Rodriquez v. United States

PETITIONER:Rodriquez
RESPONDENT:United States
LOCATION:Souther District Court of Georgia

DOCKET NO.: 749
DECIDED BY: Warren Court (1969)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 395 US 327 (1969)
ARGUED: Mar 26, 1969
DECIDED: Jun 02, 1969

Facts of the case

Question

Audio Transcription for Oral Argument – March 26, 1969 in Rodriquez v. United States

Earl Warren:

Number 749, Adolpho Rodriquez, petitioner, versus The United States.

Mr. Wallace.

William Ross Wallace:

Mr. Chief Justice and may it please the Court.

This is a case that comes up on a petition under Section 2255, a federal prisoner who claims that he was in improperly denied his right of appeal.

His petition alleges that he is a Mexican descent and did not speak the language well.

The trial was conducted through an interpreter at the conclusion of the trial and at the time — after the time of sentence, the prisoner alleged that he requested the interpreter to ask the court and to ask his counsel to arrange for his appeal.

He also alleges that his counsel agreed to do so and that an oral notice of appeal if there is such a thing was given but no written notice conferring to the statute was filed.

The prisoner originally and within six or seven weeks at the time of the sentence filed what I suppose you would call an application for a late appeal.

That was denied by Judge MacBride, the District Judge in Sacramento, and by the Circuit Court of the Ninth Circuit.

Upon the grounds that under the rule of the Ninth Circuit, an application for a right of appeal late where a prisoner claimed that he had been not — been denied that right of appeal must also show some basis for the appeal.

In other words, it must show not only that he was deprived of that constitutional right but he must show that he have something upon which some reasonable basis upon which to appeal.

The — those proceedings were in 1963.

In 1966, the prisoner then filed an application under Section 2255 and that application was very much more detailed than the previous ones.

So, he had apparently risen in the hierarchy of the jail and there had been there long enough to learn little more English and it was a — that was a better job than the first one.

There again and without hearing, without reference to the transcript, without reference to his counsel and without reference to the United States Attorney, Judge MacBride denied that application.

And there again, he was — he then filed his motion to have the appeal heard in forma pauperis in the Court of Appeals and — for the Ninth Circuit.

The Court again without hearing denied that motion.

Again on the basis of the rule in the Ninth Circuit that in addition to showing the deprivation of the right to appeal, a prisoner must show something more.

At least must show the basis of an appeal.

The cases in California in our circuit are not wholly clear whether he has to show conclusively or whether he has — they talked in — the judge here talked about rights constitutional or otherwise.

But in any event, it is clear that there are circuits differing from most of the circuits.

A prisoner claiming his deprivation of his right to appeal must show that he, if granted that right, has at least a reasonable basis upon appeal.

Now, in the application for the — there are the motion or application for the writ of certiorari.

The prisoner set forth these facts, the Solicitor General in his opposition felt that a prisoner should at least show something that would indicate some basis for an appeal.

In our opening brief, I pointed out that here was a prisoner of Mexican descent having very little knowledge of the language.

He was tried with five — four or five other people.

At least two or three of whom had separate counsel.

The whole proceeding was conducted through an interpreter and how in the heaven’s name, a person under those circumstances would be able to recognize and remember what errors occurred at the trial that might give him some basis for an appeal seemed to me an impossibility.

I think in the Solicitor’s brief, they have in effect waived that point.

They seem not to rely any further upon the — on the basis that something should be done that the prisoner must do — to show something beside the actual deprivation of his right of appeal.

William Ross Wallace:

The brief of the Solicitor for the United States in this case, seems to have waived that point and they really talking about whether this prisoner should now have a hearing or whether the — this Court should send this matter back to the District Court.

We have to permit the District Court to interrogate the — and take affidavits from the trial lawyer that this man have or whether he has to bring the prisoner down from McNeil’s Island.

We’re talking I think now only of mechanics.

Now, my view of the matter and I think, I can express it easily is that if we take the rule of the board of case which as described in the Hannigan simply says that, a prisoner who is deprived of his right of appeal or a prisoner’s right of appeal with the 10-day period during which that right must be exercised does not commence to run until such period as the prisoner is effectively represented by counsel.

Now, after our original brief, I obtained from the court reporter in Sacramento the transcript of the last day of the trial, that is to say the transcript of the day upon which this prisoner was sentenced, this prisoner and the others.

Only enough that transcript showed no oral notice of appeal.

Although, the lower court and the Circuit Court, in our circuit, had both said it was there.

In other words, we have a judicial finding based on no fact whatever and obvious result of not even looking at the transcript.

However, the transcript does contain a very much more important in — on page 3 of the appendix to my reply brief.

The counsel then act — makes a motion not in very good language but he said, it is just proceeding in forma pauperis in behalf of Adolpho Rodriquez and Etta Rodriquez while they are before the court.

Hereafter, pardon me, if they are transported away, we would have to have them returned to make a motion before the court.

Judge MacBride then says, no, I don’t wish to take up that matter at this — that motion of this time.

Its five minutes after 12.

We’ve taken all morning on it.

I have no idea what’s your motion is and all motions have to be writing.

Well, it was clear at that moment that the counsel who had been retained by Rodriquez and his wife for the trial was advising that Court that he was stepping out.

You know the only purpose in making a motion of that sort was to indicate to the Court that he was through to that lawyer, Mr. Miley was finished and the motion for — to proceed in forma pauperis could only mean that he was in effect suggesting to the Court that he was through — the Court should appoint new counsel and permit the man to appeal.

Now, Section 37 (a), the Rule of 37 (a), says very clearly that if a prisoner is not represented by counsel then the Court must advice him of his right to appeal and the clerk must enter the notice.

Now, it was — it would have been perfectly simple to have accomplished that purpose at that time.

Now, we’re five or six years later.

Yes, six years later, he’s been in jail for six years, it seems to me perfectly clear that on the basis of the transcript.

The Court can well then state that the prisoner’s right to appeal commences, at such time as the Court in Sacramento appoints for him counsel and permits him then to enter his appeal.

Now, I think there is no point my discussing the rule in the Ninth Circuit where I think because of their desire in the Circuit the very proper one to prevent repetitious applications under Section 2255.

They laid out a lot of rules.

I think the lower courts misunderstood that that case somewhat but in any event, while I can only agree with the courts in their desire to prevent to the extent they can, repetitious petitions under Section 2255 that has nothing to do with the right of a prisoner to be secure in his right of appeal.

Now, this is not a case that can easily arise again because as Your Honors well know under the change of rule no matter whether the prisoner is represented or not any long.

The Court’s all now — all advise him of his right of appeal and if counsel is not going to take it, the Court simply instructs the clerk to enter the order.

So that we are talking about a situation that certainly is not one that plague us in the future.

This is a simple situation of a man having very little knowledge of the language whose trial counsel was not willing apparently proceed pass the trial who attempted to make clear to the trial Court that he was withdrawing and whose failure and I think in a very serious failure on the part of counsel was that he fail to file the proper motion either that afternoon or on the following day.

He did nothing further —

Potter Stewart:

What would the motion have been?

I —

William Ross Wallace:

Well, I think it would have been motion Your Honor to permit the prisoner to proceed in forma pauperis on the appeal and —

Potter Stewart:

Well, it doesn’t —

William Ross Wallace:

— it would have meant, I think also the appointment by the court of counsel for the prisoner.

Potter Stewart:

The difficulty I have is that reading Roman III of the appendix to your reply brief.

There’s no real indication there of any wish to appeal of any desire or purpose of a wish to appeal.

William Ross Wallace:

That I agree Your Honor.

Now, I think we have this odd situation the — in the first time this came up Judge MacBride said in his first opinion that the prisoner claimed that he had made an oral notice of appeal.

The case then went up before Judge Chambers and Judge Bone in the circuit and somehow or another Judge Bone, I think, wrote the opinion.

Judge Bone said the right that notice of appeal, oral notice of appeal was given by retained counsel.

That was the basis of that matter.

Then the question —

Potter Stewart:

If you don’t read the record as supporting that statement do you?

I know.

William Ross Wallace:

I don’t read this record of supporting.

Potter Stewart:

That’s what you mean?

William Ross Wallace:

No, then it came down again before on the Section 2255 application before Judge MacBride and Judge MacBride then said that an oral notice had been made.

It goes back going up to the Circuit and Judge Jertberg and I forgot who else was on that panel.

They then affirm again that this oral notice was given.

I can find the oral notice.

On the other hand, I can understand perfectly well that a Mexican prisoner would think that this motion that the man was making under his forma pauperis motion was just that and obviously it was intended as that.

Now —

Potter Stewart:

Well, I can — how — how do we know that?

William Ross Wallace:

Well, it can have no other purpose, Your Honor.

The prisoner to appear in forma pauperis, if he is just go on to the jailhouse.

There’s no purpose of his having the motion made except to have counsel appointed for him so he could appeal and he have no other purpose.

Otherwise, he’s got his 20 years in the federal prison.

It seems to me one of the clearest cases that I know of, of a failure for whatever reason of counsel to protect the right of his client to appeal.

Now, I can understand Judge MacBride had been a long five, six weeks trial conducted through interpreters with a lot of lawyers and he was a little weary, I guess himself and shot the man off before he had completed his motion now.

William Ross Wallace:

That does not I think excuse counsel, his retained counsel for not completing that motion and making it in writing and making it wholly clear.

On the other hand, it seem — it would seem to me an extraordinary thing for a court to hold that the prisoner clearly wanted to appeal.

He has alleged in all these papers that he wanted to appeal.

There has been no denial on the part of anybody that he wanted to appeal.

He was denied his right of appeal not on this basis of this motion because nobody had ever seen him but denied it only on the basis that even assuming he wanted his right of appeal and that it should be given to him.

He must show in addition to that a basis upon which an appeal might be successful.

In other words, in our Circuit, they have confused the constitutional rights provision under Section 2255 with the right of direct appeal.

They have — they have taken the right of direct appeal if it’s late and added to it a demand that a prisoner be able to show not only that he was improperly denied of his right of appeal.

But that having been so denied, he still has valid grounds for an appeal.

Now, of course that’s a wholly impossible task for a prisoner in this situation who obviously has no knowledge of law on to — for him now to try, six years later and recall what happened in the trial.

What the trial errors were states are perfectly impossible situation.

It seems to me perfectly clear that this prisoner should be granted a hearing.

I don’t know that even granting a hearing is necessary but at least that I would think would be the minimum that the prisoner can have a hearing his counsel can be brought in.

He could — it can be established.

The — the facts can be established.

The record is available.

The transcript is the notes at least are available and the United States Attorney is available.

Mr. Miley, his counsel is available.

It’s a — it is — the case I think is one that illustrates with better than most, the difficulties that arise when these matters are handled in the lower courts without reference to counsel and without reference even to the transcript.

It is obviously here, we’ve got an off on to a — on a basis of somebody’s recollection when five minutes work in reading the transcript and a few minutes of calling Mr. Miley would have established that what Mr. Miley was saying was, I have represented the prisoner at the trial.

I am not going to represent him further and I ask the Court to avoid counsel to do so.

This is what —

Potter Stewart:

Is there any — any indication at this point what if anything he would be able to present on appeal?

William Ross Wallace:

I have no idea.

Now, I can — I can say wholly ex parte or simply discussing this matter over the telephone with Mr. Miley.

I tried to get in two or three times.

He’s a very busy trial lawyer and I was never able to make an appointment.

He told me that he thought he had at least one valid ground of appeal but that this had been a long trial.

He had — he felt not been compensated as he should have been and that he was not going to take the thing up on appeal that he told the prisoner he would not take it up on appeal for him but that he would arranged it.

Now, the prisoner he recalled in the — in his petition says, this lawyer said he would arrange it.

William Ross Wallace:

Well, in arranging it was this — this forma pauperis business but he failed to do it.

So I think we’ve got a clear case where the prisoner was improperly deprived of his right.

The right is an absolute right that in the absence of prisoner knowledgeably waiving or giving up that right.

There is not as any indication here that this prisoner gave up any right to appeal knowingly.

There is every indication from the fact that the prisoner started within a six weeks, a few days after the 30 days went by.

He was writing out the first somewhat feeble attempt to get himself an appeal.

So, it’s clear he wanted a deal to you.

There has — it is clear from my — going extra record for my discussion with Mr. Miley, the prisoner and his wife wanted to appeal.

Potter Stewart:

What happen to the petitioner’s wife in this —

William Ross Wallace:

The petitioner asked me and wrote to me and asked me if I could find out whether his wife was — he has not been able to communicate with her.

I think he said since 1943 or 1944.

Potter Stewart:

She was convicted of —

William Ross Wallace:

She was convicted and sent to Terminal Island Prison, I think, in Southern California.

He asked me if I would write to her brother, I did and I receive no reply.

I have not tried to communicate with her in the federal prisoner if she is still there.

Potter Stewart:

Because she too seems to have been the subject of this motion —

William Ross Wallace:

Yes, that’s right.

Potter Stewart:

— of this abortive tentative motion on —

William Ross Wallace:

That’s right.

Potter Stewart:

— page 3.

William Ross Wallace:

But he knows — has no knowledge where she presently is and she may for what I know still be in the prison in California.

Thank you.

Earl Warren:

Ms. Rosenberg.

Beatrice Rosenberg:

May it please the Court.

There really is a very narrow, almost no disagreement with between the petitioner and the Government in this case.

The case is not quite clear and quite general throughout the Court that there are two situations which do call for some relief on that collateral remedy where a prisoner claims that he is been denied of right of appeal.

One is where his counsel has not told him anything about his rights of appeal and has abandoned him.

And the other is, if counsel has been guilty of what courts sometimes called fraud but which if you look at the case, this amount to over reaching and it doesn’t seem to be any conflict on proposition.

That if a counsel assures a defendant that he will take care of his appeal and then deliberately does nothing, not just it.

Besides that this is a basis for collateral relief with Ninth Circuit and possibly to other circuits.

Beatrice Rosenberg:

Although, their decisions are not wholly clear have been different where there has been a conflict is on the question of whether in addition to alleging a deprivation of right to appeal.

The prisoner has to show that it was some basis of appeal and the Ninth Circuit when its — insisted on this requirement.

We understand what there were trying to do which is try to shift the weak the good case and the bad one and we assume that if a man had a good point on appeal, it would tend to both to his contention that counsel deliberately didn’t do it.

However on reflection, we have come to the conclusion that we can’t support that as a requirement for requiring action in the District Court and the reason for that is that — it seems to us not wholly continent with the real remedy that you’re trying to get at.

What you — what collateral relief was primarily, originally designed to do was to take care of the person who got caught in the coils of the law either the judge or the prosecution of his own Attorney.

And it seems to us that the — those who are most likely to abuse the writ.

That really kind of make up stories if we do encounter could meet the Ninth that a requirement with no difficulty.

But the truly honest, ignorant person who had been overreached by unscrupulous lawyer would find that the most difficult to specify whether there was legal error in his trial and for that reason, we do not urge the Ninth Circuit rule.

But since the case is here, we do think there are some things this Court could help clarify with respect to this kind of a claim or perhaps even more generally with respect to this question of, what does a judge do when he gets an allegation of this kind?

I think no one who has had experience with them can feel to appreciate the fact that a lot of these are simply not true and the result wishful thinking.

On the other hand, there are some that are.

We have agreed that if what this petitioner alleges in his petition for a writ of certiorari which is must more detailed and much more specific then his allegations in the District Court.

We have agreed that if — what he alleges in a petition for certiorari, were alleged to the District Court.

The District Court would have to do something.

We find a little difficult to fool the District Court on that acting on what it had before it that.

But even aside — its true the District Court rested on the Ninth Circuit rule which were not defending but even on the petition in the District Court.

It seems to us the petition is not specific enough as petition for certiorari is to require action and we think that’s different.

We think he have a right to require specific allegations in a District Court about what went on with his lawyer.

You can’t expect an ignorant prisoner to know where there is legal error to track but he can know what went on with his lawyer.

Now in this — in the petition, just — he alleges something which is fairly consistent with what?

Petitioner’s counsel says, he has discovered ex parte.

He says, that he asked the Attorney to take an oral notice of appeal.

No, he has his Attorney to appeal and a petitioner’s trial counsel gave oral notice of appeal.

I assumed he considered this rather cryptic motion to be an oral notice of appeal.

And then he says, petitioner’s wife where then placed in a room to await transportation back to the county jail and that one of his other papers in the record, he said, he was held in the county jail for 30 days.

But at this point, he says, while they were waiting, petitioner’s trial counsel came to take petitioner’s wife and told them he would arrange for their cases to be appealed.

Now that is a part that’s — we don’t know what happened there, that’s after this hearing.

Whatever went on there and whether it is true or not.

I have no way of knowing but we agreed that if that allegation, that counsel said he would arranged all the cases to be appealed which appears only in petition for certiorari it made to the District Court would call for some action.

But the question is what action?

Beatrice Rosenberg:

And I think that this is important not only in these situations which we hope full of rise rarely in view of the new rules.

But even more basically, generally in 2255 when you get allegations often made out of whole cloth.

What is the judge do?

And it seems to me that these — this Court’s decisions in both Walker against Johnston in 312 United States and in Machibroda have been misunderstood.

In both of those cases, there were responsive affidavits filed and the Court held on the basis of those responsive affidavits where one side said “X” and the other side said exactly the opposite.

That the court could not decide the matter on affidavits that there had to be a hearing.

And I think there has been a tendency as to result to that to consider that affidavits had no part at all in a 2255 application.

Potter Stewart:

This is result of what case I missed it?

Beatrice Rosenberg:

Machibroda, Your Honor.

Potter Stewart:

Machibroda, I thought so.

Beatrice Rosenberg:

And before that Walker against Johnston.

Although in both those cases, there were affidavits.

Now what the Court said is I revoke those cases is, these affidavits present a clear cut conflict of testimony and we have something as clear cut as that it has to be resolve to the hearing.

I presumed that if a lawyer in this case said, I did not arrange — I did not tell the defendants, I would arrange for their appeal.

And defendants said, he did — there might be of necessity hearing except for what I am going to say next because I don’t think that’s enough.

It seems to me that the first thing you do in 2255 generally and certainly in this situation is to try to get the — a responsive pleading in one from one to another.

Now, this Court just last Monday in the Harris case talked about flexibility of procedures.

I don’t think it has to be a formal responsive pleading like the old return in habeas corpus because that wouldn’t be meaningful but what you do want is to get something in the form — in the record which seems to me would most easily take the form of an affidavit.

Getting from in this case, the Attorney since the Government has no part of all these.

This was retained counsel and knew — the Government obviously knew nothing that went on here.

Get from the Attorney a response.

Now, I can conceive of several responses which might settle the whole question one way or another.

For example, if the Attorney says, he did tell me he would like to appeal.

And I said I didn’t feel that I could do it for less than “X” dollars and that I did not feel that was part of my obligation to tell him anything about his rights in forma pauperis.

Why?

Because we don’t have to have a hearing, we just go ahead with an appeal, if that’s the situation.

On the other hand, we had a case I think this term may be the last, in which a person alleged that his Attorney had deliberately failed to go ahead with his appeal and the Attorney had filed in Court a written consent signed by the prisoner to dismiss the appeal.

I think experienced attorneys faced with charges are probably being careful.

If they decide not to go ahead with appeal to get some sort of acknowledgement from counsel because counsel appointed and abused, and appointed as well as retained are subject to great many charges by precedent, very few of which proved to be justified.

However, there may be other situations Attorney may say I didn’t feel the case at any merit.

Beatrice Rosenberg:

I was convinced that this client had a great deal of money and I therefore so no need to inform him of his rights in forma pauperis.

In that kind of situation, at least to get you to narrow, Court has a legal question to decide.

Do you – does a retained counsel have to inform a man who believes to be non-indigent of his rights.

Thurgood Marshall:

Ms. Rosenberg, any place along the line that you consider in giving the prisoner a lawyer?

Beatrice Rosenberg:

Oh!

I think that it becomes — once you get a responsive plead, a man says, as this prisoner says here, while we are waiting, counsel said he brings with the appeal and he didn’t do it and I left convinced that my appeal was going forward.

Now, I think we get a reply from a lawyer first before we get a lawyer.

We — we get a responsive pleading whether it’s in the form of a request by the United States — to the United States Attorney to get it or directly.

Thurgood Marshall:

When if ever does the prisoner get a lawyer?

Beatrice Rosenberg:

Well, if from the lawyer’s response.

It becomes clear that he was deprived of his right of appeal.

Of course, you give him a lawyer.

You give him a transcript and you go ahead with the appeal.

If it becomes clear when the response that you have a kind of an issue of fact that can be res — determine on affidavit then you give him a lawyer and have a hearing under 2255.

And if it is decided that he does have a right of appeal, you give him a lawyer on appeal.

There’s no question that if the appeal is allowed, he is given a lawyer.

The question is, can’t we get a responsive pleading which at least there is a function of narrowing the issues and which may even avoid the necessity of a hearing?

Thurgood Marshall:

What my problem —

Beatrice Rosenberg:

Before we have to give a lawyer.

Thurgood Marshall:

My problem is, if I understand you correctly, that in this very case, once this petitioner had a lawyer.

The lawyer was able to say it properly so that you admit that if that had been found in the District Court it would had to been heard.

Beatrice Rosenberg:

Only you —

Thurgood Marshall:

Doesn’t that mean that when he gets back to the District Court he has to have a lawyer?

Beatrice Rosenberg:

Your Honor, he didn’t have a lawyer except the prisoner lawyer is a pretty good one in this case.

This — the allocations that we considers sufficient are the allegations in the petitioner in the writ of certiorari before counsel here was appointed.

Thurgood Marshall:

That’s the one.

Beatrice Rosenberg:

Yes.

That’s the one.

Thurgood Marshall:

Well, he can’t have that one in Court because he’s still —

Beatrice Rosenberg:

No!

Thurgood Marshall:

— in prison.

Beatrice Rosenberg:

Well, all we’re saying is he leaves allegations that he makes here are the kind that a prisoner can make particularly in the light of this Court’s decision in Johnson against Avery and the system that’s been developed in the federal prisons in most of them of having assistance to the petitioners.

He can say what he said here.

This isn’t asking for legal points.

This is simply asking him to say what happened between him and his lawyer.

Now, all we said was, if this same kind of an allegation just copy, were put to the District Court, the District Court would have to do something.

We admit that.

The question is what is the District Court do with that point?

And we say the first thing the District Court does before it appoints a lawyer or before it desires to hold a hearing is to ask for a responsive pleading from the person knows which is the lawyer in this case and would be in the form of an affidavit.

And it seems to us that this serve at least the function of narrowing the issues because if the lawyer does say, yes, he wanted to appeal, and I said, no, I wouldn’t do if except unless he paid me “X” dollars.

And – but I felt no need to do anything further even to informing him of rights in forma pauperis.

Then the District Court doesn’t have to hold a hearing.

It just had to go ahead and appoint a lawyer and let the appeal proceed.

Potter Stewart:

Well, as to make a sentences I suppose so that the —

Beatrice Rosenberg:

Well, that brings —

Potter Stewart:

— that would be a matter of mechanics.

Beatrice Rosenberg:

— each one has a question.

There are two different ways to doing it and I think the one that Your Honors suggest is it that a way.

It’s the way suggested by the District of Columbia until then and by the Eighth Circuit, I believe it is, which is to vacate the sentence and re-sentence so that the 10 days where appeals start to running.

And of course, at that point he has to appoint a lawyer for him.

I think that’s a better way and he said, it had problems before because it would have been problems of credit on a sentence.

But in view of the new statute which gives the prisoner a credit on a sentence for all the terms spend in the jail for that offense.

These problems would not arise and it seems to me more expeditious and correct to have the sentence vacated and the appeal proceeds in that situation and —

Potter Stewart:

How long is this?

Beatrice Rosenberg:

— I think that it would, if I may respectfully so suggest be desirable that an opinion so indicate, so that the courts who are faced with the problems will know what to do.

Potter Stewart:

What’s the other alternative procedure, Ms. Rosenberg?

Beatrice Rosenberg:

Pardon?

Potter Stewart:

What’s the other alternative procedure? You said there were two of which this one you thought was preferable?

Beatrice Rosenberg:

The other alternative had been to — on for the District Court on 2255.

To consider the issues and say, there is no issue here that’s worth an appeal or there is an issue here that’s worth an appeal.

Beatrice Rosenberg:

And I think the appellate court would rule this way and so all ordering new trial or I wouldn’t.

I think that is undesirable because it doesn’t remedy the wrong.

The wrong isn’t there to appeal and it seems to me therefore that if were going back to where the wrong occurred, we should give him the appeal immediately and have a Court of Appeals pass on it rather than the district judge for his rulings in the sense when he’s trying to appeal.

Earl Warren:

Well Ms. Rosenberg, what do you think that the situation of this kind where we have an ignorant, illiterate foreigner who is being tried for an offense and he hears his colloquy in Court and then shortly after 30 days, attempts to perfect his appeal and in two subsequent proceedings.

The District Court examining the records and remembering what happened on both occasions treated this as an oral notice of appeal and the two different panels of the Court of Appeals considered it as an oral notice.

Do you not believe that that brings a case to us in a form were we should decide whether the Ninth Circuit rule is right or wrong instead of trying to limit it in this way that you have been trying to do?

Beatrice Rosenberg:

Oh, we have agreed to be nice.

I see that the Court must —

Earl Warren:

Why do you — why do you tells us —

Beatrice Rosenberg:

No, I think the —

Earl Warren:

— narrow us down?

Why — why isn’t a man entitled?

Do you want the judge to say or if he does come in now and say, “well, I want an appeal in these grounds.

Have the judge pass on its own actions.”

And say, “No it isn’t good enough, you can’t appeal.”

Why isn’t he entitled to an appeal?

Beatrice Rosenberg:

Your Honor, I was not — I said I thought the preferable procedure would be to have the judge vacate the judgment and allow time for appeal.

I think that is preferable procedure.

Now on this question Your Honor, about —

Earl Warren:

Well, now I didn’t understand that you agreed that this case should go back and he should be granted an appeal.

I thought you said he should go back and have affidavit signed by himself, and counter-affidavits filed by counsel and so forth and then have the judge determine whether or not this was a notice of appeal.

Beatrice Rosenberg:

Oh!

Your Honor, I don’t think that I can on my own say that counsel was derelict in his duty without having counsel heard.

I don’t know what happened on —

Earl Warren:

There were somebody was obviously derelict, who was it?

Was it the petitioner?

Was it the lawyer?

Or was it the judge?

Beatrice Rosenberg:

I don’t know.

Earl Warren:

Was it the judge?

Earl Warren:

Or was it the Court of Appeals?

Somebody has been derelict here.

Beatrice Rosenberg:

I don’t know Your Honor.

I —

Earl Warren:

Well, Ms. Rosenberg —

Beatrice Rosenberg:

— do know that there are cases in which there’s a determination counsel had said to a prisoner, “I do not think there was anything to be gained by appeal.”

Earl Warren:

You — do we have nothing like that in this case?

There’s nothing been said like that here?

Beatrice Rosenberg:

We don’t know what has been said Your Honor.

We know what the prisoner has said but —

Hugo L. Black:

What is the — what is the destination do you think you should be made in this case?

Beatrice Rosenberg:

I think this — I think the proper is to — for this Court to rule that the prisoner need not show grounds for appeal that if the allegation in its petition, it can be present back to consider whether the allegations of the petition for a writ of certiorari that — when we say that on the basis of the allegations and the petition for a writ of certiorari.

The District Court must determine whether the petitioner has been deprived of his right of appeal.

Now, I think this is just —

Earl Warren:

Isn’t that the issue that’s here right now?

Beatrice Rosenberg:

No, it’s whether he stated the basis.

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

It’s whether he has stated the claim which the District Court should consider and we agree that he has stated the district acclaim which the District Court should consider.

But I do think that counsel is entitled to be heard.

Now, if counsel chooses to say that mea culpa, I should have gone ahead.

Alright!

But as I tell you, Your Honor, I have thin cases where prisoners have said, counsel refused to take an appeal for me.

And then counsel has come forward with the document which the prisoner has signed, agreeing to dismiss the appeal.

I don’t think its unfortunate I think to this case has taken so long.

It’s unfortunate that this — his first attempts did weren’t considered more carefully.

But if we are establishing the general rule, I have seen too many cases where counsel was abused unnecessarily to accept a prisoner’s word as a general matter.

I agree that if what Mr. Ross says he has learned informally was correct may be easiest way in this case would be that.

But I’m in no position to say that counsel was generally without knowing the facts.

Hugo L. Black:

Are you suggesting there should be a remand for the purposes of framing an issue as to what went on between this man and his lawyer?

Beatrice Rosenberg:

Yes.

Hugo L. Black:

Depending on that to there would be a hearing or not?

Beatrice Rosenberg:

That’s right.

Hugo L. Black:

Is that it?

Beatrice Rosenberg:

That’s our position.

Now, the reason I hesitated, Your Honor, when you first asked me if we suggested in our brief that what was said in the District Court was so unspecific compared what is said in the petition for writ of certiorari that it would be appropriate to just let him start all over again.

However, I don’t think that’s terribly important.

He has made this very specific allegations in light of the fact that counsel is convinced that they are — that they have a basis, in fact, in this case.

Then I think that it could well be a remand to consider this but I do think that we cannot in the sense convict counsel without giving him a chance to say what his version of events is.

Earl Warren:

Do we have to convict counsel or do we have to interpret what he said to the court?

And determine how the court understood what the counsel said?

Isn’t that what we’re after here rather than to try a lawyer?

We’re not trying any lawyer.

This man made a motion in court and he mentioned that the defendant wanted to go ahead in forma pauperis.

And the court twice on subsequent proceedings has considered that as an oral notice of appeal and two different panels of the Court of Appeals has interpreted that in the same way.

Now, why do you say to us that we shouldn’t interpret it that way for the purpose of determining whether this man gave notice of appeal?

Beatrice Rosenberg:

Well, Your Honor.

The judge said to counsel, —

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

— they have to file a written to the judge.

Even on this hearing said to counsel, you have to file a written notice.

Prisoner himself said he did confer with counsel after sentencing.

Something went on there.

I —

Earl Warren:

Something went on?

Its — it demonstrate in Court from what counsel read?

Beatrice Rosenberg:

No, after sentencing.

This was at sentencing.

Earl Warren:

At sentencing, his counsel said that he wanted — this man want to proceed in forma pauperis and the Court interpreted that evidently as an abandonment of the client and the desire from that moment for him to proceed in forma pauperis.

And within 30 days or shortly after 30 days, the defendant was trying to get into the courts and what more — what more do we need when the courts have interpreted the way — below the way they have.

Beatrice Rosenberg:

Well, it still seems to me that a defendant has said that counsel promised to do something and counsel didn’t do it.

Beatrice Rosenberg:

Now, if — it’s very simple if that’s the fact and counsel agrees to the fact.

I agree.

There’s nothing further to do.

We don’t need a hearing if the man gets his right of appeal.

But it is still true —

Earl Warren:

Do you know for well that if this case goes back and counsel said that, “No, I didn’t, I didn’t tell him I would appeal.

What I said in court was what I meant.”

You know that the Court is not going to believe Rodriquez as against the practicing lawyer in the city, don’t you?

So he’s denied the right of appeal and inspite of the fact that the courts below and all these occasions have said that except for the fact that he didn’t delineate.

The — what his rights — what his cause of appeal was that he couldn’t appeal?

That’s the issue they decided not until you didn’t give or a notice of appeal but that he didn’t give the reasons why he was appealing and they say —

Beatrice Rosenberg:

We have agreed to that —

Earl Warren:

— because of that and because of our rule, he can’t have an appeal.

Now, why can’t — why can’t we say if you don’t — if you don’t abide by that Ninth Circuit rule Ms. Rosenberg.

Why can’t we say that the Ninth Circuit rule is wrong?

That the man did give an oral notice of appeal in the courtroom that his counsel abandoned there and left him to in forma pauperis and that he didn’t have to in those circumstances delineate the issues that he intended to raise and decide the case in that matter, in as much as two Courts of Appeals have done it and the District Court twice.

Now, what —

Beatrice Rosenberg:

Well, I think Your Honor, you are if so ruling accusing —

Earl Warren:

I beg your pardon?

Beatrice Rosenberg:

I think that we are accusing counsel of the derelicts in duty without hearing counsel.

Now, I agree that the indications in this particular case are that this man should be given a right of appeal except that one of the things that is surprising on the other hand, I must say, is that there were other defendants represented by other counsel, separate counsel.

Now, I’m willing to believe one may have not understood his obligations completely.

I find it hard to believe that I think its four different counsels, I’m not sure, didn’t do so.

However, I think that we have rules here that must be a part across the board and we cannot fail to face the fact that there are many prisoners who simply creates (Inaudible) very convincing and turn out not to be, to be absolutely false on documentary evidence.

So that in having general rules about what a court should do, I think that we have to consider that question and it’s not — it’s what happens generally.

Byron R. White:

Ms. Rosenberg, what’s the predicate on your position here, is it rule of criminal procedure or are they with supervisory powers constitute —

Beatrice Rosenberg:

What?

Of the —

Byron R. White:

Of the counsel you’re talking about?

Beatrice Rosenberg:

Of the right to counsel on appeal?

Byron R. White:

Quite right.

What reason do we get for — what violation may have — may there have been here?

Beatrice Rosenberg:

Well, there could have been a violation of the right to counsel.

Effective assistance to counsel in the sense that, does counsel duty extend to carrying through to the point of at least notifying him of a right of appeal, and what he should do and particularly when it is retained counsel, could this counsel have a right to abandon him?

Byron R. White:

Any counsel would be it fails to follow its orders.

Fails to follow his agreement that is the deprivation of right to counsel?

Beatrice Rosenberg:

Of course, it is had so said that if counsel has overreached it’s in some form or another that’s the Calland case in the Seventh Circuit.

Byron R. White:

Well, that’s what we reached but you would — you would throw in with that (Inaudible)?

Beatrice Rosenberg:

Well, if you were in that instance since it’s very hard to reconcile the cases —

Byron R. White:

Ms. Rosenberg, I am just asking —

Beatrice Rosenberg:

— with —

Byron R. White:

— what do you think the answer is?

Beatrice Rosenberg:

I think it must be a little more that negligence.

It must be a failure to inform of the rights.

Byron R. White:

This claim makes this instance forgetting about it or he puts (Inaudible).

Beatrice Rosenberg:

That’s right.

Byron R. White:

— the secretary is sick that’s the Fifth?

Beatrice Rosenberg:

That’s Robinson.

Byron R. White:

Alright.

That may be Robinson that puts you to the Department of Justice, is it?

Beatrice Rosenberg:

My department suggested its position is a pure negligence without any of the reaching aspects is not enough.

Byron R. White:

Well then I suppose you would say there would have to be a hearing in this case you get it.

Well, base on your position?

Beatrice Rosenberg:

Not necessarily because he says the counsel agreed and then deliberately failed to take any steps.

Now, counsel admits that it doesn’t have to be a hearing.

Byron R. White:

Deliberately?

Beatrice Rosenberg:

I said I wouldn’t do it under the Calland case, if the counsel says, the only way you can take an appeal is to pay me $500.00.

And you don’t tell him that you can get an appeal another way that in of itself is enough.

Byron R. White:

You have repeated the cases here, you well know that maybe he knows about either — maybe you wouldn’t distinguish unless with respect between your point of view?

Beatrice Rosenberg:

No.

Byron R. White:

(Inaudible)

Beatrice Rosenberg:

No.

On — well, I think there’s a possibility of distinction if you have a kind of a client who is known to have a $100,000.00.

I don’t think you have to tell him of his rights to appeal as an indigent.

Byron R. White:

Well —

Beatrice Rosenberg:

But what you say, I would — I think you have a good case on appeal —

Byron R. White:

But still — but there’s a point of counsel.

Lets assume counsel’s case had been appointed the same thing happened, you would have —

Beatrice Rosenberg:

No.

Cases have cleared that appointed counsel is under a duty to either takes a notice of appeal and ask for withdrawal or to notify the defendant of what must be done.

He must inform him of the time for appeal.

Let me say of course that this is — we hope a dying question because the new rules —

Byron R. White:

You make a difference in the point in your indictment?

Beatrice Rosenberg:

No.

I think the only difference is the situation of a retaining counsel saying to a defendant whom he does not know to still have funds.

Byron R. White:

(Inaudible)

Beatrice Rosenberg:

I think you have a good pace on appeal but I won’t do unless you pay me $5,000.00.

Now, if — its — this is a client known to have a $100,000.00, I don’t think the client — a retaining counsel is under a duty to tell him about the rights to go precedent forma pauperis.

On the other hand, if you have in this situation the case where counsel assumed that counsel felt he wasn’t adequately paid for the trial and that he really did think his client was now a pauper then he is under a duty to tell him about his rights as an indigent.

And if an appointed counsel was been appointed on the assumption of the client was indigent, he is under a duty to tell him that his rights has a mean —

Byron R. White:

If you tell him, your client said, “please appeal” and neither the appointed counsel or the retained counsel does so.

Are they both under this?

Hugo L. Black:

Yes.

Byron R. White:

(Inaudible)

Hugo L. Black:

Yes.

Byron R. White:

And so you’re relying with Department of Justice suggested before and all these cases were failure of counsel to take some set which is either review or the part that except — expected from you that you want to go in between the negligence of the (Inaudible)?

Hugo L. Black:

Yes.

Byron R. White:

And your negligence do you say that the whether the counsel retained or not or appointed, the client is (Inaudible)?

Hugo L. Black:

It’s correct.

Abe Fortas:

Well, Ms. Rosenberg isn’t the real question here whether there was — whether they — prisoner deliberately gave up his right to appeal.

Abe Fortas:

That is to say whether there was a deliberate failure to appeal and that can be established aid by proof of a decision on the client’s part or his acquiescence on the lawyer’s decision.

If the — on the other hand, if the lawyer failed for whatever reason to advice the client of his right appeal and at least arguably there was no waiver of voluntary surrender of the right of appeal.

And all of these are questions for the District Court to look into and decide in this case once we get pass, if we do get pass of the obstacle presented by the Ninth Circuit’s ruling in this case that since the petitioner failed to state the basis of his appeal that will not consider their appeal.

Hugo L. Black:

That’s right.

Abe Fortas:

Is — have I summed it up correctly?

Hugo L. Black:

Right.

Thank you.

Earl Warren:

Well, Mr. Wallace, and you are going to finish your time.

I feel you have some more time —

William Ross Wallace:

Well, I think — I think I can finish very shortly.

I should — I should like to address myself first to the question asked by Mr. Justice Marshall.

I think it’s obvious in the situation of this kind that immediately on remand counsel must be appointed before the prisoner.

I don’t think the court should be calling in a former lawyer and asking him to make an affidavit ex parte again.

I think the ex parte business is — we have too much of that in this case already.

I think if counsel had been called in the first instance and the United States Attorney called in the first instance, we wouldn’t be here.

The further question of —

Byron R. White:

Well, there’s a constitutional — is there constitutional right to a lawyer in 2255?

William Ross Wallace:

Well, in the Boruff case, in the Fifth Circuit, the Court says, we think it is not unwarranted construction of the statute of Rule 37 (a) (2) to construe the works defendant not represented by counsel.

To mean a defendant not represented by counsel during the 10-day period after which failure to file a notice of appeal would forever bar such a right.

Now —

Byron R. White:

Well, at least I suppose if this Court rule that there should be a hearing the practice in the Ninth Circuit would be to appoint a —

William Ross Wallace:

I would think so.

Yes, Your Honor.

I think they do.

Byron R. White:

They do appoint counsel when they have a hearings and —

William Ross Wallace:

I think that is correct, Your Honor.

Abe Fortas:

Mr. Wallace, you’re here now suggesting are you that this Court should tell a District Court at this stage how to go about ascertaining the resolution of the issue affect if one develops?

William Ross Wallace:

No.

I’m suggesting this Court should not do so.

Abe Fortas:

We’re not and we should know then you’re not suggesting are you that at this point, we should instruct the District Court that it should or should not appoint counsel for the ascertainment of whether this petitioner’s lawyer did or did not advise him about his right to appeal.

Abe Fortas:

Did or did not fail to perfect the appeal, can that all that be material?

William Ross Wallace:

Well, I would assume Your Honor that if this case is sent back to the District Court and the rule of the Ninth Circuit is overruled by this Court and the court in this case is remanded to the District Court to determine whether this prisoner has a right of appeal.

All of these things would be taken care off.

Abe Fortas:

Then the District Court will go ahead and —

William Ross Wallace:

That’s right.

I only suggest the thing I was objecting to — was that the some kind of proceeding happened before the Court held a hearing.

I think the prisoners entitled to be present or at least he is entitled to have counsel and then, the court can go on and have whatever kind of an investigatory hearing it wants.

So long as it is confined only to the question of this man’s right of appeal and not to the question of whether his appeal, if granted would be a good one.

I don’t think that’s any business in the District Court.

Thank you.