United States v. Russell

• Citation: 285 F. Supp. 765
• Decision Date: 23 May 1968
• Docket Number: Misc. No. 3727.
• Parties: UNITED STATES of America ex rel. Robert Bruce HUNTT, H-6123, v. Harry E. RUSSELL, Warden.
• Court: U.S. District Court — Eastern District of Pennsylvania

285 F. Supp. 765

UNITED STATES of America ex rel. Robert Bruce HUNTT, H-6123, v. Harry E. RUSSELL, Warden.

Misc. No. 3727.

United States District Court E. D. Pennsylvania.

May 23, 1968.

David Pittinsky, Philadelphia, Pa., Court-appointed, for relator.

Stephen J. McEwen, Jr., Dist. Atty., Vram Nedurian, Jr., Asst. Dist. Atty., Media, Pa., for respondent.

OPINION

JOSEPH S. LORD, III, District Judge.

This is a petition by a state prisoner for a writ of habeas corpus. The relator has exhausted his state remedies. Commonwealth v. Huntt (Delaware County, March 15, 1967), aff'd mem. 210 Pa. Super. 741, 231 A.2d 315 (1967).

The relator, Robert Bruce Huntt, was apprehended in Baltimore, Maryland, on the early morning of March 8, 1966, while riding in an automobile driven by one Robert Weaver. In the partially opened trunk of the automobile, which belonged to Huntt, was a safe taken the previous evening from the West Philadelphia Decorating Company, Millbourne, Pennsylvania. After two extradition hearings, on June 2 and June 20, 1966, Huntt and his co-defendant Weaver were finally returned to Pennsylvania where they stood trial in Delaware County on October 13, 1966. Huntt was not represented by counsel at either of the two extradition hearings.

Court-appointed counsel, Arnold Rubin, Esquire, was assigned to represent Huntt sometime between October 4 and October 13. The first time Huntt conferred with his counsel was for a short period (according to the relator, ten minutes) on the day of the trial, in the courtroom. However, Rubin had access to the Public Defender's files and had discussed the case with the Public Defender's office before the trial.

Before the Commonwealth opened its case, Weaver changed his plea from not guilty to guilty in open court and before the jury. On October 14, 1966 the jury found Huntt guilty of burglary, larceny and conspiracy. Huntt was sentenced to two to four years imprisonment by the trial judge; Weaver received a one to three-year sentence, later reduced to eleven and a half to twenty-three months.

The relator argues that his incarceration violates his constitutional rights for the following reasons:

1) that the failure to provide him with counsel at the two extradition hearings violated his rights under the due process clause of the Fifth Amendment, including the right to travel; the privileges and immunities clause of the Fourteenth Amendment and its protection of the right to travel; the right to counsel under the Sixth Amendment; and the equal protection clause of the Fourteenth Amendment;

2) that counsel at his trial was so inadequate and ineffective as to violate due process under the Fourteenth Amendment;

3) that the fact that he was given a sentence harsher than that accorded his co-defendant, who pleaded guilty, constituted a denial of equal protection and the imposition by the Commonwealth of an unconstitutional condition on his right to a trial by jury; and

4) that his co-defendant's change of plea to guilty in the presence of the jury so prejudiced his case as to violate due process.

We find that none of these claims affords the relator relief on habeas corpus.

I. EXTRADITION

Illegal extradition does not afford a basis for relief by way of habeas corpus. United States ex rel. Kelly v. Fullam, 224 F.Supp. 492 (E.D.Pa.1963); United States ex rel. Owens v. Russell, 260 F.Supp. 638, (M.D.Pa.1966). The Supreme Court has stated that "the power of a court to try a person for crime is not impaired by the fact that he has been brought within the court's jurisdiction by reason of `forcible abduction.'" Frisbie v. Collins, 342 U.S. 519, 522, 72 S.Ct. 509, 511, 96 L.Ed. 541 (1952). Here, the relator complains of a lack of counsel at extradition. But if "forcible abduction" for trial is no violation of due process, lack of counsel on extradition certainly is not.

Whether the failure of Maryland to provide counsel at extradition is structured as a deprivation of the right to travel, or a denial of equal protection to those who cannot afford to pay for counsel, or a violation of the right to counsel under the Sixth Amendment, the petition must fail in this regard.

"* * * due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will." Frisbie v. Collins, 342 U.S. at p. 522, 72 S.Ct. at p. 512.

II. COUNSEL AT TRIAL

The relator argues that counsel provided him at trial was so inadequate and ineffective because of the fact that he first met with relator on the day of the trial, and then for only a brief period, that there was a denial of the effective assistance of counsel.

It is generally agreed that the fact that counsel is appointed just before trial is not per se determinative of the issue of ineffective assistance of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967); but see United States v. Helwig, 159 F.2d 616 (C.A.3, 1947). Nonetheless, where the appointment of counsel is sufficiently late to be "inherently prejudicial" to the defendant's rights, the relator has made out a prima facie case. United States ex rel. Mathis v. Rundle, 394 F.2d 748 (C.A.3, May 7, 1968); Fields v. Peyton, 375 F.2d 624 (C.A.4, 1967); Twiford v. Peyton, 372 F.2d 670 (C.A.4, 1967); contra, Commonwealth ex rel. Washington v. Maroney, supra. It is then incumbent upon the respondent to rebut the presumption of actual harm.

The Mathis case, supra, is similar to this one except that the facts there were more strongly in favor of the relator. A voluntary defender was appointed to represent the relator on the eve of trial. The defender did not have an opportunity to interview the relator but did have access to the notes of a colleague who had previously conducted an interview. In addition, trial counsel spent about a half-hour with witnesses in the courtroom just before the trial. Several putative eyewitnesses to the stabbing in question failed to appear at the trial. As we read the opinion of the court, these facts were sufficient to establish a prima facie case of ineffective assistance of counsel. The court found, however, that the testimony of counsel at the habeas corpus hearing rebutted the relator's prima facie case. Apparently, this finding was based on the testimony of counsel that he had "no reasonable expectation" that the absent witnesses would aid in the defense. Furthermore, he was "unable to say that he had been insufficiently prepared to go to trial."

Here, counsel met with the relator for a short period (according to the relator, ten minutes) on the day of the trial. In addition, within ten days before trial, he had the benefit of access to the defender's files, which included several short memoranda written by lawyers and investigators for the defender's office. Furthermore, he discussed "trial techniques" with the office. Here, then, even though the first interview with the relator was on the day of the trial, the appointment of counsel was in the period after the relator had been granted a continuance, October 4, 1966, until the day of trial, October 13. Arguably, then, this is not the kind of case where there is a late appointment of counsel of an "inherently prejudicial" nature. We assume, however, that this was, and conclude, on the basis of Mathis, that the Commonwealth has made a showing sufficient to rebut relator's prima facie case.

The evidence against the two defendants was circumstantial. Both men were seen at the place of the burglary on the evening of the crime. Several hours later, they were apprehended in Baltimore, Maryland on a traffic violation while driving a car, in the partially open trunk of which was the stolen safe. In addition, Huntt had worked for the owner of the safe and had some familiarity with the premises.

Counsel for Huntt testified at the hearing that he had investigated all of Huntt's contentions that would be relevant to the defense. This is not a case where hasty preparation deprived the defendant of any possible defense or the presence of any witnesses otherwise available. Compare Twiford v. Peyton, 372 F.2d 670 (C.A.4, 1967), with United States ex rel. Kelley v. Rundle, 242 F. Supp. 708 (E.D.Pa.1965), aff'd 353 F.2d 214 (C.A.3, 1965). It was stipulated at the habeas corpus hearing that there were no alibi witnesses.

The relator suggests that an indication of the ineffectiveness of counsel was the failure to call the codefendant Weaver to testify, in the light of the fact that it was Huntt's contention that it was Weaver and not Huntt who was responsible for the crime and the presence of the safe in the trunk of Huntt's automobile. But defense counsel testified that he decided not to call Weaver after conferring with Weaver's attorney and learning what Weaver would say. Knowing what testimony he could expect from Huntt, defense counsel concluded that the testimony of Weaver would have been damaging to Huntt's case. Whether or not this decision might have been a strategic error is a question not before us. We do not sit to review trial tactics. In any case, if counsel erred in his judgment, and there is no evidence of this, it did not result from any haste in his appointment.

In spite of the fact that the relator was not denied the effective assistance of counsel we are constrained to indicate our disapproval of the fact that his counsel first conferred with him on the day of the trial. It is not only important that justice be done, but also that such procedures be used that it is apparent that justice is being done.

III. CO-DEFENDANT'S CHANGE OF PLEA TO GUILTY BEFORE THE JURY

On the first day of the trial, October 13, 1966, in open court before the jury, Weaver,...