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UNITED STATES EX REL. ADAMS v. RUNDLE

December 30, 1968

UNITED STATES of America ex rel. Alexander C. ADAMS
v.
Alfred T. RUNDLE, Superintendent



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, District Judge.

 This matter is before the Court on petition of a State prisoner for a writ of habeas corpus.

 Relator contends that his conviction and sentence, resulting in his present incarceration, stem from the ineffective assistance of counsel rendered to him at the time of his trial in violation of the Sixth and Fourteenth Amendments to the Constitution. More specifically, in support of his claim that the assistance rendered by trial counsel was ineffective, he alleges the following:

 1. Trial counsel was not appointed or assigned to represent him sufficiently in advance of trial to prepare the case in a reasonably through manner, nor did trial counsel confer with him before trial;

 2. Trial counsel did not exercise that degree of skill and judgment required of a lawyer in the conduct of a case; and

 3. Trial counsel failed to advise relator of his right to appeal.

 Relator alleging the same constitutional violations pursued his post-conviction remedies through the State courts without success. *fn1" The Commonwealth was ordered to show cause why a writ of habeas corpus should not be granted by this Court and the Clerk of the Quarter Sessions Court was ordered to produce the record of the State Court proceedings in this Court. After an examination of the State Court record, we have concluded that the merits of relator's contentions may be disposed of without the necessity of conducting an evidentiary hearing in this Court and without the necessity of appointing counsel. Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), as codified at 28 U.S.C. ยง 2254; United States ex rel. Robinson v. Myers, 222 F. Supp. 845 (E.D.Pa.1963), aff'd 326 F.2d 972 (3rd Cir. 1964).

 At the State post-conviction hearing relator's trial counsel, a voluntary defender, testified essentially as follows: On February 14, 1966, relator was interviewed by a voluntary defender, other than trial counsel. Notes were taken and made a part of the defense file: On February 24, 1966, relator was again interviewed by yet another voluntary defender, other than trial counsel. Notes were again taken and made a part of the defense file. On February 25, 1966, relator was arraigned, the voluntary defender formally entered his appearance on the record, and relator pled not guilty. The voluntary defender's office then initiated an investigation to look into an alibi supplied by relator in the course of the two prior interviews. The results of the investigation did not support relator's alibi. The case was listed for trial on March 8, 1966, trial counsel prepared the case, but it was continued for some unknown reason.

 On April 25, 1968, relator was tried by a judge without a jury and convicted. Trial counsel further testified that he probably had not spoken to relator prior to the day of trial, or outside the courtroom on the day of trial, but that he had discussed with relator the advisability of entering a guilty plea. He testified, and the record so indicates, that at the conclusion of the trial he made oral motions in arrest of judgment and for a new trial to perfect relator's right to appeal. He also testified that although he could not specifically remember having advised relator of his right to appeal, it was the policy of the voluntary defender's office to do so. He had no reason to believe he had not followed that policy other than the fact that he could not specifically remember having done so, that relator said he had not done so, and that there was no notation to that effect on the file.

 Relator also testified at the State post-conviction hearing. He testified that the only conversation he had with trial counsel on the date of his trial concerned his name and identification. He further testified that he was not advised of his right to appeal. *fn2"

 The State Court held that relator had not been denied his right to representation by competent counsel and found as a fact that relator had been advised of his right to appeal.

 It recently has been held that if late appointment of counsel is found to be inherently prejudicial to a defendant's rights, the defendant need only establish such late appointment to make out a prima facie case, thereby shifting the burden to the State to rebut the presumption of harm inherent in such late appointment. United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3rd Cir. 1968); Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967). In this case, the voluntary defender assigned to represent relator enjoys an excellant reputation in this Court and elsewhere. He testified that he felt adequately prepared to try the case. He had sufficient opportunity to prepare the case since he was assigned well before the actual trial date. Indeed, on the first listing of the case, which was more than a month before the actual trial date, he reviewed the file and prepared the case for trial.


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