Raymond Miranda v. United States, 458 F.2d 1179

Raymond Miranda v. United States

458 F.2d 1179

2d Cir.

1972

Check Treatment

PER CURIAM:

Petitioner’s pro se mоtion pursuant to 28 U.S.C. § 2255, seeking to vacate and set aside his plea of guilty and six year sentence for violation of the federal drug laws, 21 U.S.C. §§ 173, 174, was denied without a heаring. 325 F.Supp. 217 (S.D.N.Y.1970). Petitioner claimed that at the time of his guilty plea he was incompetent because, inter alia, he was a drug addict undergoing withdrawal and under heavy sedation to аlleviate the symptoms. On appeal, a panel of this court reversed the district court’s order and remanded with instructions that a hearing be held. 437 F.2d 1255 (2 Cir. 1971). The opinion concluded that petitioner’s pro se papеrs raised sufficient detailed and controverted issues of fact to require a hearing. 437 F.2d at 1258. On the remand before Judge Wyatt, leave to proceed in forma pauperis was granted and counsel was appointed; after a seven day hearing at which 18 witnesses testified and extensive medical records ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and other documents were introduced, the judge concluded that petitioner was comрetent at the time of his guilty plea. 330 F.Supp. 1002 (S.D.N.Y.1971). The judge also concluded that any appeal from his decision would not be taken in good faith and he certified the sаme pursuant to 28 U.S.C. § 1915(a).

*1181 Petitioner then applied to this court for leave to appeal in forma pauperis and for assignment of counsel. This first motion was denied without opinion but petitioner’s counsel renewed his motion, relying on 18 U.S.C. § 3006A(d) (6) which he claimed entitlеd petitioner to proceed without prepayment of docketing fees despite the adverse certification. In an opinion by this panel, we rejected petitioner’s contention but granted leave for both sides to file further briefs for consideration by the same panel of “the question whether Judge Wyatt’s failure to issue a good faith certificate under 28 U.S.C. § 1915(a) was an abuse of discretion.” 455 F.2d 402, 405 (2 Cir., 1972). Both sides filed extensive briefs which largely dealt with the merits of petitioner’s сlaims. We conclude that the judge erred in certifying the appeal as not taken in good faith; we reverse that part of the judge’s decision, and grant leave to appeal in forma pauperis. Because the papers already filed are sufficient for this purpose we proceed to consideration of the merits; here we eoncude that the denial of petitioner’s § 2255 motion should be affirmed.

The standard for determining whether an appeal is taken ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in good faith was set forth in Coppedge v. United States, 369 U.S. 438, 448, 82 S.Ct. 917, 922, 8 L.Ed.2d 21 (1962) in connection with a direct appeal from a conviction:

It is not the burden of the petitioner to show that his aрpeal has merit, in the sense that he is bound, or even likely, to prevail ultimately. He is to be heard, as is any appellant in a criminal case, if he makes a rational argument on the law or facts. It is the burden of the Government, in opposing an attempted criminal appeal in forma pauperis, to show that the appeal is lacking in merit, indeed, that it is so lacking in merit that the court would dismiss the case on motion of the Government, had the case been docketed and a recоrd been filed by an appellant able to afford the expense of complying with those requirements.

See also Ellis v. United States, 356 U.S. 674, 674-675, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958). Since the same statute, 28 U.S.C. § 1915, applies to collateral attacks as well as direct criminal appeals, the same standard of good faith must likewise be applied. This threshold level for permitting persons to proceed in forma pauperis is not very great and doubts about the substantiality of the issues presented ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍should normally be resolved in the applicant’s favor. Lee v. Habib, 137 U.S.App.D.C. 403, 424 F.2d 891 (1970). Based on the record before us we believe that rational arguments on the law and facts can be made, and the appeal is not one we would dismiss оn motion of the Government.

II.

The detailed facts of this case are thoroughly set forth in both of Judge Wyatt’s extensive opinions, 325 F.Supp. 217; 330 F.Supp. 1002, and in an earlier opinion of this court, 437 F.2d 1255, and need not be repeated here. It is enough to say that petitioner’s claim centers around his contention that he was a drug addict suffering withdrawal symptoms and under heavy sedation at the timе he entered his guilty plea in August, 1968. Petitioner was represented both prior to and at the time of his plea by Bernard Moldow, then of the Legal Aid Society and now a judge of the Criminal Court of the City of New York. Judge Moldow had over 20 years of criminal defense experience including over 5,000 drug related cases. Unquestionably, Miranda, who himself had a great deal of experience with the erimnal law albeit from a different vantage point, was provided with able counsel whose experience thoroughly attuned him to the possible danger signals that an addict may not be fully competent to plead guilty or proceed to trial. Judge Mоldow found Miranda rational and co *1182 herent at all times. 1 We find this weighty support for the district court’s conclusion that Miranda was neither undergoing withdrawal nor sedated, heavily or otherwise, and was competent to enter a guilty plea. When the other evidence before the district court is also considered, the judge’s findings are unassailаble.

Petitioner’s principal contention is that retrospective determination of competency at the time of his plea was inapproрriate because of the length of time between the plea and the hearing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍below — over two years — and therefore, he should be allowed to withdraw his plea and proceed anew. In support of this contention petitioner relies on Dandridge v. United States, 356 U.S. 259, 78 S.Ct. 714, 2 L.Ed.2d 757 (1958); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); and Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), in which the Supreme Court, recognizing the difficulties inherent in any retrospective determination of mental competency, rejected the suggestion that such determinations could be made in those cases. Each case involved strong showings of the basis for the alleged ineompetency, and little or no credible contemporaneous evidence of competency existed. Here, even assuming that a factual basis for the claim has been shown, the record discloses sufficient contemporаneous evidence of competency from which a determination of the competency question can be made. It would be fanciful to suggest that a properly timed claim of ineompe-tency necessitates either a new trial or allowing an earlier guilty plea to be withdrawn. Conner v. Wingo, 429 F.2d 630, 639-640 (6 Cir. 1970); cf. Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963). This court in аn earlier opinion found petitioner’s allegations sufficient to justify a hearing; now that he has had his hearing and failed to substantiate his allegations, the argument that the hearing was bound to be unproductive lacks appeal.

We express our appreciation to Judson A. Parsons, Jr., Esq. for his able and persistent reрresentation of appellant. 2

The certification that the appeal was not taken in good faith is reversed; leave to appeal in forma pauperis is grаnted; the order denying petitioner’s motion ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pursuant to 28 U.S.C. § 2255 is affirmed.

Notes

. It appears uncontradieted that Judge Moldow was not informed by Miranda, the Assistant United States Attorney responsible for tlie case, or New York City corrections officials, of events occurring during Miranda’s confinement in City detention facilities at Rikers Island priоr to his appearance in federal court. Briefly, Miranda claims that on two occasions prior to his plea — :the last one six days before — he аttempted suicide by hanging himself from a bed frame, a method described as “impossible” to accomplish a fatal result. Judge Wyatt found that both attempts were feigned — in order to secure additional drugs — and his conclusion is amply supported by the record. The failure to disclose these facts to counsel was not аttributable to the federal authorities who themselves knew nothing of them. In light of the court’s conclusion that the attempts were feigned, and other evidence in the record, such as that indicated in the text accompanying this note, we do not see how disclosure would have led counsel to question Miranda’s comрetency.

. Since we have granted leave to appeal in. forma pauperis, counsel may, if he chooses, request appointment and compensation under the Criminal Justice Act mono pro tune as of the date of the filing of the notice of appeal from the district court’s order.