Mitchell v. Scully

• Decision Date: 23 October 1984
• Citation: 746 F.2d 951
• Parties: Steven MITCHELL, Petitioner-Appellant, v. Charles SCULLY, Superintendent, Greenhaven Correctional Facility, Respondent-Appellee. 209, Docket 84-2069.
• Court: U.S. Court of Appeals — Second Circuit

Page 951

746 F.2d 951

Steven MITCHELL, Petitioner-Appellant, v. Charles SCULLY, Superintendent, Greenhaven Correctional

Facility, Respondent-Appellee.

209, Docket 84-2069.

United States Court of Appeals, Second Circuit.

Argued Sept. 24, 1984.

Decided Oct. 23, 1984.

R. Nils Olsen, Jr., Buffalo, N.Y., for petitioner-appellant.

Stuart L. Sanders, Asst. Dist. Atty., New York City (Mario Merola, Dist. Atty., and Billie Manning, Asst. Dist. Atty., Bronx, N.Y.), for respondent-appellee.

Before FRIENDLY, MESKILL and PIERCE, Circuit Judges.

FRIENDLY, Circuit Judge:

Steven Mitchell appeals from an order of the District Court for the Southern District of New York which denied his petition for habeas corpus under 28 U.S.C. Sec. 2254. The court granted leave to appeal in forma pauperis and issued a certificate of probable cause.

On May 10, 1978, Mitchell was charged by a grand jury in the Supreme Court for Bronx County, New York in a six-count indictment, with the crimes of first degree burglary, first and second degree robbery, first degree rape, fourth degree criminal possession of a weapon and criminal impersonation. The State alleged that on April 21, 1978, with an unknown accomplice, Mitchell gained entrance to the house of a woman by representing himself as a police officer; that once inside the house he threatened the woman with what appeared to be a pistol; that he forced her to engage in sexual intercourse with him; and that he stole a portable television, a portable radio, an electric fan and an exercise bar.

Mitchell was apprehended approximately two weeks after the crime, when the victim spotted him on the street and called the police. At his initial questioning Mitchell denied having committed the offense, claiming that he had been in the hospital on April 21. Mitchell explained that he had a colostomy that had already been operated on four times, and that he had been in the hospital for 12 to 14 days awaiting another operation; this fifth operation was not performed. Hospital records revealed that in fact Mitchell was discharged on March 27, nearly a month before the crime.

On October 20, 1978, in satisfaction of the full six-count indictment, Mitchell pleaded guilty to a charge of robbery in the first degree in violation of N.Y. Penal Law Sec. 160.15(4). This provides:

A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:

....

4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.

During the allocution at Mitchell's plea hearing, the trial judge questioned Mitchell concerning the crime. When Mitchell described the theft, the following exchange occurred:

THE COURT: I see. And at the time you had what? A pistol?

DEFENDANT: No. It was a play pistol.

THE COURT: I see. But it did look like a pistol.

DEFENDANT: Yes.

Transcript of Plea Hearing at 13. In accepting the plea, the judge told Mitchell that the sentence would be a minimum of 5 and a maximum of 15 years unless the judge determined that Mitchell was a second offender, in which case the minimum sentence would be 7 1/2 years. The court went on to state that:

One of the factors which has persuaded me to give you the assurance of what I consider to be a fairly lenient sentence here, for the crimes for which you're charged, is that I have learned not only from your attorney but from you in the course of earlier appearances before the Court, that sometime previous to today, you've undergone surgery, [and] that as a result of that surgery you're now equipped with a--you ha [sic] a colostomy, and you are equipped with a device to take care of what I would assume is a removal of a certain part of the bowel.

Id. at 15. Later the judge called Mitchell's physical condition "one of the main factors which allows me to assure you of ... such a relatively short term of years ...." Id. at 16. The presentence report established that Mitchell had a prior felony conviction, and the judge imposed the more severe minimum sentence that he had indicated.

Mitchell appealed his conviction. Relying on the colloquy we have quoted above, Mitchell argued that the trial court should have been alerted to the possible availability to Mitchell of the affirmative defense provided for in the text of Sec. 160.15(4) and abused its discretion in accepting Mitchell's plea without inquiring into the matter. The appeal was denied on the grounds that by failing to challenge his plea prior to sentencing Mitchell "waived a right to claim legal insufficiency of the plea by failure to move to withdraw it or to raise a claim of the inadequacy of his counsel (People v. Pascale, 48 N.Y.2d 997, [425 N.Y.S.2d 547, 401 N.E.2d 904] ...)," and that, under the circumstances, the interests of justice did not require a reversal. People v. Mitchell, 78 A.D.2d 608, 432 N.Y.S.2d 183 (1st Dept.1980). Leave to appeal to the New York Court of Appeals was denied.

Mitchell next collaterally attacked the conviction pursuant to N.Y.Crim.P.Law Secs. 440.10 and .30. Alleging for the first time that his trial attorney never informed him of the availability of an affirmative defense to the first degree robbery charge, ¹ Mitchell asserted three grounds for relief: (1) that his right to effective assistance of counsel under the Sixth Amendment was denied at the plea stage because his attorney failed to inform him of the possible affirmative defense, (2) that his right to effective assistance of counsel was denied at the appellate stage because his lawyer did not raise on appeal his claim of ineffective counsel at the plea stage, and (3) that his guilty plea was not "knowing and intelligent" because of counsel's incompetence and was thus invalid. This motion, as well as Mitchell's subsequent motions for leave to appeal to the Appellate Division and the Court of Appeals, were denied without opinion.

Having exhausted his available state remedies, Mitchell filed a petition for habeas corpus in the District Court for the Southern District of New York, reasserting the same three claims. The opposing papers submitted by the State included an affidavit by the attorney who had represented Mitchell at trial stating that the possibility of pleading the affirmative defense that the gun was not real had been discussed with Mitchell on at least two occasions prior to his guilty plea. The district court denied the petition without resolving the factual issue. ² Dealing first with Mitchell's attack on the voluntariness of his plea, the court thought that this was procedurally barred unless Mitchell could show both "cause" and "actual prejudice" as required by Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594 (1977). Judge Duffy held that, even assuming that failure to have been advised of the affirmative defense constituted "cause" for Mitchell's default, there was no sufficient showing that Mitchell had been prejudiced by the error. Judge Duffy disposed of Mitchell's Sixth Amendment claim of ineffective assistance of counsel at the trial level on similar grounds. Finding the sentence negotiated by counsel to have been a favorable one, Judge Duffy held that Mitchell had not been prejudiced and thus that counsel's assistance at the trial level was not ineffective. Since there was no merit in that claim, failure to raise it on appeal could not constitute ineffective assistance. In consequence, Judge Duffy denied Mitchell's petition.

We have no difficulty in sustaining the judge's disposition of Mitchell's claim to ineffective assistance of counsel at the trial level. A strong case can indeed be made that failure to advise a criminal defendant of the availability of an affirmative defense when facts known to an attorney suggest that the defense may be meritorious does not constitute "reasonably effective assistance" when judged "under prevailing professional norms." Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984); see also Trapnell v. United States, 725 F.2d 149 (2d Cir.1983). However, we need not decide that issue. Strickland ruled that in order to prevail on an ineffective assistance claim, a defendant must show more than simply that counsel's performance was not reasonable under prevailing professional norms; in most situations, including this one, the defendant also must "affirmatively prove prejudice" by showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different" in the sense of being more favorable to the defendant. 104 S.Ct. 2067, 2068. In fact, Justice O'Connor noted that "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 2070.

Here there was exceedingly little likelihood that presentation of the affirmative "play pistol" defense would have succeeded with respect to the first degree robbery charge to which Mitchell pleaded guilty. Under New York law, Mitchell had the burden of persuasion with respect to this defense. See People v. Clark, 41 N.Y.2d 612, 616-17, 394 N.Y.S.2d 593, 597, 363 N.E.2d 319, 322 (1977), cert. denied, 434 U.S. 864, 98 S.Ct. 195, 54 L.Ed.2d 138 (1977); People v. White, 59 A.D.2d 347, 350, 399 N.Y.S.2d 660, 661 (1st Dept.1977); cf. Patterson...