Ames v. New York State Div. of Parole, 1008

• Decision Date: 17 September 1985
• Docket Number: D,No. 1008,1008
• Parties: Douglas AMES, Petitioner-Appellee, v. NEW YORK STATE DIVISION OF PAROLE, Respondent-Appellant. ocket 84-2327.
• Court: U.S. Court of Appeals — Second Circuit

Page 13

772 F.2d 13

Douglas AMES, Petitioner-Appellee, v. NEW YORK STATE DIVISION OF PAROLE, Respondent-Appellant.

No. 1008, Docket 84-2327.

United States Court of Appeals, Second Circuit.

Argued April 9, 1985.

Decided Sept. 17, 1985.

J. Peter Coll, Jr., New York City (Daniel R. Murdock and Donovan Leisure Newton & Irvine, New York City, of counsel), for petitioner-appellee.

Richard T. Faughnan, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty. and Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, N.Y., of counsel), for respondent-appellant.

Before TIMBERS, VAN GRAAFEILAND, and CARDAMONE, Circuit Judges.

VAN GRAAFEILAND, Circuit Judge:

This is an appeal from an order of the United States District Court for the Eastern District of New York (Platt, J.) granting the petition of Douglas Ames for a writ of habeas corpus. The district court held that Ames's plea of guilty to ten counts of robbery in the first degree was not voluntary and intelligent and that Ames had been denied effective assistance of counsel. We reverse.

Because the facts and the procedural background of this case are set forth in the district court's opinion, 593 F.Supp. 972, they need only be summarized herein. In 1974, Ames pled guilty in Kings County Supreme Court to all of the charges contained in seven indictments, including ten counts of robbery in the first degree, N.Y. Penal L. Sec. 160.15(4). After the court explained to Ames the rights he was waiving and the range of punishment he could receive, it read each of the indictments aloud and asked Ames to describe what had happened. Ames admitted each of the robberies, but stated that in committing them he used a fake pistol. Without asking whether Ames knew that the use of an unloaded weapon was an affirmative defense under section 160.15(4), reducing the offense from first degree robbery to second degree robbery, the court accepted his plea. Ames was sentenced as a second-felony offender and received concurrent terms on the first degree robbery counts of eight to sixteen years.

After appeals and a motion to vacate the judgment proved fruitless, Ames petitioned the district court for a writ of habeas corpus, alleging violations of his Fifth, Sixth, and Fourteenth Amendment rights. The court held an evidentiary hearing at which it heard testimony from Ames and his trial counsel. Although Ames had been represented by at least a half-dozen lawyers prior to his plea, he testified that none of them told him about the unloaded weapon affirmative defense and that he had no independent knowledge of it. Ames's trial counsel testified that he could not remember whether he had told Ames about the affirmative defense.

The district court denied Ames's petition on the ground that he had failed to exhaust his State remedies. Ames moved again in Kings County Supreme Court to vacate the 1974 judgment. The motion was denied, and leave to appeal also was denied. Ames then filed a second habeas corpus petition, and, on the basis of the evidence presented on the first application, the district court granted the petition. The court found that Ames did not plead voluntarily and intelligently because he was not informed of the possibility of an unloaded weapon defense and because the trial court failed to establish a factual basis for the plea. 593 F.Supp. at 977-79. The district court held that Ames had been denied effective assistance of counsel because his trial counsel had failed to inform him of the fake pistol defense. 593 F.Supp. at 980. We disagree with each of these determinations.

In Mitchell v. Scully, 746 F.2d 951 (2d Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 1765, 84 L.Ed.2d 826 (1985), decided after the district court's decision in the instant case, the defendant Mitchell also pled guilty in State court to robbery in the first degree, which he claimed to have committed with a play pistol. Without mentioning the affirmative defense, the trial court accepted the plea. Like Ames, Mitchell argued in this Court that his plea was involuntary because neither the trial court nor his counsel had informed him of the unloaded weapon affirmative defense. Mitchell also claimed ineffective assistance of counsel.

We rejected the claim that Mitchell's plea was invalid, holding that a distinction exists, for purposes of due process, between an element of a crime and an affirmative defense to that crime. 746 F.2d at 956. In Henderson v. Morgan, 426 U.S. 637, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976), the case relied upon by the district court herein, the Supreme Court held that a defendant must receive "real notice of the true nature of the charge against him", id. at 645, 96 S.Ct. at 2257, i.e., a description of the critical elements of the offense, see id. at 647 n. 18, 96 S.Ct. at 2258 n. 18. "[D]ue process", we said in Mitchell, "does not require that a defendant be advised of every basis on which he might escape or receive a lesser punishment for an offense that he has committed [particularly where] the burden of persuasion with respect to the appropriate defense rests on the defendant." 746 F.2d at 956-57.

As in Mitchell, the indictments against Ames gave him clear notice of the elements of first degree robbery. 746 F.2d at 956; see also Seiller v. United States, 544 F.2d 554, 562-63 (2d Cir.1975). Assuming for the argument that Ames was not informed of the fake pistol affirmative defense, a defense that he would have had to prove by a preponderance of the evidence, People v. Baskerville, 60 N.Y.2d 374, 380, 469 N.Y.S.2d 646, 457 N.E.2d 752 (1983), this did not render his plea involuntary. Mitchell v. Scully, supra, 746 F.2d at 956-57.

We discern no constitutional defect in the trial court's inquiry into whether there was a factual basis for Ames's plea. By admitting that he committed each of the...