United States of America Ex Rel. Joel Smith v. The Hon. Daniel McMann Warden of the Auburn State Prison, Auburn, New York

648 knowledge they stopped mation at the time within their stances reasonably they trustwor- automobiles to constitute had searched

which probable justify thy cause and were sufficient the search. information believing prudent man in a warrant Greene, Cir., F.2d DiMarco v. 6 385 petitioner had committed or that the 556, case, similar in which somewhat (Empha- committing an offense.” we sustained search as incident to a added). sis distinguished arrest, can from lawful be may police made inci at bar. In DiMarco That a search valid be officers, Draper they arrest see v. from information which dent to a lawful 307, had, recognized States, parole 79 DiMarco as a vio- United 358 U.S. 327; S.Ct. California, They up 329, walked to the automobile 3 L.Ed.2d Ker lator. 23, 1623, 10 where he was seated and told him U.S. 83 L.Ed.2d 374 S.Ct. 726; parole States, was They arrest under violation. Harris v. United U.S. 145, 1098, 1399; searched then the automobile S.Ct. 91 L.Ed. Unit burglar 56, Rabinowitz, found tools which basis ed were the States v. 653; 430, 94 L.Ed. States of his conviction. S.Ct. United Barnett, 407 F.2d did In the case before us the officers den., (C.A. U.S. appellee, prior in- had no know 219; 89 S.Ct. United him, formation about did not know Kucinich, States v. F.2d parole knowledge he was on and had no (C.A. 6). The had been a crime committed.

To incident facts and circumstances of the arrest validate search proba dispute and search are not in to a lawful arrest and we are must impelled conclusion, cause to make the arrest at the time as was ble subject judge, stopped stopping district that the arrest libеrty. appellee suspicion was on mere restrained of probable cause. ‘the “Probable cause exists where judgment The facts within their the District circumstances (the officers’) affirmed. and of they reasonably truthwor- thy (are) information sufficient

themselves to warrant man of rea- caution in that’ an sonable the belief being offense has been or is commit- Brinegar States, ted.” United rel. UNITED STATES of America ex U.S. SMITH, Appellant, L.Ed. 1879. Brinegar, supra, said, p. McMANN, Daniel Hon. Warden Auburn, p. 1311, Prison, the Auburn State York, Appellee. posed by “The troublesome line No. Docket No. 32609. (267 facts in Carroll 69 L.Ed. A.L.R. Appeals United States Court 790) case and this one case is between Second Circuit. suspicion probable mere cause. Argued Jan. 1969. nеcessarily That line must be drawn Submitted the in banc Court judgment an act of formed 9,Oct. light particular situation and' Decided Oct. with account taken of all the circum- stances.” Brinegar

The Court held in both that, Carroll under of those facts cases, infor- officers had sufficient Atty. Lefkowitz, Gen. and

Asst. Atty Louis J. Gen., York, City, York New New brief), appellee. on the Judge, LUMBARD, Chief Before MEDINA, Judge,* Senior Circuit WATERMAN, FRIENDLY, MOORE, SMITH, KAUFMAN, HAYS., ANDER Judges. FEINBERG, Circuit SON MEDINA, (with Circuit Senior Judges Smith, Kaufman, Hays, whom

Feinberg concur): Anderson and Smith, prisoner, a New York State in the former York convicted New was Waterman, Judge, concurred Circuit ‍​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​​‌‌​​​‌‌‌‌‌‍Court, Kings County County, of man- part part and Friend- and dissented slaughter degree. first On October Judge, Judge, Lumbard,

ly, Chief Circuit he was sentenced to a term Judge, Moore, dissented. Circuit imprisonment years. of from to 20 He no notice filed At the time of years repre- trial he was 16 old and was parents. sented counsel retained appeals from He an order United District Mishler States for the Eastern District of New York, dismissing prisoner’s application ha- for a writ of corpus. we beas As construe Smith’s equal claim it is that he was denied the protection of de- the laws in that was prived from judgment of conviction because was indigent did not was he know nor by anyone informed fact that he prosecute expense an at the could of the state. We find that Smith indigent at the im- time sentence conflicting posed. rel- As the evidence is ative to Smith’s prosecute expense state and this issue resolved Judge Mishler, the case remanded with directions.

I. Background and Decisional Procedural Bamberger, Phylis York New Skloot Marra, (Anthony City York F. On March brief), City, appellant. on the down six decisions handed proce Jaffe, Atty. Gen., criminal new era in New ushered Asst. Michael (Samuel Hirshowitz, and the City for both First dure A. 46(c) (1964). * Sittingpursuant to 28 § U.S.C. pertinent of indigent conversation between convicted most courts.1 Of these the one defendant and his Cali to the case us is before lawyer, pres- L. retained

fornia, sometimes in sentencing judge, ence often con- de There Ed.2d 811 cerning ap of an counsel on denied fendants peal get families, attempts money from the stated it court below because the by explicit through more or “gone less indications had had the record” and good convicted defendant that he desired “no conclusion that reached the appeal appeal by appoint to money if had would could be served whatever Occasionally lawyer to do so. of decision broad ment counsel.” The thought stated that he of ly requires chances that counsel on and based regardless reversal so by were slim afforded the state be per recommend an In some cases the curi of of the case. And the merits prisoner 22, Supreme asserted that he had told his Court am June 1964 lawyer gave Douglas of take an but notice the rule of v. California appeal had been or filed. served retroactive effect.2 notion the state should be The case of Jоel now before us responsible appointment held of is one this cases. We shall class indigent persons of counsel to defend detail discuss the some later. evidence vintage. charged happened ancient with crime concept But it so that there were two responsibility go for the But the other similar but not identical cases prosecute appointment ing through a of counsel the New York courts at the appeal by criminal an same time Joel Smith filed his first slowly. developed seeking more petition viction of crime coram relief on the nobis engaged ground Many typical had fact situations unconstitution he had been prior ally deprived the courts attention of And Douglas particulаr v. Cali- date of the decision these course two cases seriously adversely of time fornia. affected the decision of claim the Smith’s New judicial Despite early statements courts, York fate, they turn of a curious general to serve that a effect failure also affected the decision timely a fatal file a jurisdictional notice Bjorn Court in United States ex rel. defect, prior courts sen v. 364 F.2d 489 Douglas v. California the decision 998, 1313, 386 U.S. 87 S.Ct. groping for some formula were (1967), principally 18 L.Ed.2d 351 relied indigent per- provide relief to an would Mishler below. had failed son of crime who convicted question timely appeal. As The two were take generally cases which we refer People Márchese, arises in cоnnection with v. which the New corpus Supreme York habeas Division of the coram nobis and federal Court, drafted'petitions Department, proceedings, poorly affirmed on Second 1,1963 July denying confusing the fact an often situa- order Marchese’s seemingly petition presented endless for coram nobis without tions variety. a hear- are ing, 728, 464, theme 19 242 But is the common A.D.2d N.Y.S.2d 293, Crouse, 584, Sain, 83 S. Smith v. v. 372 378 84 S.Ct. 1. Townsend U.S. U.S. ; (1963) 1929, (1964). 745, Gideon 12 L.Ed.2d 1039 See es Ct. pecially 335, Wainwright, 83 S.Ct. in Donnell authorities collected v. 372 U.S. ; Douglas (1963) Swenson, F.Supp. (W.D. v. v . L.Ed.2d 799 Mo.1966) opinion California, 83 S.Ct. and those in the 372 U.S. Noia, ; Fay Appeals affirming (1963) v. the Court of Dis L.Ed.2d 811 Court, Donnell, 9 L.Ed.2d 837 trict Swenson v. 382 F. 83 S.Ct. Brown, (8th 1967). (1963) ; ‍​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​​‌‌​​​‌‌‌‌‌‍2d v. 372 U.S. Lane (1963); L.Ed.2d 892 Draper Washington, 774, 9 L.Ed.2d 899 Kling, Court and Márchese both were affirmed on the same 1964,3 deny day, April 30, three July order same but with 1963 affirmed distinguished dissenting judges ing Kling’s in each petition for coram with of the three Des- hearing, 242 N.Y.S. cases: Chief out 19 A.D.2d Judges mond, Bergan. petition Fuld It assert In 977. Márchese 2d agreed interesting note that this action was had ed retained Appeals not done taken had a notice of but file alleged only petition shortly Kling re before the so. timely held on 1964 that quest file a June so, retroactively. applied promise to do California was to and a notice of Crouse, supra, The rea Smith footnote taken. but no soning “the failure U.S. Márchese was that timely notice of

to file 17,May applications On writs 1965 at retained to defendant’s attributable by Supreme of denied the certiorari were torney and not to the law-enforcement 910 Court in all cases: 381 U.S. three Kling agencies the of In the State.” 1539, 920, 1540, 14 and 85 S.Ct. reasoning (1) com that the acts was: 436, in The action taken Márchese state; plained of not those Kling unanimous. and in was Smith showing (2) of revers there was no that Douglas his that Mr. Justice noted view authority error; of (3) ible assigned and that granted. certiorari should have been entry of counsel ceased with Thus, aware, so far as are was we judgment of conviction. disposition final of coram Smith’s first proceeding. nobis cer These denials of Doubtless with return to Smith. We tiorari, however, by represent no means prisoners Smith the began of his fellow aid any Supreme on the view the Court coram nobis futile a number of as merits of the claims proceedings, denied all which were g., See, e. serted on Smith’s behalf. hеaring the details of without a and 489-497, Allen, 443, Brown v. 344 U.S. Then, us. and are not before 397, (1953); 73 97 L.Ed. 469 S.Ct. Sunal Supreme handed still Court before 1588, 174, 181, Large, 67 v. Douglas Califor- down its v. decision (1947); v. United States L.Ed. claim, nia, upon more hit Joel Smith 181, Carver, 482, 490, 43 stated, confusingly he was or indigent less L.Ed. 361 by not told and was meantime, July and anyone at In the on he could else that giv- petition had This after v. California been state. application, the for- en retroactive Joel Smith for coram nobis was denied Court, Kings proceeding County filed his coram nobis mer second New York Kings 9, hearing, August Supreme Court, County, in the New York on without a County. proceeding coram This is the now be- first 1962. His from this again Ap- rejection petition us. In fore Joel Smith was decided nobis deprived Division, Department, on pellatе asserted that he had been right Second 728, delinquen- 1, July because of the 242 N.Y.S.2d A.D.2d coupled cy counsel, au- was on the but the dismissal and by allegation thority claim that down with new handed decision People Márchese had frustrated v. same Court per- prison authorities to The cases—(cid:127) refusal on same date. three Kling Márchese, him use until mit law books Joel Smith —then January expired. pari passu proceeded York time On to the New Kling full Appeals, was af- was Court of where February Court Jus- ducted New York Smith on firmed 916; People Smith, Kling, People N. 14 N.Y.2d 198 N.E.2d People 46; 14 N.Y.2d 249 N.Y.S.2d N.E.2d Y.S.2d Marchese, 249 N.Y.S.2d N.E.2d 916. N.Y.2d by Judge deciding upon Mishler that the deci- held It was tice McDonald. Appeals on the first case now before us.4 sion disposed of the proceeding coram Bjornsen in a New York was sentenced charge file had failed to that his application for coram court 1952. His and, amply suffi- the notice nobis, allegation upon an was based official, testimony by prison cient speak to his he asked a friend petitioner had not in effect held was appeal” the friend counsel “about books. the use law been denied by assigned thpre was told counsel “that hearing, petition At the dismissed. was very chance of success little however, clear Joel Smith it became matter.” No The dis was taken. time sentence proceeding the coram nobis missal of 28, 1959; imposed and there on October upon November 1963 was based testimony of Joel conflict in the was a Apрellate holdings Division in Marchese attorney Pelcyger the criti- Smith Kling. Bjornsen, Misc. or not Joel Smith cal issue whether (Sup.Ct.N.Y. 2d 244 N.Y.S.2d 551 ex- knew County). This reached our pense then As Joel himself. years application some three later via an the services became dissatisfied with corpus habeas and the dismissal Legal Society, Aid by Judge Foley the writ in the Northern assign other Division refused to District of York on New affirmed was presented Joel Smith ground Bjornsen the “never asked Appellate the Division anyone representing the State advice pro se, Appeals, that he the result right assignment on his or for all the York courts lost in New State appeal, of counsel on and never informed his state remedies thus he exhausted any representative of the State of his de coram nobis the second connection with appeal.” sire to This the reflected rea proceeding. soning Kling. of Márchese and Per The petition last to the And so we come at Curiam of this Court added the comment corpus (364 490-491): denied with- pages for habeas that was F.2d at hearing by Judge out a Mishler deprivation His claim of constitutional This order now us review. before necessarily rests on the assertion that petition squarely raises the claim vio- obligation the State had an affirmative rights by denying lation of constitutional right to advise him of equal protection Joel of the because laws procedure right. of the to enforce that of sen- at the time interesting that, It to note after did took no he because tence working way through its York New could told that not know and was not courts, Bjornsen’s application Su- expense of state. at the take an preme Court for certiorari was denied on Judge of dismissal Mishler’s order May 17, (381 85 S.Ct. dated June 1967. day 14 L.Ed.2d same brings to consideration This us applications which similar for certiorari through progress York New courts Márchese, Kling were denied in and Joel case, Bjornsen’s culminated in Smith. Court, United ex decision of this States significant Bjornsen There two further F.2d 489 rel. developments. first of The these 87 S. 386 U.S. promulgation by (1967). the four This is L.Ed.2d 351 Ct. principally Divisions of decisions relied one of the frivolous,” citing he had have been dismissed as also stated Mishler Fay Noia, 391, 428, was of the the trial record and examined plain- opinion be so 9 L.Ed.2d 837 that an “would arguable ly would basis Montgomery, rules,5 adopted in 1964 and 24 N.Y.2d 299 N.Y.S. Judge Keating’s assigned requiring 2d 247 N.E.2d amended “immediately comprehensive opinion in Mont clear and or retained gomery following statement: pronouncement to advise contains the of sentence” right writing the defendant primary question There is appeal, which and the time within furnishing legal duty of to indi- advice obtaining taking appeal, manner of gent responsibil- defendants is a State “of the transcript testimony ity. by permitting Either pay person is unable to of a role to terminate at end counsel’s apply for leave of an the cost safeguards trial, failing provide poor person.” Counsel as a аgainst information, lack of State specifically required whether to ascertain lapse permitted period to a critical time so, and, if wishes to defendant of which the defendant was unaware. necessary notice file the to serve and occurred this lack of awareness Since slightly parallel differ- The poverty, because the defendant’s 32(a) provision Rule of the Fed- ent hearing to must be accorded a deter- Procedure, of Criminal eral Rules mine in fact no one informed whether 1, 1966, July effective amended him of margin.6 is also forth in the set interpretation Had this been New York’s significant development provisions applicable of the federal second overruling of Marchese сonstitution decision at the time Appeals proceeding Kling York Court the New first coram Smith’s August 9, February Calla little rea- there seems son to doubt Rinaldi would way, 299 N.Y.S.2d N.Y.2d to determine have conducted a and the decision 247 N.E.2d arising case, People of the con- companion the issue of fact out aof same court appeared pro se, Codes, Reg- the trial fendant has Rules and 22 New York 5. See right (1968) (Rules a of his court shall advise defendant of Section 606.5 ulations right person Division, appeal Court, Appellate of of a to the the pay appeal of an to Department) unable to the cost : First poor per- apply appeal (1) right appeal. for leave to as a (b) to оf Notification requests, If the son. the defendant so sentence. Where conviction and After there has been prepare file or clerk of the court shall after trial a conviction appeal otherwise, a an and serve forthwith notice of has been or where there application upon on behalf of the defendant. an adverse decision precisely rules have Almost identical writ of coram of a error the nature corpus, been the Di- shall be established it a writ of habeas or Departments. assigned, duty of other three visions the retained or of Reg- immediately Codes, defender, public 22 New York Rules and See and of 821.2; 671.3; 671.5; pronouncement ulations 821.3; of sentence or Sectiоns after dispos- (1968). copy order 1022.13 of the service of a application 'a ing nature of in the of of of 6. Rule 32 of the Federal Rules Criminal or a writ coram nobis writ of error February Procedure, as amended corpus, the defendant to advise habeas July 1, 1966, right writing effective reads: the time his to of involved, insti- manner of limitations (2) Right Appeal. obtaining tuting appeal a to of an Notification of imposing testimony, transcript After sentence in a case which of the of the gone plea pay has person to trial on a of not right to is unable of a who guilty, appeal apply the court shall advise the de- ‍​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​​‌‌​​​‌‌‌‌‌‍for leave to of the cost right appeal poor person. fendant of right appеal al- his to and of the It shall aas to person pay duty ascer- of a who is unable to to of such counsel so be apply the cost of an to for leave to wishes whether defendant tain necessary pauperis. to and, so, If file the serve and if to forma requests, defendant of so clerk notice ap- prepare court shall file forthwith (c) a to defendants Notification (1) convic- notice of on behalf of the de- pear without counsel. After If a de- fendant. nohis. coram tion or denial of simple comprehensive flicting on the one Such Joel Smith versions of Eugene Pelcyger complication and, struction avoids the his hand variety patterns fact miscellaneous other. have relevance whatever to however, inde responsibility, It our is underlying principle of v. Cali- upon constitutional pendently pass fornia, may but which frustrate and ren- To re properly us. questions before purpose. der ineffective its beneficent by the for reconsideration mand the case lapse of after courts State Thus, courts, example, includ- s'ome think, be, most many years we would so ing own, have, think, our been led we La unjust Roberts v. and undesirable. astray inquiry various forms of into Vallee, appeal,8 the merit lack of merit in the or Accordingly, con L.Ed.2d41 cluding prisoner of which the state has been statement historical deprived in violation his background, we procedural and decisional rights. question A decision on thе of the re for the proceed our reasons to state not, or merit lack of merit in the Judge Mishler. mand the case think, we type relevant decision in this infringe- question

of case of prisoner’s ment vel non of the constitu- II. right equal protection tional Doug Principles Application enough pris- An It laws. to establish Requires right a Reversal las v. oner’s to federal collateral relief California Overruling Former indigence and the Our reason of has rel. ex right States deprived appeal by Decision in United Bjornsen F.2d judicial the action or inaction in- 1966). (2d Cir. strumentalities of the state which the judgment of conviction was entered. logi only practical, think the We given thought interpretation Some it of conse to be courts have fair cal and Douglas quence imposes inquire prisoner is that whether the v. California every per duty the time of sentence upon to warn or thereabouts said the state ap right requested he signed wanted as of crime convicted son prosecute his retained counsel to peal and his ap Bjornsen United expense States ex rel. La to him v. Val without pointed indigent. lee, (2d state, F.2d 489 if he appeal at the (1967), panel convicted L.Ed.2d 351 a of if the this Court mere illusion state is very ground, a indigent such denied relief on ing hold not know this does defendant way request to make that right without a the And one Constitu the exists. indigent require him so.7 tion not to tell does that an be does know sure that he See, Lane, g., by implementing rules e. Victor v. 394 F.2d 268 is indicated the 7. As ; (7th 1968) above, in an United States ex rel. will result Cir. this referred by judge Reincke, (2d unequivocal trial Maselli v. 383 F.2d 129 Cir. the statement 1967) ; by defendant United States ex rel. Mitchell v. the convicted or sufficiently comprehensive counsel Toilette, (2d 1966). applicable 358 F.2d 922 non-indigents indigents note fol- as well. We the only practical approach lowed a similar to that which we be the seem to This would adopt rejecting situation; way here in and it also a 9th Circuit rule the to handle required cutting applicants post-con- purpose future off the of serves nature, applications as a con- viction relief under 2255 to show Section of the same successfully Rodriquez unlikely some likelihood of success. defendant victed States, v. United such instructions to assert that no by judge given counsel 23 L.Ed.2d or the trial showing the face of a court record the given, com- a written instructions were or from the effect to the same munication . to the defendant. rights. implementing procedures respon- the of But that is advised same, prisoner’s plight prisoner’s or the is the sible for violation whether rights. appeal, in desire to the constitutional not he a indicates indi- of his face established facts Further, while rules new set forth gency knowledge of that he and his lack apply prospectively, in footnotes 5 and 6 of could the state. at past the lack of such rules in the not does prisoner’s Nor can relief purge an unconstitutional of its act taint. indigence dеpend upon Indeed, if such or similar or state judge. For reasons and trial these disregarded rules should the future be because we believe that the earlier ex- by judge counsel the trial re- should pression proper Court was not a this silent, a main of a defendant convicted rights given Doug- construction of deprived crime would still be Bjora- v. California we now las overrule appeal, if stitutional he is indi- longer sen and hold it is no authori- gent and is not informed and not does tative this Circuit. within may know that take an expense to himself. inquire, any We need nor is it ruling make, relevance the decision of think the We far we cluttering prisoner’s from whether the retained a courts host of with compe- assigned, competent vintage, or tent,9 or not similar claims of ancient will thought appeal help atmosphere pave or whether he clear the way prompt if disposition ap- taken would be successful dismissed to a such dealing peals may as frivolous. are here with come within its orbit. We Our duty holding require State York to does not a that verdict be protection upset warn, only afford for failure to but prisoner. completion state should allow the review, appellate pris- if with counsel a findings Thus the critical in this case desires. If oner so is taken must be: Was Joel Smith material trial error is found time was sentenced the New appellate court, may be a new state And, State court? informed was Smith required trial with familiar difficul- prior expiration did hе know proof long ties of event. But after the his time to only if state courts find without cost to himself and imprison- conviction which the appointed by ? wrong ment based first We think further observation will one place. misunderstanding help any prevent frequently. That does not occur ruling. our The New York and Federal 5 and rules above footnotes referred III. implement than do no we more what implicit think was at all times Finding The Absence Fact on landmark v. California. Requires Critical Issue Remand. application Thus the of the doc- sound however, Douglas California, Fortunately, trine of the full be grant irrespective to of the fore must be relief Justice McDonald on Smith’s implement- proceeding existence ing non-existence of second coram or contains procedures, testimony provided or and his Joel Smith law only operative yer Eugene Pelcyger subject that the two factors are on the present, indigence e., findings i. the fact of at the the critical issues. no While by Judge Mishler, time sentence the fact that the were made as he felt prisoner appeal did not know he could bound decide as matter law Indeed, expense authority without on ex himself. of United States rel. cases, very many Bjornsen (2d such it is lack of F.2d 489 Reincke, 1967). (2d

9. See ex rel. Maselli United States Cir. F.2d hearing ‍​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​​‌‌​​​‌‌‌‌‌‍opinion, and for a further finding subject: on 18 L.Ed.2d 351 as was Joel Smith stated, prior ex- above evidence informed did he know to the uncontradicted piration appeal fаct that establishes and we now as a time to he find his appeal at that Joel the time could without cost to Smith was himself by appointed on state? he was sentenced October with counsel subject theOn of Joel Smith’s Reversed and remanded direc- with prosecute at the could an time that he tions. appeal expense of the state the testimony is follows: as WATERMAN, Judge (concur- Circuit ring dissenting): Appellant, was 16 at the time of who trial, grade an 8th education and with I concur Medina’s excellent categorically unemployed, denied that he exposition appli- and exhaustive not knew that he did to have “have law, cable and it with reluctance some money appeal.” description His necеssary my that find it I file dissent attorney Pelcyger conversation with is: remanding proceed- from the order ing attorney

I told that I to the court for a would like district as any He asked did I to whether was informed knew have money. prior expiration ap- I I told him that would of his time to have get peal my family. appeal in touch with cost to He without money appeal said I without could not himself and with the assistance counsel your appointed by That all that I would case. was was said. State. remand with instructions sustain the writ Attorney Pelcyger no had recollection already record made. of the case but his file revealed a letter already appellant’s parents my It written to the facts October view subject comрlying experienced highly 1959 on the recited re- appellant’s request spected appeal an New York State advising parents petitioner’s taken and further coram Justice who heard no- proceeding January 1965, if he did not hear from them “I and sum- bis take no shall further interest with re- marized Chief Mishler below spect opinion to Joel’s He testified: case.” his handed in June 1967 down after he had coram nobis examined this Incidentally, during my conversa- well), record (and the trial record as es- Smith, tion I do as with I think [with] year indi- tablish that this sixteen old every convicted, defendant I gent youth had had education have advised the defendant he has a beyond eighth grade deprived of was person just as timely I told could he Joe[l] without timely conviction because lawyer. family informed the trial counsel This, course, telling is not the same know, retained, and did not otherwise appellant could could that he his conviction with- himself with a aid out cost to himself and with the provided by Nevertheless, ap- the state. state-appointed I would there- counsel. pellant’s credibility was at and he issue holding fore on the reverse the below knew that a co-defendant with already order the record made and would taking an It is not court below sustain relator’s habeas disputed that, co- corpus writ unless within a reasonable defendant error and confessed time to be the district court fixed against the indictment the co-defendant People permit to file relator Division. dismissed pauperis from his in forma conviction appealed assigned counsel, proceed The order from is reversed and to see People Callaway, for further con- case remanded v. 24 N.Y.2d 299 sideration N.E.2d 128 inconsistent with N.Y.S.2d 247

657 Appeals sets he is discloses entitled. See Roberts v. (1969), where the also U.S. procedure See to be followed. out (1967). 130, L.Ed.2d 41 Montgomery, 24 N.Y.2d v. N.E.2d N.Y.S.2d FRIENDLY, Judge (dissent- Circuit quote I from Mishler’s Chief ing) (with LUMBARD, whom Chief opinion of 1967. Petitioner June Judge, MOORE, Judge, Circuit following “that had the stated join): attorney: versation with his Ap- adopted four Rules attorney like that I would “I told in 1964 pellate of New York Divisions any did I have He asked to 1966) in amended (which were get money. to I would have I told him identify here which York did what New L.Ed.2d 811 U.S. My brother forbade. Constitution examрles of state (1963), classic were rightly assert be does not against Medina in- action —discriminations attorney was licensed Smith’s cause digent face apparent on the phrase, and, in' the oft used New York Similarly both rules. statutes court,” alleged an “officer of Bosler, 87 S.Ct. 386 U.S. Swenson the availa omission advise (1967), Anders v. L.Ed.2d 33 pauperis bility of in is attributa California, forma U.S. 87 S.Ct. contrary The ble the State. is in (1967), situa- dealt with 18 L.Ed.2d 493 by Mulligan Schlachter, dicated F. indigent ap- defendants tions where (6 1968) (assigned counsel), 2d 231 employed procedures pealed and the many and the other under cases the Civil knowledge, they whereby, state’s Rights cited Act in 42 U.S.C.A. favorably § than defend- treated less were Rightly my n. 13. also brother does not represented by ants retained cоunsel. holding custody assert that a defendant in Carnley The familiar observation in is itself the unconstitutional state action Cochran, 506, 513, necessary to sustain federal (1962), habeas that “where corpus. principle Such a would far be assistance counsel is a constitu- expansive; too mean, it would requisite, for tional to be furnished example, any claim of a material depend request,” counsel does not on a false statement a witness would abe must be read the context of a defend- ground trial, for collateral al attack ant on whose need for counsel was though responsibility apparent had no the state judge, to the state whereas for it or of it. The state ac here way knowing New York had no gives that, tion that claims, rise to a claim in federal as Smith he would have liked corpus habeas must be action if he had known he could. The wrong, state that constitutes statement not its Illinois, in Norvell v. holding mere a defendant who claims to 10 L.Ed.2d wronged by have someone for whose chargeable. conduct the state is not The appeared “If it premise inarticulate majority thus represented petitioner at the trial re- must be that New York was bound not represent fused him on the merely to indigents afford known petitioner’s indigency prevented rights same non-indigents as retaining another, him from we would but to make apparent sure that an non- have different case.” indigent was informed of what would be in context. The actual must also be read indigent. available if he were justified holding that a state was denying ap- deny Griffin v. retroactive Illinois I duty not would that a state’s transcript plication may once where the free compelling sometimes sobe that con wrongfully denied could not even be fairly regarded tinued inaction can be intervening violating furnished due death the Fourteenth Amendment. reporter of the court justification defendant had But I see no holding1 appealed despite availability in 1959 New York should have purpose. quoted perceived The duty on its language merely hints, part deciding, to make certain that a convicted de given will be total retroac- fendant whom it had no reason to Griffin believe application tive in a case where the re- should be advised what quirements Douglas California, York would do for him if he were. supra, decision, also a retroactive rapid development doctrinal in this violated addition. began area with the decision Painting brush, with a broad 1963. While that decision is retroactive majority opinion pause does not presented, on the situation there that does should all its emanations not mean merely then but not realized have been Philip CO., corporation, S. PSG especially it years I find Greenberg, earlier. ‍​​‌‌​​​‌‌‌​​‌‌​‌​​​‌‌‌‌‌​‌​​​‌​‌​‌‌‌​​‌‌​​​‌‌‌‌‌‍Appellants, four for inaction New York hard to condemn until 1966 that it in when LYNCH, PIERCE, FENNER MERRILL brought rule its own SMITH, INC., Appellee. & appeals governing federal criminal No. 22560. majority what holds line Appeals United Statеs Court of required constitutionally all have been Ninth Circuit. along. Oct. great ruling may not be Today’s Rehearing Denied Nov. respect to New importance with practical light Keat prisoners People language sweeping ing’s 130, 299 N.Y.S. Montgomery, 24 N.Y.2d N.E.2d 130

2d actual deci applauds. majority But case, sharply divided sion in assigned court, related arguable would be whom Kling, rule unfortunate (2d Dept. 750, 242 N.Y.S.2d A.D.2d aff’d, 14 N.Y.2d N.Y.S. (4-3 (1964) vote 2d N.E.2d 46 U.S, opinion), (1965), whereby duties sentence, con ended on itself equal denying pro stituted state action Cf. tection. American Federation Swing, Labor also L.Ed. 855 We must consider the effect of our decision on the circuit

two other states prior convictions many 32(a). amendment F.R.Cr.P. instances cannot now desired unavailability be had beсause of transcript. Both in cases and such appellate court detects where the those only relating error, instances in rare innocence, new to the basic issue of confront familiar diffi trial would “the long proof the event.” culties of holdings present like the are Retroactive prisoners particular benefit crimes have most serious committed long correspondingly received and have sentences. respectfully

I dissent. therefore notes Supreme in see family. my He said in touch with opinion, re- Judge Medina’s to6 your money could not I defend- a convicted for quiring counsel That all that case. he said. retained, assigned to or ant, whether petitioner’s lawyer, “The trial appeаl in right notify to him his forma experienced practitioner field against run- provide pauperis and to law, criminal no recollection of majority I Like the ning time bars. conversation, such but his files sub- having effected these rules welcome petitioner’s stantiated version. years had experience over what His records showed that wrote exceedingly re- desirable be an to shown petitioner’s parents advising them of agree I cannot But form. their son’s desire to take an required Constitution Federal indicating if he failed to hear Smith, out whether to find in 1959 from them he would take no further by re- represented at trial had been interest in their son’s case.” longer counsel, able no tained And his to take an afford “ * * * case, mоst, In this at behalf. was a failure of retained counsel ruling rests majority’s Whether fully right advise his client Four- of the protection clause equal pauperis, and to forma Amend- Amendment, Sixth on the teenth protect right client’s as- guarantee ment’s simply filing notice incorporated counsel as sistance state is surety not an overseer or ‘a Fourteenth, or process clause due proper performance for the Four- process clause due ’ * * * whether or retained simpliciter, entitled is not teenth United States ex rel. Mitchell v. deprived him the State unless to relief Follette, supra F.2d [358 at 927.” 922] rights. As Holman, 341 in Pate observed Wisdom quote by Judge As the Mishler from 1965): (5 Cir. F.2d United States ex rel. Mitchell post- petitioner entitled to be For а Follette lacks relevance because enough relief, is not conviction State, People Montgom- as set forth in indigency occasioned show ery, supra, 299 N.Y.S.2d inability employ petitioner’s accepted responsi- N.E.2d at has petitioner appeal; show must bility seeing that an minor deprived him the State fully advised of his constitutional rights. Fourteenth Amendment carry forward an from a con- viction and the record below clear problem existence about the There indigent, Smith was minor, was a action in the landmark decisions of state fully advised, was not there can be no which the Court on justification, my view, any Illinois, majority further relies. Griffin v. any delay further granting L.Ed. 891 petitioner the relief California, which the record

Case Details

Case Name: United States of America Ex Rel. Joel Smith v. The Hon. Daniel McMann Warden of the Auburn State Prison, Auburn, New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 10, 1969

Citation: 417 F.2d 648

Docket Number: 336, Docket 32609

Court Abbreviation: 2d Cir.