United States v. Wilkins

• Decision Date: 10 November 1964
• Docket Number: No. 32,Docket 28899.,32
• Citation: 338 F.2d 404
• Parties: UNITED STATES of America ex rel. Willis S. MARSHALL, Relator-Appellee, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

338 F.2d 404 (1964)

UNITED STATES of America ex rel. Willis S. MARSHALL, Relator-Appellee, v. Walter H. WILKINS, Warden of Attica State Prison, Attica, New York, Respondent-Appellant.

No. 32, Docket 28899.

United States Court of Appeals Second Circuit.

Argued September 22, 1964.

Decided November 10, 1964.

Arthur J. Cooperman, New York City, for relator-appellee.

Lillian Z. Cohen, Deputy Asst. Atty. Gen., State of New York, New York City, (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., and Brenda Soloff, Deputy Asst. Atty. Gen., on the brief), for respondent-appellant.

Before LUMBARD, Chief Judge, and MOORE and SMITH, Circuit Judges.

LUMBARD, Chief Judge:

New York appeals from an order of the United States District Court for the Western District of New York sustaining a writ of habeas corpus in favor of Willis S. Marshall. In 1950 Marshall was convicted in New York County of robbery in the first degree, and, on the basis of a 1947 California conviction, he was sentenced as a second offender under New York's multiple offender statute. The district court held the California conviction invalid on the ground that Marshall had not been adequately represented at trial. We find that the record in the district court fails to show that Marshall's representation was inadequate, and we therefore reverse the judgment of the district court. However, Marshall was not represented by counsel at the habeas corpus hearing; because the papers submitted to the district court contain allegations which, if more fully developed, might sustain the writ, we remand for appointment of counsel and a new hearing.

The evidence before the district court consisted only of Marshall's testimony and the minutes of the California trial. The California minutes show that Marshall was tried with two others for robbery and that each defendant initially was represented by separate counsel. Marshall's first counsel, W. H. Weddell, withdrew just before the trial began, and the judge appointed B. L. Spears, the attorney for one of the other defendants, to represent Marshall as well. The defense was not called upon to present its case until the following day. During the trial Spears moved for a dismissal as to Marshall, the grounds therefor not appearing, and after the jury found Marshall guilty, he moved for a new trial, apparently on the ground of insufficient evidence.

All else must rest on Marshall's testimony. Weddell did not tell the court why he was withdrawing, but, according to Marshall, he told Marshall that he was doing so because "the manner in which Marshall wanted him to present the case * * * would only condemn the other two." The nature of this defense was not brought out in Marshall's testimony. However, he alleges in an affidavit, which was filed in the district court but not referred to in Marshall's testimony or in Judge Burke's opinion, that he wished to assert that he had remained in the car until he left it to prevent his co-defendants from perpetrating a rape. Marshall did not raise the question of inadequate representation in the California court, and he did not attempt to appeal his conviction.

Judge Burke held that there was an infringement of Marshall's constitutional rights in requiring him to stand trial immediately with newly assigned counsel and in failing to determine whether there was a conflict of interest between Marshall and his co-defendants. We do not think that the record supports this conclusion. The burden was on Marshall to show that he was not adequately represented, and his testimony lacks the specificity necessary to sustain that burden. Accepting all his testimony as true, it establishes only that Spears was appointed as his counsel at the beginning of the trial and that Weddell said that he was withdrawing because Marshall wished to present an argument which "would only condemn the other two."

Since Spears presumably was already familiar with the case, his last-minute appointment is of no significance unless Marshall's defense presented issues not raised by the defense of his co-defendants. As to both this point and the claimed conflict of interest, therefore, Marshall was required at least to describe the defense which he wished to...