United States v. Follette

• Decision Date: 25 February 1966
• Docket Number: No. 165,Docket 29841.,165
• Citation: 358 F.2d 922
• Parties: UNITED STATES of America ex rel. Edward MITCHELL, Relator-Appellee, v. Hon. Harold FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

358 F.2d 922 (1966)

UNITED STATES of America ex rel. Edward MITCHELL, Relator-Appellee, v. Hon. Harold FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent-Appellant.

No. 165, Docket 29841.

United States Court of Appeals Second Circuit.

Argued November 16, 1965.

Decided February 25, 1966.

COPYRIGHT MATERIAL OMITTED

Michael H. Rauch, New York City (Louis J. Lefkowitz, Atty. Gen. of New York) (Samuel A. Hirshowitz, First Asst. Atty. Gen., Brenda Soloff, Deputy Asst. Atty. Gen., of counsel), for appellant.

Phylis Skloot, New York City (Leon B. Polsky, Anthony F. Marra, New York City), for appellee.

Before MEDINA, WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge:

Edward Mitchell, represented by assigned counsel, was convicted in 1952 after a jury trial in a New York court of assault in the first and second degrees, New York Penal Law, McKinney's Consol.Laws, c. 40, §§ 240, 242. The conviction rested on proof that he had struck a woman about the head and the body with an ice pick, inflicting a head wound which extended from the posterior portion of the skull through the mouth, and body wounds which punctured the chest and pierced a kidney. Since he had previously been convicted of assaulting another woman with an axe, he was sentenced as a second felony offender to a term of ten to twenty years. New York Penal Law, § 1941.

On the day sentence was imposed, when asked if he had anything to say before final disposition, Mitchell told the judge in the presence of assigned counsel, "I would love to have an appeal, but I have no means." According to the transcript of the state proceeding, nothing further was then said by court or counsel on the subject. No notice of appeal was filed within, or after, the thirty days allotted by N.Y. Code of Criminal Procedure, § 521, although, if his claims were not frivolous, Mitchell could have appealed as a poor person without payment of any fees or expenses, N.Y.Code of Criminal Procedure, §§ 456, 458, 485; Civil Practice Act, §§ 558, 1493, and would have received the assistance of counsel, assigned by the Appellate Division, who would have had access to the trial transcript. See People v. Kalan, 2 N.Y.2d 278, 159 N.Y.S.2d 480, 140 N.E. 2d 357 (1957); People v. Pitts, 6 N.Y. 2d 288, 189 N.Y.S.2d 650, 160 N.E.2d 523 (1959).

On October 29, 1964, Mitchell filed a petition for habeas corpus, 28 U.S.C. § 2241, in the District Court for the Southern District of New York, claiming that the state had unconstitutionally deprived him of a right to appeal his 1952 conviction. He set forth the facts above recited, charged that "neither the Court assigned counsel nor the Court Clerk protected his right to appeal" by having a notice filed on his behalf, and properly alleged exhaustion of state remedies by prior and unsuccessful application for a writ of error coram nobis.¹

The Clerk of the district court notified Mitchell that the petition would be placed on the motion calendar for November 9; at that time a two week adjournment was granted, apparently at the State's request. On November 20 an Assistant Attorney General swore to an affidavit, which he caused to be served on Mitchell on that day and which we assume was submitted to the court on November 23. The affidavit claimed that the case involved nothing more than a failure by Mitchell to file a timely notice of appeal as New York had properly required, and that therefore the application should be dismissed. Some months later the district judge, "feeling the need of a presentation for petitioner by counsel," assigned a law professor, admitted pro hac vice, "to argue or try this cause" for Mitchell. However, after a short interval and without any briefs or oral argument, the judge handed down an opinion which, on the basis of the uncontested fact that Mitchell was an indigent and the remark appearing unanswered in the minutes of the sentencing proceeding,² not merely denied the State's request for dismissal but in effect ordered that Mitchell be released unless New York now allowed him to take a belated appeal from his conviction or granted him a new trial. The district court having issued a certificate of probable cause, 28 U.S.C. § 2253, the State appealed, contending that its request for dismissal should have been granted or, if not, that the judge should have ordered a hearing at which the facts could have been developed.

I.

We do not understand Mitchell to assert that the New York procedure was unconstitutional simply because it required timely filing of a notice of appeal without providing judicial advice as to the requirement or the assistance of counsel to effectuate the filing. No constitutional infirmity has been found in the federal procedure conditioning the requirement of advice by the judge and filing of notice by the clerk on the absence of counsel at the time of sentence, F.R.Crim.P. 37(a) (2); nor, in cases where a defendant was represented by counsel at the time of sentence but possibly not thereafter, has the Supreme Court intimated any constitutional objection to the mere failure to appoint counsel to perform the simple task of filing a notice of appeal on his behalf.³ See Coppedge v. United States, 369 U.S. 438, n. 5 at 442-443, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962). We likewise do not understand Mitchell now to claim that failure of assigned counsel properly to advise him of his right to appeal would be attributable to the state. Occasional shortcomings of counsel are a danger confronting all, a point clearly recognized in Coppedge, 369 U.S. 443, n. 5, 82 S.Ct. 917, and those able to retain counsel may forfeit the right to appeal through such oversight or ineptitude as fully as those who are not. See Berman v. United States, 378 U.S. 530, 84 S.Ct. 1895, 12 L.Ed.2d 1012 (1964); Peoples v. United States, 337 F.2d 91 (10 Cir. 1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1540, 14 L.Ed.2d 436 (1965).

Mitchell's case thus is predicated on the failure of the trial judge to advise him or otherwise protect his right to appeal in the face of what he says the judge should have known to be a critical misapprehension of the law and a request for assistance.⁴ He relies principally on two recent decisions of the Fifth Circuit holding that when an indigent defendant is abandoned by his trial attorney after judgment and requests the trial judge to appoint another lawyer to assist him in taking an appeal, a failure by the judge to respond, which results in forfeiture of the right to appeal because of the defendant's indigence, constitutes a denial of equal protection by the state. Pate v. Holman, 5 Cir., 341 F.2d 764 (1965); Edge v. Wainwright, 347 F.2d 190 (1965).⁵ Mitchell argues this was his situation here, as a matter not merely of fact but of law. The premise of this argument is that in People v. Kling, 19 App.Div.2d 750, 242 N.Y.S.2d 977, 979 (2d Dept. 1963), aff'd, 14 N.Y.2d 571, 248 N.Y.S.2d 661, 198 N.E.2d 46 (1964) (4-3 vote without opinion), cert. denied, 381 U.S. 920, 85 S.Ct. 1539, 14 L.Ed.2d 440 (1965), the Appellate Division stated, "in a noncapital case, the functions and the authority of assigned counsel terminate with the rendition of judgment" and do not extend to the appeal process, for which the appellate court alone is empowered to assign counsel. The next steps in the argument are that the sentencing judge in 1952 must be presumed to have known of this limitation on the function of assigned counsel, announced eleven years later, and to have been aware on this account that Mitchell's assigned counsel would not dispel his misconception of his rights; the judge was therefore bound to consider Mitchell's statement of discouragement as invoking assistance which only the court could give.

We do not find what the Appellate Division said in Kling quite so decisive as suggested. On closer examination it seems rather a make-weight to support the ultimate conclusion that assigned counsel's failure to fulfill a promise to file a notice of appeal did not constitute state action giving rise to a constitutional claim. The point that the court, and hence the state, is not a surety for the proper performance of counsel, whether assigned or retained, was extensively developed in People v. Tomaselli, 7 N.Y.2d 350, 197 N.Y.S.2d 697, 165 N.E. 2d 551 (1960), and the citation of that case both in the Appellate Division and in the Court of Appeals' affirmance makes clear that this was the true basis for the Kling decision. That such is the understanding of the New York courts is demonstrated by their citation of Kling in subsequent cases involving alleged inadequacies of retained counsel, whose function and authority would not necessarily terminate upon judgment of the trial court. See, e. g., People v. Augusta, 22 A.D.2d 925, 255 N.Y.S.2d 515 (2d Dept. 1964); People v. Weeks, 23 A.D.2d 684, 257 N.Y.S.2d 496 (2d Dept. 1965), aff'd, 16 N.Y.2d 896, 264 N.Y.S.2d 553, 212 N.E.2d 60 (1965). But even if we take the Appellate Division's statement at face value, it does not go to the full extent that Mitchell claims. To say that an assigned counsel's "functions and authority" terminate upon judgment is to say only that he is under no duty assigned by the court to file a notice of appeal;⁶ it is not to suggest that he may not file such a notice or advise his client of the requirements of appeal, or indeed that when the client has revealed a misapprehension as to his rights, the attorney is not under a duty to dispel the error before decamping. Kling does not imply that there is any such suspension of the general requirements of professional duty but holds merely that the state is not responsible if the duty is not performed.

Since Mitchell thus did not make out his case as a matter of law, decision turns on the factual questions of how the judge should have interpreted his statement and whether culpable silence by the judge in fact caused his failure to appeal. Although the conclusion that the state...