See also, United States ex rel. Urbano v. Yeager, 323 F. Supp. 774 (D.C.N.J. 1971) containing an excellent discussion of this problem by Judge Kitchen of this Court and reaching the same conclusion. Here, unlike Urbano, the petition is unopposed.
The keystone for these rulings is, of course, the landmark case of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). And although the Texas convictions herein occurred in 1945, long before Gideon, the impact of that decision is fully retroactive. Doughty v. Maxwell, 376 U.S. 202, 84 S. Ct. 702, 11 L. Ed. 2d 650 (1964); retroactivity was reaffirmed as recently as January 11, 1972, in United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592, No. 70-86. As stated in Burgett v. Texas, 389 U.S. 109, 115, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), quoted in Tucker, 404 U.S. at page 449, 92 S. Ct. at page 593, "'[to] permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.'"
Accordingly, the Texas convictions not having demonstrated requisite compliance with the standard for waiver of counsel mandated in Johnson v. Zerbst, supra, petitioner's pleas entered there to the indictments and the sentences thereupon imposed and challenged by this petition are declared to be null and void. Pursuant to 28 U.S.C. § 2243, an order shall be entered herewith to that effect and providing that the Texas proceedings referred to herein shall not be considered with respect to petitioner's prison classification, or for his eligibility for parole, or otherwise. Although the petitioner does not directly challenge the 18 to 25 year term of imprisonment imposed in the Gloucester County Court, New Jersey, nor name any New Jersey officials as respondents, in order to avoid circuity of actions, that sentence shall be vacated pursuant to the instruction announced in United States v. Tucker, supra and the petitioner shall be produced before that sentencing court for resentence, in light of this determination voiding the Texas proceedings. Of course, the time already served by the petitioner shall be computed as a credit on the resentence.
Now, therefore, it is on this 8th day of March, 1972 ordered that the petition of Stanley C. Miscavage for a writ of habeas corpus releasing him from the consequences flowing from his criminal convictions in Texas in 1945 upon Indictments Nos. 2359, 2360 and 2361, be and is hereby granted and his pleas entered thereon together with the sentences imposed thereupon are declared null and void and of no legal effect. Furthermore, such null and void proceedings shall not be considered by the New Jersey prison or parole authorities in any matter respecting this petitioner. The 18 to 25 year term of imprisonment imposed upon the petitioner on March 21, 1969 by the Gloucester County Court is hereby vacated pursuant to United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592, No. 70-86, decided January 11, 1972, and he shall be produced before that Court for resentencing within 30 days of the date of the service of a copy of the Memorandum and Order as amended, upon the County Prosecutor.
It is further ordered that inasmuch as the petition herein was filed pro se and none of the affected New Jersey authorities, such as Howard Yeager, Warden of the New Jersey State Prison, the Attorney General of New Jersey, the Parole Board of New Jersey, or the Gloucester County Prosecutor, were made parties thereto, they or any of them shall be afforded an opportunity to intervene as real parties in interest to move for reconsideration, or possible appeal, within 30 days from receipt of service hereof.
It is further ordered that in the event of an appeal this Order shall be stayed to accommodate such appeal or intervention.