United States ex rel. Kenny v. Follette

• Decision Date: 25 March 1969
• Docket Number: No. 166,Docket 31699.,166
• Citation: 410 F.2d 1276
• Parties: UNITED STATES of America ex rel. Charles KENNY, Petitioner-Appellant, v. Hon. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

410 F.2d 1276 (1969)

UNITED STATES of America ex rel. Charles KENNY, Petitioner-Appellant, v. Hon. Harold W. FOLLETTE, Warden, Green Haven Prison, Stormville, New York, Respondent-Appellee.

No. 166, Docket 31699.

United States Court of Appeals Second Circuit.

Argued November 7, 1968.

Decided March 25, 1969.

Gretchen White Oberman, New York City (Anthony F. Marra, New York City, on the brief), for petitioner-appellant.

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

Before LUMBARD, Chief Judge, and MEDINA and WATERMAN, Circuit Judges.

LUMBARD, Chief Judge:

This appeal by a state prisoner concerns the propriety of the district court's finding, after a hearing, that appellant had waived his right to contest the validity of a predicate New York State conviction used in sentencing him as a second felony offender.

Charles Kenny is presently incarcerated pursuant to a judgment of the Kings County Supreme Court, rendered on October 27, 1965, convicting him on his plea of guilty to second degree robbery and sentencing him to a term of 7½ to 10 years as a second felony offender. The predicate felony conviction was also rendered in Supreme Court, Kings County, in February, 1962, convicting him on his plea of guilty to first degree manslaughter and sentencing him to 3-5 years imprisonment. It is this 1962 conviction which Kenny now attacks as unconstitutional, alleging that his guilty plea was involuntary because the sentencing Judge failed to keep a promise respecting his sentence. After a hearing in the Southern District, at which Kenny and the other people involved testified, Judge Tenney concluded that Kenny had deliberately bypassed orderly state procedures for raising this claim and therefore was not entitled to relief. As we agree with the district court, we affirm the order denying the writ.

As revealed at the district court hearing and in the state court opinions, Kenny and two co-defendants were indicted in 1961 for first degree murder. All three pleaded guilty to reduced charges: Kenny, because of his greater culpability, to manslaughter I; the other two to manslaughter II. Prior to the entry of the pleas, on December 4, 1961, the presiding Judge, Judge Barshay, agreed "that all three defendants will receive the same treatment on sentencing day." At sentencing, on February 5, 1962, one of Kenny's co-defendants, Murphy, was given a suspended sentence; the other co-defendant, McLoughlin, was given a 3-5 year prison term; and Kenny was given a 3-10 year prison term. When the prior agreement was brought to Judge Barshay's attention, he resentenced Kenny to the same term as McLoughlin, 3-5 years.

Kenny did not move to withdraw his plea, nor did he appeal his conviction, though his counsel advised him to do so. Thereafter, he sought coram nobis in Kings County Supreme Court, claiming that he was improperly sentenced. After a hearing, Judge Barshay denied relief on the ground that the probation reports made it clear that Murphy deserved special leniency, and that "it would have been as unjust to imprison Murphy as it would have been not to imprison Kenny and McLoughlin." People v. Kenny, 236 N.Y.S.2d 911 (1962). The New York Appellate Division affirmed without opinion, 19 A.D.2d 948, 245 N.Y.S.2d 320, and leave to appeal to the New York Court of Appeals was denied.

Kenny then sought a writ of habeas corpus in the Southern District. On July 24, 1964, Judge Weinfeld ordered a hearing and assigned counsel to represent Kenny. United States ex rel. Kenny v. Fay, 232 F.Supp. 899 (S.D.N.Y. 1964). Kenny, however, wrote to Judge Weinfeld, stating that if the Federal court could merely vacate the guilty plea, leaving him subject to trial on the original indictment, he wished to withdraw his petition. Judge Weinfeld accordingly ordered the petition withdrawn, without prejudice.

No further action was taken in the state court. Kenny was released on parole in November, 1964, but thereafter three indictments were filed against him. In October, 1965 he pleaded guilty to robbery second degree to cover all three indictments. He was sentenced as a second felony offender, pursuant to New York Penal Law, McKinney's Consol.Laws, c. 40, § 1943, to 7½ years to 10 years.¹ At that time he made no objection to the use of the 1962 conviction as a predicate for second offender treatment. So far as we are advised, he has never attacked his second felony conviction in the state courts.

In September, 1966, Kenny brought the present application for a writ of habeas corpus in the Southern District, alleging the unconstitutionality of his 1962 conviction and therefore the invalidity of its use as a basis for multiple offender treatment. A hearing was held, wherein Kenny was represented by retained counsel. Kenny testified, and also called Harry Blum, his 1962 trial counsel. Respondent called Judge Barshay and the court stenographer from the 1962 sentencing. After the hearing, the district court held:

"Taking all relevant factors into consideration, this seems to be one of those relatively rare cases mentioned in Fay v. Noia, supra 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837, where `a suitor\'s conduct in relation to the matter at hand may disentitle him to the relief he seeks,\' and where petitioner `has deliberately by-passed the orderly procedure of the state courts.\' All of petitioner\'s actions indicate an intelligent knowledge of the law and a well-considered attempt to avoid its consequences."

We think that the district court's conclusion, far from being clearly erroneous, is amply supported by the record.

First, Kenny made no attempt to withdraw his 1961 plea, although Judge Barshay testified at the habeas corpus hearing that if such a request had been made, he would have granted it and gone on with Kenny's trial. Secondly, Kenny failed to appeal this conviction, although his lawyer advised him to do so.

Third, in 1964, after a hearing had been ordered by Judge Weinfeld on Kenny's application for a writ of habeas corpus, Kenny sought leave to withdraw the application. At the hearing below, Kenny stated the reason for this action:

"Well, after having served almost 4 years out of that sentence, I was a little scared to go back down there to stand trial for murder.

Q. So you just decided that it would be better to let the whole thing drop? A. Right.

Q. Forget all about it? A. That\'s what I had planned to do, yes."

Finally, in October, 1965, Kenny pleaded guilty to robbery in the second degree and was sentenced to 7½ to 10 years as a second felony offender. At the time the plea was made, Kenny was told that his 1962 conviction could be used as a basis for multiple offender treatment. At sentencing, he was told that he could challenge the validity of the earlier conviction as a predicate for multiple offender treatment, as provided in § 1943. He did not do so. At the district court hearing, Kenny's explanation was that he "did not feel like it at that time."

Section 1943 specifically provides that failure to challenge the prior conviction at the time of sentencing as a multiple offender "shall constitute a waiver * * * of any allegation of unconstitutionality unless good cause be shown for the failure to make timely challenge." The purpose of this requirement is to have the validity of the predicate conviction tested at the time it is used as a basis for multiple offender treatment rather than years later in some state procedure or in a federal habeas corpus proceeding when the necessary witnesses and records may be unavailable. See 1964 New York State Legislative Annual, 57, 514.

Kenny now claims that there was no such waiver as specified in § 1943 because, in light of his prior coram nobis proceeding raising substantially the same question, the § 1943 procedure was unavailable to him. To support this contention, he cites People v. Jefferson, 29 A.D.2d 681, 287 N.Y.S.2d 605 (2nd Dept.1968). That case involved a petitioner who was sentenced as a second felony offender in 1958, prior to the enactment of the relevant portions of § 1943. The petitioner had unsuccessfully attacked the predicate (1949) conviction by way of coram nobis in 1964; in 1966, he sought to invoke the § 1943 procedure by a motion to resentence. The Appellate Division, Second Department, held that where a petitioner has, subsequent to his sentence as a multiple offender, litigated the constitutionality of the predicate conviction by way of coram nobis, he cannot relitigate the very same claim under the guise of retroactive application of the 1964 amendment to § 1943. In dictum, the court additionally stated:

"The plain objective of the 1964 amendment of § 1943 is the extension to a defendant of the procedural right to challenge the constitutionality of a predicate conviction at the time he is arraigned as a multiple offender, provided that the constitutionality of the prior conviction has not been adjudicated with respect to the objection raised by defendant at the time that he is so arraigned."

Although we doubt that the New York Court of Appeals would adopt the view that the § 1943 procedure is foreclosed by a coram nobis application prior to sentencing, cf. People v. Jones, 17 N.Y.2d 404, 271 N.Y.S.2d 240, 218 N.E. 2d 291 (1966), we hold that Kenny cannot benefit by his argument even if his view of the law is correct. First, Kenny was specifically asked at the time he was sentenced as a second felony offender if he wished to challenge the predicate conviction; having failed to do so, he should not now be heard to contend that New York law would not permit it. Second, Kenny does not claim that he failed to invoke the § 1943 procedure for the reason he now urges; rather he admits that he just "did not feel like it." Third, as pointed out by Judge Weinfeld when he ordered a hearing in 1964 and by Judge Tenney when he ordered the...