Lunz v. Henderson, 128

• Decision Date: 26 February 1976
• Docket Number: D,No. 128,128
• Citation: 533 F.2d 1322
• Parties: Joseph Edward Francis LUNZ, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Auburn, New York, Respondent-Appellee. ocket 75-2079.
• Court: U.S. Court of Appeals — Second Circuit

Page 1322

533 F.2d 1322

Joseph Edward Francis LUNZ, Petitioner-Appellant, v. Robert J. HENDERSON, Superintendent, Auburn Correctional

Facility, Auburn, New York, Respondent-Appellee.

No. 128, Docket 75-2079.

United States Court of Appeals, Second Circuit.

Argued Sept. 17, 1975.

Decided Feb. 26, 1976.

Leslie A. Blau, New York City (Paula Van Meter, New York City, on the brief), for petitioner-appellant.

Burton Herman, Asst. Atty. Gen. of the State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.

Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.

TIMBERS, Circuit Judge:

On this appeal from a judgment entered March 26, 1975 in the Eastern District of New York, Edward R. Neaher, District Judge, dismissing a petition for a writ of habeas corpus by a state prisoner ¹ who pleaded guilty to second degree murder more than ten years ago, the essential issue is whether Judge Neaher correctly rejected petitioner's claims (1) of an involuntarily entered guilty plea, (2) of denial of effective assistance of counsel, and (3) of denial of right of allocution. We hold that Judge Neaher correctly rejected each of petitioner's claims and accordingly we affirm.

On June 7, 1965 petitioner Joseph Edward Francis Lunz, accompanied by counsel, pleaded guilty to second degree murder ² before Justice Shapiro in the Queens County Supreme Court. On August 23, 1965 he was sentenced by Justice Shapiro to a term of twenty years to life. His conviction was unanimously affirmed by the Appellate Division on December 11, 1967. People v. Lunz, 29 App.Div.2d 631, 286 N.Y.S.2d 787 (2nd Dept. 1967) (mem.). The New York Court of Appeals denied leave to appeal on July 1, 1968.

After exhausting his state remedies, ³ Lunz filed a petition for a writ of habeas corpus in the Eastern District of New York on January 28, 1974, from the denial of which by Judge Neaher in a well reasoned opinion filed March 26, 1975, and a judgment entered the same day dismissing the petition, the instant appeal has been taken.

I.

On June 7, 1965, prior to accepting Lunz' guilty plea to second degree murder, Justice Shapiro requested Lunz to tell him in his own words what he did on the day of the crime. He did so. Among other things, Lunz stated that he stabbed a Queens building superintendent to death with a letter opener after Lunz was caught in the act of robbing the building. It is the guilty plea that was accepted after this admission which Lunz seeks to have set aside in the instant habeas corpus proceeding.

In order to focus upon Lunz' claims, it is necessary to back up a bit and recount certain events of the preceding year or so.

Early in 1964 he pleaded guilty to grand larceny. He was sentenced as a youthful offender. This offense was unrelated to the instant offense.

In September 1964 he again was arrested and charged with grand larceny. On December 1, 1964 he was committed to the Kings County Hospital for a psychiatric examination. While in the hospital he was questioned by two detectives about the stabbing of the building superintendent. ⁴ According to Lunz, the detectives told him that they knew he had committed the murder; and that if he confessed he would not be prosecuted for that crime and they would arrange to have him transferred to a hospital of his choice. Lunz requested access to counsel during the questioning. It was refused. At first he denied any knowledge of or involvement in the murder. On the second day of questioning in the hospital, however, he made an oral confession which was tape-recorded. When requested to sign a written confession he refused and recanted his oral confession.

The detectives used Lunz' oral confession to obtain a confession from his co-conspirator, James Mannion. Based on Mannion's confession, a grand jury on February 1, 1965 indicted both Lunz and Mannion for first degree murder.

On February 10 the court assigned James P. McGrattan, Esq., a former County Court Judge, and James F. McArdle, Esq. to represent Lunz.

On February 17 the court ordered a psychiatric examination of Lunz to determine whether he was competent to stand trial. The examination was conducted at Kings County Hospital. The report of this examination concluded that, although Lunz was disturbed in some respects, he nevertheless was capable of understanding the charges against him and of assisting in his defense. Following a hearing on the psychiatric examination and report, the court on April 2 found that Lunz was competent to stand trial.

Thereafter his counsel urged him to plead guilty to second degree murder because of the strength of the State's case and to avoid the risk of a death sentence. At first Lunz refused.

On June 7, the day his case was to be called before Justice Shapiro, Lunz' sister was in the courtroom. She was in an advanced stage of pregnancy. She was there at the request of counsel for Lunz to persuade him to plead guilty to second degree murder. Justice Shapiro granted the request of defense counsel to permit Lunz to speak with his sister. Lunz did so. She became agitated and upset when Lunz told her he would not plead guilty. She begged him to do so to avoid being executed. Eventually, upon the urging of his counsel and his sister, Lunz decided to plead guilty to second degree murder. He claims that he did so because he did not wish to risk impairing his sister's health in view of her pregnancy.

When Lunz was presented for a change of plea, Justice Shapiro conducted what strikes us as an unusually careful voir dire examination to determine whether there was a factual basis for the plea and whether it was being entered voluntarily. ⁵ Immediately after admitting that he had stabbed the building superintendent with a letter opener upon being caught in the act of robbing the building, Lunz responded to Justice Shapiro's question as follows:

"THE COURT: Now, knowing everything that I have told you and knowing what the sentence may very well be and that the minimum, at any rate, is not less than twenty years, do you still say you desire to withdraw your plea of not guilty and plead guilty to the crime of murder in the second degree?

DEFENDANT LUNZ: Yes, sir."

Justice Shapiro thereupon permitted Lunz to withdraw his not guilty plea to the charge of first degree murder and to plead guilty to second degree murder.

Two and a half months later, on August 23, 1965, Lunz was sentenced by Justice Shapiro to a term of twenty years to life. In view of his claim of denial of the right of allocution, discussed more fully below, we set forth in the margin the relevant portion of the sentencing minutes. ⁶

II.

Turning directly to Lunz' claim that his guilty plea was involuntarily entered, the controlling guidelines are set forth in McMann v. Richardson, 397 U.S. 759 (1970). There the Supreme Court held that the mere fact that a confession was coerced does not, without more, afford a basis for setting aside a guilty plea. On the record before us, we hold not only that Lunz' plea was voluntary but that there was a factual basis for it as well.

We reject out of hand Lunz' claim that his confession given to the detectives in the hospital was in reliance upon their promise that he would not be prosecuted for the crime of murder. Apart from the utter improbability of this story, Lunz' answers to Justice Shapiro's questions immediately prior to entry of the plea provide a sufficient basis for the district court's finding that no such promise was made. In short, as Judge Neaher's opinion below makes clear, before Lunz was permitted to enter his guilty plea, Justice Shapiro's thorough voir dire examination established that Lunz knew he was going to prison, that he knew the term would be not less than twenty years, that he knew the term might be even longer because of his prior felony record, and that he knew, and unequivocally assured the court, that nobody had made any promises to him.

Nor do we find any merit in Lunz' claim that he was coerced into pleading guilty by pressure from his counsel and his sister. Advice even strong urging by those who have an accused's welfare at heart, based on the strength of the State's case and the weakness of the defense, does not constitute undue coercion. North Carolina v. Alford, 400 U.S. 25, 29-32 (1970); Brady v. United States, 397 U.S. 742, 757 (1970); United States ex rel. Brown v. LaVallee, 424 F.2d 457, 460-61 (2 Cir. 1970), cert. denied,401 U.S. 942 (1971). This is especially so where, as here, an accused's life is at stake. As Judge Neaher aptly put it:

"Petitioner had already given a verbal confession to the two detectives and petitioner's co-conspirator, Mannion, had also confessed. With his life at stake, it certainly cannot be said under the circumstances that petitioner's choice was not free and rational or that it was 'coerced' because prompted by advice received from those who stressed the risk involved in any other decision."

We agree.

III.

Lunz also claims that he was denied the effective assistance of counsel by their failure to consult with him sufficiently at two stages of the state court proceedings: prior to the April 2, 1965 hearing to determine his competence to stand trial (including what he now asserts as the overlooking of a possible insanity defense); and prior to his change of plea on June 7, 1965. We disagree.

Our Court for a quarter of a century, going back at least to Judge Smith's seminal opinion in United States v. Wight, 176 F.2d 376, 379 (2 Cir. 1949), cert. denied, 338 U.S. 950 (1950), uniformly has adhered to stringent requirements for establishing a claim of ineffective assistance of counsel. See, e. g., United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, and cases cited at 42 (2 Cir. 1972), cert. denied, 410 U.S. 917 (1973) (state prisoner's Sixth Amendment claim of ineffective assistance of counsel for failure to assert insanity...