Before BIGGS, Chief Judge, and FORMAN and GANEY, Circuit Judges.
This is an appeal by Anthony Palumbo from a single order by the United States District Court for the District of New Jersey denying his two petitions for writs of habeas corpus*fn1
On January 22, 1962, Palumbo filed a petition for habeas corpus in the District Court. It alleged that his conviction, on retrial, of May 29, 1959, in the Hudson County Court of New Jersey for armed robbery and the use of firearms under indictment 631 violated his constitutional protection against double jeopardy*fn2
On January 28, 1963, Palumbo filed a second petition in the District Court. It alleged that his plea of guilty on January 11, 1956 in the Hudson County Court for armed robbery under indictments 632 and 720 violated his constitutional protection of fundamental justice under the fourteenth amendment. He specifically contended, moreover, that the Hudson County Court failed to provide him with the assistance of counsel.
Palumbo is presently imprisoned under the sentence he received for his guilty plea to indictments 632 and 720*fn3 His sentence for conviction under 631 will begin at the completion of his present incarceration*fn4
The District Court has the power to consider the merits of a habeas corpus petition that challenges present custody*fn5 But it does not have the power to consider the merits of a habeas corpus petition attacking conviction on which the service of sentence has yet to commence*fn6
Accordingly, the District Court incorrectly entertained consideration of the merits of Palumbo's habeas corpus petition challenging the validity of his conviction under indictment 631. We, nevertheless, affirm the dismissal of this petition, but solely on the ground that the District Court was without requisite jurisdiction to consider the matter. Palumbo, in fact, has based his appeal exclusively on disagreement with the refusal of the court to grant his petition for the writ on sentences received on indictments 632 and 720*fn7
Thus, before us for determination is the sole question whether the decision of the District Court - that Palumbo waived his right to counsel when he pleaded guilty to indictments 632 and 720 - is in error*fn8
The pertinent facts and circumstances concerning his convictions on these two indictments are: On June 17, 1955, Palumbo and co-defendant Harry Wines pleaded not guilty to indictments 631 and 632, and on October 7, 1955, they pleaded not guilty to robbery indictment 720.
The Hudson County Court appointed Thomas J. Armstrong, Esquire, to represent Palumbo and John J. Flaherty, Jr., Esquire, to represent Wines on indictment 631. On November 24, 1955, a jury found them guilty of that charge*fn9
Following Palumbo's defense on indictment 631, his attorney in that case, Mr. Armstrong, received a letter from the Hudson County Prosecutor asking him to defend Palumbo on armed robbery indictments 632 and 720. He went to the office of the Prosecutor in Hudson County and advised one of the assistant prosecutors that there had been no assignment of these cases to him by the court.
Mr. Armstrong, notwithstanding his lack of assignment, felt that it was his duty to visit and interview Palumbo at the Hudson County Jail. Yet, while conversing with the imprisoned Palumbo, he told him that he had not been assigned to defend him on indictments 632 and 720.
Subsequently, Mr. Armstrong received another communication from the Prosecutor, advising him that the two cases concerning Palumbo would soon be up for trial. He again visited the jail and there suggested to Palumbo that since he was not his attorney, Palumbo should obtain one.
Mr. Armstrong, nevertheless, appeared in court with Palumbo on January 11, 1956. In addition, Mr. Flaherty accompanied Wines. At the commencement of the proceedings, the court observed:
"The record will note that Mr. Thomas Armstrong appears for the defendant Palumbo and Mr. Jack Flaherty or John J. Flaherty is appearing for Wines."
Mr. Armstrong requested that the record show that Michael Breitkopf, Esquire, had appeared in the case, although he understood Mr. Breitkopf had filed no formal appearance in the office of the prosecutor, and hence, had received no official notice of Palumbo's present appearance. Nonetheless, he pointed out that he ...