Nicks v. U.S.
| Decision Date | 23 January 1992 |
| Docket Number | No. 230,D,230 |
| Citation | 955 F.2d 161 |
| Parties | Harry NICKS, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. ocket 91-6066. |
| Court | U.S. Court of Appeals — Second Circuit |
Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Richard E. Signorelli, David W. Denton, Asst. U.S. Attys., of counsel), for respondent-appellant.
William L. Patton, Boston, Mass. (Laurie R. Wallach, Akiyo Fujii, Ropes & Gray, Boston, Mass., Laurence T. Sorkin, Benjamin B. Wagner, Cahill Gordon & Reindel, New York City, of counsel), for petitioner-appellee.
Before CARDAMONE, WALKER and McLAUGHLIN, Circuit Judges.
The United States appeals from a judgment and order entered March 12, 1991 in the United States District Court for the Southern District of New York (Knapp, J.) granting the petition for a writ of error coram nobis of Harry Nicks and vacating his 1974 conviction for armed bank robbery. The present litigation arises from petitioner's conviction for a brutal murder he committed in the State of Alabama. Petitioner was sentenced to death for that crime, with his prior federal robbery conviction in the Southern District of New York constituting an aggravating factor under Alabama law.
The specific issue now before us is whether the Southern District conviction was lawfully obtained against petitioner in light of his claim that at the time of his plea and sentencing he was incompetent. In an effort to vacate the aggravating predicate felony conviction that contributed to his death sentence, petitioner seeks relief by way of the ancient writ of coram nobis, a remedy used when all is lost and no other remedy is available.
It must first be decided whether Nicks' 15-year delay in seeking coram nobis renders this relief unavailable. Second, and equally important, a factual dispute exists as to what evidence was before the Southern District Court in 1974 at the time of Nicks' plea and sentencing. Without resolving this dispute, the district court held that Nicks' due process rights had been violated by its failure to hold a competency hearing. Since only those facts actually known by the court at the time of the initial proceedings are relevant, we must remand this matter so that both of these issues may be determined.
On May 15, 1974 a New York City branch of the Franklin National Bank was robbed of $21,770 by a sole gunman brandishing a silver .38 caliber handgun at a teller. As he left the bank the robber fired a shot at a security guard. Three days later, Harry Nicks (hereafter appellee, petitioner, or defendant) was arrested in Cranford On June 7, 1974 defendant was charged in a two-count indictment with the robbery of the bank, in violation of 18 U.S.C. § 2113(a), and assault with a dangerous weapon, in violation of 18 U.S.C. § 2113(d). Thomas J. Concannon, Esq. of the New York Federal Defender Services Unit was appointed as counsel. At arraignment before Judge Knapp on June 17, 1974 Nicks pled guilty to the second count of the indictment. During the plea allocution, Nicks responded appropriately to Judge Knapp's questions, except for asserting that he had not loaded the gun until after he left the bank. Noting that this statement did not fit the facts of the charge, the trial judge directed him to confer with his attorney. Following a recess, counsel informed the court that his client told him the gun was loaded when he entered the bank, and Nicks allocuted this fact to the court. When asked whether he had ever been convicted before, defendant stated that "I pleaded, the same thing I'm doing now."
New Jersey for a traffic violation. He was driving a new car, from which police recovered $11,450 in cash and a silver .38 caliber revolver containing one spent cartridge. Nicks' photograph was shown to the bank teller who identified him as the robber
Following the plea, the district court asked attorney Concannon whether he was "perfectly satisfied that [his client] understands what he is doing," to which counsel replied that he was. The court then observed that "[defendant] is not under any mental condition, it doesn't seem to me." To this, Nicks replied "no," and his counsel testified
On July 2, 1974 at defense counsel's request an order was entered pursuant to 18 U.S.C. § 4244 directing that defendant be examined by Dr. Norman Weiss, a psychiatrist, who reported the results of his examination in a July 15, 1974 letter to attorney Concannon, a copy of which was furnished to the district judge. Dr. Weiss diagnosed Nicks as "mentally retarded and probably borderline psychotic," though he observed defendant "appeared oriented for time, place, and person" and "appeared to be clear" when questioned about the charges against him. In addressing Nicks' competency, Dr. Weiss concluded that "I question his competency."
As a result, Judge Knapp on July 25, 1974 ordered defendant committed for an additional 60-day study to the Federal Correctional Institution in Milan, Michigan (Milan) under § 5010(e) of the Federal Youth Corrections Act, which provides for commitment and study when a sentencing court wants additional information about a defendant prior to sentencing. There, defendant was examined by Dr. Peter Davol, a psychiatrist, and Dr. Thomas J. Rosenbaum, a psychologist. Dr. Davol diagnosed appellee as suffering from "schizophrenia, paranoid type (acute and severe)," but found that he "appeared to understand the reasons for his being at Milan and the nature of his study," and "when he doesn't feel threatened and where the conversation involves relatively conflict-free subjects, [Nicks] is reasonably alert and 'together.' " The Milan report did not directly address the issue of competency, but recommended that defendant be sentenced to an eight-year indeterminate sentence under § 5010(c) of the Federal Youth Corrections Act.
Petitioner was released from federal custody on May 27, 1980 and transferred to a New Jersey state prison to serve a sentence for possession of a dangerous weapon and possession of cocaine. He was paroled in 1982 by the New Jersey authorities. On March 5, 1983 during an armed robbery of a pawnshop in Alabama, the robber ordered the store owner and his female employee to lie on the floor, and then shot them both in the back of the head. The owner died, but the employee survived and subsequently identified Nicks as the murderer.
After Nicks' arrest for this vicious crime, he was found incompetent by the Alabama Competency Review Board and committed for treatment. When later found competent to stand trial, he was convicted of murder committed during the commission of a felony. During the sentencing phase of the trial, the jury recommended by a 10 to 2 vote that Nicks be sentenced to death, finding no mitigating circumstances, and finding two aggravating circumstances: that the murder occurred during a robbery, and that he had committed a prior federal armed bank robbery that involved the use or threat of violence, the subject of this appeal. The Alabama court adopted the recommendation of the jury and imposed a sentence of death.
Nicks' conviction and sentence were affirmed by the Alabama Court of Criminal Appeals and the Alabama Supreme Court. Nicks v. State, 521 So.2d 1018 (Ala.Crim.App.1987), aff'd, 521 So.2d 1035 (Ala.1988). The United States Supreme Court denied certiorari, 487 U.S. 1241, 108 S.Ct. 2916, 101 L.Ed.2d 948 (1988), and rehearing, 487 U.S. 1263, 109 S.Ct. 27, 101 L.Ed.2d 977 (1988). On January 17, 1989 in a petition for post-conviction relief under Alabama law, Nicks asserted 30 separate claims for relief from his sentence, including a claim that his 1974 federal bank robbery conviction should not have been used as an aggravating circumstance. That petition is being held in abeyance in Alabama pending the outcome of this appeal.
Nicks filed a petition for a writ of error coram nobis in July 1989 seeking to vacate his 1974 conviction on the ground that the district court's failure to conduct a competency hearing violated his due process rights and rendered his guilty plea void. In October 1989, with the petition, the government's response, and the record of the 1974-1975 proceedings before him, Judge Knapp prepared a draft memorandum stating that he had "review[ed] all the facts that came to [his] attention on or before ... the day on which sentence was imposed," and concluded that the petition should be denied. He reached this conclusion in large measure based on the competency and integrity of attorney Concannon, on whom he felt justified in relying to bring to his attention "any possible defenses available...
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