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United States v. Lavallee

decided: November 20, 1973.


Appeal from an order of the United States District Court for the Southern District of New York, Irving Ben Cooper, Judge, denying a writ of habeas corpus without a hearing on the grounds that petitioner's failure to appeal within the prescribed time limit was either willful, knowing, or the result of his own negligence.

Kaufman, Chief Judge, Smith and Mulligan, Circuit Judges. Mulligan, Circuit Judge (dissenting).

Author: Smith

SMITH, Circuit Judge:

This is an appeal from denial of a petition by a state prisoner for a writ of habeas corpus in the United States District Court for the Southern District of New York, Irving Ben Cooper, Judge. We find error and remand for hearing.

Perhaps the most difficult aspect of this case is the circumstance that its critical events occurred either before or during what can fairly be called a revolution in the rights of the indigent accused. Fortunately, recent legislative and judicial rules insure that criminal defendants receive the full panoply of constitutional rights. Accordingly, cases such as this, in which denials of the most fundamental rights are alleged, are largely confined to collateral attacks on trials conducted years ago. Nevertheless, when confronted with one of these anachronistic cases, a reviewing court must make certain that the accused was afforded all of the rights to which he was then entitled -- even those which may not have been fully articulated until after his opportunity to invoke them. Because we believe the record in this case does not clearly demonstrate that petitioner was aware of all of his rights, we find it necessary to remand for a further hearing.

Petitioner Nathaniel Williams was convicted of four counts of rape in New York State Supreme Court, New York County, on March 19, 1965. On May 10, 1965, he was sentenced by the trial judge, The Honorable Charles Marks, J.S.C., to a prison term of ten to twenty years. At the time of his sentencing, Williams was not advised by the court that he had a right to appeal his conviction in forma pauperis, that a notice of appeal had to be filed within thirty days, or that he had the right to appointed appellate counsel. As we shall discuss below, this absence of notice was the standard procedure in the New York courts in 1965. Even indigent defendants were not informed of their appellate rights or of how to exercise them. Rather, the prevailing law put the obligation to so inform a convicted defendant on the individual's trial counsel.*fn1

In this case, that appears to have been an exceedingly poor choice. At trial, Williams had been represented by an attorney retained by his wife, one John R. Sanders. Just prior to his sentencing, Sanders informed Williams, who was indigent,*fn2 that an appeal of his conviction would cost seven thousand dollars. Thereafter, contrary to all legal ethics, Sanders abandoned Williams entirely.*fn3 We must base this sordid account of legal malfeasance on the testimony of petitioner, since Sanders was subsequently disbarred for other unrelated unethical conduct, left the state, and could not be produced to testify.*fn4

In opposing this application for a writ of habeas corpus, which would do no more than restore Williams' right to appeal, the state stresses his admission that within two days of his sentencing a fellow inmate advised him of his right to appeal, in the words of the state's attorney, "without paying any money."*fn5 However, Williams denied that this jailhouse advice ever included any information about his right to appointed appellate counsel or the critical thirty-day time limit.

Undoubtedly confused by the conflicting advice of his private and jailhouse attorneys, Williams wrote to Sanders as late as May 21;*fn6 Sanders, true to form, never responded. At a state coram nobis hearing held in 1968, Williams testified that by the end of May he had decided to attempt an appeal on his own and did, in fact, prepare his own appeal notices. At that hearing, Williams alleged that his attempts to mail the notices before the June 10th deadline were frustrated by prison officials. Not surprisingly, those officials categorically denied this serious charge; and the coram nobis judge, again Justice Marks, clearly decided the factual question of official interference against Williams.

In any event, Williams further stated that he did eventually deposit unstamped notice forms in the Sing Sing postal box on June 9, 1965 -- the day he was transferred from Sing Sing to Attica.*fn7 He claims that it was not until August of 1965 that he learned -- in response to his request for a trial transcript as part of his pro se appeal -- that no notice forms, timely or otherwise, had ever been received.*fn8 Since then, Williams has repeatedly attempted to have his right to appeal restored in both the state and federal courts.*fn9

For our purposes, the most important of these unsuccessful attempts was the coram nobis determination made in 1969. Following an evidentiary hearing held in the fall of 1968, Justice Marks -- on April 17, 1969 -- denied the application in a brief opinion which focused, as did the hearing, on the question of official interference. Justice Marks' only finding with respect to Williams' knowledge of his appellate rights stated:

Even conceding defendant's indigence, his alleged ignorance of his right to appeal as a poor person was cured when he arrived at Sing Sing Prison on May 12, 1965. Defendant testified to this at the hearing.

The coram nobis judge thus made no specific finding that Williams was ever advised of his right to appointed appellate counsel or of the thirty-day time limit.

After further exhausting his state remedies,*fn10 Williams brought this habeas petition. In denying the petition without a hearing, Judge Cooper summarized the findings of Justice Marks and, based on the coram nobis record, concluded that Williams knew of his appeal rights:

We find petitioner's failure to appeal either wilful, knowing or the result of his own negligence. He has failed completely to show any deprivation of a constitutional right.


The primary question before us is whether, given all the facts and circumstances of this case, Judge Cooper placed undue reliance on the finding of Justice Marks. However, before we can consider that question, there is a preliminary issue that must be laid to rest: That is, the relevance of the underlying claims petitioner will raise in his state appeal, if his right to appeal is restored. The state, citing two New York cases involving defendants who had pleaded guilty,*fn11 suggests that this factor is relevant here. But as this and other federal courts have repeatedly held, the underlying merits have no bearing on the question of restoring fundamental appellate rights where they have been wrongfully denied. United States ex rel. Randazzo v. Follette, 444 F.2d 625, 627-28 (2d Cir. 1971), cert. denied, 404 U.S. 916, 92 S. Ct. 232, 30 L. Ed. 2d 191 (1971); United States ex rel. Smith v. McMann, 417 F.2d 648, 654 (2d Cir. 1969) (en banc), cert. denied, 397 U.S. 925, 25 L. Ed. 2d 105, 90 S. Ct. 929 (1970); United States ex rel. Singleton v. Woods, 440 F.2d 835, 838 (7th Cir. 1971); Wilbur v. State of Maine, 421 F.2d 1327, 1330 (1st Cir. 1970). Cf. Rodriquez v. United States, 395 U.S. 327, 23 L. Ed. 2d 340, 89 S. Ct. 1715 (1969).

Conversely, it is, of course, equally true that should the district court determine that petitioner is entitled to have his appeal rights restored, it will in no way reflect on the merits of that appeal. At this juncture, the federal courts are concerned only with the fundamental constitutional question of whether or not Williams was deprived of his rights on appeal -- most notably, his right to appointed appellate counsel. Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963).


In support of Judge Cooper's reliance on Justice Marks' finding, the state correctly contends that, under 28 U.S.C. § 2254(d)*fn12 and the Supreme Court's decision in La Vallee v. Delle Rose, 410 U.S. 690, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973), the habeas court must accord such prior state findings great weight. See also, United States ex rel. Cole v. Mancusi, 429 F.2d 61, 65-66 (2d Cir. 1970), cert. denied, 401 U.S. 957, 28 L. Ed. 2d 240, 91 S. Ct. 982 (1971); United States ex rel. Liss v. Mancusi, 427 F.2d 225, 227 (2d Cir. 1970).

However, it is equally true that the habeas court must itself insure that the relevant facts were found and that the correct legal standard was applied to them.*fn13 28 U.S.C. § 2254(d) (1, 3, 6-8); Townsend v. Sain, 372 U.S. 293, 312-19, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963). It is only where "it can scarcely be doubted" that the relevant factual issues have been resolved against the petitioner and that "there is no evidence that the state trier utilized the wrong [legal] standard," that § 2254 requires the habeas court to dismiss a subsequent petition without an independent evidentiary hearing. LaValle v. Delle Rose, 410 U.S. 690, 692, 695, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973).

Here we believe that the state judge -- through absolutely no fault of his own -- did not focus, and did not make specific findings, on factual questions which have subsequently emerged as critical to petitioner's case. As a matter of law, logic, and reality, there were three distinct pieces of information that Williams -- concededly an indigent -- needed to effectuate his right to appeal:

1. That he could appeal in forma pauperis.

2. That he could obtain appointed appellate counsel.

3. That he had to file his appeal within thirty days.

In determining whether Justice Marks meant to attribute each of these separate pieces of information to Williams in his cryptic finding that Williams knew he could appeal "as a poor person," we must remember some relatively important dates in New York legal history.

First, as noted above, we must recall that when Williams was sentenced in 1965, no New York judge would have thought himself obligated to advise a convicted defendant of his rights to appeal in forma pauperis and to appointed appellate counsel. In 1965, if that obligation existed at all, it resided with the trial attorney. Indeed, in 1964, the New York Court of Appeals had even refused to restore the appellate rights of defendants whose counsel had promised, yet failed, to file timely notice. People v. ...

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