Honeycutt v. Ward

• Decision Date: 05 November 1979
• Docket Number: No. 1149,D,1149
• Citation: 612 F.2d 36
• Parties: Johnny HONEYCUTT, Petitioner-Appellee, v. Benjamin WARD, Commissioner of Corrections for the State of New York, Respondent-Appellant. ocket 79-2050.
• Court: U.S. Court of Appeals — Second Circuit

Page 36

612 F.2d 36

Johnny HONEYCUTT, Petitioner-Appellee, v. Benjamin WARD, Commissioner of Corrections for the State of

New York, Respondent-Appellant.

No. 1149, Docket 79-2050.

United States Court of Appeals, Second Circuit.

Argued May 31, 1979.

Decided Nov. 5, 1979.

Michael G. Berger, New York City (Pryor, Cashman, Sherman & Flynn, New York City, of counsel), for petitioner-appellee.

Paul E. Dahlman, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of N. Y., George D. Zuckerman, Asst. Sol. Gen., Arlene R. Silverman, Asst. Atty. Gen., New York City, of counsel), for respondent-appellant.

Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.

MOORE, Circuit Judge:

This is an appeal by the Commissioner of Corrections for the State of New York (hereinafter the "State"), from a judgment of the United States District Court for the Southern District of New York, granting appellee Johnny Honeycutt's petition for a writ of habeas corpus, 28 U.S.C. § 2254.

The petition was granted on the theory that a sentence imposed after a 1954 conviction in New York County, upon a plea of guilty to armed robbery in the second degree, was unlawfully enhanced to fifteen years to life imprisonment as a result of a fourth felony information filed pursuant to former New York Penal Law § 1942 and § 1943. The petitioner admitted that he was the same person who had been convicted of the three felonies specified in the information. All three of the prior felony convictions were out-of-state convictions. The basis of Honeycutt's habeas corpus petition, made on May 16, 1978, is, according to his court-appointed attorney, that a 1949 Oklahoma conviction, a necessary predicate to Honeycutt's fourth offender sentence, was obtained in alleged violation of Honeycutt's constitutional right to counsel.

In 1926 the Legislature of the State of New York enacted New York Penal Law § 1942, reading in pertinent part as follows:

" § 1942. Punishment for fourth conviction of felony. A person who, after having been three times convicted within this state of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits a felony, within this state, shall be sentenced upon conviction of such fourth, or subsequent, offense to imprisonment in a state prison for the term of his natural life. . . ."

The purposes of the statute were to deter potential recidivists by making the risks too great and to protect the citizens of New York State from persons whose records had shown them to be frequently addicted to crime. Since the State-Federal judicial relationship often presents delicate issues and Federal courts should be reluctant to use their power to override the decisions of State courts rendered after affording due process, the record before us as the basis for any decision assumes more than ordinary importance.

The record discloses that the petitioner at the age of 13 was imprisoned for some offense the nature of which is not revealed. In 1949, petitioner pleaded guilty in Oklahoma to robbing a grocery store "because I (petitioner) was guilty". A two-year sentence resulted. In 1951, in Oklahoma, petitioner was convicted and sentenced to eighteen months imprisonment for passing a government obligation with a forged endorsement. In 1952, in California, petitioner was convicted upon a jury verdict of forgery and sentenced to one year. In the New York County Court of General Sessions on March 15, 1954, petitioner pleaded guilty to the charge of armed robbery in the second degree, after admitting to the sentencing judge that he had possessed the gun used in the robbery and that one shot had been fired. On August 11, 1954, petitioner was sentenced for this crime as a fourth felony offender to 15 years to life, pursuant to then effective New York Penal Law § 1942. Petitioner was represented by counsel both on plea and on sentence.

However, only some 13 years of this sentence were served because in 1967 petitioner was released on parole. In 1971, while on parole from his 1954 conviction, petitioner was indicted for murder and pleaded guilty to manslaughter, first degree, for which he served a five-year sentence. In 1976 petitioner was again paroled on his 1954 sentence. However, in the same year, he was convicted of attempted possession of a forged instrument, the sentence being 11/2 to 3 years. That sentence has been fully served, and Honeycutt remains incarcerated solely by virtue of the 1954 sentence. ¹

After bringing several Pro se petitions in the New York courts, Honeycutt challenged the use of the Oklahoma conviction as a predicate felony in a Coram nobis application, which was denied by the Supreme Court, New York County, on March 3, 1976. On August 5, 1976, leave to appeal was denied by the Appellate Division, First Department, as was leave to appeal from the Appellate Division's ruling on September 23, 1976, by the New York Court of Appeals.

Subsequently, Honeycutt commenced the instant habeas corpus proceeding, claiming that the most ancient of his convictions the 1949 Oklahoma conviction was obtained in violation of his Sixth Amendment right to counsel and that, therefore, he should not have been sentenced as a fourth felony offender in 1954.

THE HEARING BEFORE THE TRIAL COURT

The trial court held evidentiary hearings on January 17, February 16 and March 9, 1979, on petitioner's § 2254 petition. Petitioner testified in his own behalf as to the events of thirty years ago. He said that the Oklahoma judge in 1949 never said anything about his right to have a lawyer and "never mentioned a lawyer to me". Petitioner, however, did admit on cross-examination that he had said in an affidavit that "Although I may have been advised of my right to counsel, I do not recall waiving my rights".

For the hearings, both counsel tried to obtain such records, if any, as might be in Oklahoma. A court record from Oklahoma was secured and introduced which reveals certain facts with respect to the 1949 conviction under attack. In refutation of petitioner's 1979 memory of the 1949 courtroom scene a court order appointing counsel shows that:

"Now on this 10th day of June, 1949, it appearing to the undersigned Judge of the District Court of Oklahoma County, that: The above named defendant appeared for arraignment without aid of counsel and was informed by the Judge that said defendant was and is entitled to counsel as a matter of right; that said defendant has advised the Court that defendant desires counsel but was and is unable to employ such aid.

It is therefore ordered that Chas. W. Moss, Public Defender of Oklahoma County, represent said defendant in the above styled cause until further order of the Court."

It is significant that the order is signed in long hand by A. P. Van Meter, District Judge, and there is no claim that the signature is a forgery. The order states facts which could only have resulted from the personal appearance of petitioner before the judge. The judge noted that petitioner appeared "without aid of counsel". ² Petitioner was "informed by the Judge that said defendant (petitioner) was and is entitled to counsel as a matter of right"; and that "defendant (petitioner) has advised the Court that defendant desires counsel but was and is unable to employ such aid". Thereupon the judge appointed the Public Defender of Oklahoma County to represent petitioner until further order. Petitioner pleaded guilty on June 10, 1949 because, as he said, he "was guilty" and on the same day a judgment of conviction and sentence was signed by the judge.

THE OPINION BELOW

The trial court, without making specific findings, merely said "On all the papers now before me and on all the evidence presented at the hearings I have held, I find that petitioner was not represented by counsel when he pleaded guilty and was sentenced in Oklahoma County, Oklahoma on June 10, 1949". He, therefore, concluded that the use of that conviction as a predicate for sentencing petitioner as a fourth felony offender in New York, was "constitutionally impermissible" citing Burgett v. Texas, 389 U.S. 109, 114-15, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).

In brief, the trial judge based his finding of non-representation upon the denial of representation by the petitioner, whose credibility was seriously affected by his earlier violations of his parole commitments and by his immediate return to his criminal activities. In contrast the district judge must have impliedly concluded that the Oklahoma judge put his name to a series of events which he stated had occurred in his presence but which were wholly false. The fact that the Public Defender's name had been pre-printed in the Oklahoma order appointing counsel is not of any moment. The name of the Public Defender would not change from case to case and the appointment of a Public Defender probably would have been not an infrequent occurrence. Nor is the fact that judgment and sentence were the same day of any significance. Petitioner knew he was guilty and said so. Further time for investigation of the law and facts was not required. Additional time for conferences would not have changed petitioner's confessed guilt.

Although Rule 52(a) of the Rules of Civil Procedure provides, in part, that in actions tried without a jury: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" (derived from equity practice), the Supreme Court in United States v. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746 (1948) held:

"The findings were never conclusive, however. A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Id. at 395, 68 S.Ct. at 542. (footnote...