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December 2, 1968

UNITED STATES of America ex rel. James KIMBROUGH
Alfred T. RUNDLE, Superintendent

The opinion of the court was delivered by: MASTERSON

 MASTERSON, District Judge.

 On March 25, 1957, the Court of Quarter Sessions of Delaware County, Pennsylvania, sentenced the relator, James Kimbrough, to a term of five to fifteen years imprisonment at the State Correctional Institution at Graterford, Pennsylvania. In 1968, almost eleven years after his conviction, the relator petitioned this Court pursuant to Title 28 U.S.C. § 1915 for leave to proceed in forma pauperis for the purpose of seeking a writ of habeas corpus under Title 28 U.S.C. § 2241 et seq. On January 24, 1968, this Court granted the relator leave to proceed in forma pauperis. For reasons discussed below the relator's petition for a writ of habeas corpus is granted.

 The relator was indicted for the offenses resulting in his current imprisonment on December 7, 1956, by Bill of Indictment Number 480, of the March Sessions, 1957, of the Court of Quarter Sessions, Delaware County, charging him with one count of burglary and larceny in violation of the Act of 1939, June 24, P.L. 872, § 901, 18 P.S. § 4901. Although the record does not contain any other original bill of indictment, the transcript of the relator's trial indicates that in December, 1956, he was indicted in Bill of Indictment Number 479, for Obstructing an Officer in the Execution of Process in violation of the Act of 1939, June 24, P.L. 872, § 314, as amended by the Act of 1943, May 21, P.L. 306, § 1, 18 P.S. § 4314.

 Some time between December, 1956, and March, 1957, the relator was arrested under circumstances which have never been clarified aside from the reference at his trial to the effect that he "* * * was apprehended at his home by the Philadelphia police." (Trial Transcript, N.T. p. 6). The relator was arraigned on March 6, 1957, and pleaded not guilty to both charges. He was not represented by counsel at the arraignment, but evidence presented at the hearing conducted on the present habeas corpus petition suggests that the Judge presiding at the arraignment told him to "* * * get his own lawyer." (Habeas Transcript, N.T. p. 10). He did not retain counsel between the arraignment and the date of his trial.

 On March 25, 1957, the relator was brought to trial before the Court of Quarter Sessions of Delaware County, Pennsylvania. A jury was sworn and, immediately thereafter, the Assistant District Attorney of Delaware County commenced his opening statement. Although the relator evidently had appeared for trial that morning without counsel, some time during the morning the court had appointed an attorney from the Voluntary Defenders Office to represent him. It is not clear precisely when counsel was appointed, but it is certain that he was not appointed prior to the day of trial, and it is likely that he was appointed initially after the selection of the jury and only immediately prior to the prosecutor's opening statement. (Habeas Transcript, N.T. pp. 13-16).

 During the prosecutor's opening statement defense counsel conferred with him and then both attorneys conferred with the Judge. After this side-bar conference the prosecutor informed the Judge in open court that the defendant wished to change his plea to a plea of guilty. The Commonwealth then called as its only witness Officer Charles F. Reaps of the Police Department of Springfield Township, Delaware County, to testify to the circumstances of the offenses.

 Officer Reaps testified that he had apprehended the relator early on the morning of December 7, 1956, while he was walking along a highway "* * * in a suspicious manner". (Transcript of Trial, N.T. p. 3). The officer questioned the relator about his presence at this location and, after having received unsatisfactory responses, he decided to place him under arrest. The relator resisted the arrest, however, struck Officer Reaps on the head with a radio allegedly stolen during the course of the burglary, and fled. *fn1"

 The relator's court-appointed counsel did not cross-examine Officer Reaps. He left unexplained the circumstances of the relator's arrest in Philadelphia, and the circumstances of the search which had produced the radio which was introduced as evidence at trial. Counsel did not produce any evidence on the relator's behalf. As far as the trial transcript indicates, counsel took no part in the sentencing proceedings except to ask the relator, "Is there anything you want to say to the Judge?" (Trial Transcript, N.T. p. 8).

 After satisfying himself that the relator's plea of guilty was voluntarily made, the Judge sentenced him to a term of five to fifteen years imprisonment on Bill of Indictment No. 480, and suspended sentence on Bill of Indictment No. 479. The relator did not appeal his conviction, but instead commenced serving the sentence which he challenges here. *fn2"

 In 1967 the relator filed a petition for post-conviction relief with the state trial court. In his petition he alleged that he had been deprived of the effective assistance of counsel, that his plea of guilty was unlawfully induced, and that he had been denied his right to appeal. By an opinion and order dated July 6, 1967, the state court denied his petition without a hearing. This Order was affirmed by the Superior Court of Pennsylvania in a per curiam Order without opinion dated October 27, 1967. On December 11, 1967, his petition for allowance of appeal from the Judgment of the Superior Court was denied per curiam by the Supreme Court of Pennsylvania. It is not disputed that the relator has satisfactorily exhausted all available state post-conviction remedies pursuant to Title 28 U.S.C. § 2254(b) and (c).

 In challenging the adequacy of his court-appointed counsel's presentation of his case the relator relies almost exclusively upon the fact that counsel was appointed immediately prior to the beginning of trial. The relator contends that such late appointment establishes that his trial was inherently prejudicial. He contends that a showing of such late appointment, without more, establishes a prima facie case of prejudice shifting the burden of proof to the state to rebut the presumption of prejudice. See, Fields v. Peyton, 375 F.2d 624, 627 (C.A.4, 1967), United States ex rel. Mathis v. Rundle, 394 F.2d 748, 753 (C.A.3, 1968), and United States ex rel. Huntt v. Russell, 285 F. Supp. 765, 767-768 (E.D.Pa., 1968). Finally, he urges that a prima facie case may be overcome only when there is "* * * adequate affirmative evidence that the petitioner was not prejudiced by the lack of time * * *", Jones v. Peyton, 288 F. Supp. 129, 131 (W.D.Va., 1968).

 It is clear that the relator's case is one in which the appointment of counsel was made at such a late time that under the Huntt and Mathis cases a presumption of prejudice arises. In fact, unlike both of those cases in which counsel was appointed prior to the day of trial, counsel here was appointed immediately before trial and hence was unable to make any pre-trial investigation of the case. There was no Voluntary Defender's file on the relator's case, but, even if there had been one, defense counsel's late appointment would not have allowed him the time to examine it carefully. It also appears likely that defense counsel had at ...

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