Staley, Chief Judge, Biggs and Hastie, Circuit Judges. Biggs, Circuit Judge (dissenting). On Rehearing: Hastie, Chief Judge, and McLaughlin, Kalodner, Staley, Freedman, Seitz and Van Dusen, Circuit Judges.
This is an appeal from the denial of appellant's writ of habeas corpus by the United States District Court for the District of New Jersey. This court fully considered all the points now raised by appellant on the occasion of his first appeal to this court, United States ex rel. Smith v. State of New Jersey, 322 F.2d 810 (C.A.3, 1963), and we consider that opinion dispositive.
Appellant, however, urges that his rights must now be considered in the light of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). The short answer to this contention is that the entire court considered this proposition on the first appeal. Townsend v. Sain was decided after the argument on Smith's first appeal, but before the case was decided and before the denial of Smith's petition for rehearing en banc by the majority of the entire court. Indeed, one of Smith's bases for requesting rehearing en banc was that Townsend v. Sain required this court to remand the case for a plenary hearing, and Smith's petition recites that "When Townsend v. Sain was decided, after the oral argument of this case, counsel advised this court by letter that appellant would rely on that case with regard to his right to a full hearing." Thus both the original panel and the entire court considered the application of Townsend v. Sain to this case on the first appeal.
Moreover, it is clear that Townsend v. Sain is simply not relevant to this case now, nor was it on the first appeal because Smith was offered an evidentiary hearing on the first petition for a writ in the district court, and he rejected the offer. The record of this proceeding shows that the district court was very concerned that the record before it be full and complete and that Smith have every opportunity to put in the record all that he thought essential:
THE COURT: "Let me say this. There may have been some misunderstanding on our last discussion, but it was my thought, and I think I initiated the idea that I didn't want counsel on the side of the defendant, or the side of the state or anybody involved in this case feeling dissatisfied with the state of the record; that I wanted this record to be as complete as you thought it should be. * * * I just wanted everybody to be satisfied that they had, so far as they were concerned, this record in complete form so that here and later and wherever you may go, whoever takes the initiative of going from here to somewhere else would not be called upon to argue that this is incomplete and this matter really hasn't been heard as yet."
Later on in the same proceedings, Smith's then-attorney stated:
" The United States Supreme Court says your Honor may hold a hearing de novo if need be to go into the historical facts behind this case. I don't think it is necessary here. I think if your Honor limits himself to the record, I think that the error, the fundamental constitutional error in this case is so overwhelming that I need not stand here and argue this case at any great length.
"Now, if we understand each other, so there will be no mistake about it, we rely solely and wholly upon this amendment and supplemental petition your Honor now has before you with the exceptions that I noted at my last appearance of Exhibit C attached to the original petition, which is the excerpts of the statutes. * * * With that addition, I say we rely solely upon this amended and supplemental petition. * * *" (Emphasis supplied.)
Thus there can be no doubt that the district court offered, and Smith's counsel rejected, an evidentiary hearing.
The order of the district court will be affirmed.
The petition for rehearing in this case has been considered and presents no new argument. A majority of the circuit judges in regular active service not having voted for rehearing in ...