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June 23, 1976

UNITED STATES of America ex rel. David MITCHELL, Petitioner,
J. E. LaVALLEE, Superintendent, Clinton Correctional Facility, Respondent

The opinion of the court was delivered by: STEWART

STEWART, District Judge.

 Petitioner, David Mitchell, alleging several constitutional deficiencies in his trial and subsequent conviction of robbery in the first degree, grand larceny in the third degree, burglary in the second degree, possession of a weapon, and criminal trespass in the first degree, seeks a writ of habeas corpus. In a memorandum decision of January 13, 1976, we dismissed Mitchell's Eighth Amendment claim for failure to exhaust state remedies, his due process claim on the merits, and ordered a hearing on the question of whether Mitchell's assigned attorney provided ineffective assistance. We appointed Lawrence Stern, Esq. *fn1" to represent Mitchell and a hearing was held on April 21, 1976.

 In its post hearing brief, the state renewed its argument that Mitchell, who had filed a previous petition for habeas corpus relief, had not met the burden of establishing that he has not abused the writ by deliberately withholding the claim of ineffective representation in his earlier petition. See 28 U.S.C. ยง 2244 and Johnson v. Copinger, 420 F.2d 395 (4th Cir. 1969). The state raised this issue previously in its petition for reargument; we reaffirm our conclusion that it would not be in the interests of justice to deny petitioner's application on the grounds that he had raised related claims earlier.

 Mitchell's previous writ application, made without the benefit of counsel, was denied without an evidentiary hearing. *fn2" A review of that handwritten petition reveals that Mitchell attempted to present seven alleged deficiencies, or "points of issue", which he claimed invalidated his conviction. In "point two", Mitchell protested the trial court's reappointment of the same attorney after Mitchell had discharged him for alleged negligence. Thus, we cannot find that Mitchell deliberately withheld a claim in order to bring it in a later writ if the first proved unsuccessful. Rather, it is more likely that Mitchell attempted to raise questions concerning his counsel's representation but failed to adequately bring them to the district court's attention because he inartfully coupled the counsel argument with a claim that the trial court had acted unlawfully by permitting a sworn juror to withdraw without Mitchell's consent. [See pp. 8-9 of 1971 petition]. Thus, we conclude that Mitchell did not improperly and deliberately withhold his ineffective assistance of counsel claim, that the first application does not have a res judicata effect because there was not a full presentation of the issue [ Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963)], *fn3" and that we may proceed to adjudicate the question.

 We turn now to the merits of Mitchell's claim that he was denied effective assistance of counsel. As discussed in our earlier opinion, Mitchell contends that his trial counsel, Emanual Molofsky, "never did adequately prepare a proper defense in his failure to contact relevant material witnesses whose names were given to him, to testify on [Mitchell's] behalf." [Petition for Writ of Habeas Corpus, p. 5]. At the hearing of April 21, 1976, *fn4" Mitchell gave the following explanation of what occurred in 1968.

 Mitchell, a native of Trinidad, who worked as a merchant seaman, arrived in the United States in February of 1967. [H., p. 16]. In July of 1968, he was employed on the night shift at Drake's Bakery; during the days he went to the National Maritime Union Hall, located at 13th Street and Seventh Avenue. [H., pp. 17-18]. On July 21, 1968, he met a Jamaican friend, Kenny Burrell, and accompanied him to a local bar. [H., pp. 19-20]. Burrell told Mitchell that he had access to marijuana and suggested that Mitchell could get some from him. Burrell wrote his address, 157 Christopher Street, on a piece of paper and gave it to Mitchell. [H., pp. 20-21]. At midafternoon on the following day, July 22, 1968, Mitchell went to 157 Christopher Street and rang "three bells", as instructed [H., p. 22]. A young woman (later identified as Laura Gleason) answered, heard Mitchell request Kenny, asked Mitchell what he wanted with Kenny and told him to wait. [H., p. 23]. Mitchell went upstairs; the woman told him that "no Kenny live here" and "proceeded to slam the door." [H., pp. 24, 67]. Mitchell "stopped" the door and then the woman began to scream.

 Mitchell left the apartment building; on the street he was stopped by a man (later identified as Edward Murphy) and questioned. [H., p. 26]. Mitchell pulled out the paper with Burrell's address and began to explain. At that point, the police arrived and took Mitchell to the Gleason apartment; the police searched Mitchell, took the paper with Burrell's address, and then brought Mitchell to the precinct house, where he was charged. [H., pp. 26-27].

 Since July 22, 1968, Mitchell has been incarcerated, first spending 15 months awaiting trial and then, after conviction, serving his sentence of from 16 years, 8 months to 50 years.

 When first arraigned, Mitchell was represented by an attorney from the Legal Aid Society, whose name he cannot recall. [H., pp. 44, 46]. At later court appearances, Mitchell was represented by other Legal Aid attorneys. [H., pp. 47-48]. Mitchell saw these attorneys only when they appeared for court adjournments, and Mitchell did not have an opportunity to discuss the defense of his case with them. At one point, Mitchell attempted to retain a private lawyer, Louis Berko [H., p. 56] but after Mitchell was unable to pay the fees, Legal Aid was again assigned. [H., p. 52]. Legal Aid was subsequently relieved on their own motion [H., p. 55] and then, sometime in the late fall of 1968, Mitchell received a letter informing him that Emanual Molofsky, a private attorney compensated by the state, had been assigned to represent him. [H., p. 27].

 Mitchell first met Molofsky one week before trial. [H., p. 59]. The meeting, which involved only an introduction, lasted less than 5 minutes. [H., p. 28]. Mitchell's second meeting with Molofsky occurred the day of the identification ("Wade") hearing, when there was again no opportunity to discuss the case. When Mitchell was told by Molofsky that his trial was to begin, Mitchell protested to Molofsky that Molofsky knew nothing about the case. [H., p. 30]. Nevertheless, the trial proceeded. During the trial, Mitchell had brief conversations with Molofsky; they discussed a plea bargaining offer of ten years which Mitchell refused. Mitchell also requested that Molofsky find his friend, Kenny Burrell, and get him to come and testify. [H., pp. 31-33]. Later in the trial, Molofsky, without explaining the reasons, advised Mitchell not to testify on his own behalf. [H., p. 33]. During the two weeks of the trial, all conversations between Mitchell and Molofsky occurred in the courtroom [H., p. 33]; at no time did Molofsky visit Mitchell at the Manhattan Detention Center where Mitchell was detained. [H., p. 33].

 Emanual Molofsky also testified at the habeas hearing. Molofsky stated that he was admitted to the New York bar in 1955 and had practiced before both the state and federal courts. Until May of 1975, when Molofsky became seriously ill, he did criminal trial work and had tried some 50 to 75 jury cases. Before the habeas hearing, Molofsky had reviewed Mitchell's trial minutes briefly to refresh his memory, but Molofsky had almost no present recollection of either David Mitchell or his trial. [H., p. 12]. Molofsky "believed" that he had represented Mitchell [H., p. 6] but could not recall the specifics of the charges against Mitchell [H., p. 7], whether Mitchell had given him any witnesses' names [H., p. 8], or whether Mitchell had protested about the adequacy of representation [H., p. 10]. However, Molofsky stated that it was his "general practice" to interview witnesses personally [H., p. 9], and he assumed he had done so for Mitchell's case. Molofsky did not bring any files or records of the Mitchell case to the habeas hearing.

 In contrast to Molofsky's unsupported assertions that he adequately prepared for Mitchell's case as he had for all others, Mitchell's credible testimony about the lack of communication with Molofsky is supported by the trial transcript. Before the commencement of the trial, Molofsky, speaking for Mitchell, told the trial judge, the Hon. George Postel, that Mitchell wanted Molofsky discharged. [T., p. 25]. The trial court asked no questions to find out Mitchell's reasons but stated only that Mitchell had the choice of proceeding pro se or with Molofsky. [T., pp. 25-37]. Mitchell continued to protest during the jury selection and, after repeated warnings from the court to stop interrupting, Mitchell was bound and gagged. [T., p. 42]. On the second day of jury selection, Justice Postel met with counsel and the defendant in chambers. Mitchell told him that:

"Your Honor, I have made several applications before you asking for Mr. Molofsky to be withdrawn from the -- The reasons for that, is, as I have said before. I may be wrong about Mr. Molofsky, you understand. If I am wrong about him, well, that I don't know, but your Honor I would like Mr. Molofsky to be withdrawn from the case, because I feel personally that Mr. Molofsky don't know that kuch [sic] about the case.
Mr. Molofsky has interviewed me twice, whereas we spoke very little about the case. Mr. Molofsky has no papers pertinent to my case. I have no minutes -- no nothing whereof ...

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