United States ex rel. Richardson v. McMann

• Decision Date: 26 February 1969
• Docket Number: No. 371,Docket 31402.,371
• Citation: 408 F.2d 48
• Parties: UNITED STATES ex rel. Willie RICHARDSON, Appellant, v. Daniel McMANN, Warden, Clinton Prison, Dannemora, New York, Appellee.
• Court: U.S. Court of Appeals — Second Circuit

408 F.2d 48 (1969)

UNITED STATES ex rel. Willie RICHARDSON, Appellant, v. Daniel McMANN, Warden, Clinton Prison, Dannemora, New York, Appellee.

No. 371, Docket 31402.

United States Court of Appeals Second Circuit.

Argued April 1, 1968.

Decided February 26, 1969.

John T. Baker, New York City, for appellant.

Lillian Z. Cohen, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen., of State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for appellee, Lillian Z. Cohen, Asst. Atty. Gen., of counsel.

Before MOORE, WOODBURY^* and SMITH, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal from an order denying appellant's¹ petition for a writ of habeas corpus, for reargument and for a certificate of probable cause without an evidentiary hearing to determine the voluntariness of appellant's plea of guilty of second degree murder in the Supreme Court, New York County (28 U.S.C. § 2253).

On March 24, 1963, two of appellant's relatives were found murdered in their apartment and on the same day appellant was taken into custody. He told the police that he had been in his relatives' apartment at the time an altercation between them began and claimed that he had attempted to break it up and, in so doing, got blood on his clothes. He was later booked for homicide and shortly thereafter, signed a confession. On April 20th, appellant was indicted in New York County, New York, for murder in the first degree and two attorneys were assigned to represent him. On that date he pleaded not guilty. On July 22nd, appellant withdrew his plea of not guilty to first degree murder and entered a plea of guilty to murder in the second degree under the first count of the indictment to cover both counts of the two-count indictment. He was convicted on that plea and was sentenced on October 9, 1963, to a term of 30 years to life.

A subsequent motion to suppress the confession was treated as an application for a writ of error coram nobis and was denied without a hearing on July 27, 1964, by the Supreme Court, New York County. The Appellate Division affirmed without opinion. People v. Richardson, 23 A.D.2d 969, 260 N.Y.S.2d 586 (1st Dep't 1965). Leave to appeal to the New York Court of Appeals was denied on June 8, 1965. State court remedies have been exhausted.

Appellant presented a petition to the district court in which he alleged in substance that his plea of guilty to a reduced charge in the State court was invalid because it was induced by the existence or threatened use of an allegedly coerced confession.

Accompanying his brief to this Court, appellant has annexed an affidavit entitled "SUPPLEMENTAL AFFIDAVIT IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS" and claims that because he was without counsel when he filed his petition he "failed to include several facts" relevant to his petition and to his appeal. This affidavit was not before the district court which had no opportunity to consider it or the "facts" therein set forth. Despite the fact that this supplemental affidavit is not a part of the district court record, it is received so that the matters therein alleged may be thoroughly investigated and, if possible, the truth ascertained.

Appellant states in this affidavit that after indictment for first degree murder (1) Alfred Rosner, Esq., was assigned to represent him; (2) that Mr. Rosner came to see him the last week of June or the first week of July 1963; (3) that his entire visit "lasted approximately 10 minutes"; (4) that although Mr. Rosner asked what happened, he "did not take any notes"; (5) that "He Mr. Rosner told me appellant that he would get paid the same amount of money for representing me appellant regardless of the outcome"; (6) that "He Mr. Rosner did not mention what he intended to do to help me appellant or prepare my case"; (7) that the next time (July 22, 1963) he saw Mr. Rosner after the first visit in jail was when appellant was taken to the courtroom; (8) that three or four minutes before the proceeding began, Mr. Rosner told appellant that he should change his not guilty plea to a plea of guilty of second degree murder; (9) that appellant protested that he was not guilty, that the confession was taken because of fear and physical beatings but that Mr. Rosner said that it was not the proper time to bring up the confession and that a guilty plea would save his life and "then I appellant could later explain by a writ of habeas corpus how my confession had been beaten out of me"; (10) that Mr. Rosner said that "the District Attorney, Mr. Hogan, was an extremely tough man and that he would be in court later"; (11) that Mr. Rosner told appellant that "the confession would in all probability get me appellant the electric chair and that he could attack the confession later without risking his life; that these were the motivating reasons for the change of plea, and that "I appellant did not plead guilty because I had committed the crime."

In contrast to this supplemental affidavit signed by Willie Richardson and notarized under a "County of New York" heading on January 15, 1968, by William E. Donahue, the record of the change of plea proceedings on July 22, 1963, before the Hon. George Postel of the New York Supreme Court, Special and Trial Term, Part 34 (appellant's appendix) shows that appellant was represented by two attorneys, Alfred I. Rosner, Esq., and William P. McCooe, Esq.; that the following colloquy took place between Court and the defendant appellant here:

The Court: Now, did you discuss this case fully with Mr. McCooe and Mr. Rosner?

The Defendant: Yes, sir, I did.

The Court: Did you understand them when you spoke to them about your case?

The Defendant: Yes, sir.

The Court: Were you threatened in any manner, shape, or form, by anyone in order to induce you to take this plea?

The Defendant: No, sir.

The Court: Are you taking this plea of your own free will and volition?

The Defendant: Yes, sir.

The Court: Have any promises been made to you by anyone, that is, your counsel, the District Attorney, the court officers, jail keepers, or anybody, concerning the sentence which this Court, meaning I, will impose in this case?

The Defendant: No sir.

The Court: You are taking this plea of your own free will and volition?

The Defendant: Yes, sir.

The Court: Have any promises — without any promises of whatever kind or nature so far as sentence is concerned; is that right?

The Defendant: Yes, sir.

In Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 757, 9 L.Ed. 2d 770 (1963), the Supreme Court stated the principle for determining when an evidentiary hearing must be held in a habeas corpus case:

"* * * Where the facts are in dispute, the federal court in habeas corpus must hold an evidentiary hearing if the habeas applicant did not receive a full and fair evidentiary hearing in a state court, either at the time of the trial or in a collateral proceeding. In other words a federal evidentiary hearing is required unless the state-court trier of fact has after a full hearing reliably found the relevant facts."

This basic principle holds true unless a petitioner's allegations are "vague, conclusory, or palpably incredible," Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), or are "patently frivolous or false," Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 119, 76 S.Ct. 223, 100 L.Ed. 126 (1956).

Shortly after the decision in Townsend v. Sain, this court had occasion to consider the requirement of holding an evidentiary hearing in a habeas corpus case presenting, as here, an issue of the voluntariness of a guilty plea. In United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 311-312 (2d Cir. 1963), this court stated:

"When the petition in support of an application for habeas corpus reveals upon its face that it is defective as a matter of law, the habeas court may dismiss the application without a hearing. * * * Moreover, a hearing is not required when the habeas court has before it a full and uncontested record of state proceedings which furnishes all of the data necessary for a satisfactory determination of factual issues. * * * When, however, petitioner alleges that a guilty plea entered by him was the product of deceit, promise, or threat, and facts are specifically set forth which support that allegation and which create issues incapable of resolution by a simple examination of the files and records before the federal District Court, that court must grant the petitioner a hearing. Certainly, petitioner cannot be denied a hearing merely because the facts asserted by him are contradicted by the answer of the State\'s prosecuting officers, for it is this denial which creates the factual issue to be resolved." Citations omitted.

The court below considered only the transcripts of the minutes of the proceedings when the plea was entered and sentence imposed along with appellant's petition, and concluded that appellant's plea was voluntarily entered and, therefore, no hearing would be necessary.

A conviction which is based upon an involuntary plea of guilty is inconsistent with due process of law and is subject to collateral attack by federal habeas corpus. McGrath, supra, 319 F. 2d at 311; United States ex rel. Seibold v. Reincke, 362 F.2d 592, 593 (2d Cir. 1966). And the Supreme Court has stated that "a conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause." Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S.Ct. 223, 224 (1965).

In United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 (2d Cir.1963), this court stated that "a plea of guilty which is prompted by fear that unconstitutionally obtained evidence will be used at trial will not sustain a conviction." This statement, however, was subsequently rejected in United States ex rel. Glenn v. McMann, 349 F.2d 1018 ...