Before: ADAMS and HUNTER, Circuit Judges, and SCHWARTZ, District Judge
In this appeal from a denial of a writ of habeas corpus, the primary issue is whether a state court, in failing to provide petitioner, James Willie Cleveland, with a free transcript of his trial, in effect aborted his opportunity for appeal and thus violated his equal protection rights.*fn1
Cleveland was convicted of first degree murder in the Passaic County (N.J.) Court in 1951, and sentenced to life imprisonment. Previously, he had been convicted of the same crime and condemned to death. But the New Jersey Supreme Court reversed that judgment and ordered a new trial, which resulted in a second conviction.*fn2
After the second trial, Cleveland's appointed counsel filed a notice of appeal. Immediately thereafter, however, the attorneys who had represented petitioner at both trials, notified the State Supreme Court of their desire to retire as counsel. They informed the court of Cleveland's repeated requests for an appeal, his state of destitution, and the lack of statutory authorization for payment of the costs of appeal. Cleveland's counsel also expressed their opinion that they perceived no meritorious grounds for an appeal. Subsequently, on the advice of the New Jersey Supreme Court that they need not pursue an appeal they deemed useless, the attorneys withdrew from the case. In a letter terminating their representation, the attorneys informed Cleveland that appointed counsel was unavailable to him and that he personally would have to finance any appeal. After receiving that advice, petitioner did not independently pursue the appeal.
When Cleveland attempted to initiate his appeal in 1951, immediately after his conviction, the State of New Jersey was providing free transcripts only to indigent persons condemned to death. Hence, because he had been sentenced to life imprisonment, Cleveland, though clearly indigent, could not obtain a copy of his trial transcript without charge. A trial transcript, however, constituted a prerequisite for the type of appeal applicable in Cleveland's situation. As the petitioner lacked a transcript, and could not afford one, his appeal could not be prosecuted. The State therefore moved to dismiss the appeal, and an order so providing was entered on February 11, 1952.
In September of 1966, with newly appointed counsel, Cleveland applied for post-conviction relief in the Passaic County Court which had tried and sentenced him. Rather than decide the case on the merits, the county court, in May, 1968, reserved judgment but directed the petitioner to seek certification of his case by the New Jersey Supreme Court. Cleveland appealed to the Appellate Division of the Superior Court, which affirmed the county court in February of 1969. He then filed a petition for certification by the New Jersey Supreme Court in October, 1969, but that court denied the petition.
During the course of the state proceedings for postconviction relief, Cleveland's assigned counsel requested the court reporter, who had taken notes at the second trial, to prepare a transcript. However, the reporter informed him that the trial notes had been discarded in 1959. The disposal of the stenographic record occurred even though the Supreme Court for New Jersey had issued, in 1958, an order instructing court reporters to preserve all notes. Despite the absence of a trial transcript, Cleveland proceeded with his petition for relief, asserting deprivation of his right to a trial transcript as well as his right to counsel.
After two earlier applications for habeas corpus relief were dismissed for want of jurisdiction,*fn3 the present petition was submitted. Adopting, without reservation, the report and recommendation of the magistrate who reviewed the petition, the District Court for New Jersey again dismissed without an evidentiary hearing. It is from this last dismissal that Cleveland appeals.
Because the former New Jersey court rule, denying a free transcript to indigents not facing the death penalty but requiring a transcript to perfect an appeal, may have sufficiently violated Cleveland's equal protection rights so as to warrant post-conviction relief in the case at hand, we reinstate the petition and remand to the district court.*fn4
In Griffin v. Illinois,*fn5 the United States Supreme Court established that, if appellate review is afforded to any criminal defendant, equal protection demands that indigents have the same opportunity as non-indigents to appeal. The Court stated: "There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. Destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts."*fn6 The Supreme Court then deemed unconstitutional an Illinois statute that required a transcript as a condition of appeal but barred free copies to indigents unless they were condemned to death. Virtually identical with the Illinois statute, the New Jersey rule at issue in this action seemingly suffers from the same constitutional infirmities that were extirpated in Griffin. Since the principles enunciated in Griffin have been extended retroactively,*fn7 they would appear to control the present case.
The magistrate's report, which the district court adopted, sought to distinguish the Griffin case, noting that Cleveland, unlike Griffin, neither requested a transcript nor alleged that specific substantive errors had infected his second trial. However, given the special factual context that confronted Cleveland, ...