Ernest H. Holmes v. United States

370 F.2d 209

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 13, 1966
• Docket: 19519_1
• Status: Published

Opinions

J. SKELLY WRIGHT, Circuit Judge.

Appellant was convicted on both counts of an indictment charging housebreaking ¹ and grand larceny.² The only error urged on appeal which gives us some concern is an allegation that appellant was effectively denied a preliminary hearing pursuant to Rule 5, Fed.R.Crim.P., and that he was prejudiced by this denial.

Prior to trial, appellant filed in the District Court a “Motion to Dismiss Indictment or for Alternative Relief,” invoking the doctrine expounded in Blue v. United States, 119 U.S.App.D.C. 315, 342 F.2d 894 (1964), cert. denied, 380 U.S. 944, 85 S.Ct. 1029, 13 L.Ed.2d 964 (1965), and alleging that: “Defendant has no recollection of having an attorney representing him at the preliminary proceedings on September 10, 1964; he does not remember ever talking to an attorney by the name of Brownlow; and he does not recollect having agreed to or consented to a waiver of the preliminary hearing.” Appellant also alleged in his motion that Brownlow “is not listed in the classified or regular telephone directory as a lawyer practicing in the District of Columbia; he is not listed in The Legal Register as a lawyer maintaining an office or telephone in the District of Columbia; and he did not file a report under Criminal Rule 24(4)³ of the General Sessions Court of the District of Columbia showing representation of any of the defendants at the preliminary proceedings on September 10, 1964.”

The records of the District of Columbia Court of General Sessions⁴ show that a complaint charging appellant and two others with breaking and entering on September 10, 1964, was filed, and a warrant issued for his arrest. The records of that court further show that appellant waived preliminary hearing and was held for the grand jury on failure to make a $2,000.00 bond. The same records indicate the appointment of “Atty: H. Brownlow” as counsel for the three defendants, including appellant, charged in the complaint. The record also lists three witnesses.

Appellant was subsequently indicted and, some time before trial on December 4, 1964, filed the motion described in detail above, asking that the indictment be dismissed as to him or, “alternatively, to order a preliminary hearing for him in full accordance with Rule 5 of the Federal Rules of Criminal Procedure * * *.” Appellant’s motion was denied without an evidentiary hearing of any kind.

We think an evidentiary hearing should have been conducted to determine whether the allegations in appellant’s motion⁵ were well founded. If the allegations are true, obviously appellant was effectively denied not only counsel for his preliminary hearing, but the preliminary hearing itself. In Blue v. United States, supra, and in Dancy v. United States, 124 U.S.App.D.C. -, 361 F.2d 75 (decided October 14, 1965, modified February 11, 1966), we have made it very clear that an effective preliminary hearing is one of the important rights of a defendant charged with crime —that such a hearing gives a defendant “a chance to learn in advance of trial the foundations of the charge and the evidence that will comprise the government’s case against him.” Blue v. United States, supra, 119 U.S.App.D.C. at 322, 342 F.2d at 901.

The Government argues that appellant’s reliance on Blue and Dancy is misplaced since the records in those cases show that the accused was not represented by counsel at the preliminary hearing. Here the record, such as it is, does show that an attorney, “H. Brown-low,” represented the appellant, but the first issue presented is whether the record notation of counsel for appellant is accurate. In the motion papers appellant alleges that he has no recollection of any such lawyer, and appellant’s trial counsel, after diligent search, was unable to find him. The second issue presented is, assuming “H. Brownlow” was appointed appellant’s lawyer by the committing magistrate, did he actually represent appellant? If the committing magistrate appointed an incompetent lawyer to represent appellant, or if the lawyer appointed for some reason failed to function, then appellant has, in effect, been denied rights guaranteed him by two Acts of Congress ⁶ and by the decisions of this court in Blue and Dancy. Moreover, where the right to counsel exists, failure of the court “to make an effective appointment of counsel was likewise a denial of due process * * *.'' Powell v. State of Alabama, 287 U.S. 45, 71, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Compare Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).

Under the circumstances, we believe it would be appropriate, while retaining jurisdiction in this case, to remand it to the District Court for an evidentiary hearing on appellant’s “Motion to Dismiss Indictment or for Alternative Relief” so that the true facts with reference to the preliminary proceedings in this case may be developed. If the trial court finds that appellant was effectively denied a preliminary hearing under Rule 5, Fed.R.Crim.P., and that appellant was prejudiced⁷ by that denial, his conviction should be set aside and a new trial granted. Otherwise the conviction will stand.

Remanded with instructions.

1 . 22 D.C.Code § 1801 (1961).

2 . 22 D.C.Code § 2201 (1961).

3 . Rule 24(4) (A) reads:

“Every attorney receiving a referral or assignment to represent a defendant in United States Branch of Municipal court [now D. O. Court of General Sessions] shall within three days after disposition of the case by the court file a report with the court on a form prescribed by the court, setting forth the name of the defendant, the offense charged, the date of referral or assignment, the disposition of the ease (including date, and whether by plea, trial or otherwise), the nature of the fee arrangement, if any, and the total compensation received, or to be received, if any.”

4 . The Court of General Sessions, along with the United States Commissioner, acts as a committing magistrate under Rule 5, Fed.R.Crim.P., for offenses cognizable in the United States District Court in the District of Columbia. 11 D.C.Code § 755a (1981).

5 . Appellant’s motion was in substantial compliance with the procedure suggested in Blue. See 119 U.S.App.D.C. at 321, 342 F.2d at 900. It specifically relied on Blue. The fact that it was filed like a § 2255 motion (28 U.S.C. § 2255) in the criminal proceeding itself, rather than as a separate habeas corpus proceeding, should not preclude relief.

6 . 2 D.C.Code § 2202 (1961) and 18 U.S.C. § 3006A (1964).

7 . The appropriate test for prejudice in a similar situation is set out in Anderson v. United States, 122 U.S.App.D.C. 277, 352 F.2d 945 (1965), and cases there cited.