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UNITED STATES EX REL. WASHINGTON v. MARONEY

October 18, 1968

UNITED STATES of America, ex rel. William Fairfax WASHINGTON, C-5501, Petitioner,
v.
James F. MARONEY, Superintendent State Correctional Institution, Pittsburgh, Pennsylvania, Respondent



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 In his petition for a writ of habeas corpus, the relator, William F. Washington, challenges the validity of his present confinement in the State Correctional Institution at Pittsburgh, Pennsylvania. In 1959 in the Criminal Court of Allegheny County, at a non-jury trial, he was convicted of four counts of armed robbery, one count of burglary, and three counts of aggravated assault and battery. *fn1" He received four concurrent sentences of 10 to 20 years on the robbery indictments, *fn2" one consecutive sentence of 2 1/2 to 5 years on the burglary indictment. Sentence was suspended on the aggravated assault and battery indictments "on payment of costs of prosecution by reason of sentence imposed at" a robbery indictment.

 The grounds on which relator seeks relief are: (1) denial of effective and adequate representation by counsel; (2) coerced confession admitted into evidence at trial; (3) his Legal Aid attorney would not file an appeal; and (4) adverse ruling of the Pennsylvania Supreme Court.

 In our opinion, the petition for the writ should be denied.

 Ground 4 affords relator no basis for relief; it is not the function of a District Court to determine whether the Pennsylvania Supreme Court may have erred in reaching its conclusions. Cf. United States ex rel. Almeida v. Rundle, 383 F.2d 421, 426 (3d Cir. 1967).

 The first ground is the only one pressed by relator at the hearing in this court. It was the main ground pressed in the State habeas hearing (State habeas Tr., pp. 4-6). As factual support he averred in his petition that he saw counsel "one minute" before the commencement of trial. At the hearing in this court he testified "one moment" (T., pp. 31, 38, 51, 63), explaining he meant "one minute" (T., p. 39). In his State habeas petition, he stated several times that his attorney had only a "few minutes" to discuss the case with him.

 Relator's testimony in this respect is incredible.

 The relator had no recollection of the details of the two meetings with the investigator in the county jail (T., pp. 55-56, 58-63, 66-68; State habeas Tr., pp. 68-78, 80-84, 86). His recollection of the events preceding his trial is so utterly dim that we find as a fact that he does not accurately recall how long he discussed his defense with his trial lawyer. He signed a "Waiver of Trial by Jury" which together with explanation thereof, alone, would have taken five or ten minutes (T., p. 108).

 Although trial counsel, supplied at the expense of the United Fund, had no recollection of the length of time he had to prepare for trial and discuss the case with relator, his practice in Legal Aid cases was to try them as he did his own cases (T., pp. 133, 144), read the investigator's report, interview the accused, and advise him whether or not to waive a jury trial. If he followed his practice, he would have spent more than one-half hour in preparation (T., p. 108).

 On November 27, 1967, the Legal Aid Society, a United Fund organization (T., p. 91), undertook to aid relator. Since the trial was held on December 10, 1957, this is not a case of hasty or late appointment of a defense lawyer by a court. There is no record that the Legal Aid attorney who tried the case was appointed by the Court. None of the State Court judges mention that relator's trial counsel was court-appointed. Ordinarily, cases are referred to Legal Aid by a court clerk or taken on application of an indigent prisoner (T., pp. 92, 117).

 The evidence discloses that Legal Aid undertook and began an investigation of relator's cases 13 days before trial. Relator was interviewed by an experienced social worker employee of the Society on two occasions (T., p. 51). She made notes on the forms utilized for trial preparation (Ex. 4). They set forth relator's biographical data; the facts of the alleged crimes; and that relator desired a jury trial because he "wants to make pros. prove their case". They further set forth the date of trial, date of arrest, the charges, names and ages of his codefendants, Alvin Dixon and William Balser, names of their attorneys, and the names of the victims. The notes stated that relator had no defense witnesses; that he had a prior record; that he had signed a statement as to the burglary charge "because pros. wore him out -- wishes to retract"; and that codefendants confessed and pleaded guilty to the robberies, but not to the burglaries. The facts of apprehension were quoted from a newspaper clipping.


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