United States ex rel. Ross v. McMann

• Decision Date: 26 February 1969
• Docket Number: 30420.,540,No. 492,Dockets 32140,492
• Parties: UNITED STATES of America ex rel. Wilbert ROSS, Relator-Appellant, v. Daniel McMANN, as Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee. UNITED STATES of America ex rel. Foster DASH, Petitioner-Appellant, v. The Hon. Harold W. FOLLETTE, Warden of Green Haven State Prison, Stormville, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

409 F.2d 1016 (1969)

UNITED STATES of America ex rel. Wilbert ROSS, Relator-Appellant, v. Daniel McMANN, as Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.

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

Nos. 492, 540, Dockets 32140, 30420.

United States Court of Appeals Second Circuit.

Submitted October 17, 1968.

Decided February 26, 1969.

Thomas D. Barr, New York City (Duane W. Krohnke, New York City, on the brief), for relator-appellant.

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

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

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

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges.

Submitted to the Court in banc October 17, 1968.

J. JOSEPH SMITH, Circuit Judge (with whom WATERMAN, IRVING R. KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges, concur):

I.

United States ex rel. Ross v. McMann is an appeal from a dismissal without hearing of an application by a state prisoner for writ of habeas corpus in the District Court for the Eastern District of New York, Walter Bruchhausen, Judge. Relator, confined in a New York State prison for a term of 45 years to life on conviction upon plea of guilty to murder in the second degree, petitioned the Supreme Court of the State of New York for Kings County for a writ of error coram nobis on the ground that his guilty plea was induced by coerced confessions. The writ was denied without a hearing, the decision affirmed without opinion by the Appellate Division, People v. Ross, 26 A.D.2d 773, 272 N.Y.S.2d 969 (2d Dept. 1966) and leave to appeal denied by the New York Court of Appeals.

The District Court entertained the application for writ of habeas corpus, and dismissed the petition without a hearing on the ground 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 against him," relying on United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2 Cir. 1965), cert. denied 383 U.S. 915, 86 S.Ct. 906, 15 L.Ed.2d 669 (1966). In his complaint and supplemental affidavit Ross alleges that he pleaded guilty because his attorney had refused to attempt to suppress a confession which had been illegally obtained from him and had warned him that if he risked a trial, the confession and other evidence against him would surely lead to his conviction for first degree murder and sentence to the electric chair.¹ We hold that these allegations raise a sufficient question as to the voluntariness of the plea of guilty to require a hearing before the issue is determined.

On the record before us, it appears that Ross has sufficiently raised his present claims in the state courts to satisfy the requirement of exhaustion of state remedies. On oral argument, however, it was represented that a second petition by Ross for relief by writ of error coram nobis has been brought to and is pending in the state courts. If this is determined by the District Court to be the fact, that court may defer hearing in this matter pending final determination of the action in the state courts. And, if hearing is had on the issue in the state courts, the District Court may find further hearing before it unnecessary to its determination of the merits. We reverse and remand to the District Court for further proceedings not inconsistent with this opinion.

This case raises the narrow question whether a District Court should apply the standards of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), in determining whether to hold an evidentiary hearing upon a habeas corpus petition where the petitioner is confined after a plea of guilty and is contending that the plea was not voluntary, because it was induced by the existence, or threatened use, of an allegedly coerced confession.

It is clear, first of all, that a plea of guilty, even where the defendant is represented by counsel, is not an absolute bar to collateral attack upon a conviction. Waley v. Johnston, Warden, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942). Cf. Pennsylvania ex rel. Herman v. Claudy, Warden, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956). (In Herman, petitioner did not have benefit of counsel.) See also Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 513, 7 L.Ed. 2d 473 (1962): "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." To paraphrase Harrison v. United States, 392 U.S. 219, 223, 88 S.Ct. 2008, 20 L.Ed. 2d 1047 (1968), "The question is not whether the petitioner made a knowing decision to plead but why." Nor is the mere existence of a coerced confession enough to invalidate a later guilty plea by a defendant represented by counsel.

The question to be answered in any case involving a collateral attack on a conviction based upon a plea of guilty is usually expressed in terms of whether or not the plea was a "voluntary" act. An "involuntary" plea of guilty is inconsistent with due process of law, see Waley v. Johnston, supra, 316 U.S. at 104, 62 S.Ct. 964, and thus invalid whether made in federal or state court. And Townsend v. Sain, supra, 372 U.S. at 312-313, 83 S.Ct. 745, requires that where the petitioner in such a case has not received a "full and fair evidentiary hearing" in a state court as to the voluntariness of the plea, a hearing be held in the federal District Court.

The question of when to hold a hearing has apparently been complicated in this Circuit, however, by confusion between the doctrine that an involuntary guilty plea may be collaterally attacked and the well-established doctrine that if the plea is voluntary, it is an absolute waiver of all non-jurisdictional defects in any prior stage of the proceedings against the defendant.

Judge Weinfeld said in United States v. Colson, 230 F.Supp. 953, 955 (S.D.N.Y. 1964), "The determination of the ultimate question of whether the defendant, at the time he pled guilty, had the free will essential to a reasoned choice, rests upon probabilities and, of course, cannot be resolved with mathematical certainty. It involves an evaluation of psychological and other factors that may reasonably be calculated to influence the human mind. * * * It is necessary to consider the plea of guilty against the totality of events and circumstances which preceded its entry." The determination is difficult, but it is not necessarily rendered more difficult simply because a coerced confession or an illegal search and seizure is one of the factors which may be taken into account.

In the case at bar, the court, relying on Glenn, found it unnecessary to make such a determination. This, we think, resulted from a too expansive reading of Glenn. The opinion in Glenn may be read either of two ways: (1) the allegation of a coerced confession, without more, is not sufficient to raise the issue of the voluntariness of a guilty plea; or (2) an unconstitutionally coerced confession is never relevant to the issue of the voluntariness of a guilty plea. The first, more narrow reading, seems to us to state the proper rule. But the second reading (the much more likely meaning of the opinion despite the use of the word "voluntary," in view of the allegation that the plea was coerced by the existence of an involuntary confession) confuses the doctrine that an involuntary guilty plea may be collaterally attacked with the doctrine that if it is voluntary, a guilty plea waives prior defects in the proceedings against the defendant.

The court relied on two cases in Glenn: United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir.), cert. denied 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108, 1965 and United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2 Cir. 1965). Neither of those cases holds that the waiver rule should operate to make an invasion of the defendant's Constitutional rights irrelevant to the issue of the voluntariness of the guilty plea.

In Swanson, this court affirmed the denial of relief in a habeas corpus proceeding challenging the constitutionality of the statute under which petitioner had been convicted, where a hearing had been held below. There is language in the court's opinion refusing to rest affirmance on the ground that a plea of guilty should bar collateral attack. In discussion of that issue, 344 F.2d at 261-262, it was said:

The cases most nearly in point but by no means exactly so concern guilty pleas proper in other respects, such as right to counsel, but lodged after the police had obtained evidence in violation of constitutional rights; a number of circuits have said such guilty pleas are not subject to attack citing cases, even when induced by that evidence citing cases.²

In Boucher, the other case cited in Glenn, the petitioner sought to attack his conviction based upon a guilty plea. After stating the waiver rule, this court said:

To circumvent the effect of the guilty plea as a waiver, the petitioner asserts that his plea was induced by inadequate representation by counsel and by the fear that unconstitutionally obtained evidence would be used at his trial.

341 F.2d at 981. The opinion then goes on to explain how the petitioner's representation by counsel had been entirely competent, there were no circumstances indicating an illegal search and seizure, and "There is not a shred of evidence that anyone induced him to plead guilty and ...