United States ex rel. Burke v. Mancusi
| Decision Date | 06 January 1970 |
| Docket Number | Docket 33639.,No. 360,360 |
| Parties | UNITED STATES of America ex rel. Robert T. BURKE, Relator-Appellant, v. Vincent R. MANCUSI, Warden, Attica State Prison, Attica, New York, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Second Circuit |
Edward Brodsky, New York City, for relator-appellant.
Robert S. Hammer, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of the State of New York, and Samuel A. Hirshowitz, First Asst. Atty. Gen., Albany, N. Y., of counsel), for respondent-appellee.
Before FRIENDLY, SMITH and ANDERSON, Circuit Judges.
Robert Burke appeals from an order entered sua sponte by Judge Burke in the District Court for the Western District of New York dismissing a petition for habeas corpus, with respect to which this court granted a certificate of probable cause. This petition, like one previously denied by Judge Bruchhausen in the Eastern District of New York, attacked the validity of appellant's plea of guilty, made on February 20, 1962, in the County Court of Queens County, to unarmed robbery in the first degree, on which he was sentenced to a prison term of from 15 to 30 years.
The facts are stated in an opinion by Judge Mishler, 276 F.Supp. 148 (E.D. N.Y.1967), which led to the hearing in the Eastern District on the earlier petition. Burke and a co-defendant Warrelman had been indicted in Queens County for grand larceny in the first degree and armed robbery in the first degree. Burke's assigned counsel, Mulvaney, erroneously thought Assistant District Attorney Cacciatore had agreed to accept a plea to attempted armed robbery in the first degree.1 Before taking the plea, with another assistant present, the state judge inquired what Burke had been doing, and Burke admitted having committed armed robbery, indeed several. At this point Cacciatore entered the courtroom and stated that he had not consented to a plea of guilty to attempted armed robbery, whereupon the judge suspended the proceedings. After several hours Mulvaney informed the judge of an agreement that Burke would be allowed to plead guilty of unarmed robbery in the first degree, which carried a maximum sentence ten years less than armed robbery in the first degree. After ascertaining the voluntariness of the plea, the judge accepted it.
Burke's earlier petition in the Eastern District alleged that Cacciatore had threatened that if Burke went to trial, the State would use the admission made in open court on the aborted taking of the plea to an attempt; that Mulvaney relayed this to Burke, along with his own view that this could be done; and that the guilty plea was induced by this erroneous statement and the impression given Burke "that he would incur the wrath of the Court by proceeding to trial because he had already confessed his guilt." At the hearing Burke, who was represented by counsel, and Warrelman testified to the conversation alleged to have taken place between Mulvaney and Burke. Mulvaney and Warrelman's attorney disclaimed any recollection of it. Cacciatore had died. Greenspan, the Assistant District Attorney directly in charge of the case, testified that he was present during the Cacciatore-Mulvaney conversation; that Cacciatore had never said the in-court admissions would be used; and that, as a result of having argued People v. Spitaleri, 9 N.Y.2d 168, 212 N.Y.S.2d 53, 173 N.E.2d 35, 86 A.L. R.2d 322 (1961), the previous year, he was aware that the statements were inadmissible.2 Upon this testimony Judge Bruchhausen permissibly found, "The credible evidence is that the second plea of guilty was voluntarily entered by Burke and the representations and inducements asserted by him were not made."
Burke argues that even if, as must now be accepted, he was never told that the in-court admissions could be used, he was never told they could not be, and his plea is invalid all the same. We think the judge was justified in dismissing the petition under 28 U.S.C. § 2244(b), which...
To continue reading
Request your trial
-
United States ex rel. Delrow v. Zelker, 70 Civ. 5597.
...28 U.S.C. § 2244(b). See Sanders v. United States, 373 U.S. 1, 15, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963); United States ex rel. Burke v. Mancusi, 425 F.2d 1061, 1062-1063 (2d Cir. 1970); Nash v. Reincke, 325 F.2d 310, 312 (2d Cir. 1963), cert. denied, 377 U.S. 938, 84 S.Ct. 1345, 12 L.Ed.2d ......
-
U.S. v. Smith
...interpreting New York law has stated that discussions during plea bargaining are not admissible. See United States ex rel. Burke v. Mancusi, 425 F.2d 1061, 1062 n.2, 1063 (2d Cir. 1970) (habeas corpus The Supreme Court in Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 4......
-
United States ex rel. Wilson v. Follette, 67 Civ. 3388.
...proceedings on Jan. 8, 1962, p. 4. 15 Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 9 L.Ed.2d 770. 16 See United States ex rel. Burke v. Mancusi, 425 F.2d 1061 (2d Cir. 1970), decided January 6, 17 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed. 2d 977 (1964). 18 384 U.S. 436, 86 S.Ct. 1602, 16 ......
-
Research Corporation v. Asgrow Seed Company, 18333.
... ... Company International, Asgrow Kilgore Company and United Hagie Hybrids, Inc., Defendants-Appellants ... No. 18333 ... United States" Court of Appeals, Seventh Circuit ... May 5, 1970. \xC2" ... ...