UNITED STATES EX REL. WILLBRIGHT v. Smith

• Decision Date: 15 November 1982
• Docket Number: No. 81 Civ. 6574 (RWS).,81 Civ. 6574 (RWS).
• Citation: 564 F. Supp. 396
• Parties: UNITED STATES of America ex rel. Theodore WILLBRIGHT, Petitioner, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Attica, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

564 F. Supp. 396

UNITED STATES of America ex rel. Theodore WILLBRIGHT, Petitioner, v. Harold J. SMITH, Superintendent, Attica Correctional Facility, Attica, New York, Respondent.

No. 81 Civ. 6574 (RWS).

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

November 15, 1982.

Henry Putzel, III, New York City, for petitioner.

Carl A. Vergari, Dist. Atty. for Westchester County, White Plains, N.Y., for respondent; Felix R. De Vito, John R. Dinin, Asst. Dist. Attys., White Plains, N.Y., of counsel.

OPINION

SWEET, District Judge.

Theodore Willbright ("Willbright") filed this habeas corpus petition in September 1981, claiming that his plea of guilty in state court was invalid because the court "failed to make any factual inquiry of Willbright concerning his conduct which gave rise to the factual basis for the guilty plea." The petition was referred to Magistrate Nina Gershon who, in her Report and Recommendation dated July 23, 1982, concluded that Willbright's contention that the state court was constitutionally required to make a factual basis inquiry is "without merit," and recommended that the petition be dismissed. Objections to the report were filed. Notwithstanding, the recommendation of the Magistrate will be adopted, and the petition will be dismissed. Because of the absence of a direct ruling on the issue presented from our Court of Appeals or the Supreme Court and because of the clear difference between the practice of the federal and New York state courts, a discussion of Willbright's plea, and the constitutional level of plea allocution requirements generally is in order.

Willbright was indicted in the Supreme Court of the State of New York, Westchester County, in December, 1974 and charged along with three co-defendants with murder in the second degree, kidnapping in the second degree, and possession of a weapon in the fourth degree. On October 20, 1975, after two of the co-defendants had been convicted at jury trials, and one acquitted, Willbright withdrew his previously-entered plea of not guilty, and pursuant to a plea arrangement, entered a plea of guilty to the murder and kidnapping counts. The Assistant District Attorney conducted the voir dire of Willbright:

MR. RYAN: Have you heard the application of your attorney to withdraw your previously entered plea of not guilty and plead guilty to Counts 2 and 3 of the Indictment 1132 of 1974?

THE DEFENDANT: Yes.

MR. RYAN: Do you make this plea freely and voluntarily?

THE DEFENDANT: Yes, I do.

MR. RYAN: Have you had an opportunity to discuss this matter with your attorney?

THE DEFENDANT: Yes, I have.

MR. RYAN: Have you also had an opportunity to discuss this matter with members of your family?

THE DEFENDANT: Yes, I have.

MR. RYAN: Do you need any more time to discuss this with anyone?

THE DEFENDANT: No.

MR. RYAN: Do you realize that you are pleading guilty to the crimes of murder in the second degree, a Class A felony, and Kidnapping in the second degree, a Class B felony?

THE DEFENDANT: Yes.

MR. RYAN: Do you realize that you are entitled to a trial by the Court or by the jury in this matter?

THE DEFENDANT: Yes.

MR. RYAN: Do you further realize that your plea of guilty to these two charges is equivalent to conviction after trial?

THE DEFENDANT: Yes.

MR. RYAN: You realize that a Class A felony, as in the case of murder in the second degree is punishable by a term of imprisonment, minimum of 15 years to life imprisonment, and a maximum of 25 years to life imprisonment, and that kidnapping in the second degree, a B felony, is punishable by up to 25 years imprisonment?

THE DEFENDANT: Yes.

MR. RYAN: Have any threats been made to you to induce you to plead guilty to this charge?

THE DEFENDANT: No, they haven't.

MR. RYAN: To these charges, rather?

THE DEFENDANT: No, they haven't.

MR. RYAN: Have any promises been made to you in order to induce you to plead guilty to these two charges?

At this point, the judge interrupted and spread upon the record his understanding of the plea agreement. He then addressed Willbright:

THE COURT: Mr. Willbright, you have heard what the Court has just said now. Is this more or less your understanding of what will probably happen in accordance with what your attorney told you?

THE DEFENDANT: Yes, it is.

THE COURT: And except in the sense that you may call this a conditional promise, have any other promises been made to you in consideration for your plea of guilty to these two counts? I mean, except what the Court has said, nobody else has promised you anything; is that correct?

THE DEFENDANT: Correct.

THE COURT: That is, your own attorney; that is; the District Attorney; and, that is, the Court or nobody else; is that correct?

THE DEFENDANT: That's correct.

The Assistant District Attorney then concluded the voir dire:

MR. RYAN: ... Theodore Willbright, do you freely and voluntarily admit that in the County of Westchester and State of New York, on or about October 22, 1974, aiding, abetting and acting in concert with Willard McPhail, James Winston and Eugene Romero, that you did commit the crime of kidnapping and, in the course of and in furtherance of such crime or in immediate flight therefrom, caused the death of the said Anthony Graham who was not a participant in the crime?

THE DEFENDANT: Yes.

MR. RYAN: Do you also freely and voluntarily admit that on or about October 22, 1974, in the County of Westchester and State of New York, you, aiding and abetting and acting in concert with Willard McPhail, James Winston and Eugene Romero, abducted the said Anthony Graham?

THE DEFENDANT: Yes.

MR. RYAN: Does counsel withdraw all prior motions made in this case whether decided or not?

MR. GALLINA: Yes, he does.

MR. RYAN: Your Honor, under the facts and circumstances of this case, the People would recommend acceptance of the plea of guilty to Counts 2 and 3 of Indictment.

Willbright twice appealed his conviction through the New York courts, the history of which is recounted in Magistrate Gershon's Report, and will not be recounted here, except to note that his claim of ineffective assistance of counsel was rejected, and his claim of a defective plea allocution was not addressed.¹ Willbright has previously sought federal habeas corpus relief from his plea in this court on the grounds of involuntariness and ineffective assistance of counsel. Willbright v. Smith, 79 Civ. 5275 (PNL). Judge Leval dismissed the petition on both grounds in an opinion dated June 9, 1980. The Court of Appeals affirmed on the ineffective assistance of counsel ground, but declined to address the merits of the involuntariness issue because it was raised "in such a tangential manner in the district court." Willbright v. Smith, 659 F.2d 1064 (2d Cir., 1981). Thus, the affirmance was "without prejudice to Willbright's right to assert in an appropriate proceeding his claim regarding the deficiency of the plea allocution." The instant petition followed.

A guilty plea accepted without an affirmative showing that it was voluntary and intelligent is constitutionally invalid. Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed.2d 274 (1969); Siegel v. New York, 691 F.2d 620, at 624 (2d Cir., 1982); Suggs v. LaVallee, 570 F.2d 1092, 1118 (2d Cir.), cert. denied, 439 U.S. 915, 99 S.Ct. 290, 58 L.Ed.2d 263 (1978). An express admission of guilt, however, "is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). Therefore, the only constitutional requirement for the acceptance of a guilty plea is that it be voluntary and intelligent. See Tollet v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 1608, 36 L.Ed.2d 235 (1973); Barkai, Accuracy Inquiries For All Felony and Misdemeanor Pleas: Voluntary Pleas But Innocent Defendants?, 126 U.Pa.L.Rev. 88, 90-92 (1977). Thus, for Willbright to succeed on his claim that his plea is constitutionally invalid, he must show that the absence of a factual inquiry in his case precludes a determination that the plea was voluntary and intelligent.

The Supreme Court has not ruled on whether the Constitution requires the state courts to conduct a factual basis inquiry before accepting a plea of guilty in every case. In McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Court held that Fed.R.Crim.P. 11 mandates that the federal courts follow this practice, but expressly noted that its decision was based on its construction of Rule 11 and its supervisory power over the federal courts, and that it did not reach the constitutional arguments presented. Since McCarthy, however, several lower federal courts have addressed the constitutional issues, and have concluded that a factual basis is not required for the acceptance of guilty pleas in state courts. See Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir.), cert. denied, 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147 (1975); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir.1972); Arbuckle v. Turner, 440 F.2d 586, 589 n. 4 (10th Cir. 1971); Freeman v. Page, 443 F.2d 493, 497 (10th Cir.), cert. denied, 404 U.S. 1001, 92 S.Ct. 569, 30 L.Ed.2d 554 (1971); Lawrence v. Russell, 430 F.2d 718 (6th Cir.1970), cert. denied, 401 U.S. 920, 91 S.Ct. 907, 27 L.Ed.2d 823 (1971); Osborne v. Thompson, 481 F.Supp. 162, 168-69 (M.D.Tenn.), aff'd, 610 F.2d 461 (6th Cir.1979); King v. Perini, 431 F.Supp. 481, 383 n. 2 (N.D.Ohio 1976). See also Willett v. Georgia, 608 F.2d 538, 540 n. 1 (5th Cir.1979). The Western District of New York has declined to require that New York State courts follow the procedure of Rule 11. Fambo v. Smith, 433 F.Supp. 590, 593 n. 1 (W.D.N.Y.), aff'd, 565 F.2d 233 (2d Cir.1977).

Although the Second Circuit recently noted that not all the...