defense counsel at the trial. However, we think the matters of which petitioner complains fall far short of establishing that the defendant did not receive professionally acceptable representation and assistance in the conduct of his defense. We approach the problem as did the Court of Appeals for the District of Columbia when it said: `Absence of effective representation of counsel * * * must mean representation so lacking in competence that it becomes

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