United States ex rel. Irving v. Henderson

• Decision Date: 15 January 1974
• Docket Number: No. 73 Civ. 989.,73 Civ. 989.
• Citation: 371 F. Supp. 1266
• Parties: UNITED STATES of America ex rel. William IRVING, Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

371 F. Supp. 1266

UNITED STATES of America ex rel. William IRVING, Petitioner, v. Robert J. HENDERSON, Superintendent, Auburn Correctional Facility, Respondent.

No. 73 Civ. 989.

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

January 15, 1974.

William Irving, pro se.

Louis J. Lefkowitz, Atty. Gen. of N. Y., New York City, for respondent; Amy Juviler, Asst. Atty. Gen., of counsel.

EDWARD WEINFELD, District Judge.

Petitioner, now serving a twenty-year sentence at Auburn Correctional Facility, Auburn, New York, pursuant to a judgment of conviction for the crime of manslaughter entered on July 2, 1968 upon his plea of guilty in the Supreme Court of the State of New York, Bronx County, seeks his release upon a federal writ of habeas corpus.

Petitioner had been indicted for murder in the first degree, charged with the killing of an informant involved in counterfeiting activities. He was permitted to plead guilty to the lesser offense of manslaughter. He was represented at the entry of his plea and at his sentence by counsel of his own choice. He seeks to void his judgment of conviction, charging violation of his rights under the Fifth, Sixth and Fourteenth Amendments. Petitioner heretofore has unsuccessfully challenged the judgment of conviction for such alleged violations by direct appeal,¹ applications for collateral relief in the state courts,² and a prior habeas corpus petition in this court which was dismissed for failure to exhaust available state remedies.³ The state acknowledges that petitioner has now exhausted available state remedies.

Defendant's claims in essence are that:

(1) his right to confrontation of witnesses was violated by the state court's pretrial ruling that the testimony of John Bester, a fellow inmate to whom petitioner made inculpatory statements, be perpetuated for trial purposes;

(2) his rights against self-incrimination and to counsel were violated by the court's ruling upon a Huntley hearing⁴ that Bester's testimony would be admissible upon petitioner's trial;

(3) his right to due process was violated by the above rulings since they had a coercive effect in inducing his plea of guilty;

(4) his right to due process was violated because sentencing promises that allegedly induced his plea were not honored;

(5) the prosecutor knowingly suppressed evidence favorable to petitioner during the combined perpetuation and Huntley hearing; and

(6) the court's refusal to allow petitioner to withdraw his plea of guilty on the date of sentencing was improper; alternatively, that his withdrawal of his motion to withdraw the plea was coerced by the court.

The state, relying upon the trilogy of Brady v. United States,⁵ McMann v. Richardson,⁶ and Parker v. North Carolina,⁷ recently reaffirmed by Tollett v. Henderson,⁸ urges that petitioner's guilty plea forecloses consideration of all constitutional claims preexisting its entry and that the sole issue to be considered by the court is whether the plea had been made intelligently and voluntarily with the advice of competent counsel. It emphasizes the Court's statement in Tollett:

"We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann."⁹

Petitioner, however, contends that despite his guilty plea, federal review of his constitutional claims was preserved, since the ruling entered in the Huntley hearing which denied suppression of his incriminating statements to Bester was appealable¹⁰—in short, there was no deliberate bypass of the state procedure and no waiver of the federal right to contest their admission in evidence for alleged constitutional infirmity.¹¹ He relies upon United States ex rel. Rogers v. Warden.¹² and United States ex rel. Molloy v. Follette,¹³ where our Court of Appeals so held, and also upon a footnote reference in McMann v. Richardson.¹⁴ While the state, with some support,¹⁵ questions the continued viability of the Second Circuit cases and urges their reconsideration, they appear to be controlling.¹⁶ However, since in the instance of an alleged violation of the right of confrontation, unlike the instance of denials of motions to suppress a confession or admission for claimed violations of constitutional rights, the state does not afford appellate review despite a guilty plea, the general rule applies that "a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings."¹⁷ In this circumstance, the petitioner's plea of guilty forecloses independent consideration of the claimed infringement of his constitutional right of confrontation.¹⁸ However, the alleged facts with respect to that claim may be considered since they are interlaced with and bear upon petitioner's claim that his guilty plea was "involuntary" or "unintelligent" under the Brady trilogy as reaffirmed in Tollett v. Henderson. Accordingly, there are presented separate issues: (1) whether defendant's constitutional rights against self-incrimination and to the assistance of counsel were violated by the court's pretrial ruling which perpetuated Bester's testimony, denied his motion to suppress his exculpatory statements and held they would be admissible upon his trial so that the judgment of conviction must be vacated as a matter of law; and (2) whether petitioner's guilty plea was induced by the foregoing ruling as to the admissibility of the inculpatory statements, thereby tainting it as involuntary and unintelligent, an issue which subsumes the standard of the legal advice he received upon the entry of his plea.

I

Since Bester's testimony and the proceedings related thereto are basic to petitioner's various contentions, we first consider them. Bester was a citizen of South Africa, who illegally entered the United States in 1925. In 1946 he was convicted of murder in the first degree in the killing of his sweetheart and was sentenced to life imprisonment. In September 1965 he was brought to the Men's House of Detention in New York City (the Tombs) pending a Huntley hearing required under an order issued by a United States District Court. While at the Tombs, beginning in February 1967, and until November 1967, he became an informant for the District Attorney's office in New York and voluntarily provided information concerning a number of homicide cases to Frank Reynolds, Chief of the Homicide Bureau, and Vincent Dermody, Chief Assistant, who was in charge of the Bureau following Reynolds' death in November 1967. In return for his cooperation, the prosecution staff agreed to support Bester's application for executive clemency, and if that failed, to cooperate in his petition to void his conviction under his Huntley claim and to recommend acceptance of a plea of guilty to a lesser crime and a sentence to time already served. Pending consideration of his clemency application, Bester was returned to Attica State Prison in November 1967 for a psychiatric examination, but on December 27, 1967, executive clemency was denied. Thereafter the New York County District Attorney's office, to keep its promise to Bester, secured his return to the Tombs on January 11, 1968, so that he could proceed with his application to vacate the judgment of conviction. The District Attorney's office also wanted Bester available to check information previously furnished in connection with the preparation of cases and information Bester had received while at Attica relative to an investigation in another jurisdiction.

Bester's attack upon his judgment of conviction succeeded when it was vacated on May 1, 1968. On May 3 he pled guilty to manslaughter in the first degree before State Supreme Court Justice Mitchell Schweitzer who sentenced him to time already served and discharged him from custody; however, he was detained for deportation to South Africa, his native land, pursuant to a long outstanding warrant which had not been previously executed because of his confinement under the state judgment of conviction.

We now turn to petitioner. He was arrested on January 15, 1968 and arraigned the next day in the Criminal Court of the City of New York on charges of grand larceny, criminal possession of stolen property, unauthorized use of an auto, criminal impersonation, and theft of services. Because he was then a suspect in the Bronx murder for which he now stands convicted, petitioner was held in $50,000 bail, admittedly higher than ordinarily would have been the case as far as the specific charges against him were concerned.

In default of bail, petitioner was lodged in the Tombs where on January 22, for the first time, he met Bester in the presence of two other inmates. At this initial meeting, when petitioner learned that Bester, after twenty-two years' confinement, expected to be released, he sought Bester's advice, first with respect to pending federal counterfeiting charges against him and then, after stepping out of the hearing of the other two inmates, with respect to a homicide, as to which he voluntarily confided to Bester that "I'm the guy who put six bullets in the undercover secret service agent." Bester advised petitioner to cooperate with the authorities and he agreed. With petitioner's consent Bester notified Assistant District Attorney Dermody, then Chief of the Homicide Bureau, of the conversation with petitioner, following which petitioner signed a written consent to an interview with Dermody. On January 25 petitioner met with...