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UNITED STATES EX REL. URBANO v. YEAGER

February 26, 1971

UNITED STATES of America ex rel. Robert Francis URBANO, Petitioner,
v.
Howard D. YEAGER, Warden, New Jersey State Prison, Respondent


Kitchen, District Judge.


The opinion of the court was delivered by: KITCHEN

KITCHEN, District Judge:

 After conviction on a homicide charge in 1960, relator was sentenced to life imprisonment in the New Jersey State Prison. His petition for writ of habeas corpus does not attack that sentence, which he is presently serving. Rather, he contends that: (1) The circumstances surrounding his plea of guilty to a burglary charge in Maricopa County, Arizona, on December 13, 1948, render that plea constitutionally deficient; and (2) The 1948 conviction now prejudices his eligibility and consideration for parole. This Court agrees.

 After an independent review of the record, pleadings, briefs, *fn1" state court opinions, and other supporting documents, required under Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), this Court has determined that no evidentiary hearing is necessary.

 Two procedural matters require brief discussion at the outset. This Court's jurisdiction over the matter at hand is apparent. Except in circumstances not relevant here, *fn2" only a court in the judicial district where relator is physically present at the time of application has jurisdiction to issue the writ. Thus, the fact that relator did not plead guilty in a Court within this judicial district does not affect this Court's jurisdiction.

 While it is true that this decision probably will not result in relator's immediate release, it does not follow, as respondent contends, that such a decision "would have no legal effect upon [relator's] status as an inmate or upon the date when he will first become eligible for consideration for release on parole pursuant to [New Jersey law]." Answer at 1-2. Immediate release is not the only relief available on habeas corpus. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); see United States ex rel. DiRienzo v. New Jersey, 423 F.2d 224 (3d Cir. 1970). As relator indicates, the 1948 conviction does affect him adversely. A prior conviction is a factor in determining the time at which an inmate becomes eligible for parole. N.J.S.A. 30:4-123.12. Furthermore, New Jersey law requires the Warden to assemble information concerning a prisoner's background for consideration in determining whether or not parole is indicated. N.J.S.A. 30:4-141. Therefore, the case is not moot. State v. Urbano, 105 Ariz. 13, 14, 457 P. 2d 343, 344 (1969); cf. Sibron v. New York, 392 U.S. 40, 57, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968).

 After relator entered the 1948 guilty plea in Arizona, he received a suspended sentence and was placed on probation for five years. He states that he was never advised of his right to appeal from the Arizona conviction, although he makes no argument as to a deprivation of constitutional rights on that account. His attempts to secure post-conviction relief in the Arizona courts began in December, 1966, approximately six years after his New Jersey homicide conviction and life sentence. After unsuccessful efforts to retain counsel, relator filed a pro se petition for writ of error coram nobis in the Superior Court of Maricopa County, Arizona on April 4, 1967; that application was denied in an opinion dated May 31, 1967; and on November 24, 1967, the Arizona Supreme Court denied relator's petition for leave to appeal from that order. In an opinion filed July 23, 1969, the Arizona Supreme Court affirmed the denial of the writ of error coram nobis. State v. Urbano, 105 Ariz. 13, 457 P. 2d 343 (1969), cert. denied, 397 U.S. 948, 90 S. Ct. 968, 25 L. Ed. 2d 129 (1970). In each of these proceedings, relator's contention was the same as it is today. Thus, he has exhausted his state court remedies and the matter is ripe for decision. Fay v. Noia, 372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837 (1963); cf. United States ex rel. Durocher v. LaVallee, 330 F.2d 303, 306 (2d Cir. 1964), cert. denied, LaVallee v. Durocher, 377 U.S. 998, 84 S. Ct. 1921, 12 L. Ed. 2d 1048 (1964).

 The record of the proceedings in which relator entered his guilty plea in Arizona is somewhat sketchy. The relevant portion of the Clerk's minutes of December 18, 1948, states:

 
"Defendant is present and states that he does not [sic] to be represented by counsel. Defendant states his true name is Robert Francis Urbano.
 
The information is read to Defendant and he enters plea of guilty to burglary in the First Degree, a felony, as charged in the information."

 Obviously, at least one word has been omitted between "not" and "to" in the first sentence quoted above. Speculation as to whether the missing word or words indicated that relator did not "want," "have the funds," or "know that he had the right" to be represented by counsel, is an activity doomed to futility and one in which this Court will not engage. In any event, the decision here does not rest on the identity of the missing word or phrase or even on the fact that a word or phrase is missing.

 Relator admits that he is unable to recall precisely what occurred and was said on that day. However, he contends, and not without some force, that this record is insufficient to demonstrate that his waiver, if in fact there was a waiver, constituted the "intentional relinquishment or abandonment of a known right" required by Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461 (1938).

 In 1948, Arizona law required that a defendant be advised of his right to counsel before arraignment. *fn3" Therefore, reasoned the Arizona Supreme Court, relator must have been advised of his right to counsel. Further, the same court found that the record quoted above established that he waived that right. In so deciding, the Supreme Court of Arizona had no more evidence to consider than this Court does now. These findings are not binding upon this Court. As Chief Justice Warren wrote in Townsend v. Sain, supra, 372 U.S. at 318, 83 S. Ct. at 760:


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