author: GIBBONS, Circuit Judge. VAN DUSEN, Circuit Judge

text:
    UNITED STATES of America, Appellant, v. Lloyd Eugene CROOK, Appellee.
    No. 73-2038.
    United States Court of Appeals, Third Circuit.
    Argued May 17, 1974.
    Decided Aug. 2, 1974.
    Van Dusen, Circuit Judge, dissented and filed opinion.
    Robert E. J. Curran, U. S. Atty., James C. Sommar, Asst. U. S. Atty., Philadelphia, Pa., for appellant.
    Edward H. Weis, Asst. Defender, Defender Association of Philadelphia, Federal Courts Div., Philadelphia, Pa., for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and GIBBONS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This is an appeal by the United States pursuant to 18 U.S.C. § 3731 from an order of the district court granting the motion of defendant, Lloyd Eugene Crook, to quash an incriminating statement which he gave to agents of the Federal Bureau of Investigation on January 17, 1973. Crook is before the district court on an indictment charging robbery of a Wyncote, Pennsylvania bank, and the challenged statement. admitted that he did so. The motion to suppress asserted (1) that the F.B.I. should have called Crook’s attorney before they interrogated him, and (2) that his mental condition was such on January 17, 1973 that he could not appreciate the significance of the Miranda warnings given him and thus his waiver of Miranda rights was not voluntary. The district court held a hearing in which psychiatric evidence as to Crook’s mental condition was presented, and concluded:

“If the mental capacity of the defendant was the sole issue in this case I would hold that his mental capacity was such that there was no violation of his rights in obtaining the statement because of any mental condition arising out of any mental illness that the defendant may have had at that time, or of any mental incapacity, and I would hold, if that were the sole issue in this case, that the Government has met its burden of proof that the statement was validly obtained.” Appendix at 90.

The court held, however, that the statement should be suppressed because the interrogation was in violation of Mas-siah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). That holding is inconsistent with decisions of the Supreme Court and this court, and we reverse.

I. THE MASSIAH ISSUE

On January 17, 1973, Crook was arrested in Peoria, Illinois pursuant to a warrant charging him with robbery of the Wyncote, Pennsylvania bank on December 22, 1970. He was taken to the Peoria F.B.I. office where a standard written advice of rights form was given to him. He read and signed this form which was witnessed by two F.B.I. agents. The form was not read to him. It contains all the warnings required by Miranda, and above the signature line appears the language:

“I have read this statement of my rights and I understand what my rights are. I am willing to make á statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing: No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.”

Appendix at 52. (emphasis added). Crook was then asked if he committed the Wyncote robbery and he denied it. One of the agents told him that his sister had identified him as the person in the Wyncote bank surveillance photographs. He then responded “Well if you say its me, its me.” Crook then answered specific questions which were reduced to a narrative confession which he signed.

At the time of the interrogation Crook was awaiting sentence on an attempted bank robbery charge in Peoria, Illinois. Arrested on that charge on December 18, 1972, he had later been arraigned and Randall Moon, a Peoria attorney, had been appointed to represent him. Through Mr. Moon he had tendered a guilty plea on the Peoria charge on the basis of a recommendation by the government of a three-year probationary sentence. On January 17, 1973 the Peoria judge had not yet finalized this plea bargain by accepting the guilty plea. One of the F.B.I. agents who arrested Crook on the Wyncote charge was the case agent on the Peoria case and was aware that Mr. Moon represented him in that case. That agent was present during the January 17, 1973 interrogation. Following the execution of the signed statement, an attempt was made to call Mr. Moon, but he was not in his office. On the basis of the foregoing facts, which are essentially undisputed, the court ruled:

“Clearly in this case the counsel representing the defendant in the Peoria bank robbery had an interest to protect in that pending proceeding. I would point out, however, that there is no contention and no evidence that the defendant was actively prevented from contacting Mr. Moon, or that the statement was obtained by any type of physical or mental coercion in the classic meaning of the word.
I do not find in this case, considering the totality of all the circumstances, that the Government has met its burden to prove that the statement was properly obtained, and that the defendant and the accused did voluntarily intelligently and knowingly waive his right to counsel.” Appendix at 99-100.

The totality of the circumstances is that Crook, whom the court found to be competent, uncoerced and unrestrained from calling an attorney, signed a waiver stating “I do not want a lawyer at this time,” but that the agents knew he was represented by a lawyer in connection with another totally unrelated offense. The only additional factor to which the district court referred was the fact that the Peoria attorney had an interest to protect in that pending proceeding. Undoubtedly that interest was in having the Peoria court accede to the plea bargain. That factor is irrelevant to the admissibility of the statement in this proceeding in which the issue is the volun-tariness of the Miranda waiver. Whether or not the interrogator knew the defendant had counsel in an unrelated case at the time of the waiver has nothing to do with whether the waiver was knowing and intelligent, so long as the defendant knew he had counsel. The relevant inquiry is not what the F.B.I. agent knew but what Crook knew and understood. No contention has been made that Crook was unaware, when he signed the waiver, that Moon represented him in connection with the Peoria case. The finding that the government has not proved that the statement was properly obtained after a valid Miranda waiver, resting as it does on the single factor that the F.B.I. agent knew Crook was represented by an attorney in an unrelated case, is clearly erroneous.

We are urged, however, that as a matter of law any interrogation by government agents of a defendant whom they know to be represented by an attorney, even in another case, is unlawful under Massiah v. United States, supra. The Supreme Court rejected such a rule in Hoffa v. United States, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and we recently followed Hoffa in United States v. Osser, 483 F.2d 727, 733-734 (3d Cir.), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321 (1973).

These additional observations of the district court are worthy of note:

“But I fail to see what good written opinions condemning certain police procedures are if they do not prevent repetition.
I hope that it will have a prophylactic effect as to future interrogations.” Appendix at 98.

These observations suggest that the district court looks upon any interrogation of a defendant represented by an attorney as unethical in the absence of the attorney’s consent, and that the sanction for such an ethical violation is suppression. See United States v. Thomas, 474 F.2d 110, 112 (10th Cir.), cert. denied, 412 U.S. 932, 93 S.Ct. 2758, 37 L.Ed.2d 160 (1973); A.B.A., Code of Professional Responsibility, DR 7-104(A)(l) (1969). We share the district court’s unease with the practice of talking to a represented defendant behind his attorney’s back. See, e. g., United States v. Cobbs, 481 F.2d 196, 200 (3d Cir.), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 204 (1973). But the Code of Professional Responsibility, assuming it should guide the conduct of F.B.I. agents as well as United States attorneys, can be enforced by sanctions only under our supervisory powers. See United States v. Springer, 460 F.2d 1344, 1354 (7th Cir.), cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972). Those powers are subject to the control of Congress. In the Omnibus Crime Control and Safe Streets Act of 1968, Pub.L. No. 90-351, tit. II, § 701, 82 Stat. 197, 211, Congress provided that “[i]f the trial judge determines that the confession was voluntarily made it shall be admitted in evidence . . . 18 U.S.C. § 3501(a). Presumably the constitutionally mandated requirements of the Miranda decision survive that enactment. See United States v. Marrero, 450 F.2d 373, 379 (2d Cir. 1971) (Friendly, J., concurring), cert. denied, 405 U.S. 933, 92 S.Ct. 991, 30 L.Ed.2d 808 (1972); C. Wright, 1 Federal Practice and Procedure § 76, at 121-22 (1969). We cannot, however, in exercising merely supervisory powers, disregard the congressional mandate of 18 U.S.C. § 3501(a). Since there was full compliance with Miranda, and hence with the fifth and sixth amendments, the district court is bound, in determining admissibility, by 18 U.S.C. § 3501(a). The statement should not have been suppressed for the reasons on which the district court relied.

II. THE COMPETENCY ISSUE

Crook urges that the order should nevertheless be affirmed because the district court erred in determining that he was competent, on January 17, 1973, knowingly and intelligently to make a Miranda waiver. See Collins v. Brierly, 492 F.2d 735 (3d Cir. 1974) (en banc). The court heard the testimony of three psychiatrists: Dr. Heller, who was court appointed, Dr. Thrasher, who was employed by the government, and Dr. Berman, for the defendant. All three agreed that Crook suffered from some form of mild chronic schizophrenia undifferentiated type. Their opinions as to his competency to make a valid Miranda waiver conflicted to some extent. We have independently examined the evidence as to Crook’s mental condition. See, e. g., Blackburn v. Alabama, 361 U.S. 199, 205 n. 5, 80 S.Ct. 274, 4 L.Ed.2d 242 (1960), and cases cited therein. We cannot say that the district court erred in concluding that the government met its burden of establishing a knowing and intelligent waiver. Thus we cannot affirm the suppression motion on that ground. Our conclusion that we cannot affirm on that ground, resting as it does on the superior opportunity of the trial judge to observe the witnesses, does not preclude a renewal of Crook’s competency contention at or before final hearing.

The order suppressing Crook’s statement of January 17, 1973, will be reversed.

VAN DUSEN, Circuit Judge

(dissenting) :

I believe that the majority opinion, possibly due to an incorrect characterization of the reasoning of the district court, overrules sub silentio the guiding principles set forth in this court’s decision in United States v. Cobbs, 481.F.2d 196, 200 (3d Cir. 1973), upon which the district court relied. Particularly because this is not an en banc decision, I respectfully dissent and would affirm the district court judgment on the facts of this record.

According to the district court, “[t]he critical issue in this case ... is whether the waiver of the right to counsel should be held to be valid”. After a careful analysis, the court found that considering the totality of the circumstances, the Government had failed to meet its burden of proving that the statement was properly obtained and that the defendant had voluntarily and knowingly waived his right to counsel. In making this finding, the court relied on the following factors: (1) although technically competent at the time of his interrogation to understand the nature of his constitutional rights and the meaning of his signed waiver, defendant was nevertheless suffering from mental illness, and the FBI agents who obtained the waiver and subsequent statement knew that he had previously been a patient in a mental hospital; (2) the Miranda warnings were given to defendant only in a written form, which he read and signed without any oral explanation from the agents; (3) defendant showed no awareness that he might be represented by Mr. Moon, a court-appointed lawyer located in the same city where he was arrested and who represented him on another bank robbery-charge on which he was awaiting sentence in that district; and (4) the FBI agent failed to contact Mr. Moon prior to the interrogation, even though he knew that Mr. Moon represented defendant in the Peoria case and correctly assumed that he would represent him in any other legal trouble in that Illinois district at that time.

These last two factors seem to have been the most important considerations in the view of the district court, for much of its oral opinion is taken up with a discussion of United States v. Cobbs, supra,. In Cobbs, this court held that a custodial interrogation of de: fendant after counsel had been appointed, but without notice to or permission of counsel, did not violate defendant’s rights to remain silent and to have counsel pri- or to the interrogation where defendant had freely and intelligently waived those rights. However, the opinion went on to provide district courts with the following guidance:

“Although the practice of custodial interrogation in the absence of and without the permission of retained or appointed counsel is technically permissible, the practice is not commendable. The relationship between lawyer and client risks significant erosion and the ability of counsel to effectively represent his client is seriously jeopardized when this kind of interrogation ensues. These risks would be materially reduced if in such situations the District Court, in inquiring into the voluntariness of such statements would expect the prosecution to demonstrate that the waiver of the presence of counsel was knowing and intelligent. Also, in cases where this issue is important, the Government’s evidence in support of the voluntariness of the waiver should also include evidence to the effect that the accused, prior to making a statement, specifically acknowledged that he was aware that he was represented by an attorney. While we emphasize that we do not consider such evidence as mandatory, we do believe that the consideration of such evidence by the District Court is a stronger and, therefore, a more preferable basis upon which to conclude that the evidence in question should be received." (Emphasis added.)

Id. at 200. Relying on this language, the district court in this case found that there was no evidence that defendant was aware that Mr. Moon could represent him in this matter and considered this fact in reaching its conclusion that defendant’s waiver of his constitutional rights was not knowing and intelligent.

In view of this focus on the question of the validity of defendant's waiver, I fail to understand how the majority opinion (at pp. 1879 and 1380) can characterize the district court’s decision as resting on an application of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), a case never mentioned, much less relied on, by the district court. I can find nothing in the district court’s analysis which conflicts with the holdings of Hoffa v. United States, 385 U.S. 293, 309-310, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and United States v. Osser, 483 F.2d 727, 733-734 (3d Cir.), cert. denied, 414 U.S. 1028, 94 S.Ct. 457, 38 L.Ed.2d 321 (1973), for those eases were concerned with defining the scope of the right to counsel, not the voluntariness of a waiver. Nor do I read the district court’s decision as embodying an exclusionary rule based on ethical considerations (see majority opinion at p. 1380). Although there is language in its oral opinion condemning the practice of taking a statement in the absence and without the knowledge of counsel, the district court’s reliance on Cobbs makes clear that this factor was considered merely as evidence on the issue of the validity of the waiver.

Finally, I cannot agree that the district court’s finding of an invalid Miranda waiver is clearly erroneous, “resting as it does on the single factor that the F.B.I. agents knew Crook was represented by an attorney in an unrelated case” (majority opinion at p. 1380). In the first place, this assertion overlooks the three other factors relied on by the district court. See p. 1381 above. In particular, it ignores the finding that there is no evidence that defendant was aware that Mr. Moon could represent him in this case. Since Cobbs clearly places the burden on the Government to introduce evidence showing that prior to making a statement the accused “specifically acknowledged that he was aware that he was represented by an attorney,” the district court properly considered this factor, even if it were true, as the majority opinion states (at p. 1380), that “[n]o contention has been made that Crook was unaware, when he signed the waiver, that Moon represented him in connection with the Peoria case.” Furthermore, while it is literally correct that in considering the validity of the waiver, “[t]he relevant inquiry is not what the FBI agent knew but what Crook knew and understood,” (majority opinion at p. 1380), the evidentiary principles set forth in Cobbs for determining the vol-untariness of a waiver are applicable only where the court finds a custodial interrogation has occurred in the absence of and without the permission of counsel. Thus, the district court’s discussion of the FBI agent’s knowledge of the attorney-client relation between Mr. Moon and defendant and his failure to contact Mr. Moon was highly relevant, albeit indirectly, to its determination of the validity of defendant’s waiver.

In summary, I believe the district court’s decision in this case represents a conscientious and proper application of the above-quoted language in the Cobbs opinion. I recognize, of course, that this language is not, strictly speaking, part of the holding of that case. However, where, as in Cobbs, a panel of this court has attempted to lay down guidelines to assist in the resolution of a difficult and important constitutional issue, district courts are entitled to rely on them and should not be reversed for doing so without a full reconsideration, of the original decision by the entire court. Thus, I do not believe the policies previously followed by this court permit reversal without hearing of this case by all active judges. See F.R.App.P. 35(a) and paragraph M.l.b.(l) of Internal Operating Procedures (3d Cir.).


source: Caselaw Access Project

author: SWYGERT, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America ex rel. George T. WILLIAMS, Petitioner-Appellant, v. Elza BRANTLEY et al., Respondents-Appellees.
    No. 73-1883.
    United States Court of Appeals, .Seventh Circuit.
    Argued April 23, 1974.
    Decided Aug. 29, 1974.
    Rehearing Denied Oct. 31, 1974.

      Leslie G. Fosehio and John C. Bruha, law student, Notre Dame, Ind., for petitioner-appellant.
    William J. Scott, Atty. Gen., Raymond McKoski, Asst. Atty. Gen., Chicago, 111., for respondents-appellees.
    Before SWYGERT, Chief Judge, FAIRCHILD, Circuit Judge, and SOLOMON, Senior District Judge.

       Senior District Judge Gus J. Solomon of the United States District Court of Oregon is sitting by designation.

   SWYGERT, Chief Judge.

Petitioner-appellant George T. Williams is appealing from the dismissal of his petition for a writ of habeas corpus. We reverse.

The question that is presented by this appeal is whether under the exhaustion of state remedies requirement of 28 U. S.C. § 2254(b) petitioner is required to appeal a dismissal of a state court post-conviction petition when the basis of that dismissal is a firmly entrenched state rule that a prior direct appeal is res judicata as to all issues that were raised or could have been raised.

Williams was convicted in 1963 of burglary and aggravated battery following a bench trial in the Circuit Court of Cook County, Illinois. He was sentenced to concurrent terms of ten to twenty years for the aggravated battery conviction and fifteen to twenty-five for the burglary. His conviction was affirmed by the Illinois Appellate Court (People v. Williams, 75 Ill.App.2d 342, 221 N.E. 2d 28 (1966)) and leave to appeal was denied by the Illinois Supreme Court, 35 Ill.2d 630. After filing several petitions for writs of ■ habeas corpus in federal court which were dismissed for failure to exhaust state remedies, Williams filed a petition for post-conviction relief under the Illinois Post-Conviction Hearing Act. This petition was dismissed in July 1969 on the ground that the prior appeal was res judicata as to issues raised in the petition. No appeal was taken from that dismissal. Instead, Williams filed in the federal district court the pro se petition for a writ of habeas corpus that is the subject of this appeal. The petition raises numerous issues including ineffective assistance of counsel, use of perjured testimony, unlawful arrest, defective indictments and a sentence in excess of the statutory maximum. A motion for appointment of counsel was also made, but the motion was denied. Respondents filed a motion to dismiss and petitioner filed a memorandum in opposition. The district court then dismissed the petition, without a hearing, on the ground that Williams had not exhausted his state remedies since he did not appeal the dismissal of his Post-Conviction Act petition. The district judge issued a certificate of probable cause and this appeal followed.

I

The district court erred in dismissing for failure to exhaust state remedies. 28 U.S.C. § 2254(b) does not require resort to a state remedy where there is “the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.” Judicial interpretation has rendered the Illinois Post-Conviction Hearing Act an “ineffective” remedy for most of the issues raised on the record here and it need not be exhausted by this petitioner before he may initiate his habeas petition in the federal courts.

The statute itself appears to provide a broad remedy for Illinois prisoners who claim to have been denied constitutional rights. The Illinois Supreme Court, however, has virtually eliminated the remedy for any prisoner who has taken a direct appeal of his conviction. A long line of cases has developed a strict res judicata and waiver doctrine:

“We have consistently held that where a convicted person has appealed from the judgment of conviction, the judgment of the reviewing court makes res judicata all issues actually decided by that court and all issues which could have been presented to that court and which were not are considered to have been waived.” People v. James, 46 Ill.2d 71, 263 N.E.2d 5 (1970).

Thus, in the absence of unusual circumstances, after a direct appeal has been taken “there ordinarily will be available no collateral remedy under Illinois Law” for any issue that “arises from facts wholly within the record.” Illinois Institute for Continuing Legal Education, Illinois Criminal Practice § 15.29, at 15-32 (1971). One district court has already determined that this res judicata doctrine renders the Illinois Post-Conviction Act an ineffective remedy for issues actually raised and decided on direct appeal. United States, ex rel. Gates v. Twomey, 325 F.Supp. 920 (N.D.Ill.E. D., 1971). The Sixth Circuit had held that exhaustion of one’s rights under the Ohio post-conviction statute is not required because the Ohio Supreme Court has adopted a res judicata doctrine similar to that of the Illinois Supreme Court. Coley v. Alvis, 381 F.2d 870 (6th Cir. 1967).

Respondents argue that the Illinois Courts have developed an exception to the waiver rule in cases where “fundamental fairness” necessitates that it not be applied. It is urged that the petitioner should' be required to appeal the dismissal of his petition so as to allow the appellate courts of Illinois an opportunity to rule on whether his case falls within the “fundamental fairness” exception. The exception is a narrow one. It was developed in People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456 (1965), a case in which a petitioner had repeatedly requested that his attorney raise certain issues on appeal, but the attorney failed to do so. Since then the “fundamental fairness” concept has been used in only a small number of cases. See United States, ex rel. Allum v. Twomey, 484 F.2d 740, 743 n. 7 (7th Cir. 1973). At this time there is no basis for assuming that the “fundamental fairness” doctrine is likely to be substantially broadened; thus it would be futile to require that every prisoner seeking a federal writ of habeas corpus must first allow the Illinois Courts an opportunity to determine whether the waiver doctrine should not be applied to their case because of unique circumstances. We refuse to contribute further needless and delaying requirements to a procedure that already often results in shuttling prisoners back and forth between the state and federal courts before any decision on the merits is ever reached. A federal petition should be dismissed for failure to exhaust this state remedy only if there is direct precedent indicating that under the particular circumstances of a prisoner’s case the waiver doctrine will be relaxed. This rule is consistent with this court’s opinion in United States ex rel. Millner v. Pate, 425 F.2d 249 (7th Cir. 1970), because in that ease we found the circumstances of petitioner’s case were substantially the same as those in Hamby. On the basis of the present record we find no reason to believe that an appellate court in Illinois would relax the waiver doctrine in regard to the claims raised by the petitioner to which the doctrine is applicable.

Respondents argue further that even if petitioner has exhausted his state remedies the petition was properly dismissed because his claims were waived for failing to raise them in the state courts and because the petition fails to allege a constitutional violation. A claim will not be deemed waived for purposes of federal habeas corpus relief in the absence of a deliberately tactical decision to forego such claim. Fay v. Noia, 373 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). It does not appear that any such tactical maneuvers were involved in this case. Thus, respondents’ reliance on United States ex rel. Allum, supra, is inappropriate. And though there may be some doubt as to whether each of petitioner’s claims sufficiently alleges a constitutional deprivation, we are convinced that there is sufficient merit to this petition to warrant our remand to the district court for a hearing on those substantive issues for which all state court remedies have been exhausted.

II

We wish to stress the point that our finding that for most of the issues raised all effective state court remedies have been exhausted certainly should not be viewed as an indication of our approval of the Illinois Supreme Court cases limiting the relief available under the Illinois Post-Conviction Act. The obvious result of the state rule is to confuse a prisoner seeking to assert his constitutional claims. Moreover, the rule places an unnecessary stress on federal-state relations. Without meaning to be gratuitous, we think that a state should not deprive itself of the opportunity to consider and vindicate constitutional claims in the first instance, rather than force them into the federal courts. Such an approach would, in our view, go a long way to relieve federal-state tensions in this area.

We are cognizant of the principle of comity embodied in the exhaustion of state remedies requirement. We think, however, that it is the current state rule that has led to a situation wherein federal courts will be ruling upon claims never presented to an Illinois court. As Judge Will has so aptly stated:

“The doctrine of comity will not be derogated by acknowledging the reality of petitioner’s situation. It is the state court system that has told petitioner that he has exhausted his state remedies.” United States ex rel. Gates supra, 325 F.Supp. at 927.

We would prefer that Illinois courts provide their state prisoners with all the relief available under federal habeas corpus so that the amount of friction between the two systems could be reduced. We would welcome an opportunity to declare the Illinois Post-Conviction Hearing Act a generally effective remedy.

The present Illinois policy not only strains federal-state relations, but also is unfair to Illinois prisoners who claim violations of their constitutional rights. The State appears to provide all prisoners a remedy, but one who seeks this relief discovers that it is not available to those who have had a direct appeal on any issues. Respect for the Constitution and the integrity of the judicial system is not fostered by such a procedure. It would be even worse if those prisoners who realize the uselessness of this state remedy are told by a federal court that they must proceed with it nevertheless before their claims will be considered by the federal courts. We will not allow the federal courts to become a part of this merry-go-round procedure.

Ill

Finally, we note that in the district court an attorney was not appointed for the petitioner though counsel was requested. On appeal this court did appoint counsel and we think that we were more ably equipped to deal with the issues as a result. We suggest that this would have been an appropriate case for appointment of counsel by the district court also. Although every pro se petition does not require the appointment of counsel, we believe that the appointment provisions of the Criminal Justice Act should be more readily used than they are at present. In the long run such appointments can often result in a savings to the judicial system. The issues will normally be limited and more clearly presented to the district court. This could result in preventing an unnecessary hearing or appeal. More importantly, counsel can help ensure that a just decision is reached.

The order of dismissal is reversed, and the cause is remanded to the district court for proceedings consistent with this opinion.

      . Ill.Rev.Stat. ch. 38 § 122-1 et seq. (1973).

      . “Any person imprisoned in the penitentiary who asserts that in the proceedings which resulted in his conviction there was a substantial denial of his rights under the Constitution of the United States or of the State of Illinois or both may institute a proceeding under this Article. ...” 111. Rev.Stat. ch. 38 § 122-1 (1973).

      . We do note the recent case of McClain v. People, 15 Ill.App.3d 929, 305 N.E.2d 423 (1973), in which it was held that under the Hamby “fundamental fairness” doctrine failure to raise the issue of incompetent counsel is not waived when both trial counsel and appellate counsel were assistants in the Public Defender’s Office of Cook County. In the present case it does appear that Williams was represented in his state appeal by tiie public defender’s office, though it is not clear if his state trial attorney was with that office. If it does later appear that his trial attorney was also with that office there might be a factual situation in which there is persuasive authority that the “fundamental fairness” doctrine would be applicable so that the claim of ineffective assistance of trial counsel would not be deemed waived. However, even if this is the situation, unless this specific claim was presented in the Post-Conviction Act petition there is still no available state remedy since any claim not raised in the original or an amended petition is waived. Ill.Rev.Stat. ch. 38 § 122-3 (1973).

      . Respondents argue that the petitioner should have appealed the dismissal of his petition because a claim of perjured testimony was considered in the Post-Conviction Act case of People v. Gendron, 41 Ill.2d 518, 244 N.E.2d 149 (1969). It is not clear whether a direct appeal had even been taken in Gendron. Still, it does appear that a claim of perjured testimony such as petitioner’s would ordinarily be cognizable in an Illinois Post-Conviction Act petition even if a direct appeal has been taken, since proof of such an allegation will normally require presenting evidence that was not in the original record and thus the issue could not have been raised on direct appeal. On remand the district court should determine whether the perjured testimony issue was raised in the Post-Conviction petition and if it was this issue should not be considered if the dismissal of that portion of the Post-Conviction petition can still be appealed to the Illinois Appellate Court.
      The district court should also consider whether the claim of ineffective assistance of trial counsel is one that could have been raised on direct appeal and if it could not have been, then the determination relative to the Post-Conviction petition must be made. Two other issues raised in the federal petition, ineffective assistance of appellate counsel and the denial of leave to appeal by the Illinois Supreme Court, appear to be claims that could not have been raised on direct appeal. But as to these issues, there is the additional consideration of whether they could even be raised in a Post-Conviction petition since they concern appellate review and might not be a part of “the proceedings which resulted in his conviction.” See People v. Ferree, 40 Ill.2d 483, 240 N.E.2d 673 (1968).
      Finally, the district court should be cognizant of the provisions of section 122-3 discussed, supra. at n. 3.

      . It is also contended that petitioner’s uncontested claim that his aggravated battery sentence exceeds the statutory ten year limit should not be entertained in the federal courts because relief is available under the Illinois Habeas Corpus Act, Ill.Rev.Stat. ch. 65 § 22 (1959). It appears, however, that an excessive sentence cannot be challenged under this act unless the lawful maximum has been served. People ex rel. Weed v. Whipp, 352 Ill. 525, 186 N.E. 135 (1933). Petitioner has not yet served ten years. Moreover, it is not clear that this remedy would ever be available to petitioner because he is serving a longer concurrent sentence. At this time there is no basis for dismissing this claim for failure to exhaust state remedies.

      . The Sixth Circuit has expressed a similar view about the comparable Ohio statute in Allen v. Perini, 424 F.2d 134, 139 (6th Cir. 1970).


author: PER CURIAM:

text:
    UNITED STATES of America ex rel. Alvin BLASSINGAME, Petitioner-Appellant, v. The Honorable Louis GENGLER, Warden, Federal House of Detention, Respondent-Appellee.
    No. 13, Docket 74-1249.
    United States Court of Appeals, Second Circuit.
    Sept. 12, 1974.
    William J. Gallagher, The Legal Aid Society of New York City, on the brief (E. Thomas Boyle, New York City, of counsel), for petitioner-appellant.
    Before KAUFMAN, Chief Judge, and SMITH and TIMBERS, Circuit Judges.
   PER CURIAM:

The Legal Aid Society, continued as assigned counsel on this appeal from a denial of Blassingame’s motion under 28 U.S.C. § 2255, has moved to be relieved as counsel.

The only question presented for review is whether the unreasonable delay in holding Blassingame’s parole revocation hearing entitles him to release from custody. Subsequent to the district court’s decision a fair parole revocation hearing was held, at which Blassingame admitted five of the charged parole violations, and asserted no claim of prejudice resulting from the delay. The clear law of the Circuit is that such a hearing renders Blassingame’s custody lawful. United States ex rel. Buono v. Kenton, 287 F.2d 534 (2d Cir. 1961). Consequently, we grant the motion to withdraw and affirm the order of the district court.


author: PER CURIAM: JOHN R. BROWN, Chief Judge, with whom GOLDBERG, Circuit Judge, joins',

text:
    Belle Few THOMPSON et al., etc., Plaintiffs-Appellants, v. Max SHEPPARD, Jr., et al., etc., Defendants-Appellees.
    No. 73-2519.
    United States Court of Appeals, Fifth Circuit.
    Oct. 25, 1974.
    C. B. King, Herbert E. Phipps, Albany, Ga., Jack Greenberg, Churles S. Ralston, New York City, for plaintiffs-appellants.
    Neil Bradley, Laughlin McDonald, Emily Carssow, Atlanta, Ga., Melvin L. Wulf, New York City, amicus curiae, for American Civil Liberties Union Foundation, on rehearing.
    Jesse W. Walters, M. Baker Wyche, III, Albany, Ga., for defendants-appellants.
    ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC
    Before COLEMAN, AINSWORTH and GEE, Circuit Judges.
   PER CURIAM:

The Petition for Rehearing is denied and the Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it, (Rule 35 Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the Petition for Rehearing En Banc is also denied.

JOHN R. BROWN, Chief Judge, with whom GOLDBERG, Circuit Judge, joins',

dissenting:

I dissent to the Court’s failure to rehear this case en banc and on such rehearing reverse and remand the cause to the District Court with appropriate instructions.

I.

It is, first, enbancworthy, FRAP 35, 28 U.S.C.A. § 46(c), as a case of major importance presenting recurring questions on which this Court in the past 20 years has spoken with a clear voice.

II.

But it is equally enbancworthy as such a case of importance because the result is, in my view, wrong and contrary to what we have consistently held.

The basic error in the beguiling opinion of the Court, Thompson v. Sheppard, 5 Cir., 1974, 490 F.2d 830, is that it confuses two things: (i) proof of discrimination by race (or sex) and (ii) the appropriate remedy once discrimination is found to exist, either in fact, in law, or both.

Although there is loose language in the Court’s opinion about failure of plaintiffs to carry their burden of proof there is really no problem of burden of proof in this case. On the initial hearing the trial court assumed that the burden was on the state jury selection officials. And the defended officials, without questioning that in the least, undertook to shoulder that burden. Indeed, except for a few superficial witnesses produced by plaintiffs on aspects which the trial court thought were insignificant, all of the witnesses were put on the stand by the officials. Assaying the 1972 petit and grand jury lists the revelations 'of that hearing were so shocking that the Judge from the bench held the list to be unconstitutional by reason of discrimination against blacks, as a race, and women, both white and black.

This was the picture:

Table A
Percentage of Blacks in the Over-21 Community Percent on Master Jury List Percent on Grand Jury List
30.23% 12.48% 10.7%
Percentage of Women in the Over-21 Community Percent on Blaster Jury List Percent on Grand Jury List
52.68% 24% 12.48%

The District Court ordered the officials to compile a new list which would contain more blacks and women. On the hearing to show cause why the revised list should not be approved the officials again produced all of the testimony. This showed improvement — even substantial improvement — but again there was revealed a staggering, uncontradict-ed, difference between the percentage of these classes in the adult population of the county and the percentage of such classes on the petit and grand jury lists. This glaring disparity was reflected not only on the difference in percentage points but, more significantly, the percentage of underrepresentation.

Table B
(1) (2) (3) . (4) (5)
Percentage Point Difference,
Percentage of Over-21 Community Original Blaster List Revised Blaster List .Column (1) Less Percentage of Under-Column (3) Representation
Blacks 30.23% :12.48% 19.15% 11.08% 36.66%
Women 52.68% 24% 37.90% 14.78% 28.06%
Original Grand Revised Grand
•Jury List Jury List
Blacks 30.23% 10.7% 16.40% 13.83% 45.75%
Women 52.68% 12.48% 35.66% 17.02% 32.31%

Upon the completion of the initial hearing the trial court clearly recognized that it had “not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Carter v. Jury Commission of Greene County, 1970, 396 U.S. 320, 340, 90 S.Ct. 518, 529, 24 L.Ed.2d 549, 563 (emphasis added), quoting Louisiana v. United States, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. Acting under that duty the Judge ordered the preparation of a new and better list. But in the face of continued flagrant underrepresentation shown by Table B that same duty remained.

No explanations really were offered as to why that result was the best attainable “as far as possible”, Carter, supra. And what evidence was offered, affirmatively proved a number of sources making the system vulnerable.

Intending no disparagement of the use of data computers in the law the Court nevertheless seems in my view to be almost mesmerized because a data computer was used. But the role of the computer here was very limited and wholly mechanical. It did only two things. First it merely created a “universe” of 7,308 names from the most recent voter list of 29,204 voters, the racial-sex-composition of which was never established. And second it identified the race-sex categories in the “universe”. From that point on the computer did nothing.

But the universe of 7,308 dwindled to 2,721 in the course of the further processing by the human beings comprising the officials. This was partly because of certain exemptions, required or claimed, in the answering questionnaire. But larger in numbers, in percentages, and legal significance under this Court’s holding in Broadway v. Cul-pepper, 5 Cir., 1971, 439 F.2d 1253 were the following:

Addressees Not Returning Questionnaires 1,489
Returned By Post Office, Address Unknown 1,240
2,729

Thus the so-called computer created “random” list of 7,308 was nothing of the kind. At most the universe was reduced to 4,579. But even this was an illusion.

Although I think the Court’s declaration that “a jury list drawn objectively, mechanically, and at random from the entire voting list of a county is entitled to the presumption that it is drawn from a source which is a fairly representative cross-section.of the inhabitants of that jurisdiction”, 490 F.2d at 833 is an acceptable working principle its conclusion that the plaintiffs “failed to carry the burden * * * ” of “showing that the product of such a procedure is, in fact, constitutionally defective”, id., is not sustainable on this record. In the first place, there was nothing to prove —nothing, that is, beyond that shown by the testimony from the officials. And the result of the “second try” was still glaring, spectacular, underrepresentation of 36% and 45% as to blacks. (See Table B.) This was proof that for some reason the so-called random selection from the voter list was not adequate to create a fair cross-section of the community. 6What those reasons might be, and more importantly, what steps should be taken to achieve a fair cross-section and eliminate the causes of the disparity were factual things which Carter and Broadway, supra, imposed on the officials to prove.

But having responded to the duty following the initial hearing the District Court at this point did nothing. It did not, for example, require or even consider whether sources other than voting lists ought to be used and if so what ones would be the most reliable. Nor did it require that undelivered or unanswered questionnaires be followed up. Nor did it require an explanation as to why more blacks than whites were excluded when grand jurors were selected under the subjective standards of.“intelligence” and “uprightness”.

Finally, the Court’s decision is in conflict with other decisions with regard to the degree of underrepresentation held to require further remedial action. Thus, in Turner v. Fouche, 1970, 396 U. S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567, the Supreme Court held that further relief was required upon a showing that only 37% of the master list was black in a county 60% black, an underrepresen-tation of 40%, and in Preston v. Mande-ville, 5 Cir., 1970, 428 F.2d 1392, the master list was 16% black in a county 29.3% black, an underrepresentation of 45.4%.

I therefore respectfully dissent.

      . This was obviously regarded as the significant thing in the analysis made by the Court in this excerpt from Alexander v. Louisiana, 1972, 405 U.S. 625, 629, 92 S.Ct. 1221, 1225, 31 L.Ed.2d 536, 541:
      In Lafayette Parish, 21% of the population was Negro and 21 or over, therefore presumptively eligible for grand jury service. Use of questionnaires by the jury commissioners created a pool of possible grand jurors which was 14% Negro, a reduction by one-third of possible black grand jurors. The commissioners then twice culled this group to create a list of 400 prospective jurors, 7% of whom were Negro — a further reduction by one-half.
      Thus, in Alexander, the Court did not subtract 7% from 14% for a disparity of only 7%, but calculated that the reduction was one-half, i. e., 50%.

      . Ross v. Odom, 5 Cir., 1968, 401 F.2d 464; First National Bank of Birmingham v. Daniel, 5 Cir., 1956, 239 F.2d 801; Bush v. Martin, S.D.Tex., 1966, 251 F.Supp. 484; Brown, Electronic Brains and the Legal Mind: Computing The Data Computer’s Collision With Law, 71 Yale L.J. 239 (1961).

      . Under current Georgia law, this is the “official registered voters’ list ... as most recently revised by the county board of registrars or other county election officials. ...” Ga.Code Ann. § 59-106 (1973).

      . Under the federal Jury Selection and Service Act of 1968, 28 U.S.C.A. §§ 1861-1869, and under all plans approved by the Fifth Circuit reviewing panel, see, Gewin, The Jury Selection and Service Act of 1968, 20 Mercer L.Rev. 349 (1969), voter registration lists are the principal source. But of course the act itself requires the use of “some other source or sources of names in addition to voter lists where necessary to foster the policy and protect the rights secured by sections 1861 and 1862 of this title.” 28 U.S. C.A. § 1863(b)(2).

      . In Rabinowitz v. United States, 5 Cir., 1966 (en banc), 366 F.2d 34, 57 we declared:
      The Constitution and laws of the United States place an affirmative duty on the [jury selection officials] to develop and use a system that will probably result in a fair cross-section of the community being placed on the jury rolls.

      . In Broadway, supra, 439 F.2d at 1257-1258, we condemn the use of a voter list as a source where 40% of the questionnaires to the voters were undelivered. In doing so we said:
      A list — this constitutes the “universe”— which is only 60% useable is hardly a source reflecting the community from which a fair cross-section may be obtained unless there is proof — lacking here — that the composition of the 40% remnant is comparable to the 60% available.
      Here of course the remnant was 37% (2,721 of 7,308) and contrasted with Broadway was of ]4 of the voters, not all voters.