United States ex rel. Lasky v. LaVallee, 211

• Decision Date: 19 January 1973
• Docket Number: Docket 71-1841.,No. 211,211
• Citation: 472 F.2d 960
• Parties: UNITED STATES of America ex rel. Raymond G. LASKY, Petitioner-Appellant, v. Hon. J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

472 F.2d 960 (1973)

UNITED STATES of America ex rel. Raymond G. LASKY, Petitioner-Appellant, v. Hon. J. Edwin LaVALLEE, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent-Appellee.

No. 211, Docket 71-1841.

United States Court of Appeals, Second Circuit.

Argued October 18, 1972.

Decided January 19, 1973.

Robert Hermann, Robert Kasanof, The Legal Aid Society, New York City, for appellant.

John Proudfit, Iris A. Steel, Asst. Attys. Gen., Samuel A. Hirshowitz, First Asst. Atty. Gen., Louis J. Lefkowitz, Atty. Gen., State of New York, for appellee.

Before WATERMAN, SMITH and KAUFMAN, Circuit Judges.

WATERMAN, Circuit Judge:

This appeal is from a denial on June 9, 1971, without an evidentiary hearing, of a petition for a writ of habeas corpus filed by petitioner Lasky pro se on February 4, 1971 in the United States District Court for the Southern District of New York. On August 26, 1971 we granted petitioner's motion for a certificate of probable cause, for leave to proceed in forma pauperis, and for assignment of counsel. Upon a careful review of the entire record we are persuaded that petitioner's request for habeas corpus relief should be granted. Accordingly, we reverse the order below and order that petitioner be released from custody unless the State of New York shall resentence him within sixty days following the date our mandate is filed in the district court.

On September 9, 1965 a Dutchess County New York State grand jury indicted petitioner for the crimes of grand larceny in the first degree, burglary in the third degree, and conspiracy to commit burglary and larceny. After a jury trial he was found guilty on all the counts. On February 2, 1966, before petitioner was to be sentenced, the district attorney filed a fourth felony offender information under Section 1942 of the New York Penal Law of 1909¹ McKinney's Consol.Laws c. 40 charging Lasky with having been convicted of four prior felonies.² At the hearing which followed, conducted by the sentencing judge, petitioner admitted he was the person who had been the subject of the prior convictions but he challenged the validity of all of them on constitutional grounds.³ This appeal involves Lasky's claim that the 1960 Arkansas conviction (see footnote 2) could not be used as a predicate offense for the enhancement of sentence because it was obtained when he was without the assistance of counsel.⁴ The sentencing judge then instructed Lasky that the burden was upon him to prove that the Arkansas conviction was void, and the hearing was adjourned until February 23, 1966.

When the hearing resumed Lasky took the stand. He testified that, indeed, he pleaded guilty to the Arkansas charges. However, he stated that he did not have the assistance of counsel there; and, of course, an affirmative waiver of assistance cannot be presumed. Lasky stated that he remembered telephoning a local attorney from the county jail following his Arkansas arrest but that he was unable to raise the money for the attorney's fee.⁵ He also testified that he talked to somebody at court who instructed him to plead guilty but that he did not know whether that man was a lawyer. When asked if he had heard of a man named Harry Robinson he answered: "I don't recall it. I might have heard of him." When asked whether Harry Robinson was appointed to defend him he answered: "I have been thinking of it. I don't have any recollection."

After Lasky testified the state introduced a certified copy of the Arkansas conviction and it has been examined by us. The document discloses that on April 4, 1960 Lasky pleaded guilty and that he appeared "in proper person" — a phrase historically meaning "by himself." Quite significantly, in view of the inclusion of this phrase, the document is silent as to whether Lasky was represented by counsel. Apparently the State also introduced a second Arkansas document, labeled a Penitentiary Commitment, which contained the "transcript" of the judgment of conviction for lodgment with the prison authorities. This document also recites that Lasky appeared before the court "in proper person" but even more significantly the printed words "by his attorney" which are part of the printed form on the face of this commitment document had been crossed out by typewriter typing.

At this point the trial judge again adjourned the hearing so as to enable the State to search out additional evidence. The hearing was resumed on March 2, 1966 and the district attorney appears to have placed into evidence a "record of a hearing" which he allegedly had received from the clerk of the Arkansas court, "showing that the defendant was represented by counsel, Mr. Harry Robinson." This statement identifying a "record of a hearing" is referred to in the stenographic minutes of the Dutchess County Court proceedings. However, that record is not before us.⁶ Petitioner suggests that this so-called "record" is only the docket sheet which the district attorney furnished the trial judge that same day and which we now have before us. We find reasonable and are inclined to accept petitioner's representation that a separate document never existed. Such a document, bearing so directly upon the length of time the prisoner would be deprived of his freedom, if, in fact, some other document than the docket sheet, would surely have been marked as a People's Exhibit and would have been carefully preserved by the State. In any event, the Arkansas court's docket sheet introduced by the State contained two handwritten entries, one dated March 7, and one dated April 4. The March 7 entry stated that Lasky and his codefendant, one Davis, pleaded not guilty and that "Harry Robinson was appointed to defend." It does not state that Harry Robinson was appointed to defend Lasky or that he ever appeared on Lasky's behalf. The April 4 entry stated that Lasky pleaded guilty to the charges and there is no indication whatever that an attorney was present at the time of the plea. In any event, at the conclusion of these twice adjourned hearings the New York state trial judge found Lasky to be a fourth felony offender and sentenced him to prison for the mandatory term of fifteen years to life, a term Lasky is presently serving in the Clinton Correctional Facility in Dannemora, Clinton County, New York.

The issue presented by this appeal is whether the credible evidence at the State's sentencing proceedings was sufficient to support the judge's finding that Lasky had counsel when he pleaded guilty in Arkansas.⁷ If Lasky was not represented by counsel New York State cannot use the conviction for the purpose of enhancing Lasky's sentence. See, e. g., Burgett v. State of Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L. Ed.2d 319 (1967).

The State argues that the record contains ample evidence to support the findings of the federal judge below and that this court is bound by the "clearly erroneous" standard of review. We cannot agree. Customarily when this court reviews the factual findings of the lower court the "clearly erroneous rule" applies (Rule 52(a) Fed.R. Civ.P.), but in this case, where the factual findings of the district judge are made solely on the basis of an interpretation of documentary records, and the credibility of witnesses is not in issue, we may make our own independent factual determination. See, e. g., Orvis v. Higgins, 180 F.2d 537, 538 (2 Cir. 1950), cert. denied, 340 U.S. 810, 71 S. Ct. 37, 95 L.Ed. 595 (1950); Luckenbach S. S. Co. v. U. S., 157 F.2d 250, 251 (2 Cir. 1946); Kind v. Clark, 161 F.2d 36, 46 (2 Cir. 1947), cert. denied, 332 U.S. 808, 68 S.Ct. 107, 92 L.Ed. 385 (1947); Moore, Federal Practice, § 52.04 at 2683 (2 ed. 1971). Also, inasmuch as this is a habeas corpus proceeding, the federal courts, both trial and appellate, must also determine what weight should properly be given to all relevant factual determinations of the New York state court whose judgment is challenged by the habeas. Under 28 U.S.C. § 2254 a state court's factual determination shall be presumed to be correct if it is "evidenced by a written finding, written opinion, or other reliable and adequate written indicia." We have before us the stenographic minutes of the Dutchess County Court proceeding and the contents of such stenographic minutes might ordinarily qualify as reliable indicia to support the factual findings of the state court. However, in this case where reference is made in the minutes to the important "record" document of the Arkansas hearing and such a document, separate from the docket record, cannot be found, the reliability of the minutes is cast into doubt. Moreover, if one restrained of his liberty by state action claims the restraint arises from the deprivation of his federal constitutional rights and the state court's contrary factual determinations rest on a pertinent part of the record which the state cannot provide, the federal court is statutorily authorized to disregard the state court findings and substitute its own. 28 U.S.C. § 2254(e). In this case the missing "record" of the Arkansas proceeding though searched for by the federal district court, by defense counsel, and presumably earlier by the state officers, remains missing. Moreover, petitioner argues with compelling force that the document referred to is really the Arkansas docket record, a record which is not missing. In view of the ambiguity of the stenographic minutes and the likelihood that the "record" referred to may well be the docket record, we conclude that we should disregard the findings of the state court and accordingly proceed to adjudicate the issues before us upon the evidence before us.

Once petitioner Lasky challenged the constitutionality of his Arkansas conviction the State had the burden of going forward with sufficient evidence to rebut Lasky's allegation that he was denied counsel. United States ex rel. Savini v. Jackson, 250 F.2d 349 (2 Cir. 1957); U.S. ex rel. Easterling v. Wilkins, 303 F.2d...