United States Ex Rel. Walter Gordon, Petitioner-appellant, v. Frederick Reincke, Warden, Connecticut State Prison, Respondent-appellee, 415 F.2d 1126 (2d Cir. 1969)

On May 20, 1955 appellant was arrested and informed against, charged with attempted robbery with violence in violation of Connecticut General Statutes (1949) Section 8357.¹  On June 7, 1955, represented by retained counsel, he pleaded not guilty to the information, and trial was set for the following day.

On June 8, 1955, the State of Connecticut filed a substituted information by which appellant was charged with attempted rape in violation of Connecticut General Statutes (1949) Section 8562.²  To this substituted charge appellant also pleaded not guilty. As there was no request by appellant's trial counsel for a continuance, the trial on the substituted charge began as scheduled ten minutes after the appellant pleaded to the attempted rape charge.

After this trial conducted by the court without jury appellant was found guilty of attempted rape and was presented for sentence on an habitual criminal charge.³  He was found guilty and sentenced by the court to 20-30 years imprisonment.⁴  He did not appeal his conviction or his sentence.

After a lapse of more than ten years, appellant on October 5, 1966 filed a petition for a writ of habeas corpus in the Connecticut state courts on the ground that he and his counsel had not been given sufficient time to prepare a defense to the substitute charge. After a hearing at which appellant was represented by court-appointed counsel the petition was dismissed and a certificate of probable cause to appeal was denied. Thereafter appellant filed a similar petition for a writ of habeas corpus in the United States District Court for the District of Connecticut. After examining the state trial record and the record of the state habeas corpus proceedings Judge Blumenfeld did not order that the petitioner be produced in court, and filed a memorandum opinion dismissing the petition. We granted appellant's motion for a certificate of probable cause and for leave to appeal in forma pauperis, and assigned him counsel on appeal.

The district judge concluded that appellant was not prejudiced in preparing his defense by the belated substitution of the attempted rape charge for the attempted robbery with violence charge. Appellant contends that this substitution denied him due process of law.

We do not agree with appellant. Appellant may have been surprised or even shocked by the change in the charge, but under the circumstances of this case he was not denied due process.

We agree with Judge Blumenfeld who stated below:

"As the substituted charge arose out of the same occurrence as the original one and as its proof required the same witnesses, petitioner was not prejudiced in making his defense to the new charge. Moreover * * * petitioner's trial counsel stated that additional time to prepare would not have helped him. Gordon v. Reincke, Docket No. 148790 (Super.Ct. Hartford Cty., Conn., June 6, 1967)." United States ex rel. Gordon v. Reincke, Civ. No. 12187 (D. Conn. 1967).

Appellant also objects to the failure of the district court to appoint counsel below to represent him and to assist him in handling his federal habeas corpus petition. This claim is foreclosed by our decision in United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 714-716 (2 Cir. 1960)⁵  and is therefore denied.

Although petitioner has presented other claims to us that raise serious questions about the propriety of the conduct of his trial and of his conviction, these claims were not presented to the district court below or to the Connecticut state courts. We decline to consider these issues which are being raised for the first time on this appeal. United States ex rel. O'Neill v. Burke, 379 F.2d 656, 660, n. 5 (7 Cir.), cert. denied, 389 U.S. 876, 88 S. Ct. 173, 19 L. Ed. 2d 163 (1967); Huntington v. Michigan, 334 F.2d 615 (6 Cir. 1964) (per curiam); see also United States ex rel. Krzywosz v. Wilkins, 336 F.2d 509 (2 Cir. 1964); Brown v. New Jersey, 395 F.2d 917 (3 Cir. 1968) (per curiam).

Affirmed.