United States of America Ex Rel. Richard MacHado Relator-Appellant v. Hon. Walter H. Wilkins, Warden of Attica State Prison, Attica, New York, 351 F.2d 892, 2d Cir. (1965)

351 F.
2d 892
UNITED STATES of America ex rel. Richard MACHADO,

Relator-Appellant,
v.
Hon. Walter H. WILKINS, Warden of Attica State Prison,
Attica, New York, Respondent-Appellee.
No. 49.
Docket 29401.
United States Court of Appeals Second Circuit.

Submitted September 28, 1965.
Decided October 26, 1965.
Richard Machado, pro se.

Frank J. Pannizzo, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of
State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the
brief), for respondent-appellee.
Before FRIENDLY and KAUFMAN, Circuit Judges, and BRYAN,
District Judge.*
PER CURIAM.
Appellant Machado is presently serving a nine to ten year sentence as a second

felony offender after conviction in 1960 of assault in the second degree on a
plea of guilty, in the County Court of Queens County. He had previously been
convicted of assault with intent to commit rape (a felony) in the Superior Court
of California for Los Angeles County in 1953. By petition for writ of habeas
corpus to the District Court for the Western District of New York, Machado
challenged his sentence as a second offender on the ground that his first felony
conviction in California was invalid because obtained in violation of his
constitutional rights.
After a hearing at which appellant testified, Judge Burke made detailed findings
of fact and concluded that no grounds for Federal relief were presented. From
his order dismissing the petition this appeal is taken. Judge Burke denied, and
this Court granted, a certificate of probable cause.
3
Appellant contends that the dismissal of his petition was error because (1) he
was without counsel at a preliminary hearing and during the arraignment stage
of the California proceedings; (2) at the trial the People's case was submitted
on the transcript of the preliminary hearing and he was denied the right of
confrontation and cross-examination; (3) a jury trial was waived over his
objection and without his consent; and (4) part of the trial was conducted when
he was absent from the courtroom.
At the hearing before Judge Burke appellant testified that when he was brought
before a Magistrate, charged with assault with intent to commit rape and
arraigned in the Superior Court of Los Angeles County, he was not advised of
his right to counsel, was not represented by counsel and was not confronted
with the complainant; that the People's case was submitted on the transcript of
the preliminary hearing, over objections which he had made to his counsel and
to the court; that he had told his counsel that he wanted a jury trial but that his
counsel had nevertheless waived a jury; and that he was not in the courtroom
during part of the trial. This was the only evidence in support of the petition.
Respondent relied on certified copies of the Register of Actions and the Clerk's
minutes of the Los Angeles County Superior Court. The following appears
from these records:
A complaint was filed against appellant on November 13, 1952, in the Los
Angeles Municipal Court, for assault with intent to commit rape. On November
20, 1952 appellant appeared before the Municipal Court and was held to
answer the complaint. On December 2, 1952 an information charging the
appellant with that crime was filed in the Superior Court.
On December 4, 1952 appellant appeared in the Superior Court for

arraignment, the Public Defender was assigned as his counsel and the
arraignment was put over until December 10, 1952. On that day a plea of not
guilty was entered and the case was set down for trial on January 20, 1953.
Trial commenced on that day, with the appellant represented by a deputy public
defender. A jury trial was waived by the defendant, his counsel, and the district
attorney, the People's case was submitted on the transcript of the testimony
taken at the preliminary hearing, and a doctor was appointed to examine
appellant as to his mental condition.
Trial was resumed on February 6, 1953. After appellant testified in his own
behalf the court found him guilty as charged.
He was represented by a deputy public defender throughout the trial and the
subsequent proceedings with respect to sentence, commitment for psychopathic
examination and treatment as a sexual psychopath, motion for a new trial and
eventual release on probation.
10
As Judge Burke found, appellant made no showing that any of his rights were
prejudiced by lack of counsel at the preliminary hearing or during any portion
of the proceedings on arraignment. All of his rights were preserved and could
be fully protected prior to or during trial when he was represented by the public
defender. Appellant admitted that his counsel conferred with him three or four
times prior to trial. He was represented by counsel throughout the trial and all
subsequent proceedings. Neither the preliminary hearing nor the arraignment at
which he pleaded not guilty were critical stages of the proceedings within the
compass of Hamilton v. State of Alabama, 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d
114 (1961). Appellant was not denied any constitutionally protected right to
counsel. United States ex rel. Caccio v. Fay, 350 F.2d 214 (2d Cir. 1965);
United States ex rel. Cooper v. Reincke, 333 F.2d 608 (2d Cir. 1964); United
States ex rel. Spinney v. Fay, 221 F.Supp. 419 (S.D.N.Y., 1963), aff'd 325 F.2d
436 (2d Cir. 1963).
11
Under California law, appellant's counsel had the right to examine the transcript
of the preliminary hearing prior to trial and to object to its introduction in
evidence. People v. Laisne, 163 Cal.App.2d 554, 329 P.2d 725 (3rd Dist.1958).
Instead, his counsel stipulated that the People's case be submitted on the
preliminary transcript and thus consented to its introduction as a matter of trial
strategy. There is no showing that the complaining witness was not available to
testify at the trial had appellant's counsel deemed it expedient to cross-examine.
This case is quite different from Pointer v. State of Texas, 380 U.S. 400, 85
S.Ct. 1065, 13 L.Ed.2d 923 (1965), on which appellant relies, where the
preliminary transcript was admitted only over the strenuous objections of
defendant's counsel.
12
Judge Burke found that appellant consented to waive a jury trial. His
unsubstantiated testimony that his counsel waived a jury despite his objection
was contradicted by the Clerk's minutes of the trial. The minutes state that "the
defendant, his counsel and the district attorney" consented to waive a jury. Such
records are presumed to be regular. Marcello v. United States, 328 F.2d 961
(5th Cir., 1964), cert. denied, 377 U.S. 992, 84 S.Ct. 1916, 12 L.Ed.2d 1045
(1964); cf. United States ex rel. Abair v. Wilkins, 333 F.2d 742 (2d Cir., 1964).
Judge Burke expressly rejected appellant's testimony to the contrary. Credibility
was for the District Court. The record supports Judge Burke's finding.
13
The Clerk's minutes state that appellant was present at the trial. Judge Burke so
found and rejected appellant's contrary testimony. His finding is supported by
the record.
14
In essence the appellant's position is that as a matter of hindsight he disagrees

with his counsel's trial strategy and therefore claims that he was not
competently represented. Appellant is bound by the strategy which his counsel
adopted, Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d
408 (1965), unless he was so inadequately represented as to make the trial a
mockery of justice. United States v. Garguilo, 324 F.2d 795 (2d Cir., 1963).
15
This is far from true here. Considering the circumstances, the psychiatric
factors involved and the light sentence which was eventually imposed, it cannot
be said that the strategy adopted by the Public Defender representing the
appellant was ill-advised. Much less can it be said that he was so incompetently
represented as to be denied the assistance of effective counsel in violation of his
constitutional rights.
16
Affirmed.
Notes:
*
Of the Southern District of New York, sitting by designation

United States of America Ex Rel. Richard MacHado Relator-Appellant v. Hon. Walter H. Wilkins, Warden of Attica State Prison, Attica, New York, 351 F.2d 892, 2d Cir. (1965)

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351 F.

UNITED STATES of America ex rel. Richard MACHADO,

United States Court of Appeals Second Circuit.

Richard Machado, pro se.

Appellant Machado is presently serving a nine to ten year sentence as a second

On December 4, 1952 appellant appeared in the Superior Court for

In essence the appellant's position is that as a matter of hindsight he disagrees

Of the Southern District of New York, sitting by designation

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