Nicks v. US, 89 Civ. 5155 (CSH).

• Decision Date: 19 October 1993
• Docket Number: No. 89 Civ. 5155 (CSH).,89 Civ. 5155 (CSH).
• Citation: 835 F. Supp. 151
• Parties: Harry NICKS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Southern District of New York

835 F. Supp. 151

Harry NICKS, Petitioner, v. UNITED STATES of America, Respondent.

No. 89 Civ. 5155 (CSH).

United States District Court, S.D. New York.

October 19, 1993.

Mary Jo White, U.S. Atty. S.D.N.Y., New York City (Stephen Fishbein, of counsel), for U.S.

Ropes & Gray, Boston, MA (William L. Patton, Laurie R. Wallach, Akiyo Fujii, of counsel), Cahill Gordon & Reindel, New York City (Laurence T. Sorkin, of counsel), for Harry Nicks.

MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Harry Nicks petitions for a writ of error coram nobis to vacate his 1974 conviction and 1975 sentencing in this Court on a plea of guilty before Judge Knapp to a charge of armed bank robbery. Judge Knapp granted Nicks' coram nobis petition. The Court of Appeals reversed and remanded the case to a non-participating district judge, Judge Knapp having indicated that he would recuse himself in such an eventuality. Nicks v. United States, 955 F.2d 161 (2d Cir.1992). The Second Circuit's remand order directs this Court to consider the threshold question whether Nicks had "sound reasons" for his delay in seeking coram nobis relief. If he did not, this Court must dismiss the petition. If sufficient reason exists to excuse the delay, this Court must decide whether a competency hearing was in fact constitutionally required at the time of Nicks' plea and sentencing in 1974 and 1975. Id. at 167-68. The parties have briefed the first of these questions, which this opinion addresses.

For the reasons that follow, I hold that the passage of time does not bar Nicks' petition.

I

The Second Circuit's opinion contains a detailed factual statement at 955 F.2d 162-66. I reiterate the facts only to the extent necessary to explain my conclusion.

On June 17, 1974 Nicks pled guilty before Judge Knapp to armed bank robbery in violation of 18 U.S.C. § 2113(d). Nicks was represented by Thomas J. Concannon, Esq. of the New York Federal Defender Services Unit. Following a plea allocution satisfactory to Judge Knapp, Concannon assured the district judge that Nicks "seems to understand very well what he is doing." Judge Knapp observed that Nicks did not appear to him to be "under any mental condition."

Notwithstanding Concannon's reassurances to the district judge at the time of plea, he thereafter requested Judge Knapp to order a psychiatric examination of Nicks pursuant to 18 U.S.C. § 4244. Judge Knapp entered that order on July 2, 1974. A psychiatrist examined Nicks and reported his findings to the District Court in a letter dated July 15, 1974. That letter prompted Judge Knapp to enter an order on July 25, 1974 committing Nicks to the Bureau of Prisons for an additional 60-day study under Section 5010(e) of the Federal Youth Corrections Act. Nicks was housed at the Federal Correctional Institution in Milan, Michigan, and examined by a psychiatrist and a psychologist, who recommended that Nicks be sentenced to an eight year indeterminate sentence under Section 5010(c) of the Federal Youth Corrections Act. Nicks came before Judge Knapp again for sentencing on January 16, 1975. Having received further reassurances from Concannon with respect to Nicks' understanding of the charges and the consequences of his plea, Judge Knapp sentenced Nicks to an indeterminate term of up to eight years under the Federal Youth Corrections Act.

At no time did Judge Knapp hold a competency hearing. That omission lies at the heart of Nicks' coram nobis petition.

Nicks was released from federal custody on May 27, 1980. In January 1978, and again in February of that year, federal authorities temporarily transferred Nicks to New Jersey custody, where he was tried twice for narcotics and weapons possession offenses. The first trial found him guilty on charges of cocaine and weapons possession. The second trial found him guilty on a charge of cocaine possession. The New Jersey court sentenced Nicks to terms of imprisonment running concurrently with each other but consecutively to the federal sentence. The New Jersey authorities paroled Nicks in 1982.

In the early spring of 1983 Nicks was arrested in Alabama on charges of robbery, attempted murder, first-degree murder, murder and capital murder. These charges arose out of an armed robbery of a pawn shop on March 5, 1983. The Alabama court convicted Nicks of the capital charge of murder committed during a first degree robbery. The trial judge accepted the jury's verdict in favor of a death sentence. In the sentencing proceeding following conviction, Nicks' 1974 Southern District of New York bank robbery conviction was treated as one of two aggravating circumstances warranting imposition of a sentence of death.¹ The Alabama appellate courts rejected Nicks' direct appeal from his conviction and death sentence. 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), 487 U.S. 1263, 109 S.Ct. 27, 101 L.Ed.2d 977 (1988) (petition for rehearing).

In January 1989, Nicks petitioned the Alabama court for post-conviction relief, including in the grounds a claim that his 1974 federal bank robbery conviction in this Court should not have been used as aggravating circumstance. In July 1989 Nicks filed the instant writ of error coram nobis seeking to vacate that 1974 conviction. He asserts that Judge Knapp's failure to conduct a competency hearing violated his due process rights and rendered his guilty plea void. Judge Knapp granted relief. The government appealed and obtained the reversal and remand which brings the case before this Court. The Alabama post-conviction petition has been held in abeyance.

II

As noted, this Court's first function on remand is to determine "whether Nicks had `sound reasons' for his lengthy delay in seeking coram nobis relief." 955 F.2d at 167. The Second Circuit derived the quoted phrase "sound reasons" from United States v. Morgan, 346 U.S. 502, 512, 74 S.Ct. 247, 253, 98 L.Ed. 248 (1954), a case in which, according to the Second Circuit in Nicks, "the Supreme Court further instructs coram nobis relief should issue only when `sound reasons exist for failure to seek appropriate earlier relief.'" Id. at 167. On the appeal from Judge Knapp's order granting Nicks relief, the Second Circuit concluded that "on the present record, we cannot determine whether Nicks has delayed too long." Id. at 167. Hence, the remand and the issue presently before this Court.

The Second Circuit's interpretation of Morgan dispels the notion, echoed in Nicks' briefs, that a constitutional error at the time of plea or sentence voids the conviction absolutely, so that coram nobis relief is subsequently available without any regard for the passage of time. The Second Circuit view, binding upon this Court, is that coram nobis may be barred by the passage of time; and the timeliness of a coram nobis petition must be determined on a case-by-case basis, with full regard for the attendant circumstances.

The principle that conduct is barred if untimely proceeds from the tenet that what one could have done earlier, one should have. In litigation matters, that tenet implicates the cognitive awareness of the party (Nicks in this case) and the professionalism and resources of the attorneys representing the party.

These propositions inform the government's professed perception of Harry Nicks. Urging that his coram nobis petition was untimely, the government's brief portrays Nicks as an intelligent, experienced litigant, devising strategy and dictating tactics. That capacity is the alpha and omega of the government's portrayal of Nicks. "In the years following his 1974 guilty plea," we read on page 1 of the government's brief, "Nicks was an active litigant who was capable of asserting his rights and often did." In its concluding paragraph on p. 34, the government expands on that theme. "In the years after his 1974 guilty plea, Nicks was an active litigant who simply chose not to pursue the competency claim that he now asserts," so that any delay in pursuing coram nobis "is the result of Nicks' conscious choice and is not attributable to any legal bar or lack of knowledge on Nicks's part." In those stated circumstances, the government concludes, Nicks' delay cannot be excused.

This portrait of Nicks is entirely untenable. It flies in the face of the medical evidence, derived for the most part from the government's own files.

Dr. Norman Weiss, the psychiatrist who examined Nicks pursuant to Judge Knapp's July 2, 1974 order, determined that Nicks was "mentally retarded and probably borderline psychotic based on the poorly organized thought processes and delusional, primitive thinking." Dr. Weiss concluded that since Nicks' decision about his plea "was based in part on disordered thinking, interfering with proper judgment, I question his competency." The study performed pursuant to Judge Knapp's July 25, 1974 order was conducted by a psychiatrist, Dr. Peter Davol, and a psychologist, Dr. Thomas Rosenbaum. Dr. Davol diagnosed Nicks as suffering from a "major psychotic illness." Dr. Rosenbaum diagnosed Nicks as suffering from "schizophrenia, paranoid type (acute and severe)" with a "poor" prognosis for successful treatment and a need for "immediate psychiatric treatment."

These diagnoses did not augur well for the stability of Nicks' federal incarceration. And in fact, Nicks' troubled years in federal confinement give compelling evidence of severe and chronic mental illness.

Judge Knapp sentenced Nicks on January 16, 1975. He was incarcerated at the Federal Correctional Institute at Petersburg, Virginia, and placed in the general prison population. As early as February 14, 1975, Nicks exhibited delusional and paranoid conduct. On March 28, 1975 the Bureau of Prisons transferred Nicks to the medical center for federal prisoners at Springfield, Missouri for observation and treatment. Nicks remained at...