Cammack v. State of NY, 78 C 581.
| Decision Date | 11 September 1978 |
| Docket Number | No. 78 C 581.,78 C 581. |
| Citation | 457 F. Supp. 1190 |
| Parties | Louis CAMMACK, Petitioner, v. STATE OF NEW YORK, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
Louis Cammack, pro se.
Louis J. Lefkowitz, Atty. Gen. of N.Y., by Gerry E. Feinberg, New York City, for respondent.
Louis Cammack, a prisoner at New York State's Clinton Correctional Facility,1 has petitioned the court pro se for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The Attorney General for the State of New York, as Attorney for the respondent, has filed an affidavit in opposition to the petition, and has provided the court with transcripts of the various State court proceedings here in issue.
On June 6, 1963, petitioner and a co-defendant Jesse Smalls, pleaded not guilty in New York State Supreme Court, Kings County, to an indictment charging them with first degree murder. Thereafter, on August 1, 1963, both withdrew their previous pleas, and petitioner, who was then represented by counsel, pleaded guilty to manslaughter in the first degree, unarmed. See former New York Penal Law § 1050, amended, 1965. The record of that proceeding reflects the following exchange between petitioner and the State court judge, Justice Helfand, after counsel had indicated petitioner's intention to change his plea and before the plea was accepted by the court:
Plea Minutes (8/1/63), at 4-6. Justice Helfand then directed the clerk to take the guilty pleas of petitioner and his codefendant.
Cammack and Smalls, again represented by counsel, appeared before Justice Helfand for sentencing on November 1, 1963. Smalls was to be sentenced first, and his attorney asked to speak "in connection with the case itself." Justice Helfand denied this request, noting that his knowledge of the case was complete by virtue of his having conferred with counsel and the district attorney prior to accepting the pleas to the reduced charge and having read the "full and complete" report of the Probation Department. See Sentencing Minutes (11/1/63), at 3-4. The State judge then launched into a fairly detailed account of the offense, relying, apparently, on facts supplied in large measure by Smalls and Cammack. See id. at 4-6. Neither Smalls nor his attorney expressed any disagreement with Justice Helfand's account.
After sentencing Smalls to a 10-to-20-year term of imprisonment, the court turned its attention to petitioner. After certain preliminary matters had been resolved, petitioner was advised of his right to address the court, and indicated a desire to have his lawyers speak on his behalf. See id. at 7. Mr. Ashmead, who spoke first, observed that the court had before it "a full probation report, complete in all respects," and asked "the court to give what leniency is possible in view of all the circumstances." Id. Co-counsel, Arthur Kamell, then addressed the court. Mr. Kamell, who pointed out that he had been present during Smalls' sentencing, emphasized that Cammack did not have a felony record and sought to impress upon the court "one or two factors which may not appear in the probation report": Cammack's high intelligence, evidenced by a college scholarship, and his great prospects for "rehabilitation." See id. at 8.
Plainly, Justice Helfand was not moved by the argument of counsel. He noted that Cammack had "been in and out of the courts all over" and stressed the seriousness of his role in the killing for which he was about to be sentenced. Kamell conceded that petitioner's part in the unfortunate incident was not in dispute, but again urged the court to consider "the possibility of rehabilitation in this case —." Id. at 8-9. Bringing the colloquy to an end, Justice Helfand offered a brief comment on petitioner's culpability and the leniency of the plea arrangement, and imposed a sentence of 10 to 20 years imprisonment. The record contains no indication that petitioner or his attorneys were precluded from apprising the court of any other matter pertinent to sentencing. No appeal was at that time taken from the judgment of conviction and sentence.
In 1970, after making several unsuccessful applications for a writ of error coram nobis,2 petitioner and Smalls, pursuant to a procedure approved by the New York Court of Appeals in People v. Montgomery, 24 N.Y.2d 130, 299 N.Y.S.2d 156, 247 N.E.2d 130 (1969), moved before Justice Helfand for resentencing, in order to reinstate their time to appeal their convictions.3 Although Justice Helfand had afforded petitioner and his codefendant a number of adjournments in order to permit them to retain counsel, on August 31, 1970, he granted their motion, over their objection that they were still unrepresented, and sentenced both nunc pro tunc to the same term as had been originally imposed in 1963. The record of the resentencing proceeding indicates that Cammack and Smalls attempted to address the court prior to the pronouncement of resentence, that Justice Helfand warned them "to keep quiet," and that when they persisted in their efforts to be heard, both were handcuffed to their chairs and gagged. See Resentencing Minutes (8/31/70), at 3-4. The judgments of conviction on resentence were thereafter affirmed by the Appellate Division, Second Department, and the New York Court of Appeals, in both instances without opinion. See People v. Cammack, 37 A.D.2d 918, 326 N.Y.S.2d 987 (2d Dep't); People v. Smalls, 37 A.D.2d 919, 326 N.Y.S.2d 987 (2d Dep't), aff'd without opinion, 30 N.Y.2d 801, 334 N.Y.S.2d 901, 286 N.E.2d 276 (1972).
Cammack raises three grounds in support of his petition for habeas relief. First, he urges that the Montgomery resentencing was conducted in disregard of his right to be represented by counsel. Second, he claims that his guilty plea was accepted by the State court in a manner inconsistent with the requirements set forth in Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), and Rule 11, F.R. Crim.P. Third, petitioner contends that the procedure followed at his sentencing in 1963 was constitutionally infirm because he was denied the opportunity to present mitigating circumstances to the court and because counsel was not permitted to make any statement concerning the case or to speak fully. It appears that each of these grounds was raised by petitioner in the New York courts on direct appeal from the judgment on resentence, and respondent concedes that available State remedies have been exhausted.
The constitutional right to counsel applies "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected." Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967). Indeed, the Supreme Court has only recently reaffirmed the Mempa holding that "sentencing is a critical stage of the criminal proceeding at which the defendant is entitled to the effective assistance of counsel." Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1205, 51 L.Ed.2d 393 (1977). Moreover, Mempa has been given retroactive effect. See McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968).
As noted above, petitioner's first ground for relief is an asserted denial of his right to counsel at his 1970 Montgomery resentencing. Since it is conceded that petitioner was resentenced without the assistance of an attorney despite his repeated objections to going forward, his claim turns entirely on whether the Montgomery proceeding was a critical stage in the criminal process — that is, one "where substantial rights of a criminal accused may be affected." Mempa v. Rhay, supra, 389 U.S. at 134, 88 S.Ct. at 257.
The contours of the Montgomery resentencing procedure have been fully explored by the New York courts, and it is plain that the...
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