UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 22, 1969.
UNITED STATES OF AMERICA EX REL. FRANK CHAMBERS, APPELLANT,
JAMES F. MARONEY, SUPERINTENDENT STATE CORRECTIONAL INSTITUTION, PITTSBURGH, PENNSYLVANIA
Kalodner, Forman and Stahl, Circuit Judges.
Opinion OF THE COURT
STAHL, Circuit Judge.
Appellant Chambers, having exhausted his state remedies, unsuccessfully sought a writ of habeas corpus in the district court.*fn1 No evidentiary hearing was held below. This appeal followed.
In his petition, appellant alleged that his state convictions on charges of armed robbery and receiving stolen goods*fn2 were constitutionally defective for a number of reasons:
(1) There was no probable cause for his arrest;
(2) The search of the car in which he was a passenger at the time of his arrest was invalid on the ground that it was made without a warrant and was not incident to the arrest, even if the arrest was lawful;
(3) The search of his home was invalid, even though a search warrant had been obtained, because the warrant did not describe the product of the search which was admitted in evidence; and
(4) "The belated appointment of counsel rendered his services ineffective in that he was delegated to represent petitioner en route to the courtroom the day of the trial."*fn3
The district court concluded that the first three grounds did not violate appellant's constitutional rights.
With respect to the Sixth Amendment claim of ineffectiveness of counsel, the court said that this "contention * * * is without merit," citing In re Petition of Ernst, 294 F.2d 556 (3d Cir. 1961), and United States ex rel. Peterson v. Russell, 266 F. Supp. 93 (W.D.Pa.1967).*fn4 The same contention as to ineffective counsel had been made in the habeas corpus proceeding in the state court*fn5 and was rejected in an opinion, dated December 2, 1966,*fn6 by Judge Graff, who had also been the trial judge.
We would dispose of this appeal on the well-reasoned opinion of Judge Marsh below were it not for the fact that following the date of that opinion (March 6, 1968), we established for the first time a definite standard for determination of the issue of ineffective counsel in belated appointment cases: United States ex rel. Mathis v. Rundle, 394 F.2d 748 (May 7, 1968). In a supplemental brief filed by appellant, he relies directly on Mathis for the requested relief. Neither the lower state court opinion nor the decision below discussed specifically the late appointment aspect of appellant's petitions.
Prior to Mathis this court had not dealt expressly with the issue of burden of proof where the claim of ineffective counsel was bottomed on hasty appointment.*fn7 In Mathis,*fn8 following the lead of the Fourth Circuit,*fn9 we said that the belated appointment of counsel is inherently prejudicial and makes out a prima facie case of denial of effective counsel, with the burden of proving absence of prejudice shifted to the prosecuting authorities.
At first blush it would appear that only an evidentiary hearing, in which the state adduces the testimony of the trial counsel and other evidence to rebut the taint of prejudice, can be sufficient to overcome the prima facie presumption of ineffective counsel. A closer examination of the full scope of the Fourth Circuit rule we have chosen to follow discloses that denial of effective representation may also be refuted where the "record" contains "adequate affirmative evidence to overcome the presumption of harm from the lack of time for preparation"*fn10 by appointed counsel: Fields v. Peyton, 375 F.2d 624, 628 (4th Cir. 1967).*fn11 We construe this to mean that the prima facie ineffectiveness or the inherent prejudice due to late appointment of counsel may properly be overcome either by evidence produced by the state in an evidentiary hearing showing that there was no prejudice or by adequate affirmative proof otherwise appearing in the record demonstrating that the appellant was not prejudiced. We believe this is a logical approach which is fair to a petitioner seeking relief and at the same time comports with sound judicial administration.
The alternative methods of negating the prima facie harm from a belated appointment are of particular importance in the present case because the Commonwealth made no attempt in either the state or federal habeas corpus proceeding (as had been done in Mathis) to produce evidence showing that the appellant was not prejudiced by the late appointment of counsel.*fn12 Therefore, this court must either find from an examination of the record before us that there is adequate affirmative proof to rebut possible prejudice to the appellant or remand the petition to the district court for an evidentiary hearing.
With the foregoing guidelines in mind, we now turn to a review of the various proceedings culminating in the instant appeal.
Appellant alleged in his state and federal habeas corpus petitions that he first met his counsel on the way to the courtroom on the day of the trial.*fn13 This was not denied by the District Attorney in his answer in the state court. The appointed defense counsel was Vincent A. Tamburo, Esq., of the Allegheny County Legal Aid Society, who was described by the state court as "an attorney of great experience in the trial of criminal cases."*fn14
This was not the first time appellant had seen a lawyer, however, as this was a new trial on the same charges, the first one having ended in a mistrial. In the first trial appellant had been represented by another member of the Legal Aid Society staff. Also, in the habeas corpus hearing in the state court, in which appellant appeared,*fn15 the following colloquy took place:
Mr. Abromson [Assistant District Attorney]:
Q. So you have been in Jail for some five months, is that correct, before your trial?
Q. And during that time, did anybody come to see you in your own behalf?
A. Which way do you mean? Did an attorney come to see me?
Q. Did anyone come to see you in own behalf?
While it would appear from the foregoing that Mr. Tamburo had access to the Legal Aid Society files in this case, and that an attorney or a representative of Legal Aid may have visited appellant in jail, the plain fact is that appellant did not have the opportunity to consult previously with the counsel who came to defend him on the morning of the second trial. We do not know what preparation, if any, counsel was able to accomplish prior to the date of the trial as he did not testify in the state habeas corpus proceeding and there was no evidentiary hearing in the district court. From the lower court opinion, as will appear later, we are led to believe that counsel was not wholly familiar with all aspects of the case before trial.
Appellant asserts as the prejudicial effect of the late appointment the failure to present pre-trial motions to suppress several items of evidence admitted at the trial. The district court concluded from an examination of the transcript of trial that Mr. Tamburo probably had no knowledge of the manner in which some of the evidence was obtained by the police.*fn17
Appointed counsel in the state habeas corpus proceeding, Mr. Dixon, did not pursue the belated appointment allegation as an independent ground for issuance of the writ, even though it was stressed in appellant's pro se petition. Mr. Dixon said:
I want to make clear to the District Attorney it is not our intention to attack the effectiveness of counsel here. The only reason I brought out this particular circumstance was in relationship, and I will develop it, to the District Attorney's contention that our issue of the suppression of the evidence not being timely, that's the only reason I brought that out.
The Court: You are not raising --
Mr. Dixon: I am not raising the issue of the ineffectiveness of counsel.
The Court: It is in his statement here, his petition, but you are not raising it now?
Mr. Dixon: No.*fn18
Mr. Dixon emphasized that he was referring to the belated appointment only to show why no pre-trial suppression motions had been filed. In his brief (p. 7) the District Attorney construes counsel's statement as indicating "that petitioner was abandoning the contention that his trial counsel was ineffective." In light of our disposition of this appeal we need not decide what effect, if any, the state habeas corpus counsel's statement had on appellant's Sixth Amendment claim which he raised again in the district court.*fn19
It is fairly clear that Mr. Tamburo's appearance as defense counsel on the morning of the trial constitutes tardy appointment so as to raise the prima facie presumption of ineffective counsel under the Mathis standard. With no attempt by the state to rebut this presumption by the production of countervailing evidence, does the record otherwise contain adequate affirmative proof of lack of prejudice? We believe that it does.
Appellant's contention that his arrest without a warrant was invalid is not involved with the question of ineffective counsel. Judge Marsh's opinion below thoroughly recites the information which the police had from eyewitnesses*fn20 to support the arrest of appellant without a warrant for the commission of a felony: McCray v. Illinois, 386 U.S. 300, 304, 87 S. Ct. 1056, 18 L. Ed. 2d 62 (1967).
The evidence as to which appellant contends pre-trial suppression motions should have been but were not filed due to the belated appointment of counsel consisted of (1) revolvers found in the warrantless search of the car in which appellant was a passenger when he was arrested, and (2) revolver shells found in appellant's home pursuant to a search warrant which he claims did not identify the shells. The revolvers were alleged to have been used in the armed robberies and the shells matched the revolvers.
With respect to the revolvers found in the vehicle, the district court held that a warrant was not required because the search was made incident to a lawful arrest. While admittedly the search of the vehicle was not made at the same moment as the arrest, a thorough search was not then possible because of darkness, and the automobile was searched and the revolvers found when the vehicle was taken to a police station a short time later.
As the District Attorney points out in his brief, appellant's reliance on Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), is misplaced. In Preston, an arrest was made for vagrancy and the defendant's car was towed to a garage and some time later searched without a warrant, producing evidence which led to conviction for conspiracy to rob a bank. The search was held invalid both because of the lag of time following the arrest and because there was no direct relationship between the vagrancy charged and the evidence secured.
In upholding the search here, the district court properly relied on United States v. Dento, 382 F.2d 361 (3d Cir.), cert. denied, 389 U.S. 944, 88 S. Ct. 307, 19 L. Ed. 2d 299 (1967), in which we distinguished Preston in an arrest on a highway where the defendant's vehicle was driven to the State Police barracks some distance away to be searched. For reasons of safety the search was not conducted along the highway where the arrest was made. As in this case, there was a "reasonable nexus" in Dento, 382 F.2d at 366, between the offense for which the arrest was made and the search of the vehicle, a nexus absent in Preston.*fn21
Thus, the failure to file a pre-trial motion to suppress the evidence as to the revolvers was not prejudicial because, on the merits, it would undoubtedly have been decided against appellant. More importantly, the lower state court and the district court did examine this particular issue on the merits and concluded the evidence was admissible.
The matter of the revolver shells found in appellant's home is more difficult. A warrant had been issued to search appellant's home. The warrant was lost and could not be produced at the habeas corpus proceedings in the state and federal courts. Appellant contends that the shells should not have been admitted into evidence because they were not described in the search warrant. The likelihood that the search warrant did not specify the shells is supported by the trial testimony of the police officer making the search.*fn22
Complicating the picture was the fact that an objection to the admission of the bullets had been sustained in the first trial which ended in a mistrial. Defense counsel in the second trial did object to the admission of the shells on the grounds of irrelevancy and a defective search warrant but his objections were overruled. The district court's opinion indicates that appellant's counsel at the second trial did not know "of any possible impropriety in the manner in which the bullets were seized until the time when they were offered."*fn23 Even if counsel had known about this earlier, the district court observed, he may still have failed to file a pre-trial suppression motion as he may have been "misled by the exclusion of the bullets at the prior trial into believing that upon objection they likewise would be excluded at the second trial."*fn24
Judge Graff, in the state habeas corpus proceeding, rejected the attack on the admission of the shells on the ground that the failure to file a pre-trial suppression motion was prejudicial to the Commonwealth and the matter could not be raised at the trial.*fn25 He also said it "is permissible to seize things other than those described in the search warrant if they have a reasonable relation to the purpose of the search."*fn26
The district court held that even if the search warrant is assumed to have been defective, and the revolver shells improperly admitted, this did not entitle appellant to relief because the error was harmless, relying on Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). The court recognized the Chapman test that "before a constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt," and then proceeded to detail the substantial evidence, particularly the testimony of identity witnesses, including the victims of the robberies, supporting the convictions.*fn27 We agree with the lower court in the application of the harmless error rule in this factual context.*fn28 Even apart from the harmless error principle, however, we believe the revolver shells were admissible in accordance with the authorities cited in note 26 in the margin.
From a careful examination of the record and of the opinions of the lower courts which have reviewed this case, we are convinced that there is "adequate affirmative proof" to rebut the prima facie presumption of prejudice from the belated appointment of counsel.*fn29
In view of this conclusion, there is no reason to remand the petition for an evidentiary hearing as appellant urges us to do under Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). There are no factual disputes which require resolution by a plenary hearing as in Townsend.
The district court had before it the transcript of the state court trial and the transcript of the state habeas corpus proceeding. We have recognized that the appointment of defense counsel here was belated, and we have analyzed the elements of harm asserted by appellant in the admission of the contested evidence. Inadmissibility was claimed on constitutional grounds which have been dealt with on the merits by the district court to our satisfaction. This is not a case where belated appointment of counsel may have resulted in the failure to call witnesses whose availability the defendant did not have a chance to disclose to his counsel or where there was insufficient time to call them,*fn30 or in the failure to raise defenses of which counsel was unaware or which he was unprepared to pursue,*fn31 or in an improvident plea of guilty.*fn32 At most, counsel failed to file pre-trial suppression motions with respect to certain evidence secured by police searches. Since the district court did not refuse to consider the challenge to the evidence on the merits and dealt with the constitutional infirmities that were raised,*fn33 the sum and substance of the case is that appellant was not prejudiced by the late appointment of counsel.
We have dwelled at some length on the principal issue in this case because this is one of the first appeals to raise directly the charge of belated appointment of counsel since Mathis.*fn34 The claim of ineffective counsel due to tardy appointment is a serious constitutional challenge which may not be lightly dismissed. We reaffirm the position taken in Mathis, and we reiterate the words of Judge Weiner in concluding the opinion:
The hopeful practical consequence of our rule thus enunciated will be that the states and their judicial systems in the Third Circuit will become more careful in permitting appointed counsel to fulfill in a realistic manner the function which they should have been responsibly assuring all along. 394 F.2d at 753-754.
The denial of the writ of habeas corpus by the district court will be affirmed.