James H. Williams v. United States

283 F.2d 382, 109 U.S. App. D.C. 18, 1960 U.S. App. LEXIS 3502

• Court: Court of Appeals for the D.C. Circuit
• Decided: October 24, 1960
• Docket: Misc. 1405
• Status: Published

Opinions

Order

PER CURIAM.

Upon consideration of the petition for leave to prosecute an appeal in forma pauperis, and it appearing that, although counsel was appointed to represent petitioner, petitioner is not at this time represented by counsel, and the court being of the view that circumstances in this case regarding the withdrawal of counsel are unusual and that petitioner should have the assistance of counsel in presenting his petition, it is

Ordered by the court that a member of the bar of this court be appointed to represent petitioner and be allowed 30 days to file a memorandum in support of the petition.

BAZELON, Circuit Judge, with whom WASHINGTON, Circuit Judge, joins: On January 22, 1960, we appointed counsel to prepare a memorandum in support of the instant petition for leave to appeal in forma pauperis. Thereafter counsel sought and obtained two extensions of time, the last one expiring April 4, 1960. On that date, he filed a request for leave to withdraw from the case for the reasons set forth in the statement of our dissenting colleague. The request was granted and the petitioner was granted an extension of time to file a memorandum. Petitioner thereupon filed a motion seeking, inter alia, the appointment of new counsel, which was denied on July 15, 1960, by the writer, as acting Chief Judge. In this motion petitioner charged that previous counsel interviewed him at the jail on March 29, 1960, for only 15 minutes, stating that he was too busy to present petitioner’s case properly and advising petitioner to apply for parole.

Chief Judge Prettyman requested previous counsel to respond to these charges. Only after two such requests were made by letters of May 18 and July 18, 1960, and a telephone call on September 6, 1960, did counsel respond by letter on September 6, 1960, in which he set forth the basis for his denial of petitioner’s assertions.

As to the circumstances of the interview, it appears that, on Sunday, April 3 — the day before the expiration of the extended time for filing a memorandum in this court — counsel signed in at the jail at 12:55 p. m., and signed out at 2:00 p. m. But it does not appear how much of that one hour and five minutes was consumed by jail procedures in locating and bringing the petitioner to meet with counsel. Counsel does not specifically state how long the interview of petitioner actually lasted. Nor does counsel state whether he previously devoted any time to studying or investigating the case. The fact that the memorandum was due to be filed on the day following the interview suggests, at least, that counsel may have predetermined that no study or investigation would be required after the interview. In any event, the lapse of over seventy days after counsel’s appointment before interviewing the petitioner, and the lapse of almost four months before responding to the Chief Judge are hardly reassuring evidence of diligence.

In light of these circumstances we are without sufficient assurance that petitioner has received the assistance of counsel contemplated by the Supreme Court’s decision in Ellis v. United States, 1958, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed. 2d 1060. We are therefore constrained to grant petitioner’s request to appoint new counsel to assist him in presenting his petition for leave to appeal in forma pauperis in this court.