United States ex rel. Smith v. DiBella

• Decision Date: 05 June 1970
• Docket Number: Civ. No. 13862.
• Citation: 314 F. Supp. 446
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES ex rel. Wilber G. SMITH v. Alma DiBELLA, Chief Clerk, Circuit Court, 14th Circuit, Hartford, Judge John J. Daly, Chief Judge, Circuit Court, Cornelius J. Shea, Chief Prosecutor, Circuit Court, Patrick J. Hogan, Sheriff, Hartford County, Thomas J. Vaughan, Chief of Police, Hartford, and Daniel A. Leone, Warden, Community Correctional Center, Hartford.

314 F. Supp. 446

UNITED STATES ex rel. Wilber G. SMITH v. Alma DiBELLA, Chief Clerk, Circuit Court, 14th Circuit, Hartford, Judge John J. Daly, Chief Judge, Circuit Court, Cornelius J. Shea, Chief Prosecutor, Circuit Court, Patrick J. Hogan, Sheriff, Hartford County, Thomas J. Vaughan, Chief of Police, Hartford, and Daniel A. Leone, Warden, Community Correctional Center, Hartford.

Civ. No. 13862.

United States District Court, D. Connecticut.

June 5, 1970.

Joel M. Ellis, Hartford, Conn., for petitioner.

Cornelius J. Shea, Chief Prosecutor, Circuit Court, 14th Circuit, Hartford, Conn., for respondent.

MEMORANDUM OF DECISION ON PETITION FOR A WRIT OF HABEAS CORPUS

BLUMENFELD, District Judge.

In this petition for a writ of habeas corpus, petitioner claims to be in custody in violation of the Constitution by reason of a denial of his right to an appeal from a criminal conviction. He seeks release from custody unless within a reasonable time he is granted an appeal by the state courts. His asserted grounds for relief are (1) a violation of his sixth amendment right to effective assistance of counsel, and (2) deprivation of his fourteenth amendment right to due process.

I.

The essential facts are not disputed. After a joint jury trial with other defendants in the 14th Circuit Court at Hartford, Connecticut, petitioner, on November 10, 1967, was convicted of breach of peace and sentenced to thirty days imprisonment, execution to be suspended after ten days. Along with his co-defendants, who were represented by other counsel, he filed a timely appeal and was released on his own recognizance. On October 24, 1969, the trial court filed its finding, which is a necessary part of the record under Connecticut appellate procedure. Conn.Prac. Book § 980. To conform with Connecticut practice, the next step required of the petitioner was to file within two weeks either a motion to correct the trial court's finding or, if no correction was sought, assignments of error. Id. §§ 981, 987. Neither having been done, the state, on November 17, 1969, moved to dismiss the appeal for the procedural failure. After a hearing,¹ this motion was peremptorily granted by the Appellate Division of the Circuit Court on January 8, 1970, "since the motion to dismiss was filed within ten days after the ground for dismissal arose." Smith's motion for reargument was denied on January 26, 1970, and his petition for certification to the Connecticut Supreme Court was denied on February 18, 1970.

Petitioner obtained a stay of execution from the state court, which was once renewed and which was finally to terminate on May 25, 1970. While that stay was in effect, in an obvious attempt to gain a renewed right to appeal by obtaining a new date for the judgment of conviction, petitioner filed in the Circuit Court a motion to vacate the sentence and to resentence. That motion was denied on May 21, 1970, by Judge Lexton. No appeal from that ruling has been taken.

The following day, petitioner filed this petition accompanied by an ex parte application for a stay of execution. The stay was granted pending further proceedings and a hearing scheduled. That hearing has now been completed.

II.

Petitioner, while not now incarcerated but released on his own recognizance, is sufficiently "in custody" for purposes of federal habeas corpus. See Marden v. Purdy, 409 F.2d 784, 785 (5th Cir. 1969); Duncombe v. New York, 267 F.Supp. 103, 109 n. 9 (S.D.N.Y.1967); cf. Jones v. Cunningham, 371 U.S. 236, 239, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). He has exhausted all presently available state remedies. Although he did not explicitly raise in the state court constitutional objections to the denial of his right to appeal until the most recent motion to vacate sentence and to resentence, it is apparent that those constitutional claims were implicit in his defense to the state's motion to dismiss the appeal. Judge Lexton, in denying petitioner's motion to vacate sentence, concluded:

"This Court does not agree with the defendant's claim that he is now presenting a new constitutional issue as set forth in his motion and presented in oral argument. All relevant factors, factual and legal, were before the other two Courts Appellate Division of the Circuit Court and Supreme Court in exactly the same way as they are before this Court." Connecticut v. Smith, 5 Conn.Cir. 474, 256 A.2d 793 (14th Cir.Ct. May 21, 1970).

I agree. Cf. Angel v. Bullington, 330 U.S. 183, 190, 67 S.Ct. 657, 91 L.Ed. 832 (1947). Since the state's motion to dismiss the appeal was granted, and certification to the Supreme Court denied, I conclude that the claims raised by this petition have been passed upon by the highest state court. Petitioner has exhausted state remedies and it would serve no useful purpose to require him to appeal the denial of his motion to vacate sentence. See United States ex rel. West v. LaVallee, 335 F.2d 230 (2d Cir. 1964); United States ex rel. DeNegris v. Menser, 247 F.Supp. 826, 829 (D.Conn.1965), aff'd, 360 F.2d 199 (2d Cir. 1966).

III.

The core issue presented by this petition is whether Smith was denied due process of law by the forfeiture of his right to appeal from his criminal conviction. His appeal was dismissed by application of a state procedural rule requiring an appellant to submit a motion to correct the trial judge's finding or an assignment of error within two weeks after the judge's finding is filed. The consequences of failing to file are set out in a corollary rule:

"The appellate panel may, on motion of any party or of its own motion, dismiss any appeal for lack of jurisdiction, failure to file papers within the time allowed, failure to prosecute with proper diligence or any other proper ground. Such motion shall be filed within ten days after the ground for dismissal arose, provided that any motion based on lack of jurisdiction or failure to prosecute with proper diligence may be filed at any time." Conn. Prac. Book § 976.

Cf. Loomis v. Zoning Commission, 144 Conn. 743, 746, 133 A.2d 906 (1957).

It is clear that rigid adherence to the procedural rule to dismiss Smith's appeal denied him an appeal without opportunity to be heard or to offer any explanation of the default. Stressing the fact that justification of the default is allowed at a later time (depending only on whether the state's prosecutor acts quickly enough to prevent a hearing) and the interests of the appellant in the fundamental right to an appeal on which his liberty depends, the petitioner argues that peremptory application of the rule in this case to forfeit his right to appeal operated to deny him due process. His contention is that the rule's consequences are so severe to a convicted defendant when weighed against its necessity to the state, that to enforce it without affording an appealing defendant an opportunity to be heard is such a denial of fundamental fairness as to amount to a deprivation of due process.²

IV.

Petitioner was represented by counsel on appeal, and it was counsel's obligation to see that the appropriate papers were filed on time. A state court's holding that failure of counsel to file those papers on time operates of itself to foreclose appeal is thus tantamount to a finding that the appellant was inadequately represented by counsel. By rigid application of the rule to exclude any opportunity to show excusable neglect, or to remedy the default, petitioner's counsel has been conclusively deemed ineffective by the Connecticut Circuit Court. Whether in fact counsel was ineffective, a finding I expressly do not make, is irrelevant in view of the consequences to the petitioner. Cf. United States ex rel. Smith v. McMann, 417 F.2d 648, 655 (2d Cir. 1969) (en banc).

Speaking of situations in which criminal defendants' rights are forfeited for default of their lawyers, Professor Moore, reknowned author of an authoritative treatise on procedural rules indignantly condemned such a result:

"It is monstrous to say in any case that a person must lose a valuable right simply because an officer of the court has blundered. That result is tolerated in civil cases only because it is conceived to be desperately necessary if litigation is to end. But `conventional notions of finality of litigation have no place where life or liberty is at stake and infringement of constitutional rights is alleged.' Sanders v. United States, 373 U.S. 1, 8 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963) * * *. The proposition that a party must suffer for the mistake of his attorney * * * is not necessary in the context of the time for appeal in a criminal case. The government is not prejudiced by a slightly tardy appeal. Why should the defendant lose a valuable right to the advantage of no one simply because his attorney, an officer of the court, makes a mistake? The Supreme Court has already held that a defendant who `did all he could' to effect timely filing of a notice of appeal was entitled to be heard. Fallen v. United States, 378 U.S. 139, 144 84 S.Ct. 1689, 12 L.Ed.2d 760 (1964). What more can a defendant do than to entrust his rights to an officer of the court?" 9 Moore's Federal Practice ¶ 204.19 (1969).

See also, Morris v. Florida, 393 U.S. 850, 89 S.Ct. 84, 21 L.Ed.2d 120 (1968) (dissenting opinion of Mr. Justice Black); Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964) (dissenting opinion of Mr. Justice Black); Christoffel v. United States, 88 U.S.App.D.C. 1, 190 F.2d 585 (1950).

In cases where an actual finding of lack of effective assistance of counsel has been made, courts have held that

"fundamental fairness requires that the petitioner be granted the rights which were lost to him through no fault of his own. * * * By continuing his imprisonment * * * the State courts have affirmatively deprived him of the due process constitutionally his under the Fourteenth Amendment." United States ex rel. Maselli v. Reincke, 383 F.2d 129, 134-35 (2d Cir. 1967).

See also, ...