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UNITED STATES EX REL. MANDRIER v. HEWITT

January 21, 1976

UNITED STATES ex rel. George MANDRIER, Relator,
v.
Lowell D. HEWITT, Warden State Correctional Institution, Huntingdon, Pennsylvania, Respondent



The opinion of the court was delivered by: MCCUNE

 Relator filed this pro se habeas corpus action alleging that he was denied effective assistance of counsel in the proceedings which resulted in the conviction challenged herein in violation of his constitutional rights under the sixth amendment made applicable to the states under the fourteenth amendment. Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

 I

 Background

 Relator is presently incarcerated at the State Correctional Institution in Huntingdon, Pennsylvania, under sentence of 7 1/2 to 15 years resulting from his conviction of armed robbery. *fn1" Mandrier was indicted on a bill containing counts of armed robbery, receiving stolen goods and violations of the Uniform Firearms Act. Following his plea of not guilty to all charges, relator waived a jury trial and was tried in the Court of Common Pleas of Allegheny County on May 25, 1971. At the close of the government's case relator's demurrers to the counts charging receipt of stolen goods and violation of the Uniform Firearms Act were sustained. He was found guilty of armed robbery after testifying in his own behalf.

 Mandrier did not file post trial motions; nor did he take a direct appeal. However, he has complied with 28 U.S.C. § 2254(b)'s exhaustion of state remedies requirement, having petitioned for relief under Pennsylvania's Post Conviction Hearing Act (PCHA) 19 P.S. § 1180-1 et seq.

 In his PCHA petition Mandrier alleged (1) that he had been denied his constitutional right to representation by competent counsel and (2) that state officials had obstructed his right to appeal.

 Post conviction relief was denied without a hearing on January 15, 1973. Relator appealed dismissal of the PCHA petition to the Superior Court of Pennsylvania which remanded the case for an evidentiary hearing by per curiam order of June 6, 1973. That hearing was conducted on July 6, 1973, at which time relief was again denied upon a finding by the state court that the allegations in the petition were contradicted by the evidence adduced at the PCHA hearing. Relator again appealed to the Superior Court which affirmed dismissal of the PCHA petition on January 3, 1974. The Supreme Court of Pennsylvania subsequently denied allocatur.

 Mandrier then filed the petition sub judice, in which he reasserts the same arguments presented in his PCHA petition. Upon receipt of the petition we directed the respondent to show cause why the writ should not be granted. At that time, we also requested the Clerk of Courts to obtain relator's state court records. Those records have been furnished to the court and include transcripts of both the trial proceedings and the PCHA hearing conducted on July 6, 1973.

 In his answer to the petition the district attorney of Allegheny County has moved to dismiss the petition without a hearing, contending that the identical arguments raised here were fully presented and considered by the state courts at both the trial and appellate levels. The Commonwealth asserts that the state court properly decided against Mandrier on the basis of both state and federal law.

 After a careful review of the state court records, it is our opinion that Mandrier should not be permitted to file post trial motions nunc pro tunc since we believe that he was not denied the effective assistance of counsel during the time for the filing of such motions. We reject his contention that he was denied the effective assistance of counsel at trial or prior thereto. Our reasons follow.

 II

 The Right to Counsel

 The sixth amendment guarantees that a criminal defendant shall enjoy the right "to have the Assistance of Counsel for his defence." This guarantee was first interpreted by the Supreme Court to mean the effective assistance of counsel in Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Justice Sutherland, the author of the Powell decision, went beyond a formal requirement that counsel be appointed, holding that the trial judge's failure "to make an effective appointment of counsel" had resulted in the "denial of effective and substantial aid . . . [Defendants] were not afforded the right of counsel in any substantial sense." 287 U.S. at 53, 71, 53 S. Ct. at 58.

 Eight years later, speaking through Justice Black, the Court held that "The Constitution's guarantee of assistance of counsel cannot be satisfied by mere formal appointment." Avery v. Alabama, 308 U.S. 444, 446, 60 S. Ct. 321, 322, 84 L. Ed. 377 (1940). The Avery court rested its holding on the fourteenth amendment since a state defendant was involved and held that the trial court's denial of a continuance requested by appointed counsel had not deprived the defendant of the effective assistance of counsel. On the facts of the case "his appointed counsel . . . have performed their 'full duty intelligently and well.'" 308 U.S. at 450, 60 S. Ct. at 324. In Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942), the court enforced the implication of Avery that an inadequate performance by counsel would render a conviction void. Basing its holding on the sixth amendment because a federal defendant was involved, the Glasser Court overturned the conviction of a defendant whose attorney was retained by a co-defendant with a potentially inconsistent defense. Three years later in White v. Ragen, 324 U.S. 760, 65 S. Ct. 978, 89 L. Ed. 1348 (1945), the Supreme Court held that a prima facie case for habeas relief was stated where a state prisoner alleged that his appointed counsel failed to confer with him until the day of trial, refused to do anything for petitioner until he was paid and refused to call a witness petitioner had requested him to call.

 More recently in McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970) the Supreme Court stated: "It has long been recognized that the right to counsel is the right to the effective assistance of counsel."

 While it is therefore clear that the guarantee of assistance of counsel means the effective assistance of counsel, the courts have not established a uniform standard by which to gauge the effectiveness of the assistance of counsel called for by the sixth amendment. For example, in United States ex rel. Maselli v. Reincke, 383 F.2d 129 (2d Cir. 1967) the court said that in order to assume constitutional proportions

 
"[A] lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice."

 383 F.2d at 132.

 In Beasley v. United States, 491 F.2d 687, 692-696 (6th Cir. 1974) the court stated the test in this manner:

 
"We hold that the assistance of counsel required under the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance." *fn2"

 In Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) (en banc) the Court of Appeals for the Third Circuit established a standard of "normal competency:"

 
"Whether an indigent is represented by an individual or by an institution, he is entitled to legal services of the same level of competency as that generally afforded at the bar to fee-paying clients. United States ex rel. McCoy v. Rundle, 419 F.2d 118, 120 (3rd Cir. 1970) (concurring opinion). In both cases, therefore, the standard of adequacy of legal services . . . is ...

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