Lumbard, Chief Judge, Medina, Senior Circuit Judge,*fn* Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Medina, Senior Circuit Judge (with whom Judges Smith, Kaufman, Hays, Anderson and Feinberg concur). Waterman, Circuit Judge (concurring and dissenting). Friendly, Circuit Judge (dissenting) (with whom Lumbard, Chief Judge, and Moore, Circuit Judge, join).
MEDINA, Senior Circuit Judge (with whom Judges Smith, Kaufman, Hays, Anderson and Feinberg concur):
Joel Smith, a New York State prisoner, was convicted in the former New York County Court, Kings County, of manslaughter in the first degree. On October 28, 1959, he was sentenced to a term of imprisonment of from 10 to 20 years. He filed no notice of appeal. At the time of trial he was 16 years old and was represented by counsel retained by his parents. He now appeals from an order of Judge Mishler of the United States District Court for the Eastern District of New York, dismissing without a hearing the prisoner's application for a writ of habeas corpus. As we construe Smith's claim it is that he was denied the equal protection of the laws in that he was deprived of his right to appeal from his judgment of conviction because he was indigent and did not know nor was he informed by anyone of the fact that he could prosecute an appeal at the expense of the state. We find that Smith was indigent at the time sentence was imposed. As the evidence is conflicting relative to Smith's knowledge that he could prosecute an appeal at the expense of the state and this issue was not resolved by Judge Mishler, the case is remanded with directions.
Procedural and Decisional Background
On March 18, 1963 the Supreme Court handed down six decisions which ushered in a new era in criminal procedure for both the federal and the state courts.*fn1 Of these the one most pertinent to the case before us is Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963). There indigent defendants had been denied counsel on appeal because the court below stated it had "gone through the record" and had reached the conclusion that "no good whatever could be served by the appointment of counsel." The decision is broadly based and requires that counsel on appeal be afforded by the state regardless of the merits of the case. And per curiam on June 22, 1964 the Supreme Court gave the rule of Douglas v. California retroactive effect.*fn2
The notion that the state should be held responsible for the appointment of counsel to defend indigent persons charged with crime is of ancient vintage. But the concept of responsibility for the appointment of counsel to prosecute a criminal appeal by an indigent after conviction of crime developed more slowly. Many typical fact situations had engaged the attention of the courts prior to the date of the decision of Douglas v. California.
Despite early judicial statements to the general effect that a failure to serve or file a timely notice of appeal was a fatal and jurisdictional defect, the courts prior to the decision of Douglas v. California were groping for some formula that would provide relief to an indigent person convicted of crime who had failed to take a timely appeal. As the question generally arises in connection with state coram nobis and federal habeas corpus proceedings, the poorly drafted petitions were often confusing and the fact situations presented are of seemingly endless variety. But there is the common theme of a conversation between the convicted indigent defendant and his assigned or retained lawyer, sometimes in the presence of the sentencing judge, often concerning the expense of an appeal, and attempts to get money from the families, with more or less explicit indications by the convicted defendant that he desired to appeal or would appeal if he had the money to do so. Occasionally the lawyer stated that he thought the chances of reversal were so slim that he could not recommend an appeal. In some cases the prisoner asserted that he had told his lawyer to take an appeal but no notice of appeal had been served or filed.
The case of Joel Smith now before us is one of this class of cases. We shall discuss the evidence in some detail later. But it so happened that there were two other similar but not identical cases going through the New York courts at the same time that Joel Smith filed his first coram nobis petition seeking relief on the ground that he had been unconstitutionally deprived of his right of appeal. And these particular two cases in the course of time seriously and adversely affected the decision of Smith's claim by the New York courts, and by a curious turn of fate, they also affected the decision by this Court in United States ex rel. Bjornsen v. LaVallee, 364 F.2d 489 (1966), cert. denied, 386 U.S. 998, 87 S. Ct. 1313, 18 L. Ed. 2d 351 (1967), principally relied on by Judge Mishler below.
The two cases to which we refer were People v. Marchese, in which the New York Appellate Division of the Supreme Court, Second Department, affirmed on July 1, 1963 an order denying Marchese's petition for coram nobis without a hearing, 19 A.D.2d 728, 242 N.Y.S.2d 464, and People v. Kling, in which the same Court on July 8, 1963 affirmed an order denying Kling's petition for coram nobis without a hearing, 19 A.D.2d 750, 242 N.Y.S.2d 977. In Marchese the petition asserted that the retained lawyer had agreed to file a notice of appeal but had not done so. In Kling the petition alleged a request to assigned counsel to file a timely notice of appeal and a promise to do so, but no appeal had been taken. The reasoning of Marchese was that "the failure to file a timely notice of appeal was attributable to defendant's retained attorney and not to the law-enforcement agencies of the State." In Kling the reasoning was: (1) that the acts complained of were not those of the state; (2) that there was no showing of reversible error; and (3) that the authority of assigned counsel ceased with the entry of the judgment of conviction.
We return to Smith. Doubtless with the aid of his fellow prisoners Smith began a number of futile coram nobis proceedings, all of which were denied without a hearing and the details of which are not before us. Then, and still before the Supreme Court handed down its decision in Douglas v. California, Joel Smith hit upon the claim, more or less confusingly stated, that he was indigent and was not told by his lawyer or anyone else that he could appeal at the expense of the state. This petition for coram nobis was denied by the former New York County Court, Kings County, without a hearing, on August 9, 1962. His appeal from this first coram nobis rejection was decided by the Appellate Division, Second Department, on July 1, 1963, 19 A.D.2d 728, 242 N.Y.S.2d 709, and the dismissal was on the authority of the decision handed down by that same Court in People v. Marchese on the same date. The three cases -- Marchese, Joel Smith and Kling -- then proceeded pari passu to the New York Court of Appeals, where Kling was affirmed on February 27, 1964 and Smith and Marchese both were affirmed on the same day, April 30, *fn19643, but with three distinguished judges dissenting in each of the three cases: Chief Judge Desmond, and Judges Fuld and Bergan. It is interesting to note that this action was taken by the New York Court of Appeals only shortly before the Supreme Court held on June 22, 1964 that Douglas v. California was to be applied retroactively. Smith v. Crouse, supra, footnote 2, 378 U.S. 584, 84 S. Ct. 1929, 12 L. Ed. 2d 1039.
On May 17, 1965 applications for writs of certiorari were denied by the Supreme Court in all three cases: 381 U.S. 910 and 920, 85 S. Ct. 1540, 1539, 14 L. Ed. 2d 436, 440. The action taken in Marchese was unanimous. In Kling and in Smith Mr. Justice Douglas noted his view that certiorari should have been granted. Thus, so far as we are aware, there was a final disposition of Smith's first coram nobis proceeding. These denials of certiorari, however, by no means represent any view of the Supreme Court on the merits of the constitutional claims asserted on Smith's behalf. See, e.g., Brown v. Allen, 344 U.S. 443, 489-497, 73 S. Ct. 397, 97 L. Ed. 469 (1953); Sunal v. Large, 332 U.S. 174, 181, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947); United States v. Carver, 260 U.S. 482, 490, 43 S. Ct. 181, 67 L. Ed. 361 (1923).
In the meantime, on July 30, 1964, and after Douglas v. California had been given retroactive application, Joel Smith filed his second coram nobis proceeding in the New York Supreme Court, Kings County. This is the proceeding now before us. In the petition Joel Smith again asserted that he had been deprived of his right of appeal because of the delinquency of his counsel, but he coupled this allegation with a new claim that his right to appeal had been frustrated by the refusal of the prison authorities to permit him to use law books until after the time to appeal had expired. On January 4 and 11, 1965, a full hearing was conducted by New York Supreme Court Justice McDonald. It was held that the decision by the Court of Appeals on the first coram nobis proceeding disposed of the charge that his counsel had failed to file the notice of appeal, and, on amply sufficient testimony by a prison official, it was in effect held that petitioner had not been denied the use of law books. The petition was dismissed. At the hearing, however, it became clear that Joel Smith was indigent at the time sentence was imposed on October 28, 1959; and there was a conflict in the testimony of Joel Smith and attorney Pelcyger on the critical issue of whether or not Joel Smith knew that he could appeal without expense to himself. As Joel Smith then became dissatisfied with the services of the Legal Aid Society, and the Appellate Division refused to assign other counsel, Joel Smith presented his case to the Appellate Division and to the Court of Appeals, pro se, with the result that he lost in all the New York State courts and thus he exhausted his state remedies in connection with the second coram nobis proceeding.
And so we come at last to the petition for habeas corpus that was denied without a hearing by Judge Mishler by the order now before us for review. This petition squarely raises the claim of violation of constitutional rights by denying equal protection of the laws because Joel Smith was indigent at the time of sentence and took no appeal because he did not know and was not told that he could take an appeal at the expense of the state. Judge Mishler's order of dismissal is dated June 16, 1967.
This brings us to a consideration of the progress through the New York courts of Bjornsen's case, which culminated in the decision of this Court, United States ex rel. Bjornsen v. LaVallee, 364 F.2d 489 (1966), cert. denied, 386 U.S. 998, 87 S. Ct. 1313, 18 L. Ed. 2d 351 (1967). This is one of the decisions principally relied upon by Judge Mishler in deciding the case now before us*fn4
Bjornsen was sentenced in a New York court in 1952. His application for coram nobis, was based upon an allegation that he asked a friend to speak to his assigned counsel "about an appeal" and the friend was told by assigned counsel "that there was very little chance of success in the matter." No appeal was taken. The dismissal of the coram nobis proceeding on November 4, 1963 was based upon the Appellate Division holdings in Marchese and Kling. People v. Bjornsen, 40 Misc.2d 986, 244 N.Y.S.2d 551 (Sup.Ct.N.Y. County). This case reached our Court some three years later via an application for habeas corpus and the dismissal of the writ by Judge Foley in the Northern District of New York was affirmed on the ground that Bjornsen "never asked anyone representing the State for advice on his right to appeal or for assignment of counsel on appeal, and never informed any representative of the State of his desire to appeal." This reflected the reasoning of Marchese and Kling. The Per Curiam of this Court added the comment (364 F.2d at pages 490-491):
His claim of constitutional deprivation necessarily rests on the assertion that the State had an affirmative obligation to advise him of his right to appeal and of the procedure to enforce that right.
It is interesting to note that, after working its way through the New York courts, Bjornsen's application to the Supreme Court for certiorari was denied on May 17, 1965 (381 U.S. 917, 85 S. Ct. 1544, 14 L. Ed. 2d 437), the same day on which similar ...