United States ex rel. Bullock v. Warden, Westfield St. Farm, 350

• Decision Date: 04 April 1969
• Docket Number: Docket 32752.,No. 350,350
• Citation: 408 F.2d 1326
• Parties: UNITED STATES ex rel. Flossie BULLOCK, Petitioner-Appellant, v. WARDEN, WESTFIELD STATE FARM FOR WOMEN, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

408 F.2d 1326 (1969)

UNITED STATES ex rel. Flossie BULLOCK, Petitioner-Appellant, v. WARDEN, WESTFIELD STATE FARM FOR WOMEN, Respondent-Appellee.

No. 350, Docket 32752.

United States Court of Appeals Second Circuit.

Argued January 23, 1969.

Decided April 4, 1969.

Leon B. Polsky, New York City (Milton Adler, acting Attorney-in-Charge, The Legal Aid Society, New York City, on the brief), for appellant.

Murray Sylvester, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen., of the State of New York, Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for appellee.

Before MEDINA, SMITH and HAYS, Circuit Judges.

HAYS, Circuit Judge:

Petitioner appeals from an order of the United States District Court for the Eastern District of New York, denying her petition for a writ of habeas corpus. We affirm the order.

Petitioner was indicted for first degree murder for fatally stabbing the man with whom she had been living. Four attorneys were assigned to defend her. The Supreme Court, Kings County, accepted a plea of guilty to first degree manslaughter and sentenced her to ten to twenty years imprisonment on March 18, 1963. Petitioner contends that her guilty plea was not voluntary under the due process clause of the fourteenth amendment. We must therefore review the events relating to the plea.

On September 19, 1962, petitioner's four attorneys met in her absence with the district attorney and Judge Miles F. McDonald, who presided at all the state court proceedings. After a discussion of petitioner's extensive criminal record and the sentencing possibilities under a plea of guilty to first or second degree manslaughter, the judge stated that he would accept a guilty plea to first degree manslaughter or, if petitioner were a second felony offender, to second degree manslaughter.

Defense counsel went to speak with petitioner and returned to inform the court that "for the first time, she says she is not guilty." Petitioner was sent for and the judge told her that she "would have considerable difficulty in taking the witness stand" because her "record would come out." He then described the plea options discussed with her counsel and noted the range of permissible sentences, but did not promise any specific sentence. The judge told petitioner that she was not compelled to enter the guilty plea but that pleading guilty "is an assurance for you to avoid serious consequences of a conviction for murder in the first degree." The judge then said: "However, if you are not guilty, there is nothing that you can do, if you say you are not guilty." The judge went on to review the evidence against petitioner, stating that she told the district attorney that when the deceased kicked at her door, she got a knife, opened the door and stabbed him in the chest. The judge said he was making no recommendation, threat or promise except that he would reduce the plea to manslaughter in the second degree if defendant proved to be a second felony offender. He urged her to listen to the advice of her lawyers.

After discussing the case with petitioner, her lawyers returned and one of them, Gold, said: "Nothing doing, Judge; she has changed her mind and will not plead guilty." Gold suggested that petitioner be sent to a hospital for psychiatric observation. The court called her and informed her of Gold's doubts about her mental health. She responded sensibly to the court's questions about the case and said: "There is nothing wrong with me." The court refused to commit her for observation and remanded her for trial on her plea of not guilty.

On December 12 petitioner appeared before the court with two of her lawyers, Seligman and Kooper, for the purpose of withdrawing her plea of not guilty and pleading guilty to first degree manslaughter. The court accepted the plea upon the prosecution's recommendation and told the clerk to take the plea. The clerk asked petitioner whether she had discussed the case with her lawyers and whether she understood that Seligman had stated that she would plead guilty to first degree manslaughter; she answered both questions affirmatively. However, when the clerk asked if she wished to plead guilty, petitioner at first did not respond and, when the question was repeated by Seligman, she answered "No." The following exchange then took place:

"The Court: What do you mean `No?\' Listen to me, Miss Bullock. I was told that you wanted to take this plea. This is all I consented to do here. You don\'t have to take it if you don\'t want it. If you don\'t intend to plead, say so and go back and await a trial. You are not being compelled to do it if you are not doing it wilfully. But don\'t mislead your lawyers and don\'t mislead me and then when you get here change your mind. This is your last opportunity. Either you plead or you go to trial. What do you want to do?

The Defendant: I want to take a plea.

Mr. Seligman: She did not understand.

The Court: Would you explain it to her? If it turns out that she was a second felony offender and was previously convicted of a felony in New Jersey — perhaps maybe she is not — then I will further reduce the plea to Manslaughter in the second degree. But if she is a first offender, she is going to stand with Manslaughter in the first rather than in the second degree.

The Defendant: Yes.

The Court: Now, do you desire to plead guilty to the crime of Manslaughter in the first degree, unarmed? Now, if you are not doing this willingly, don\'t do it.

The Defendant: I don\'t understand.

The Court: Do you plead guilty to Manslaughter in the first degree, unarmed?

The Defendant: Yes.

The Court: Has any promise been made to you or have you been threatened in any way by the Court, the District Attorney, the Clerk of the Court or anyone connected with the Court to induce you to offer this plea?

The Defendant: No.

The Court: Are you pleading guilty of your own free will?

The Defendant: Yes.

The Court: Do you know that by your plea of guilty you admit that you committed the crime of Manslaughter in the first degree, unarmed, to which you plead guilty?

The Defendant: Yes.

The Court: And you plead guilty because you are guilty?

The Defendant: Yes.

The Court: Remanded."

At sentencing on March 18, 1963, the court determined that petitioner was not a second felony offender. Seligman argued for mitigation of punishment on the ground that the deceased had frequently mistreated her and that, when he became violent at her door, she had grabbed a knife to protect herself. The court imposed a ten to twenty year sentence.

The following day the judge held a hearing, with Seligman present, at which petitioner was called and told that the judge had inadvertently failed to follow his usual practice of asking the defendant before imposing sentence whether she had had a fair opportunity to confer with counsel, whether she had been afforded all her rights, whether she had been coerced in any way and whether any promises made by the court had been broken. This colloquy then occurred:

"The Court: Now is there any reason you have to believe that you were not afforded all of your rights in connection with this matter?

The Defendant: I took a plea because —

The Court: I\'m not asking you why you took the plea, I want to know whether you were afforded every right to which you were entitled and if you have any complaints to make; not why you took the plea. That was between you and your lawyer; you discussed that with him.

Do you want to talk to your lawyer?

(No response.)

Have you any complaints?

The Defendant: Yes, I have a complaint.

The Court: What is it?

The Defendant: Well, this man was kicking my door down; I had no intention to kill him.

The Court: Have

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