784 F.2d 78 (2nd Cir. 1986), 538, Lockett v. Montemango

Docket Nº:538, Docket 85-2259.
Citation:784 F.2d 78
Party Name:Samuel LOCKETT, Petitioner-Appellee, v. Albert MONTEMANGO, Warden, Brooklyn House of Detention, Brooklyn, New York, Respondent-Appellant.
Case Date:February 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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784 F.2d 78 (2nd Cir. 1986)

Samuel LOCKETT, Petitioner-Appellee,


Albert MONTEMANGO, Warden, Brooklyn House of Detention,

Brooklyn, New York, Respondent-Appellant.

No. 538, Docket 85-2259.

United States Court of Appeals, Second Circuit

February 14, 1986

Argued Nov. 25, 1985.

Barbara D. Underwood, Asst. Dist. Atty., Brooklyn, N.Y. (Elizabeth Holtzman, Dist. Atty., Kings County, Peter A. Weinstein, and Debra Winter Petrover, Asst. Dist. Attys., Brooklyn, N.Y., on the brief), for appellant.

Michael W. Warren, Brooklyn, N.Y. (Louis Clayton Jones, Brooklyn, N.Y., on the brief), for appellee.

Before TIMBERS, PIERCE and MINER, Circuit Judges.

TIMBERS, Circuit Judge:

The warden of the Brooklyn House of Detention (the "State") appeals from a judgment entered in the Eastern District of New York, Mark A. Costantino, District Judge, 618 F.Supp. 147, which granted a petition for a writ of habeas corpus, enjoined the State from prosecuting Samuel Lockett ("appellee") for armed robbery, and ordered the State to examine appellee under its civil commitment procedures.

The district court, in an opinion directly contrary to a unanimous opinion of the New York Court of Appeals in the underlying

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criminal action, held that, since the state trial court previously had accepted appellee's plea of not responsible by reason of mental disease or defect, the double jeopardy clause of the Fifth Amendment to the United States Constitution barred the State from vacating that plea based on fraud and from prosecuting appellee. The State argues that the district court erred in holding that the prior state plea proceeding placed appellee in jeopardy.

We hold that, since appellee never was at risk of conviction in the state plea proceeding, no jeopardy attached and the State may prosecute him on the charges for which he originally was indicted without violating the double jeopardy clause. We reverse.


We summarize only those facts believed necessary to an understanding of the issues raised on appeal.

Appellee was arrested on January 5, 1981 at the scene of an armed robbery of a retail store. Subsequently, a grand jury in the New York Supreme Court for Kings County indicted him on eighteen counts of armed robbery and related offenses, all stemming from a spree of retail store armed robberies that occurred between December 6, 1980 and appellee's arrest. After indictment, appellee underwent three separate examinations to determine if he was fit to stand trial. The first of these examinations, concluded in January 1982, resulted in a finding that appellee was not fit to stand trial. The court-appointed psychiatrist found that appellee was suffering from post-traumatic stress disorder ("PTSD") as a result of his combat experiences during the Vietnam War--sometimes referred to as "Vietnam War syndrome". This disorder manifested itself in nightmares and "flashbacks" to the horrors of combat. 1 A second examination three months later found appellee still suffering from a "personality disorder" but fit to stand trial. A final examination in September 1982 found appellee fit to stand trial, although appellee still exhibited many symptoms of PTSD.

After being found fit to stand trial, appellee informed the trial court that he wanted to enter a plea of not responsible by reason of mental disease or defect pursuant to New York Criminal Procedure Law Sec. 220.15 (McKinney 1982).

Appellee could have raised his alleged lack of criminal responsibility at trial as a defense. Section 220.15, an insanity defense reform measure enacted in 1980, allows a defendant to raise the issue in the form of a plea prior to trial. If the State consents and the court accepts the plea, all criminal proceedings are terminated and the defendant is remanded for possible civil commitment. 2

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At the State's request, the trial court ordered an examination of appellee by a State-chosen psychiatrist. This doctor also concluded that appellee suffered from PTSD. On April 13, 1983 the trial court conducted a hearing to determine whether to accept appellee's plea. The State, after reporting the finding of its psychiatrist and summarizing its evidence against appellee, consented to the entry of the plea, concluding that it could not disprove appellee's defense of lack of criminal responsibility. The court, after finding that the State could prove all elements of the charged offenses but could not disprove appellee's defense, engaged appellee in the requisite allocution and accepted the plea. The court then remanded appellee to the New York Commission on Mental Health for examinations to determine if civil commitment was warranted.

In preparation for the civil commitment hearing, the State subpoenaed appellee's military records. The State had attempted to subpoena these records prior to the plea proceeding, but the National Personnel Records Center refused to honor the subpoena because it failed to comply with federal

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regulations. The second subpoena was honored and the State received appellee's military records on June 1, 1983. The records disclosed that appellee never served in Vietnam, but spent his entire military career in Texas as an accounting clerk.

In view of this fraud, the State moved in the trial court on June 7, 1983 to vacate appellee's plea. Appellee opposed the motion, arguing, among other things, that the trial court had no authority to vacate his plea and that recommencing prosecution against him would violate the double jeopardy clause. In an opinion dated October 27, 1983, 3 the trial court vacated appellee's plea. The court held that it had inherent power to vacate fraudulently procured pleas. The court also held that jeopardy had not attached at the plea proceeding; so appellee was not in danger of being exposed to double jeopardy.

Appellee sought injunctive relief in the Appellate Division, asking to have his plea reinstated. In a memorandum decision dated June 18, 1984, 4 the Appellate Division held that the trial court had no "satisfactory authorization" to vacate the plea and ordered it reinstated. The Appellate Division never reached the double jeopardy issue.

The State appealed to the New York Court of Appeals. In a unanimous opinion dated June 6, 1985, 5 the Court of Appeals reversed the Appellate Division and reinstated the trial court's judgment which had vacated appellee's plea. The Court of Appeals held that New York courts have inherent power to vacate pleas obtained by fraud or misrepresentation. The court also held that vacating appellee's plea and prosecuting him would not violate the double jeopardy clause. The court held that no jeopardy had attached at the plea proceeding because appellee never risked conviction at that proceeding. The court quoted Serfass v. United States, 420 U.S. 377, 393 (1975), in which the Supreme Court held that "an accused must suffer jeopardy before he can suffer double jeopardy."

On June 27, 1985 appellee filed the instant petition for a writ of habeas corpus in the district court. Appellee argued that further criminal proceedings against him on the indicted offenses would violate the double jeopardy clause. He also claimed that by violating its own statutes the State was denying him due process. In an opinion dated August 9, 1985, 6 the district court granted the petition. The court held that any further criminal proceedings against appellee would violate the double jeopardy clause. 7...

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