Sapienza v. Vincent, Docket No. 75-2078
| Decision Date | 26 March 1976 |
| Docket Number | Docket No. 75-2078 |
| Citation | 534 F.2d 1007 |
| Parties | Stephen P. SAPIENZA, on behalf of Alfred A. Argentine, Relator-Appellant, v. Leon J. VINCENT, Warden, Green Haven Correctional Facility, Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Burton C. Agata, Hempstead, N. Y. (Reisch, Klar & Lane, P. C., Mineola, N. Y., of counsel), for relator-appellant.
A. Seth Greenwald, Asst. Atty. Gen., New York City (Louis J. Lefkowitz, Atty. Gen. of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, of counsel), for appellee.
Before MOORE, FEINBERG, VAN GRAAFEILAND, Circuit Judges.
Relator-appellant, on behalf of Alfred A. Argentine, appeals from an order of the United States District Court for the Eastern District of New York (Judd, J.) dismissing without a plenary evidentiary hearing his petition for a writ of habeas corpus. The principal contention is that during a state court trial on criminal charges of forgery and larceny, Alfred A. Argentine ("Argentine") was unconstitutionally deprived of the right to proceed pro se. We affirm the district court's disposition of this and all other claims presented by appellant. Our reasons follow a recitation of the facts and the sundry legal proceedings which preceded this appeal.
In 1963 Argentine forged the drawer's signature on a $356 check and entered a travel agency where he filled in the name of the payee in front of a clerk. He was indicted in Nassau County on two counts of forgery and one count of grand larceny. An attorney of the Public Defender's Office, Mr. McDonough, was appointed to represent him.
On December 16, 1963, Mr. McDonough asked to be relieved due to appellant's refusal to discuss the case. The motion was denied. The case came on for trial on January 6, 1964 in the Nassau County Court. The court denied an adjournment motion and Mr. McDonough's renewed motion to be relieved as counsel, and the trial commenced. But the next day prejudicial publicity prompted a mistrial motion which was granted.
The new trial commenced on January 20, 1964, before Judge Kelly. Various motions including once again, a motion by Mr. McDonough to be relieved as counsel and a motion by appellant himself to change venue were denied. During the course of the trial, Mr. McDonough renewed his motion to be relieved, and as the trial was nearing Argentine was convicted of all three counts, judgment was entered and he was sentenced to concurrent imprisonment terms of ten to twenty years on the first two counts and two and one-half to ten years on the third count. This marked both the end of appellant's trial proceedings and the beginning of a host of unsuccessful or indecisive post-judgment attacks.
its end, a motion was made for the first time on behalf of defendant to allow him to proceed pro se. These motions were also denied. Mr. McDonough also informed the court that he had located three of the seven people whom Argentine desired to call. One of the three had been subpoenaed but did not appear in court. Mr. McDonough did not think that the testimony of the other two would be helpful, and ultimately the defense rested without putting in any evidence.
On March 18, 1964, Argentine filed a notice of Appeal from the judgment to the Appellate Division, Second Department of the Supreme Court of the State of New York. The appeal was dismissed for failure to prosecute in October 1966. Leave to appeal to the Court of Appeals was denied. A motion to vacate the dismissal order was denied by the Appellate Division on April 24, 1975.
Argentine's first coram nobis application was denied on September 25, 1964, without a hearing. The denial was affirmed by the Appellate Division on May 29, 1967.
On June 9, 1969, Argentine filed a petition for a writ of habeas corpus with the County Court in Wyoming County, New York, alleging, inter alia, that during his trial he was denied the right to proceed pro se and the right to compulsory process, improperly denied a change of venue and was prejudiced by pretrial publicity. Although hearings were completed on April 13, 1970, to date no decision has been rendered.
On December 31, 1969, the Nassau County Court, per Kelly, J., denied without a hearing Argentine's second petition for a writ of error coram nobis. The Appellate Division reversed and remanded the petition to the County Court for a hearing. An exhaustive and comprehensive hearing was conducted by Judge Gibbons, who denied the petition. No appeal was taken.
On October 10, 1973, Argentine's third petition for a writ of error coram nobis was denied by the Nassau County Court, per Altimari, J. After reargument, the court adhered to its denial on October 26, 1973.
Finally, Argentine initiated the instant proceedings by petitioning the District Court for the Eastern District of New York for a writ of habeas corpus. The petition alleged various denial of rights which had been raised, in one form or another, in his collateral attacks in the state courts.
After reviewing the exhibits attached to the petition, additional affidavits, and the transcript of the trial and the court proceedings before Judge Gibbons and Judge Altimari, the court adopted the factual determination made by Judge Gibbons in the course of Argentine's second application for a writ of error coram nobis. The court concluded that the fact findings were accurate and that the hearing had been thorough and fair. Noting that Argentine's State habeas petition had been pending for over five years, the court held that despite Argentine's failure to prosecute appeals from some of the adverse state proceedings, state remedies were exhausted. The court then proceeded to the merits and held that all of Argentine's claims were meritless.
As to Argentine's asserted denial of the right to counsel of his own choice, the court found that Argentine had had no available funds for the retention of counsel and that he was competently represented by Public Defender McDonough. As to Argentine's asserted denial of compulsory process, the court determined that the prospective witnesses whom Argentine desired to have testify would have disclosed, at best, minor contradictions of prosecution witnesses on collateral points and might have linked Argentine with a bookmaking operation. The court held that McDonough's determination not to call them was reasonable and did not deprive Argentine of a fair trial. As to In the course of its consideration of Argentine's right to counsel argument, the court summarily rejected his pro se representation claim with the observation that "the court was correct in not relieving Mr. McDonough and leaving...
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