Rodriquez v. United States/Concurrence Harlan

Mr. Justice HARLAN, concurring in part and dissenting in part.

I agree with Part I of the Court's opinion, but cannot subscribe to Part II, in which the Court reinstates petitioner's right to appeal without further proceedings below. In taking this course I think the Court has been too insensitive to what, on this record, is due the trial judge, petitioner's trial counsel, and the orderly administration of the criminal process.

In my opinion, this record does not show that petitioner was wrongfully denied an opportunity to appeal. It appears from the record that immediately following petitioner's sentencing his lawyer indicated orally that petitioner wished to appeal in forma pauperis, and that the judge informed the lawyer that 'all motions' had to be made in writing. Thereafter no written notice of appeal was filed within the 10-day limit. Petitioner further alleges that he told his counsel to perfect an appeal and that counsel neglected to do so, but those allegations have never been tested by the adversary process.

The Court undertakes to justify its decision not to require a hearing and findings on this score by characterizing as 'error' the sentencing judge's failure 'to advise petitioner of his right to appeal,' as then supposedly required by Fed.Rule Crim.Proc. 37(a)(2), and by concluding that it is 'just under the circumstances,' 28 U.S.C. § 2106, to dispose of the case at this level. See ante, at 331-332.

Although I share the Court's concern that petitioner receive promptly all relief which is legally due him, I am unable to accept either this attribution of 'error' to the trial judge or this bypassing of established methods for determining the truth of factual allegations. At the time petitioner was sentenced, Rule 37(a)(2) required that a sentencing judge advise only 'a defendant not represented by counsel' of his right to appeal. (Emphasis supplied.) In this instance, petitioner was represented by retained counsel both at trial and at sentencing. The excerpts from the trial transcript upon which the Court relies contain nothing at all to rebut the natural inference, apparently drawn by the sentencing judge, that petitioner's counsel would continue to represent him at least for the purpose of filing a notice of appeal. Indeed, petitioner's own statement of the facts reveals that this inference was wholly justified, for petitioner asserts that after his sentencing 'his counsel advised both him and his wife that he would arrange for their appeals.' Thus, even if it is assumed that 'the trial judge should have inquired into the circumstances surrounding the attempt to make the in forma pauperis motion,' ante, at 332, the judge's omission was surely at most harmless error.

I would therefore remand the case to the District Court, so that it may be determined whether petitioner in fact did instruct his attorney to perfect an appeal and whether the attorney in fact neglected to do so. This course seems to me to be required both in the interest of orderly procedure and in fairness to petitioner's trial attorney.

Furthermore, as suggested by the Government, I would permit the District Court discretion to begin by obtaining an affidavit from petitioner's attorney in response to petitioner's allegations. Who known whether the attorney may not have in his possession documentary evidence conclusively showing the allegations to be unfounded? Or who knows whether the attorney may not wish to concede the accuracy of the allegations? In either case, the affidavit procedure might obviate the necessity for a full-blown hearing. If the attorney has no documentary evidence, and if his affidavit reveals a factual controversy, then of course a hearing would be required. Such a procedure entirely fits the language of 28 U.S.C. § 2255 and this Court's statement in Machibroda v. United States, 368 U.. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), that § 2255 'does not strip the district courts of all discretion to exercise their common sense.'