UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: November 20, 1973.
UNITED STATES EX REL. NATHANIEL WILLIAMS, PETITIONER-APPELLANT,
J. E. LAVALLEE, WARDEN OF CLINTON CORRECTIONAL FACILITY, DANNEMORA, N.Y., RESPONDENT-APPELLEE
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).
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. Marchese, 14 N.Y.2d 695, 249 N.Y.S.2d 888, 198 N.E.2d 916 (1964); People v. Kling, 14 N.Y.2d 571, 248 N.Y.S.2d 661, 198 N.E.2d 46 (1964).
Such was the law in 1965 when Williams was tried and sentenced; and such was the law in the fall of 1968 when his coram nobis hearing was held. Since, in the fall of 1968, only a finding of official interference would restore lost appeal rights, it is not surprising that Williams pinned his hopes on such a claim. Indeed in the fall of 1968, Williams' lack of knowledge and the malfeasance of his attorney were largely irrelevant.
However, on February 27, 1969 -- four months after the completion of the coram nobis hearing, but two months before Justice Marks' opinion -- the New York Court of Appeals overturned Marchese and Kling. People v. Callaway, 24 N.Y.2d 127, 299 N.Y.S.2d 154, 247 N.E.2d 128 (1969). And, in a companion case, People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130 (1969), the court put the burden of advising defendants of their appeal rights squarely on the state:
The time has come for us to announce clearly that every defendant has a fundamental right to appeal his conviction and that, accordingly, basic fairness and due process require that the right not be dissipated either because the defendant was unaware of its existence or counsel failed to abide by a promise to either file or prosecute an appeal. This determination in no way indicates that courts should or can attempt to second guess counsel. Our decision, very simply, demonstrates a fundamental concern that defendants be informed of their right to appeal, and that, where an attorney, whether assigned or retained, fails to apprise his client of his vital privilege, there is no justification for making the defendant suffer for his attorney's failing.
The same result is required if this defendant's claim is analyzed in terms of equal protection.
Since the State has provided an absolute right to seek review in criminal prosecutions it constitutionally follows that an indigent defendant cannot be deprived of this review simply because of his poverty. The condition precedent to appellate review of a criminal prosecution is the filing of a notice of appeal. It is apparent that the 30-day period in which an appeal must be docketed is a critical time for the defendant. It cannot be successfully argued that an indigent defendant does not have the right to counsel at this stage of his proceedings.
It is not clear that, at the time this defendant was convicted, there was any positive obligation imposed on assigned counsel to inform defendants of their right to appeal. Presently, the rules of the Appellate Divisions do provide such an obligation.
Even with this obligation, however, we do not believe that an indigent defendant can lose his right to appeal simply because the State delegates its responsibility to a member of the Bar to pass along the requisite information. The courts are the surrogates of the State's responsibility in this field. An indigent defendant cannot lose his right to appeal simply because the courts have deputized a lawyer to fulfill the function and he has failed properly to carry out his duties.
The petitioner, because of his indigency, was compelled in this case to accept the assistance of court-appointed counsel. He claims his counsel did not inform him of his right to appeal. Without such advice this petitioner, who had no previous experience with the law, could not be expected to file a notice of appeal. There is no question that the primary duty of furnishing legal advice to indigent defendants is a State responsibility. Either by permitting assigned counsel's role to terminate at the end of trial, or failing to provide safeguards against lack of information, the State permitted a critical time period to lapse of which the defendant was unaware. Since, this lack of awareness occurred because of the defendant's poverty, he must be accorded a hearing to determine whether in fact no one informed him of his right to appeal.
24 N.Y.2d 130, 132-34, 299 N.Y.S.2d 156, 159-61, 247 N.E.2d 130 (1969) [citations omitted; emphasis added].
We have quoted Montgomery almost in toto not only for what it says, but also to demonstrate what it does not say. Most notably, it does not hold that, as part of their responsibility to an indigent with private counsel, a trial court must advise such a defendant of his right to different, appointed appellate counsel. And it is, therefore, quite reasonable to assume that when, in April of 1969, Justice Marks found that Williams knew he could appeal "as a poor person," the state judge did not intend to imply any finding that Williams further knew of his right to appointed appellate counsel. It was not until October 10, 1969 -- some six months after Justice Marks' decision -- that this court declared that even in 1965 the State of New York had been obligated, as a necessary consequence of Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963), to insure that every indigent defendant was informed of his right to appointed appellate counsel. In United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969) (en banc), cert. denied, 397 U.S. 925, 25 L. Ed. 2d 105, 90 S. Ct. 929 (1970), we stated:
We think the only practical, logical and fair interpretation to be given to Douglas v. California is that it imposes upon the state a duty to warn every person convicted of crime of his right to appeal and his right to prosecute his appeal without expense to him by counsel appointed by the state, if he is indigent. The right to appeal at the expense of the state is mere illusion if the convicted indigent defendant does not know such a right exists. And the one way to make sure that he does know is to tell him so.
Id. at 654.
Moreover, we were careful to hold in Smith that even the presence of retained counsel did not remove this burden from the state:
We need not inquire, nor is it of any relevance to the decision of this appeal, whether the prisoner's counsel, retained or assigned, was competent or not competent, or whether he thought the appeal if taken would be successful or dismissed as frivolous. We are dealing here with the duty of the State of New York to afford constitutional protection to the prisoner.
Id. at 655.
It is against this backdrop of the changing law that we must decide whether it can realistically be said that Justice Marks' brief finding that Williams knew he could appeal "as a poor person" necessarily implies that Williams also knew he had a right to appointed appellate counsel. For as this court stated in Smith, the right to proceed in forma pauperis and the right to appointed counsel are distinct:
Thus the critical findings in this case must be: Was [the defendant] indigent at the time he was sentenced by the New York State court? And, was [the defendant] informed or did he know prior to the expiration of his time to appeal that he could appeal without cost to himself and with counsel appointed by the state?
Id. at 655. [emphasis added]
First, it must be noted that an appeal "as a poor person" is roughly the linguistic equivalent of an appeal in forma pauperis. Yet as suggested in Smith, the right to appeal without paying normal court fees is something very different from the further right to a free attorney.
Were this linguistic equivalence our only evidence that the state coram nobis finding encompasses no more than the right to appeal in forma pauperis, we might permit the broader interpretation that Williams also knew of his right to appointed counsel. But in the finding itself, there is unmistakable evidence that such a broader interpretation is incorrect. For the sake of clarity, let us repeat exactly what Justice Marks found:
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.
However, a careful review of the coram nobis record indicates that while Williams did testify that he had been advised that he could appeal "without paying any money," he had, on cross-examination, categorically denied that this information had included his right to appointed appellate counsel:
Q. Are you telling this Court that you understood, in May of 1965, that the only lawyer that you could have as your lawyer was Mr. Sanders?
Mr. Feldman: Objection, your Honor. It is argumentative.
The Court: I will let him answer. Is that what you understood?
A. I didn't understand anything, to tell you the truth.
Q. You didn't understand anything?
A. I didn't understand anything.
Q. Were you aware of the existence, in May of 1965, of the Legal Aid Society?
A. I wasn't.
Transcript at 53-54.
Of course, Justice Marks was not bound to accept Williams' account. But the fact that the state judge explicitly based his finding on Williams' own testimony -- together with the fact that Smith did not articulate the rule on advising defendants of their right to appointed appellate counsel until after Justice Marks' decision -- certainly suggests that he did not intend his finding to include timely knowledge of the right to counsel.*fn14 Similarly, Justice Marks made no finding that Williams knew of the thirty-day time limit -- again, despite Williams' clear testimony that he did not.*fn15
In sum, we believe that there is substantial doubt that the state judge here, unaware of a legal standard yet to be announced, made any finding adverse to the petitioner on the critical questions of whether he had timely knowledge of his right to appointed appellate counsel or of the thirty-day time limit. We must, therefore, remand to the district court for an evidentiary hearing on these unresolved issues.
In so doing, we wish to note that only in a relatively small number of cases will a prisoner be able to raise a credible claim that he was not advised of his right to free appellate counsel. Since Smith v. McMann, the trial courts have routinely so advised convicted defendants at the time of their sentencing.*fn16 And even before Smith, the rules of practice and legal ethics raise a clear presumption that a defendant with ethical counsel was given such advice. Here, of course, petitioner's testimony and the subsequent disbarment of his attorney rebut that presumption and put the burden on the state to show that, as Smith v. McMann requires, the indigent petitioner knew, yet waived, his fundamental right to appointed appellate counsel.*fn17 If the state cannot meet this burden, the district court must act to restore petitioner's right to appeal.*fn18
Reversed and remanded for further proceedings in accordance with this opinion.
Reversed and Remanded.
MULLIGAN, Circuit Judge (dissenting):
The majority here holds that the New York State coram nobis proceeding is not dispositive because the judge who conducted the evidentiary hearing and wrote the opinion applied the wrong constitutional standard. The majority says that, in the fall of 1968, the state of the law in New York was such that "only a finding of official interference would restore lost appeal rights;" that Williams therefore "pinned his hopes" on his claim that prison officials interfered with his right to appeal; and that Williams' "lack of knowledge [of his appeal rights] and the malfeasance of his attorney" were largely irrelevant. Hence, the majority concludes that Justice Marks did not focus on the factual questions now in issue since they only emerged as critical subsequently, with the issuance of our opinion in United States ex rel. Smith v. McMann, 417 F.2d 648 (2d Cir. 1969) (en banc), cert. denied, 397 U.S. 925, 25 L. Ed. 2d 105, 90 S. Ct. 929 (1970). The argument runs that since the proper constitutional standard had not been articulated until after the state hearing and after the opinion of Justice Marks was filed, our state court brother could hardly have been able to apply it. If the majority is correct in this position, then I submit that the proper relief in this case is a dismissal of the petition rather than a remand to the district court for a further evidentiary hearing. This is so because, if the majority is correct in its analysis, the state court did not have a "fair opportunity" to consider the constitutional defect, and petitioner has thus not exhausted his state remedies. Picard v. Connor, 404 U.S. 270, 276, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); United States ex rel. Nelson v. Zelker, 465 F.2d 1121 (2d Cir.), cert. denied, 409 U.S. 1045, 34 L. Ed. 2d 497, 93 S. Ct. 544 (1972).
In Blair v. California, 340 F.2d 741 (9th Cir. 1965), the basis of petitioner's claim was, like that of petitioner Williams here, that his rights with respect to assigned counsel on appeal of his conviction in the state court had been denied. Blair had raised this claim in his state proceedings, but his contention had been rejected. In the federal habeas proceeding, Blair relied on Douglas v. California, 372 U.S. 353, 9 L. Ed. 2d 811, 83 S. Ct. 814 (1963), the seminal case which held that indigent defendants have a right to assigned counsel on appeal. Since Douglas was decided after the denial of his state claim, the circuit court held that his constitutional right to counsel had not been passed on by the state court, that he therefore had not exhausted his state remedies and that if he did not proceed within 90 days in the state court, his petition should be dismissed. This doctrine has been recognized in a number of other cases. See Donlavey v. Smith, 432 F.2d 940 (5th Cir. 1970) (per curiam); James v. Copinger, 428 F.2d 235 (4th Cir. 1970); United States ex rel. Sloan v. McMann, 415 F.2d 275 (2d Cir. 1969); United States ex rel. Walker v. Fogliani, 343 F.2d 43 (9th Cir. 1965); Comment, Habeas Corpus -- Effect of Supreme Court Change in Law on Exhaustion of State Remedies Requisite to Federal Habeas Corpus, 113 U. Pa. L.Rev. 1303 (1965). In Pennsylvania ex rel. Raymond v. Rundle, 339 F.2d 598 (3rd Cir. 1964) (per curiam), the court stated the basis upon which this doctrine rests:
[A] decent regard for the position and responsibilities of the state courts requires that they be afforded an opportunity to consider and decide these questions before the federal district court is called upon to do so.
Id. at 599.
The circuit court there simply dismissed the petition without conditions. The same result is mandated here if the majority thesis is sound.
If, on the other hand, the issue of Williams' knowledge or lack of knowledge of the thirty-day time limitation and the right to free counsel was squarely placed before the state court, I do not think that my brothers have here accorded the state court decision the respect to which it is entitled.
In Townsend v. Sain, 372 U.S. 293, 9 L. Ed. 2d 770, 83 S. Ct. 745 (1963), the Supreme Court stated that "the coequal responsibilities of state and federal judges in the administration of federal constitutional law are such that we think the district judge may, in the ordinary case in which there has been no articulation [of the governing legal standard], properly assume that the state trier of fact applied correct standards of federal law to the facts, in the absence of evidence . . . that there is reason to suspect that an incorrect standard was in fact applied." Id. 372 U.S. at 314-15, 83 S. Ct. at 758 (footnote omitted). The Court's recent reversal of this court in LaVallee v. Delle Rose, 410 U.S. 690, 93 S. Ct. 1203, 35 L. Ed. 2d 637 (1973) (per curiam) emphasizes our obligation to recognize the state courts as coequal and not inferior tribunals.
It is necessary to inquire as to what evidence my brothers in the majority find to overcome the presumption that the state court recognized the proper standard to be applied. The first claim is that the state court could not have known the proper standard because our opinion in Smith had not as yet been published. However, as we have pointed out, this mandates dismissal of the petition. Even if that were not so, I do not think that Smith is controlling here. The history of the right of the indigent to free counsel from Douglas to Smith is set forth in the majority opinion. It was not until Smith that a federal court held that, as a necessary corollary of Douglas, the State of New York had the obligation, even in 1965, to advise an indigent client of his right to assigned counsel. However, the New York Court of Appeals in People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130 (1969), in the words of the majority, put the burden of advising defendants of their appeal rights squarely on the state. This case was decided after the state coram nobis proceeding in this case but two months before Justice Marks rendered his opinion. Since it was a sharp departure from the prior practice of the state courts, which had placed the onus on trial counsel to advise convicted indigent defendants of their appellate rights, we must assume that the case did not escape the attention of an experienced state trial judge who was then bound to advise defendants of their rights to appeal as indigents. The majority, however, says that Montgomery "does not hold that, as part of their responsibility to an indigent with private counsel, a trial court must advise such a defendant of his right to different, appointed appellate counsel." Since this precise proposition was not before the Court of Appeals, it was of course not "held," but I cannot accept the conclusion that it was not necessarily implicit in the holding of the state court.
The Rules of the Appellate Division, First Department, in effect when Justice Marks rendered his decision and when he conducted the evidentiary hearing, specified that it was the obligation of trial counsel, retained or assigned to advise a defendant who was unable to pay the cost of an appeal of his rights to apply for leave to appeal as a poor person.*fn1 Montgomery shifted that burden from counsel to the court. I cannot assume that the burden on the court was any less than that which had been on counsel, and, therefore, the state court would have known that Williams was entitled to be advised of his right to free assigned counsel whether he had retained counsel on trial or not. The right of a defendant to be advised of his right to appeal as a poor person obviously does not depend upon some presumption that, since he could afford to retain trial counsel, he could afford appellate counsel and was stuck with him on appeal.*fn2 The distinction here proffered is too precious, and I cannot accept that Montgomery can reasonably be interpreted so academically. Judge Friendly, in his dissenting opinion in Smith, observed:
Today's ruling may not be of great practical importance with respect to New York prisoners in light of Judge Keating's sweeping language in People v. Montgomery . . . which the majority applauds.
417 F.2d at 659.
In any event, the State here does not contend that Williams was ever advised by the court or by counsel of his right to appeal as an indigent. The claim is made that, either at the detention center in New York City or at Sing Sing Prison, he was so advised by jailhouse lawyers and that therefore he knew of his rights. Smith makes it abundantly clear that the critical question in cases such as this is "was [the defendant] informed or did he know prior to the expiration of his time to appeal that he could appeal without cost to himself and with counsel appointed by the state?" 417 F.2d at 655 (emphasis added). See also United States ex rel. Roldan v. Follette, 450 F.2d 514, 516 (2d Cir. 1971); United States ex rel. Witt v. LaVallee, 424 F.2d 421, 423-24 (2d Cir. 1970) (en banc). Douglas held that the indigent defendant had the right to free counsel on appeal, and, while Montgomery and Smith held that the obligation to advise the indigent rests on the State, the position of the State here is that, if in fact Williams knew that he had the right to free counsel, the question of whether or not he was officially advised is irrelevant.
To establish that Justice Marks did not focus on Williams' right to free counsel on appeal, the majority emphasizes the last sentence of the pertinent portion of his opinion. He held that Williams' ignorance of his right to appeal as a poor person was cured when he arrived at Sing Sing Prison on May 12, 1965. The court stated: "Defendant testified to this at the hearing." But, says the majority here, Williams denied at his state evidentiary hearing that he knew he could have any counsel on appeal other than his retained trial counsel. Reference is then made to the coram nobis hearing, in which Williams did testify: "I didn't understand anything, to tell the truth." Justice Marks, who not only had the opportunity to observe the defendant at the evidentiary hearing, but also was the judge at trial, during which Williams was independently identified as a rapist by four of his victims, obviously had the right to find this testimony incredible. Williams' story that he was denied stamps to mail his notice of appeal was demonstrated to be a total fabrication, and this placed his credibility seriously in doubt. Moreover, the state judge was not required to articulate credibility findings in his opinion. LaVallee v. Delle Rose, supra, 410 U.S. at 692.
Williams further testified that he did know from jailhouse lawyers that he could appeal "without paying any money." The majority interprets this as an admission only that he knew he could appeal without paying court costs. He did know something of significance, therefore, even on the assumption of the majority. Since any prisoner knows that the major and primary cost of an appeal is counsel fees, I cannot agree that his answer is susceptible to the limited interpretation of the majority. Justice Marks could well have found that his answer meant what it said, and that when Williams testified that he knew he could appeal without paying money, he meant free counsel as well as free costs. It certainly does not fulfill the petitioner's burden "to establish in the District Court by convincing evidence that the state court's determination was erroneous." LaVallee v. Delle Rose, supra, 410 U.S. at 695 (emphasis added).
The majority's only other evidence that Justice Marks did not address himself to Williams' right to free counsel on appeal is the language of his opinion finding that Williams knew of his right to appeal as "a poor person." This is found to be linguistically equivalent to " in forma pauperis," and, it is said, since the broad right to free counsel on appeal was only enunciated in Smith, the state court's use of the poor person terminology could not have been intended to indicate a finding that Williams knew his appeal rights had to be exercised within thirty days and included free counsel.*fn3 This is pure petitio principii. Douglas had already enunciated the rights of an indigent on appeal and Montgomery was the precursor of Smith.
Aside from this, the majority must assume that Williams' claim was that he did not know of the time limit or the free appeal (else we must dismiss for lack of state exhaustion of remedies). How can we assume that the coram nobis judge did not address himself to those contentions? On the contrary, the following colloquy between Williams' counsel and Justice Marks indicates that he did:
And it is claimed he was denied his constitutional rights to counsel.
And may I further submit that the fact that the defendant may have been informed about certain of his legal rights does not necessarily mean that he knew that he had a right to appeal, that he had a right to appeal as a poor person, and that he had 30 days in which to file a notice of appeal.
THE COURT: Those are the questions which the Court will have to try.
The majority properly insists that as a matter of law, logic and reality, an indigent needs three distinct pieces of information 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 in thirty days.*fn4
I totally agree. It is so clearly logical that it could not have escaped the attention of the state court.*fn5
I respectfully dissent.