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February 26, 1968

UNITED STATES of America ex rel. Lenox J. EDWARDS, Petitioner,
Hon. Harold W. FOLLETTE, as Warden of Green Haven State Prison, Stormville, New York, Respondent

The opinion of the court was delivered by: TYLER

TYLER, District Judge.

 Lenox Edwards is presently incarcerated in a New York State prison, having been convicted of first degree murder in March, 1948 and sentenced to life imprisonment the following month. He contends that his detention violates his rights under the equal protection clause of the Fourteenth Amendment, in that he was deprived of his right to appeal from his conviction because of his indigency. See Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956).

 Petitioner was represented at trial by three assigned counsel. One of them filed a timely notice of appeal after sentence was imposed. Edwards filed a similar notice at approximately the same time. Shortly thereafter, he received a letter from Frank E. Lammers, one of his trial counsel, who advised him that all three assigned trial counsel had studied the record and concluded that there were no errors committed during the trial that warranted an appeal. He further notified petitioner that the state provided no funds to prosecute an appeal and, in view of the extensive trial record and the unavailability of appointed counsel, the cost of such an appeal would be prohibitive. Lammers concluded that he and associate counsel felt it inadvisable to prosecute an appeal, but cautioned Edwards that the final choice was his.

 Petitioner took no further steps to perfect his appeal, which consequently was dismissed by the Appellate Division of the Supreme Court in New York in 1950 for lack of prosecution. *fn1" Petitioner now requests this court to require the Appellate Division to reinstate his appeal or release him from prison.

 Edwards has twice attempted to have the state courts grant him a belated appeal. In the more recent attempt, a coram nobis hearing was held by Justice William Lyman of the Supreme Court of New York, Bronx County, who determined that petitioner failed to prosecute his appeal because of his inability to pay the costs that Lammers' letter suggested would be incurred. *fn2"

 Justice Lyman thereupon granted Edwards' motion to vacate his judgment of conviction and suggested he petition the Appellate Division to have his appeal reinstated. Notwithstanding Justice Lyman's ruling, the Appellate Division refused to entertain Edwards' appeal, and that refusal was upheld by the Court of Appeals of New York, People v. Edwards, 16 N.Y.2d 1047, 266 N.Y.S.2d 125, 213 N.E.2d 456. For reasons to be discussed hereinafter, petitioner's application for a writ of habeas corpus is granted, subject to the conditions set forth at the close of this opinion.

 The law of a criminal defendant's right to appeal, like many other phases of criminal procedure, has undergone vast changes in the past decade. A number of doctrines have evolved to enable a defendant to test the legality of his conviction on direct appeal, notwithstanding his impecunity or the untimeliness of his application. Though the federal constitution does not provide a specific right to appeal, it has been interpreted to guarantee to a defendant the power to take increasing advantage of his statutory appellate rights.

 The predominant theme of modern case law is that the equal protection clause of the Fourteenth Amendment requires reasonable parity between the kind of appellate review a wealthy defendant and an indigent one receives. See Griffin v. Illinois, supra. Somewhat related is the rule that the right to adequate review cannot be destroyed through the ineffectiveness of counsel. See United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2d Cir. 1967); Wainwright v. Simpson, 360 F.2d 307 (5th Cir. 1966). Finally, there is the relatively unexplored area of the effective deprivation of review through the possibility of greater punishment on appeal. See Fay v. Noia, 372 U.S. 391, 439-40, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); cf. Patton v. North Carolina, 381 F.2d 636 (4th Cir. 1967), cert. denied, 390 U.S. 905, 88 S. Ct. 818, 19 L. Ed. 2d 871 (1968).

 This last area may be disposed of summarily, since petitioner makes no contention that he avoided review because of the threat of a death sentence if a successful appeal resulted in a new conviction.

 The deprivation of the effective assistance of counsel was discussed recently by the Second Circuit in United States ex rel. Maselli v. Reincke, supra, a Connecticut case where the defendant received no appellate review. Though retained trial counsel in that case knew of defendant's indigency, desire to appeal and meritorious claims, he never advised his client of his appellate rights. Instead, the lawyer forwent an appeal because he erroneously believed he could better assist the defendant by negotiating with the state prosecutor with a view toward obtaining a concurrent sentence for his client on another pending charge. The Second Circuit upheld a finding of ineffectiveness of counsel and ordered the state to hear the appeal or release the prisoner.

 In the case at bar, trial counsel knew of Edwards' indigency and desire to appeal. No claim is made, however, that Edwards suffered from the ineffective assistance of counsel. Indeed, a suggestion to that effect by Justice Lyman, who heard Edwards' coram nobis petition, is refuted by relator in the instant application. See footnote 2, supra. Moreover, since trial counsel were in apparent agreement that petitioner's appeal would not be successful and Lammers had taken the precautionary step of filing a notice of appeal, it would be unrealistic, in my view, to infer that Edwards is entitled to relief upon this theory.

 The equal protection clause requires that an indigent defendant be granted assigned counsel, Douglas v. California, supra, and a suitable form of record for review, Griffin v. Illinois, supra, if he requests forma pauperis relief upon his first appeal as of right. Since both of these requirements have been held retrospective in application, the denial of a timely request by Edwards in 1948 would entitle him now to summary reinstatement of his appeal. See Smith v. Crouse, 378 U.S. 584, 84 S. Ct. 1929, 12 L. Ed. 2d 1039 (1964) (Douglas retroactive); Eskridge v. Washington, 357 U.S. 214, 78 S. Ct. 1061, 2 L. Ed. 2d 1269 (1958) (Griffin retroactive). Respondent contends, however, that petitioner's failure to make a timely request in 1948 for forma pauperis relief compels a decision that the state did not deprive Edwards of the equal protection of the law. Counsel for the State of New York buttresses this argument by citing two relatively recent Second Circuit habeas corpus decisions in which indigent defendants' failure to file notices of appeal or request forma pauperis relief was held to weigh heavily against their untimely appeals. See United States ex rel. Bjornsen v. LaVallee, 364 F.2d 489 (2d Cir. 1966); United States ex rel. Mitchell v. Follette, 358 F.2d 922 (2d Cir. 1966).

 Nevertheless, mere failure to request that relief does not always bar a finding that the equal protection rights of a defendant have been violated. See Swenson v. Bosler, 386 U.S. 258, 260, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967); Puckett v. North Carolina, 343 F.2d 452 (4th Cir. 1965); Pate v. Holman, 341 F.2d 764 (5th Cir.), modified on rehearing, 343 F.2d 546 (1965). Whether a state can be found to have violated these federally guaranteed rights depends in large part on the defendant's post-trial activities. Present law affords no relief to a defendant who, when remanded to prison, merely bides his time. The critical question might be stated thus: What steps must an indigent defendant take to invoke the requirement that the appellate court review his conviction in accordance with the demands of the Fourteenth Amendment?

 The leading case in the area is Swenson v. Bosler, supra, where, after judgment was rendered, the defendant's trial counsel filed a motion for a new trial and a notice of appeal, and thereupon withdrew. Notwithstanding the absence of counsel, the Missouri appellate court reviewed the conviction on the merits and affirmed. The Supreme Court reversed on the ground that the defendant had failed to receive "the assistance of appellate ...

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