United States ex rel. Brock v. LaVallee

• Decision Date: 01 November 1969
• Docket Number: No. 69 Civil 3456.,69 Civil 3456.
• Parties: UNITED STATES of America ex rel. Edward J. BROCK, Petitioner, v. J. E. LaVALLEE, Warden, Clinton Prison, Clinton County, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

306 F. Supp. 159

UNITED STATES of America ex rel. Edward J. BROCK, Petitioner, v. J. E. LaVALLEE, Warden, Clinton Prison, Clinton County, New York, Respondent.

No. 69 Civil 3456.

United States District Court S. D. New York.

November 1, 1969.

Edward J. Brock, pro se.

Louis J. Lefkowitz, Atty. Gen. of New York, New York City, for respondent, Steven M. Hochberg, Deputy Asst. Atty. Gen., of counsel.

EDWARD WEINFELD, District Judge.

Petitioner, now serving a sentence of from twenty years to life at Clinton Prison, Dannemora, New York, imposed under a judgment of conviction for second degree murder entered in Bronx County Court in June 1948, seeks his release upon a federal writ of habeas corpus. Petitioner had been indicted for first degree felony murder and was permitted to plead guilty to the lesser offense. He was represented by three court-appointed counsel when he was granted permission to withdraw his plea of not guilty to the first degree charge and to plead to the lesser offense, and also when he was sentenced.

The petition is grounded upon allegations that petitioner's constitutional rights under the Fifth, Sixth and Fourteenth Amendments to the Federal Constitution were violated. The first degree murder charge was predicated upon a claim that petitioner, who took to flight after attempting to steal an automobile, shot and killed a pursuer. Upon his sentencing, two other indictments charging him with robbery in the first degree and with attempted grand larceny were dismissed. The judgment of conviction remained without challenge for almost twenty years.

In November 1967 petitioner applied to the state courts for a writ of error coram nobis, the pertinent allegations of which were summarized by the coram nobis court as follows: "that petitioner was not effectively represented by assigned counsel; * * * that the plea of guilty was coerced in that defendant had been subjected to questioning by the prosecutor and a statement obtained in response thereto which rendered it impossible to proceed to trial; and * * * that the court did not advise defendant of the possible consequences of his plea of guilty." The court, noting that the petition abounded in conclusory allegations, dismissed it without a hearing, finding that no showing had been made of inadequate representation, that the guilty plea waived any objections to the confession, and holding there was no requirement that a defendant about to plead guilty be advised of the consequences of his plea. Upon appeal to the Appellate Division petitioner was represented by Legal Aid counsel. The only claim then urged was that petitioner's plea of guilty was entered without the knowledge and understanding required by due process of law — specifically, that he was never informed of the range of punishment which might be imposed. In February 1969 the Appellate Division affirmed without opinion, 31 A.D.2d 892, 298 N.Y.S.2d 902; in March 1969 leave to appeal to the New York Court of Appeals was denied.

The petitioner instituted this proceeding in August 1969. The present allegations of violations of constitutional rights, which quote extensively from constitutional authorities, are so freewheeling that it is necessary to separate the various claims. The original petition, as expanded by his traverse to the state's return, contains conclusory allegations which in broad terms charge that the guilty plea (1) was not knowingly and understandingly made because the consequences of the plea and the range of punishment were never adequately explained to him; (2) was coerced by the existence of his confession, "whose validity has never been tested"; (3) was not voluntary because the threat of a death sentence upon conviction after a jury trial of first degree murder¹ discouraged him from exercising his Sixth Amendment right to trial by jury and his Fifth Amendment right not to plead guilty; and (4) was the result of inadequate representation by counsel.² The third claim has never been presented to the state courts.³ The second and fourth claims, although initially raised in the coram nobis application, were abandoned on appeal.⁴ Thus, the only claim as to which petitioner has exhausted his state remedies is that he was not informed of the range of punishment, in consequence of which the plea, considering his age and his mental capacity, was not knowingly or understandingly entered.

Other than the fact that he was sixteen years of age and the assertion that he was mentally retarded at the time of entry of the plea, no evidential facts are set forth to support his contention that he was unaware of its consequences. Petitioner was represented by three court-appointed attorneys from the time of his indictment in January 1948, some five months before the plea; he had the benefit of their advice, guidance and counsel from them on through to the entry of the plea and his sentencing.⁵ He had been found, following his psychiatric examination, mentally competent to stand trial. Although petitioner claims he was mentally retarded, it is not alleged that he was without mental capacity to confer with counsel with a reasonable degree of rational understanding, or that he was without a rational understanding of the proceedings against him.⁶

There is no claim that during the five-month period counsel represented petitioner they had not adequately consulted with him in preparation for trial or had failed to conduct investigations incidental thereto. The record indicates that immediately prior to his counsel's motion made in his presence for the withdrawal of his not guilty plea to the first degree murder charge and to the state's consent to the acceptance of the lesser plea, his lawyers conferred with the court and then with petitioner. He makes no mention of these conferences. He does not set forth the details of his discussion at the conference with his lawyers; he omits to state what they told him of the discussion at the bench conference; what advice they gave him; or what inquiry, if any, he made of them with respect to the proposed guilty plea. It is reasonable to assume that his lawyers did advise him of the consequences of the plea.⁷ This assumption is strongly buttressed by the circumstance that the court, upon the acceptance of the plea to murder in the second degree, was without discretion other than to impose the very sentence it did.⁸ Indeed, petitioner himself heard his counsel, in his plea to the court, state, "the Court's hands are tied by statute as to what must be done with petitioner."⁹ The failure of petitioner to submit an affidavit from his attorneys or an explanation for its absence weighs heavily against him;¹⁰ also, the twenty-year delay in making his claim — the result of which is to make both the refutation of his claims and reprosecution more difficult — challenges his good faith in instituting this proceeding.¹¹

Following the conferences referred to above and prior to the acceptance of petitioner's guilty plea, one of his lawyers and the prosecutor each made a statement to the court. While no doubt the more prudent course would have been for the court personally to have questioned petitioner before acceptance of the plea, as was the general practice in the federal courts and as is now mandated under Rule 11 of the Federal Rules of Criminal Procedure,¹² there is no constitutional requirement that any particular procedure be followed.¹³ Reliance by a court upon the advice given by counsel to an accused in the acceptance of a plea does not by itself taint it as one not understandingly or knowingly made. The matter is one of reality and not ritual. The essential question whether the plea was so made rests upon the reasonable inferences to be drawn from all the surrounding facts and circumstances.¹⁴ Upon the circumstances here presented — petitioner's representation by attorneys at all significant times from indictment through to his guilty plea and sentence; the absence of any claim that there had not at all times been adequate consultation with his attorneys, or that he did not have capacity to consult with them, or that he did not have an understanding of the proceedings against him; the assumption that petitioner was properly advised by his lawyers of the consequences of his guilty plea and his failure to make the claim for twenty years —his conclusory but non-evidential allegations do not warrant a hearing.¹⁵ As this Court has stated, "Merely culling language from Federal and state authorities, as petitioner has done, will not satisfy the requirement that serious charges have some basis in fact."¹⁶

But entirely apart from the lack of evidential support for the foregoing claim, a hearing is further foreclosed at this time because that claim is closely intertwined with another ground of involuntariness which now appears to form his principal contention, to wit, that under concepts derived from United States v. Jackson,¹⁷ the threat of the death penalty upon a jury trial played a disproportionate part in encouraging his guilty plea. The Jackson claim has never been presented to the state courts. And petitioner's conviction antedates by twenty years the Jackson doctrine directed to a statute that "needlessly penalizes the assertion of a constitutional right."¹⁸ That the doctrine will necessarily apply to New York statutes or to this petitioner is by no means a foregone conclusion.¹⁹ Thus, not only has petitioner never presented this claim to the state courts, but also he relies upon a right which did not come into existence until two decades after his conviction became final. Under all the circumstances, the state courts must be given the first opportunity to rule on this alleged constitutional deprivation.²⁰

Also tied in with the recently presented Jackson charge of constitutional infirmity of the plea is an additional claim that a pretrial confession allegedly obtained illegally was a significant factor in the entry of his plea. Again evidential...