Tully v. Scheu

• Decision Date: 26 September 1979
• Docket Number: No. 79-1113,79-1113
• Parties: John Patrick TULLY, Appellant, v. Edward SCHEU, United States Marshal for the District of New Jersey, and William F. Hyland, Attorney General of New Jersey.
• Court: U.S. Court of Appeals — Third Circuit

Page 31

607 F.2d 31

John Patrick TULLY, Appellant, v. Edward SCHEU, United States Marshal for the District of New Jersey, and William F. Hyland, Attorney General of New Jersey.

No. 79-1113.

United States Court of Appeals, Third Circuit.

Argued Aug. 8, 1979.

Decided Sept. 26, 1979.

Richard A. Sprague (argued), Philadelphia, Pa., for appellant.

John J. Degnan, Atty. Gen. of New Jersey, Trenton, N. J., of counsel and on brief; Rocky L. Peterson (argued), Deputy Atty. Gen., Division of Criminal Justice, Appellate Section, Princeton, N. J., for appellee.

Before ALDISERT and WEIS, Circuit Judges, and DIAMOND, District Judge. ^*

OPINION OF THE COURT

ALDISERT, Circuit Judge.

A New Jersey court rule provides that a criminal defendant may move for reduction of sentence within sixty days after judgment of conviction and that the sentencing judge may reduce the sentence within seventy-five days from the date of judgment "and not thereafter." ¹ This appeal by a state prisoner from a denial of habeas corpus relief under 28 U.S.C. § 2254 requires us to decide whether New Jersey denied appellant rights assured by the sixth and fourteenth amendments to the Constitution under circumstances in which he timely moved for reduction of sentence, but the sentencing judge was prevented from granting relief because the hearing on the motion was adjourned to obtain substitute counsel for the defendant and was not completed before the seventy-five day period of the rule had run. Because we conclude that appellant was denied his constitutional right to counsel at a critical stage of the criminal proceeding, we reverse the denial of habeas corpus relief.

In denying relief, the district court accepted the state's contention that appellant had an adequate post-conviction remedy pursuant to New Jersey Court Rule 3:22 and also accepted the following reasoning of the United States Magistrate:

Recognizing that interpretation of its own rules is a matter peculiarly within the province of a State court, it is apparent that insofar as petitioner premises this application on a claim that the 75 day limitation contained in New Jersey Rule 3:21-10(a) is unconstitutional, it has no merit. To that extent this application should be denied. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2479, 53 L.Ed.2d 594 (1977).

Appendix at A51.

We perceive two apparent flaws in this reasoning. First, a federal constitutional claim is not a matter "peculiarly within the purview of a State court." Second, the rule of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2479, 53 L.Ed.2d 594 (1977), was based on the premise that a petitioner seeking federal habeas review of a state conviction must satisfy the state's procedural rules for asserting his federal claim and that, absent a showing of cause for noncompliance, and of actual prejudice, failure by the Relator to respect the state rules is to be considered a waiver of the right to assert the federal claim. Here, it is uncontroverted that appellant Tully respected the state procedural requirements to the letter.

The district court also accepted the magistrate's determination that appellant failed to exhaust state remedies: "Treating this application as alleging that petitioner's guilty or non vult pleas in the State court were not voluntary, in that the plea bargain upon which they were offered was not kept, . . . it is clear that petitioner has not exhausted his State remedies with regard thereto." Appendix at A51. Although this contention may have been raised below, appellant's principal argument there, as here, was that the denial of the opportunity to proceed with the sentence reduction hearing was the constitutional deprivation. Our independent examination of briefs filed by appellant before the New Jersey Supreme Court on April 21, 1977 in support of a petition for certification persuades us that appellant did exhaust his state remedy on this issue. ²

I.

On July 30, 1975, John Tully was sentenced by Judge McGann of the New Jersey Superior Court to serve an aggregate term of 12 to 15 years pursuant to a negotiated guilty plea. The sentence was to run concurrently with a 12-year sentence on unrelated federal charges to which Tully had also pleaded guilty. On August 8, 1975, contending that there was a breach of the plea bargain, See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); United States ex rel. Culbreath v. Rundle, 466 F.2d 730 (3d Cir. 1972), Tully filed a timely motion for reduction of sentence in accordance with the alleged terms of the agreement. On October 9, 1975, seventy-one days after he was sentenced, a hearing went forward on the motion. Because the prosecution denied the terms of the plea agreement as averred by Tully, it was necessary for Tully's attorney to file a factual affidavit in support of the motion and to become a witness. The hearing was adjourned by the sentencing judge to allow Tully to obtain substitute counsel, and the next session of the hearing was not listed By the court until April 29, 1976, more than 200 days after the initial session. On that date the hearing, still unconcluded, was adjourned until May 24, 1976 when, for the first time, the state moved to dismiss the proceedings on the ground that Rule 1:3-4(c) ³ required the court to render its decision on the motion for reduction of sentence within the seventy-five day period set forth in Rule 3:21-10. On July 2, 1976, Judge McGann, by written opinion, denied the state's motion to dismiss, determining that the time limitation had been exceeded through no fault of Tully: "I believe the defendant and his counsel were lulled into a feeling that this restriction in the rule would be waived because of the special circumstances of Tully's situation." ⁴ Appendix at A24. The state appealed this decision and the appellate division of the superior court reversed, insisting upon strict construction of the time constraints of Rule 3:21-10. The court noted that at the hearing on October 9 the state was prepared to accede to an affirmative request of the federal government to reduce the maximum sentence, but that no joint application was ever filed or contemplated by the state within the meaning of the rule. Appendix at A33. Significantly, the court did not discuss any constitutional question in its opinion, even though Point III of Tully's superior court brief referred to a fourteenth amendment issue. Exhibit R-2. In the brief accompanying the petition for certification to the New Jersey Supreme Court, Tully raised the issue of his constitutional right to counsel, contending that the sentence reduction hearing was adjourned to permit him to obtain counsel and that to deny him a hearing because of the time restraints imposed by court rule violated his right to counsel. Tully urged that "(c)ertification be granted to resolve whether a defendant may be deprived of this fundamental right by conflict in application of Court Rules establishing time limits and calling for the withdrawal of counsel." Petitioner's Brief for Certification at 7-8. Additionally Tully argued that

by the continuance granted October 9, 1975, without objection by the State, the Defendant has apparently forever lost the State's agreement for a reduction of his maximum term of confinement from fifteen to twelve years. According to the construction of Rules 3:21-10(a) by the Appellate Division in its opinion, no order could have been entered to reduce Tully's term to twelve years after October 22, 1975. The loss of that reduction was for no other reason than the request of Defendant to proceed to a hearing on his Motion assisted by counsel. Imposition of a more severe sentence by reason of a Defendant's request for a hearing has been held to be impermissible, on grounds of due process of law, in another context (citing North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969)).

Id. at 9.

In the proceedings before us, New Jersey has not directly addressed the constitutional issue. Rather, it contends that Tully's argument does not rise to a constitutional dimension and, even if it does, Tully has not been injured because he had available a post-conviction remedy at the state level. We disagree with both contentions.

II.

At the October 9, 1975 hearing when the state challenged Tully's factual averments of the details of the plea agreement and it became apparent that the attorney who participated in the negotiations would be required to testify, it also became necessary that substitute counsel be selected. To argue, as does the state, that Tully has no absolute right to counsel in discretionary state appeals, Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), is to mistake the real issue. The spirit, if not the letter, of Rule 3:21-10 makes absolute the right to have heard a timely reduction of sentence motion because the court is given no discretion to refuse to entertain a timely motion. See N.J.Ct.R. 3:21-10. The hearing on the motion is not an appeal but a continuation of the guilty plea-sentencing proceeding at the trial court level. It is as much a part of a trial in the context of a guilty plea reception as the original sentencing proceeding. As Justice Stevens has recently stated:

it is now clear that the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause. Even though the defendant has no substantive right to a particular sentence within the range authorized by statute, the sentencing is a critical stage of the criminal proceeding at which he is entitled to the effective assistance of counsel. Mempa v. Rhay, 389 U.S. 128 (88 S.Ct. 254, 19 L.Ed.2d 336); Specht v. Patterson, 386 U.S. 605 (87 S.Ct. 1209, 18 L.Ed.2d 326). The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence even if he may have no right to object to a particular result of the sentencing process. See Witherspoon v....