United States v. Di Martini

• Citation: 118 F. Supp. 601
• Parties: UNITED STATES v. DI MARTINI.
• Decision Date: 31 December 1953
• Court: U.S. District Court — Southern District of New York

118 F. Supp. 601

UNITED STATES v. DI MARTINI.

United States District Court S. D. New York.

December 31, 1953.

J. Edward Lumbard, U. S. Atty., for Southern Dist. of N. Y., Brooklyn, N. Y., for the United States, Leonard Maran, Asst. U. S. Atty., New York City, of counsel.

Florence M. Kelley, New York City, Attorney for Legal Aid Society for defendant-petitioner.

DIMOCK, District Judge.

This is a motion in the nature of a writ of error coram nobis. Petitioner, a prisoner confined in a New York State prison under sentence of a New York State court, attacks the validity of a judgment of conviction entered in this court in 1932. He challenges it on the ground that he was deprived of his right to the assistance of counsel in violation of the Sixth Amendment of the United States Constitution. His present sentence was imposed under the New York multiple offender provision, section 1941 of the New York Penal Law, N.Y.Consol.Laws, c. 40, and he alleges that his federal conviction was taken into account in fixing that sentence. He further alleges that if his federal conviction is vacated, he can seek reduction of his present state sentence.

The availability of a remedy in the nature of a writ of error coram nobis to a state prisoner who attacks the validity of his federal conviction in order to reduce his state sentence has been established by the Court of Appeals of this Circuit. United States v. Morgan, 2 Cir., 202 F.2d 67, certiorari granted, 345 U.S. 974, 73 S.Ct. 1122, 97 L.Ed. 1389.

On September 13, 1932, petitioner was indicted in this Court for unlawful sale and possession of narcotics. After having changed his plea of not guilty to one of guilty, petitioner was sentenced on September 20, 1932. Petitioner alleges that he was not represented by counsel and that he was not advised of his right to the assistance of counsel. He further alleges that since it was his first experience with the law, he was ignorant of his rights.

There is nothing in the court records which contradicts these allegations. The Government admits that it was not customary in 1932, (except in very serious cases) for the Court to interrogate criminal defendants as to whether they wished counsel appointed. The Government contends, however, that it was the custom of the Assistant United States Attorney in charge of prosecuting petitioner to inform defendants of their constitutional rights including the right to counsel. Thus, whether or not petitioner was advised of his right to counsel, and whether he intelligently waived that right are issues of fact which can only be resolved by a hearing.

The Government contends, however, that a hearing is unnecessary because, even if petitioner was deprived of his constitutional right to counsel, he is not entitled to the relief he seeks.

First, the Government contends that petitioner has slept on his rights, and that laches is a bar to relief in the nature of coram nobis. Further, the Government argues that to entitle petitioner to the relief he seeks, he must show that a retrial will result in a judgment different from the one sought to be vacated. Here, petitioner makes no assertion that he was innocent nor does he allege any valid defense.

The Government relies on the decision of the Court of Appeals for the Seventh Circuit in United States v. Moore, 166 F.2d 102, for its position that petitioner is thus barred from relief in coram nobis. Although the Moore case was cited with approval by the Court of Appeals of this Circuit in United States v. Rockower, 2 Cir., 171 F.2d 423, it has been severely criticized,¹ and apparently rejected by the Court of Appeals of this Circuit in the recent case of United States v. Morgan, 202 F.2d 67, supra, certiorari granted, 345 U.S. 974, 73 S.Ct. 1122, 97 L.Ed. 1389.

In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, the Supreme Court held that compliance with the Sixth Amendment "is an essential jurisdictional prerequisite to a federal court's authority to deprive an accused of his life or liberty", 304 U.S. at page 467, 58 S.Ct. at page 1024, and that an unconstitutional deprivation of the right to counsel "stands as a jurisdictional bar to a valid conviction and sentence", 304 U.S. at page 468, 58 S.Ct. at page 1024. Thus, the theory on which petitioner attacks his federal conviction is that the judgment was entered without jurisdiction and was therefore a nullity. A void judgment of conviction is not made valid by the fact that the accused was actually guilty, for the law presumes innocence until a valid finding of guilt is made. Nor is a void judgment validated by the passage of twenty years. See Allen v. United States, D.C.N.D.Ill., 102 F.Supp. 866,...