Before HINCKS and MOORE, Circuit Judges, and SMITH, District Judge.
J. JOSEPH SMITH, District Judge.
This is an appeal by a prisoner of the State of New York, from an order of the United States District Court for the Western District of New York, Morgan, J., denying his application for a writ of habeas corpus. A certificate of probable cause and order granting leave to proceed in forma pauperis issued by that same court paved the way for petitioner's presentation of his appeal here.
By the proceeding below, Albert Sileo, presently serving sixty years as a second offender, sought to invalidate a judgment of the Court of General Sessions of New York imposing an eight-months sentence for the felonious transportation of stolen property, an automobile, into New York. This judgment was entered July 16, 1918 on petitioner's plea of guilty, previously received on July 10, 1918 immediately after his arraignment. Sileo was sixteen years of age at that time. The second conviction, the cause of petitioner's present incarceration, was for kidnapping.Sentence was imposed in 1931. Petitioner has been incarcerated continuously from that time until the present. It is elementary that the correctness of the present sentence as a second offender depends on the validity of the first conviction, here attacked. United States ex rel. Smith v. Jackson, 2 Cir., 1956, 234 F.2d 742.
Collateral attack on this 1918 conviction instituted in the courts of New York in 1956 resulted in a decision adverse to petitioner, as did successive appeals therefrom; these proceedings also effected an exhaustion of state remedies as required by 28 U.S.C. § 2254, to wit: (1) Motion for Writ of Error Coram Nobis to Court of General Sessions, denied June 28, 1956, Schurman, J.; (2) Denial affirmed, Appellate Division, March 19, 1957, 3 A.D.2d 740, 161 N.Y.S.2d 565; (3) Denial affirmed, Court of Appeals, October 24, 1957. 3 N.Y.2d 916, 167 N.Y.S.2d 931, 145 N.E.2d 875. A petition for a writ of certiorari was denied by the Supreme Court of the United States on March 31, 1958. Sileo v. People of State of New York, 356 U.S. 923, 78 S. Ct. 709, 2 L. Ed. 2d 718. Darr v. Burford, 1950, 339 U.S. 200, 70 S. Ct. 587, 94 L. Ed. 761. Each of the aforementioned decisions was entered in the form of a simple order of denial or affirmation, without opinion or discussion of issues raised, and without any findings as to the facts.
Petitioner's claim, reduced to its essentials, is a simple one. He alleges that he was arrested on July 9, 1918 under indictments outstanding since the previous March 19, charging him with several crimes, including bringing stolen property into the state. He was held overnight by the police and on July 10, 1918, the next day, was taken before Judge Wadhams of the Court of General Sessions for arraignment and plea. Petitioner claims that without ever having received the assistance of counsel, or having been advised that he had a right to counsel, or asked if he desired counsel, he pleaded guilty to the stolen property charge; the claim now is that he did so because he thought that his mere presence in the automobile in question some time before made him guilty of the crime charged. At the same hearing he pleaded not guilty to a charge of assault under another indictment. He was thereupon taken to and held in the Tombs until July 16, 1918, when he was brought to the same court for the imposition of sentence. From the time of the arrest until the time of sentencing, it is alleged, he received no visits from anyone. At the time of sentencing, after the proceeding had begun, William Dean Embree, an attorney and member of the organization which was the forerunner of the present Legal Aid Society, appeared in the courtroom and stated to the court that he was there to represent petitioner. Petitioner was sentenced to an indefinite term in the City Reformatory, where he was subsequently confined for some eight months.
The contention is that this conviction was invalid because lacking in due process of law, a deficiency stemming from the lack of assistance of counsel.
Attached to the petition sent to the District Court as exhibits were typewritten copies of the indictment and various markings on the back thereof, plus a typewritten copy of the minutes of the court proceeding in which petitioner was sentenced. Subsequent to the receipt of the petition the District Court received a copy of the printed record used in the appeal to the Appellate Division of the order of the Court of General Sessions denying petitioner's 1956 motion for a writ of error coram nobis. This same record also was employed as the record on appeal in the Court of Appeals by permission of that court. It is not clear whether the District Court called for this record, or whether it was voluntarily produced by the State, or supplied by petitioner. This record contained the transcript of the coram nobis proceeding in the Court of General Sessions, and also a copy of the July 16, 1918 minutes of sentence which the State had introduced as an exhibit at the coram nobis hearing. The printing of two other exhibits used in this hearing, the two indictments charging petitioner with the crimes to which he pleaded, and the markings thereon, was waived by the parties to the appeals under a stipulation that the certified copies of the actual indictments themselves would be handed up to the court on the argument of each appeal. Judge Morgan did not have these indictments before him.
The transcript of the coram nobis hearing clearly shows that the factual issues raised by petitioner in this federal habeas corpus proceeding were presented to the state courts in that proceeding as well as the principal legal question, that question being whether or not petitioner's conviction was obtained illegally, without due process, due to lack of assistance of counsel at the critical moment when petitioner, an inexperienced sixteen-year-old, was put to plea on a serious criminal charge. From the petition, the transcript in the record, and the argument here, it appears that the State has contendeD and still contends that petitioner was represented by counsel at his arraignment and plea, not only at his sentencing. Various cryptic notations and abbreviations on the indictment backs are relied on to show that one L. Fabricant, Esq., a member of the same organization as Mr. Embree, was counsel of record for petitioner and was present at his arraignment and plea. At the coram nobis hearing petitioner testified that he had no opportunity to talk to anyone after his arrest and prior to his being arraigned, that he was put to plea immediately after arraignment under both indictments, that no attorney represented him in court that day, that he was never told by the court or anyone that he had a right to an attorney, that he didn't know that he had such a right, that he was only sixteen years old at the time and had no previous arrests, but had been held for truancy sometime previously and had also been court-martialed by the Army after deserting from a fraudulent enlistment, being less than sixteen years old at that time.He further testified that no attorney ever spoke to him after he was returned to jail to await sentence, that he was brought to court for sentencing on July 16, 1918, and that there, for the first time, an attorney appeared on his behalf, but that the attorney never conferred directly with him even then. On cross-examination the State brought out the fact that the attorney, Mr. Embree, presented a character witness on petitioner's behalf, and also desired to put his mother on the stand, but that this was prevented due to lack of an interpreter. Mr. Embree then pleaded for leniency for petitioner on the basis that he had been led into the crime by older persons. The minutes of sentence bear out most of this. The State put on two witnesses. The first was a Clerk of the Court of General Sessions, employed there since 1919, who testified that the markings on the 1918 indictments indicated that counsel had been assigned to represent petitioner and that counsel was present at the time of arraignment and plea; the second, an attorney, was a member of and active worker in the Legal Aid Society, Criminal Courts Branch, who produced a file card from the Society's files relative to petitioner's case, and who testified to the effect that the entries on that card indicated that Judge Wadhams had appointed Mr. Fabricant to represent petitioner on July 10, 1918. Nothing was noted on this card about the activities of Mr. Embree, who was apparently closely associated with Mr. Fabricant in voluntary defense work at that time. The State offered no direct testimony to prove that counsel was actually present to represent petitioner on July 10, 1918. The minutes of sentence, offered by the State, did bear under "Appearances" a notation that "L. Fabricant, Esq." was appearing for petitioner. These same minutes also stated that "Mr. W. D. Embree was assigned to represent the defendants." It was stipulated by the parties at the coram nobis hearing that no records dating back to 1918 were available at the city prison, that the stenographers of that period were dead, that there were no stenographic minutes of the pleading, and that the records of the court did not contain any notice of appearance filed on behalf of the petitioner except that which appeared on the indictment.
On the basis of the evidence thus adduced the Court of General Sessions denied, without opinion or findings, the motion for a writ of error coram nobis. Affirmances by the Appellate Division and the Court of Appeals followed, also without opinion.
After consideration of the petition and the state record on appeal, the District Judge allowed the petition to be filed in forma pauperis and denied the writ on the merits, stating:
"As can be seen from * * * the printed record of the hearing had in the Court of General Sessions, the certified Record on Appeal to the Appellate Division to which is attached the Order of Remittitur from the Court of Appeals, petitioner has had the benefit of the full appellate process on the question raised before this court. As the State and Federal courts have the same responsibilities to protect persons from violation of their constitutional rights, the United States Supreme Court has concluded that a Federal District Court may decline, without a rehearing of the facts, to award a Writ of Habeas Corpus to a state prisoner where the legality of such detention has been determined on the facts presented by the highest State court with jurisdiction, whether through affirmance of the judgment on appeal, or denial of postconviction remedies.Brown v. Allen, 344 U.S. 443, at [page] 465, 73 S. Ct. 397 [at page 412, 97 L. Ed. 469].
"This court is satisfied that the State process has given fair consideration to the issues and the offered evidence, and has resulted in a satisfactory conclusion." In the matter of the Application of Albert Sileo, D.C.W.D.N.Y., Civil No. 7961, Memorandum of Decision, August 27, 1958.
In circumstances such as are here revealed, this court is of the view that Brown v. Allen, cited by the District Court, requires a federal district court to do more than, in effect, concur in the state courts' determination of the issues involved. Of controlling importance here is the fact that not one of the State courts which heard these highly controverted matters or reviewed them, particularly the Court of General Sessions where the evidence was initially adduced, made any ...