STATE V. RAMIREZ, 1967-NMSC-210, 78 N.M.
418, 432 P.2d 262 (S. Ct. 1967)
STATE OF NEW MEXICO Plaintiff-Appellee,
vs.
ADOLPHO J. RAMIREZ, Defendant-Appellant
SUPREME COURT OF NEW MEXICO
1967-NMSC-210, 78 N.M. 418, 432 P.2d 262
Appeal from the District Court of
Chaves County, Reese, Jr., Judge.
CHARLES L. HARRINGTON, Roswell, New
Mexico, Attorney for Appellant.
BOSTON E. WITT, Attorney General, James
V. Noble, Assistant Attorney General, Attorneys for Appellee.
WOOD, Judge, wrote the opinion.
M. E. Noble, J., Irwin S. Moise, J.
{*419} WOOD, Judge,
Court of Appeals.
{1} Did the trial court err
in failing to appoint counsel to assist the defendant in filing a motion for
post-conviction relief? No.
{2} Defendant pleaded not
guilty to a charge of armed robbery. He was tried and convicted. The conviction
was affirmed in State v. Ramirez,
76 N.M. 72,
412 P.2d 246 (1966). Throughout
these proceedings he was represented by court-appointed counsel.
{3} Subsequently, by letters
to the trial court, defendant stated that he did not know how to prepare a
motion for relief under § 21-1-1(93), N.M.S.A. 1953, and that he wished to
challenge his conviction on the basis of an illegal arrest. He asked that
counsel be appointed to file a motion on his behalf. The trial court declined
to appoint counsel and defendant appealed.
{4} State v. Weddle,
77 N.M.
420,
423 P.2d 611 (1967), states that our provisions for post-conviction relief
were adopted from 28 U.S.C.A. § 2255, and
"* * * [A]ccordingly the interpretation placed on that
section by the federal courts is persuasive of the meaning of the identical
rules adopted by us."
{5} In a post-conviction
proceeding, the issue is not the guilt or innocence of the prisoner; the issue
is the validity of conviction. Baker v. United States, 334 F.2d 444 (8th Cir.
1964); Richardson v. United States, 199 F.2d 333 (10th Cir. 1952).
{6} Thus, the right to
counsel provided by the Sixth Amendment to the United States Constitution does
not apply. Ford v. United States, 363 F.2d 437 (5th Cir. 1966); Juelich v.
United States, 342 F.2d 29 (5th Cir. 1965). There may be circumstances where
counsel must be afforded to meet the requirements of due process. Juelich v.
United States, supra; Dillon v. United States, 307 F.2d 445 (9th Cir. 1962);
see United States ex rel. Dennis v. Murphy, 265 F.2d 57 (2nd Cir. 1959). No
such circumstances are claimed here.
{7} Absent a constitutional
requirement, appointment of counsel is within the discretion of the court.
Baker v. United States, supra; McCartney v. United States, 311 F.2d 475 (7th
Cir. 1963). While the standard to be applied by the trial court has not been
clearly established,
"* * * There is case authority indicating that counsel
should be appointed {*420} in collateral
attack proceedings whenever it appears probable that any substantial issue, or
at least a substantial issue of fact, will be presented. * * *" Dillon v.
United States, supra.
{8} Where a motion has been
filed, but is completely groundless, counsel need not be appointed to represent
the defendant. Huizar v. United States, 339 F.2d 173 (5th Cir. 1964), cert.
denied, 380 U.S. 959, 13 L. Ed. 2d 975, 85 S. Ct. 1099 (1965); Kapsalis v. United
States, 345 F.2d 392 (7th Cir. 1965), cert denied 382 U.S. 946, 15 L. Ed. 2d
354, 86 S. Ct. 406 (1965).
{9} Here, there is no motion,
but a request for counsel to assist in the preparation of a motion. How can it
be determined whether it is probable that a substantial issue will be presented
in the motion? This determination is to be made on the factual allegations made
by the prisoner. Martinez v. United States, 344 F.2d 325 (10th Cir. 1965). See
Thomas v. United States, 308 F.2d 369 (7th Cir. 1962).
{10} Where, as here, the
conviction has been affirmed on direct review, the trial court is not required
to appoint counsel to assist the prisoner in exploring the possibilities for
post-conviction relief. Once, however, the prisoner alleges some factual basis
raising a substantial issue, counsel must be appointed.
{11} Defendant alleged an
illegal arrest; a factual basis for this claim was set forth in the letters.
For two reasons, this did not raise a substantial issue for post-conviction
relief.
{12} First, defendant pleaded
not guilty and proceeded to trial. By doing so, the claim of illegal arrest was
waived. City of Roswell v. Leonard,
73 N.M. 186,
386 P.2d 707 (1963).
{13} Second, defects in
procedure on arrest, standing alone, are not grounds for discharge under
federal habeas corpus. There must be some showing that the illegal arrest
affected the validity of the conviction. Fernandez v. Klinger, 346 F.2d 210
(9th Cir. 1965), cert. denied 382 U.S. 895, 15 L. Ed. 2d 152, 86 S. Ct. 191
(1965); D'Agostino v. Sahli, 230 F.2d 668 (5th Cir. 1956); United States ex
rel. Sullivan v. Commonwealth of Pennsylvania, 244 F. Supp. 883 (E.D. Penn.
1965). United States ex rel. Gavy v. Hendrick, 238 F. Supp. 757 (E.D. Penn.
1965). Compare State v. Miller,
76 N.M. 62,
412 P.2d 240 (1966).
{14} Not being a basis for
relief under federal habeas corpus, it is not a basis for relief under the
federal statute for post-conviction remedies. Hill v. United States, 368 U.S.
424, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962); Arellanes v. United States, 353
F.2d 270 (9th Cir. 1965), cert. denied, 385 U.S. 870, 17 L. Ed. 2d 97, 87 S.
Ct. 139 (1966). In line with the decisions in the federal courts, we hold that
the complaint concerning alleged illegal arrest, under the circumstances here
present, could furnish no ground for relief under § 21-1-1(93), N.M.S.A. 1953.
{15} The refusal to appoint
counsel is affirmed.
M. E. Noble, J., Irwin S. Moise, J.