This is an appeal from the District Court order of October 3, 1968, dismissing relator's petition for a writ of habeas corpus.

Relator was convicted of robbery, after trial to a jury, and sentenced on January 5, 1961, to 7 to 10 years in the state penitentiary. He was released on parole on February 15, 1966, but allegedly violated parole on July 24, 1966, and, as a result, was returned to prison as a parole violator on December 5, 1966. He was granted an unconditional release from the 1961 sentence on May 19, 1967. Sometime after the violation of parole on July 24, 1966, which apparently resulted from his arrest on "new (criminal) charges," he was convicted of and sentenced for such "new (criminal) charges resulting in a new prison term as a second offender."1 Since January 1968, he has been serving the sentence imposed as a result of that second conviction.

On September 30, 1965, five months before his release on parole, relator filed a petition for post-conviction relief under New Jersey Rule 3:10A-1 ff. [now R. 3:22-1 et seq.], challenging his first conviction. He alleged, inter alia, that he had been denied his right to effective counsel at the trial, that he had been denied the right to appointed counsel on appeal, and that he had been denied his right to due process by the introduction of his juvenile record during his trial and by certain conduct of the trial judge. After a hearing, at which relator was represented by counsel and evidence was taken on two days, his petition was denied by the lower court in June 1966 and its order was affirmed by the Superior Court on December 8, 1967. Relator's petition for certification to the Supreme Court of New Jersey was denied on May 28, 1968. He then filed a petition for a writ of habeas corpus in the District Court on August 12, 1968, alleging the same constitutional defects as stated in his New Jersey post-conviction petition. The District Court, after examination of the transcripts of the trial and post-conviction hearing, found relator's contentions without merit and further found that it had no jurisdiction to consider the petition since the 1961 sentence had expired before the petition had been filed.

Since we have concluded that the relator's contentions on the merits must be rejected, a lengthy discussion of the jurisdictional issue is not necessary. It is sufficient that the recent decisions of the Supreme Court indicate that a district court has jurisdiction, under Chapter 153 of Title 28,2 of this petition for a writ of habeas corpus on this record. See, for example, Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968); Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968). Assuming the invalidity of the 1961 sentence as alleged by relator, these cases support his contention that, when his District Court petition was filed in August 1968, he was in custody under a February 1968 sentence which violated the Constitution since it failed to give him credit, clearly mandated by N.J. Crim.Prac. Rule 3:7-10(h) [now R. 3: 21-8], for the time he had served on the allegedly unconstitutional 1961 sentence between December 5, 1966, and May 19, 1967. In Carafas v. LaVallee, supra, the Supreme Court said, while holding that discharge of a prisoner following the filing of his petition did not oust the federal courts of jurisdiction:

"[T]he statute does not limit the relief that may be granted to discharge of the applicant from physical custody. Its mandate is broad with respect to the relief that may be granted. It provides that `[t]he court shall * * dispose of the matter as law and justice require.' 28 U.S.C. § 2243. The 1966 amendments to the habeas corpus statute seem specifically to contemplate the possibility of relief other than immediate release from physical custody." Id. at 239, 88 S.Ct. at 1560.

In Peyton v. Rowe, supra, the Supreme Court held that a state prisoner could challenge future consecutive sentences regardless of which sentence he was presently serving.

In the instant case, it would appear that there is relief that a federal court could effectively grant to relator. If his first conviction were now set aside, the time spent under that sentence subsequent to his arrest for the crime for which he is now committed (December 5, 1966, to May 19, 1967) would be credited, apparently, to the sentence presently being served.3 Rule 3:7-10(h) of the N.J. Crim.Prac. Rules (1968), effective at the dates of both of relator's sentencings on the second conviction, provides:

"In all custodial sentences the prisoner shall receive credit on the term imposed for any time he may have served in custody between his arrest and the imposition of sentence."4

In Cappetta v. Wainwright, 406 F.2d 1238 (5th Cir.), cert. den. 396 U.S. 846, 90 S. Ct. 55, 24 L. Ed. 2d 96 (1969), the court was faced with a similar jurisdictional issue. The petitioner claimed that setting aside his fully served sentence would entitle him to immediate release from a second sentence he was then serving. The court reversed the District Court's dismissal for want of jurisdiction and remanded the case for a determination whether the setting aside of the fully served sentence "would result in the [petitioner] receiving credit in some degree" on his second sentence. 406 F.2d at 1239 (emphasis added).5 Similarly, here, since invalidation of the first conviction would eventually lead to a shortening of the second, present sentence, the District Court has jurisdiction to grant review of relator's 1961 conviction. Cf. Tucker v. Peyton, 357 F.2d 115 (4th Cir. 1966); Williams v. Peyton, 372 F.2d 216 (4th Cir. 1967).

The two principal contentions of relator allegedly requiring the grant of a writ of habeas corpus are these:

A. ALLEGED DENIAL OF CONSTITUTIONAL RIGHT TO THE APPOINTMENT OF COUNSEL TO FILE AND PROSECUTE AN APPEAL FROM RELATOR'S JANUARY 1961 CONVICTION

At the time of relator's sentence, he stated to the trial judge: "I would like to have another lawyer and have a new trial" (p. 8 of 1/5/61 sentencing transcript). Also he testified that he wrote the Essex County Court Clerk for assistance in filing an appeal without success. Relator argues that because the state authorities knew of his desire to appeal, they were constitutionally required to appoint an attorney to represent him; their failure to do so deprived him of due process. See Swenson v. Bosler, 386 U.S. 258, 260, 87 S. Ct. 996, 18 L. Ed. 2d 33 (1967); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); cf. United States ex rel. Smith v. McMann, 417 F.2d 648 (2nd Cir. 1969). However, relator has been granted what was in effect an appeal nunc pro tunc, since the New Jersey Superior Court Appellate Division,6 in its December 8, 1967, opinion affirming the denial of relator's post-conviction petition by the Essex County Court, said:

"* * * [T]o be certain that no injustice is done defendant we have examined not only the record of the post-conviction proceeding but the record of the trial itself, and defendant's contentions as if this were appeals from both. We have found nothing in the trial or in the post-conviction proceeding which would justify setting aside the conviction."7

Under these circumstances, this contention does not justify reversal of the District Court order. Cf. Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).

B. ALLEGED DENIAL OF THE EFFECTIVE ASSISTANCE OF COUNSEL

Relator first complained,8 at the time of sentencing (January 5, 1961), that assigned counsel was not an experienced criminal trial lawyer and had been ineffective. The trial judge rejected this claim at that time, saying:

"Let the record also reflect that during the course of the trial Mr. Pietrucha handled himself as an old time trial lawyer, if we may use the term, and he made the proper objections at the proper time and he did everything he could to protect his client's interest. Where the Court thought the rights of the defendant were prejudiced the court would encourage an objection from defense counsel because the Court is as jealous of the rights of the defendant as anyone in the courtroom."

As noted above, relator took no further action concerning this complaint until more than 4½ years later, when he filed his state court application for post-conviction relief on September 30, 1965.9 This contention was rejected by the Essex County Court judge in an opinion of over 10 pages in June 1966 (pp. 31-42 of June 10, 1966, transcript), by the Appellate Division of the New Jersey Superior Court in its December 8, 1967, opinion, and by the District Court opinion of October 3, 1968.

After a careful review of the record at the December 1960 trial and the May-June 1966 post-conviction relief application hearing, we have concluded that the following language of this court in In re Ernst's Petition, 294 F.2d 556, 558 (3rd Cir. 1961), is applicable:

"Petitioner now criticizes various actions and omissions of defense counsel at the trial. However, we think the matters of which petitioner complains fall far short of establishing that the defendant did not receive professionally acceptable representation and assistance in the conduct of his defense. We approach the problem as did the Court of Appeals for the District of Columbia when it said: `[A]bsence of effective representation of counsel * * * must mean representation so lacking in competence that it becomes the duty of the court or the prosecution to observe it and correct it.' Diggs v. Welch, 1945, * * * 80 U.S.App.D.C. 5, 148 F.2d 667, 670."

Applying the language of a more recent decision of this court, we cannot say that "counsel's performance was so incompetent or negligent as to constitute the proceedings a farce or mockery of justice shocking to the court." See United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1213 (3rd Cir. 1969).

Both the trial judge and the hearing judge in the post-conviction proceeding found that relator's counsel acted as an experienced criminal trial defense lawyer and effectively represented relator at the trial (p. 4 of 1/5/61 sentencing transcript and pp. 41-42 of hearing of 6/10/66).

It cannot be said that relator's counsel did a "perfunctory" job or acted in "bad faith."10 He interviewed relator at least twice in jail; he interviewed another prisoner and had him subpoenaed after such prisoner told counsel that the principal state witness (the co-defendant) had told him that Di Rienzo had not participated in the crime. He interviewed at least three alibi witnesses and had them called to testify. He interviewed a photographer who had allegedly seen the robbers and had him subpoenaed (he was not called when it appeared that he did not see the second robber). At trial, he disclosed the allegedly untrust-worthy method used by the police in having the victim identify relator. He disclosed the past record of the co-defendant and cross-examined him and the victim concerning inconsistencies in their statements (e. g., the fact that both robbers spoke Spanish; Di Rienzo's parents testified that he spoke no Spanish); and his summation carefully reviewed all these factors.11

Although the trial judge intervened to assist counsel for relator on a few occasions (such as specifically asking the relator if he committed the crime, striking a possibly prejudicial statement of a witness and instructing him that no rebuttal to the prosecutor's argument is permitted in New Jersey), no prejudice resulted to relator from such action. Also, it cannot be said that "representation [was] so lacking in competence that it becomes the duty of the court or the prosecution to observe it and to correct it."12 See United States ex rel. Mathis v. Rundle, 394 F.2d 748, 750 (3rd Cir. 1968).

We have carefully reviewed and reject the other contentions of relator.

The District Court order of October 3, 1968, will be affirmed.

ALDISERT, Circuit Judge (concurring in result).

While I do not disagree with the substance of the majority's analysis of the merits of this appeal, I believe that the district court was correct in holding that it was without jurisdiction to adjudicate this habeas application.

The federal habeas corpus statute, 28 U.S.C.A. § 2241, states that "the writ of habeas corpus shall not extend to a prisoner unless * * * (3) he is in custody in violation of the Constitution or laws or treaties of the United States." As the Supreme Court observed in Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968), this "in custody" requirement is dictated "not only by the repeated references in the statute but also by the history of the great writ." 391 U.S. at 238, 88 S.Ct. at 1560. I perceive nothing in the Court's recent decisions, specifically Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968), Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) and Carafas, supra, that has diluted this requirement.

In this respect, it is essential to distinguish between the concept of "mootness" as it affects the relief available in a federal habeas proceeding and the "in custody" requirement of the federal legislation as it defines and limits the scope of the federal courts' jurisdiction over habeas corpus. It would be correct to say that the matter of mootness has generally been discarded in habeas cases where the petitioner has been released from custody before an adjudication of his claim. The reasons for this development are twofold: (1) the federal statute, § 2244(b) does not limit the court's power of relief to a "release from custody," but speaks also of any "other remedy"; (2) the courts have realistically recognized that the consequences of a criminal conviction survive the period of actual imprisonment.

The abandonment of technical notions of mootness, however, should not blur the real and persisting "in custody" limitation of our congressionally-controlled jurisdiction. It is one thing to say, as the Court did in Carafas, that once federal jurisdiction attaches, it is not dissolved by the expiration of the allegedly unlawful confinement, or as in Sibron, that federal jurisdiction will not be defeated where it is impossible to secure federal review before release from custody because of the brief duration of the sentence, or in Rowe, that a second consecutive sentence awaiting service can be questioned prior to its commencement. But where does federal jurisdiction attach when, as here, the custody has ended long prior to the initiation of federal proceedings? He was unconditionally released from the sentence under attack on May 19, 1967. He began serving the sentence on his second conviction in January, 1968. He did not file the federal habeas petition until August 12, 1968 — over fourteen months after he was released from any incarceration or parole relating to the conviction he now seeks to question.

The underlying rationale of Carafas, Rowe and Sibron was the practical and equitable determination that the writ of habeas corpus must "provide for swift judicial review of alleged unlawful restraints on liberty." Rowe, 391 U.S. at 63, 88 S. Ct. at 1554. But any judicial sloth in this case is directly attributable to the inaction of the appellant, who made his initial attempt to secure review of his conviction over four and a half years after his sentencing. Because of this delay, the petition for habeas corpus in the district court was filed over one year after appellant's unconditional release from prison. Under these circumstances, I believe that the court below was without jurisdiction to grant relief.1

It may be that appropriate relief should be provided by the federal courts even in such a case. If that is so, however, it is the Congress which should fashion the enlarged jurisdictional framework to accomplish that end.

I would affirm the judgment of the district court that it was without jurisdiction to entertain this action.