United States v. Shoaf

• Decision Date: 29 September 1964
• Docket Number: 9336.,No. 9102,9102
• Citation: 341 F.2d 832
• Parties: UNITED STATES of America, Appellee, v. Woodrow McKay SHOAF, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

341 F.2d 832 (1964)

UNITED STATES of America, Appellee, v. Woodrow McKay SHOAF, Appellant.

Nos. 9102, 9336.

United States Court of Appeals Fourth Circuit.

Argued April 28, 1964.

Decided September 29, 1964.

Ronald P. Sokol, Charlottesville, Va. (court-assigned counsel), for appellant.

William H. Murdock, U. S. Atty. (Roy G. Hall, Jr., Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH and BRYAN, Circuit Judges, and HUTCHESON, District Judge.

HAYNSWORTH, Circuit Judge:

The question presented on this appeal is whether an indigent defendant seeking to collaterally attack two judgments imposed upon him for violation of federal statutes, has the right, either constitutionally or by statute, to a free transcript by simply alleging that "he believes he is entitled to the relief he will seek from the actual records; and that such request is made in good faith." The District Court denied his requests for transcripts, relying on our decision in United States v. Glass, 4 Cir., 317 F.2d 200.

Believing that we should scrutinize the Glass case in the light of the Supreme Court's recent decision in Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331, an outstandingly able attorney was appointed to represent petitioner here. After consideration of the Hardy case and preceding Supreme Court cases, in the light of the comprehensive briefs and oral argument, we affirm the District Court.

On April 24, 1962, petitioner, Woodrow McKay Shoaf, was convicted of a violation of the Dyer Act¹ and sentenced to five years in prison, the sentence which he is now serving. A second jury trial was commenced on April 25 and resulted in petitioner's conviction of a violation of the conspiracy statute, 18 U.S.C.A. § 371, and of substantive Dyer Act offenses. On the second conviction, he received a 3-year sentence to run consecutively with the prior 5-year sentence.

During the two trials, Shoaf was represented by retained counsel. Appeals were undertaken from both convictions, and Shoaf was released, pending the appeals upon bail of $25,000, which he posted. Before the appeals were perfected, however, Shoaf abandoned them and surrendered himself for the service of the sentences.

After being in prison almost a year, Shoaf filed a petition seeking a copy of the transcript of the trial which resulted in the first conviction. He alleged that he was a pauper, that "he believes he is entitled to the relief he will seek from the actual records; and that such request is made in good faith." He does not now seek release from prison, and his petition contains no intimation of what ground he supposes he may have for collateral attack upon his conviction.

The District Court promptly entered an order denying the petition upon the ground that it was without authority, under the circumstances, to furnish Shoaf with a transcript at Government expense.

Shoaf later filed a similar petition seeking a transcript of the second trial. This petition was denied for the same reason as the first. Meanwhile, however, the District Court entered an order permitting Shoaf to appeal in forma pauperis from a denial of his petition for a transcript in the first case. Included in that order was a direction that he be furnished with a transcript of the hearing. The Court intended that he be furnished only with a transcript of the brief hearing on the petition for a transcript of the first case, but the reporter prepared and filed with the records of this case a transcript of the criminal trial, itself. Apparently, this has not yet been made available to Shoaf.

Only last year we held that a similar petition was properly denied. United States v. Glass, 4 Cir., 317 F.2d 200. We there said:

"With respect to the request for a transcript we wish to make it clear that on the record now before us we are not persuaded that Glass is entitled to a transcript at government expense, for he has shown no need for one. It is not contended, and if it were we could not uphold the contention, that an indigent may obtain a free transcript `merely for his examination in order to determine whether he wishes to engage in litigation.\' An indigent is not entitled to a transcript at government expense without a showing of the need, merely to comb the record in the hope of discovering some flaw. On the other hand, we do not accept the proposition that a district court can never furnish an indigent a transcript for the purpose of instituting a collateral attack on a criminal proceeding, where he has stated a proper ground for relief and a transcript is indispensable. However, as no need for a transcript has been shown here, we find it unnecessary to delineate the circumstances in which a court may exercise this power under 28 U.S.C.A. § 753(f)."

We have re-examined our position in the light of Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, and we adhere to it.

Since Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L. Ed. 891, was decided, its salutary principle has been expanded to remove the vestiges of disadvantage under which indigents seeking appellate review of their convictions have labored in the past. The principle of Griffin has been held to apply to collateral proceedings as well as to direct appeals,² and a trial judge's determination of an indigent's appeal as frivolous cannot be substituted for appellate examination of a record sufficiently complete to enable the appellate court to draw its own conclusions as to the merits of the appeal.³

In Griffin, itself, and in the subsequent cases in the Supreme Court extending its principle, it is either implicit or explicit in the opinions of the Court that the right to a transcript at government expense arises only in response to need of it. As the dissenters observed in Draper v. State of Washington, 372 U.S. 487, 500, 83 S.Ct. 774, 781, 9 L.Ed.2d 899, the Court "carefully avoids requiring the State to supply an indigent with a stenographic transcript of proceedings in every case." In Eskridge v. Washington State Board of Prison Terms, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269, a holding that a transcript must be furnished to every indigent seeking review of his conviction was expressly disowned, while in Burns v. State of Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209, there was an expression of approval of the Illinois response to the Griffin decision. After the Griffin decision, the Illinois Legislature adopted a statute providing for the furnishing of transcripts on appeals by indigents if the transcript is "necessary to present fully the errors recited in the petition."

It was with these cases before him that Judge Sobeloff wrote for this Court in Glass. They clearly point to the result we reached there.

Since then Hardy v. United States, 375 U.S. 277, 84 S.Ct. 424, has been decided. It was there held that when counsel in a direct appeal comes into a case for the first time after a trial is over and seeks to make a showing of a nonfrivolous ground of appeal, he must be furnished with a transcript of the trial in aid of his effort.

Hardy was decided on the basis of the Court's construction of federal statutes, not on constitutional grounds. It does hold that a federal indigent prisoner seeking appellate review of his conviction is entitled to a free transcript without a prior showing of specific need for it when he can show a general need for it arising out of his appellate counsel's lack of familiarity with what transpired at the trial. This case differs from Hardy, of course, for here we are concerned with the indigent's rights in collateral proceedings, not in direct appeals, and the transcript is sought by the indigent for his own perusal rather than that of newly appointed counsel. Those differences require a different result.

In a direct appeal, when many questions not cognizable in collateral proceedings are reviewable, a full transcript of the trial would be the basic starting point for any lawyer undertaking to handle the appeal if he had not participated in the trial. Whether or not his client felt any specific need for a transcript or was able to point out in advance trial error meriting appellate review, all lawyers would recognize the attorney's need for a transcript.

In collateral proceedings, however, most of the trial errors warranting attention in direct appeals are not reviewable. Unless there had been such essential unfairness as to constitute a deprivation of a constitutionally protected right, the right to review trial errors is lost when a direct appeal is voluntarily foregone. Moreover, there is no reason to suppose that Shoaf, if furnished a copy of the transcript of his trial, could recognize as trial error what neither he nor his...