Boyd v. Dutton/Concurrence Blackmun

MR. JUSTICE BLACKMUN, concurring.

I join the Court's per curiam opinion and judgment. I do so, however, only after some initial hesitation, for there is force in MR. JUSTICE POWELL's dissent when it stresses that the unanimous judgment of four courts is being overturned and that the trier of fact in the state post-conviction procedure decided the factual issues against the petitioner.

A reading of the post-conviction transcript, however, persuades me that the petitioner was utterly lost at that proceeding; that his assertion that favorable witnesses existed was frustrated because he did not know how to compel their attendance and received no assistance in this respect; and that the development of the material facts leaves something to be desired and falls somewhat short of the standards laid down in Townsend v. Sain, 372 U.S. 293, 313 (1963). When a 20-year-old who [p4] claims he could not read or write (although he apparently was able to sign his name to the petition in the present proceeding) receives four consecutive seven-year sentences, totaling 28 years, for forging three checks within a fortnight in the respective amounts of $45, $45, and $40, and for possessing a forged check in the amount of $10, his post-conviction hearing, for me and on balance, must clearly meet those standards. Certainly, the appointment of counsel is indicated.