United States v. Fay

• Decision Date: 01 June 1965
• Parties: UNITED STATES of America ex rel. Edward BROWN, Petitioner, v. Edward M. FAY, Warden, Greenhaven Prison, Respondent.
• Court: U.S. District Court — Southern District of New York

242 F. Supp. 273

UNITED STATES of America ex rel. Edward BROWN, Petitioner, v. Edward M. FAY, Warden, Greenhaven Prison, Respondent.

United States District Court S. D. New York.

June 1, 1965.

Levy, Gutman & Goldberg, New York City, for petitioner, Jeremiah S. Gutman, New York City, of counsel.

Louis J. Lefkowitz, Atty. Gen., of New York City, for respondent, John De Witt Gregory, Joel Lewittes, New York City, of counsel.

WEINFELD, District Judge.

Petitioner, now serving a sentence under a state court judgment of conviction, seeks his release by way of a Federal writ of habeas corpus. His claim is two-fold. First, he contends that when, on May 26, 1943, he entered a plea of guilty to robbery in the first degree, and later when sentence was imposed, he was not fully advised of his now federally protected right to counsel. Second, he argues that even if so advised, he was incapable, being then sixteen years of age, competently and intelligently to waive that right — that both as a matter of law and fact he then lacked the capacity to effect a valid waiver.

Three weeks after the entry of his plea petitioner was sentenced to an indeterminate term of up to thirty years at Elmira Reformatory. In 1945 he was conditionally released on parole, which he soon violated by the commission of a burglary. On his plea of guilty he was sentenced in November 1945 to a term of from five to ten years. Upon this commitment he was permitted to serve concurrently an unexpired portion of his 1943 sentence based upon violation of parole. He was again released on parole, during which intermittent violations occurred. In December 1960, while still subject to parole under the 1943 thirty-year sentence, he was convicted on his plea of guilty to a charge of attempted larceny, second degree. On December 6, 1960 he was sentenced as a multiple offender¹ to a term of from two to four years. The Parole Board, as permitted by New York law,² required petitioner to serve the parole violation first, to be followed by the two to four year sentence on the attempted larceny charge. The petitioner's sole attack here is upon the 1943 conviction.

The petitioner has exhausted all available state remedies,³ having raised in a coram nobis proceeding in the Nassau County Court the same contentions here urged. A hearing thereon was granted, at which petitioner was the sole witness. The County Court denied his application on February 11, 1963, one month before the United States Supreme Court decided the landmark case of Gideon v. Wainwright.⁴ The Appellate Division affirmed the denial on October 21, 1963,⁵ and leave to appeal to the New York Court of Appeals was denied in February 1964.⁶

Both the State and petitioner, upon argument and in their respective briefs, urged upon the Court that petitioner's application was ripe for disposition upon the state court record, which includes the testimony of the coram nobis proceeding held by the Nassau County Court. This Court, after a study of the minutes of the hearing and the entire state record, and despite the joint position of respective counsel, was of the view that the present record was inadequate, particularly so since the County Judge made no findings of fact or conclusions of law, nor did he render any opinion.⁷ His denial of the writ merely stated that petitioner had "failed to sustain the required burden of proof." Further, the state record failed to contain, among other matters, the official stenographic transcript of what transpired at the occasions of petitioner's arraignment and sentence. Accordingly, this Court ordered a hearing at which both petitioner and the State were afforded an opportunity to submit additional evidence. That hearing has now been held. The record was supplemented by further testimony of petitioner, who was again cross-examined, and by an additional State exhibit, but the stenographic transcripts were not produced.⁸

Two issues are presented. Was petitioner fully advised of his right to the assistance of counsel and, if so, did he intelligently and understandingly waive that right? The summary denial by the County Court of petitioner's application does not reveal just what burden was placed upon the petitioner and what constitutional standard was applied in passing upon his claim.

In consideration of the issues it is desirable to set forth the standard to be applied. In Carnley v. Cochran,⁹ the Supreme Court held that only where the record demonstrates a petitioner's "affirmative acquiescence" in the surrender of his right to counsel is the burden upon him to establish that he did not intelligently and understandingly waive his right. While the phrase "affirmative acquiescence" was not defined, in this Court's view it encompasses that the accused (1) was advised of his right to counsel, and (2) consented to proceed without representation — objective matters normally ascertainable from the judgment roll.

The State, at the outset, is aided by the presumption of regularity which attaches to the judgment and which extends to observance by the State of an accused's constitutional rights.¹⁰ But when the petitioner goes forward with substantial evidence which overcomes the presumption of regularity relied upon to establish that the judgment was free of constitutional taint, "the presumption is out of the case";¹¹ thereupon the burden is upon the State to establish "affirmative acquiescence"— that in fact petitioner was advised of and waived his right to counsel and, if it succeeds, only then is the petitioner called upon to prove by a fair preponderance of the evidence that his waiver was not competently or understandingly made. And, of course, if the State fails to sustain its burden on "affirmative acquiescence," that would end the case.

On May 14, 1943, the petitioner, then sixteen years of age, and three other youths were arrested and charged with a holdup which netted them $41. On the following day he was brought before a magistrate, waived examination and was committed to await grand jury action. A four count indictment was returned on May 25, 1943 charging petitioner and two of the others with robbery in the first degree, robbery in the second degree, grand larceny in the first degree and assault in the second degree. The very next day he was arraigned and pled guilty to robbery in the first degree. His next appearance before the Court was on June 16, when sentence was imposed. At no time — preliminary hearing, pleading or sentence — was petitioner represented by counsel.

The State, in support of its position that petitioner was fully advised of and waived his right to counsel, relies principally upon a rubber-stamped notation on the back of the indictment, which reads:

"Before pleading to the indictment the defendant was informed of his right to counsel and was asked if he desired the aid of counsel. The defendant did not ask for the aid of counsel. The defendant entered a plea of guilty to * * *."

following which is a handwritten notation that the plea was to robbery in the first degree.

The petitioner, to overcome the presumption of regularity, testified in substance here and in the state proceeding that when he was arraigned somebody read the charges to him; he was asked how he pleaded, to which he replied guilty; that he was not told he was entitled to be represented by a lawyer; that he did not know he had the right to a lawyer; that he wasn't told the State would assign one; that he did not say he did not want a lawyer, nor did he refuse one; that he was not advised that an adjournment to obtain legal representation would be granted; that he did not know the distinction among the counts in the indictment; that he did not understand the meaning of felony, indictment and waiver; that he was unfamiliar with courts and court procedure, his sole prior experience having been as a juvenile delinquent; that except he knew he was pleading guilty, he was unaware of what was happening. He acknowledged upon cross-examination the possibility that he might have been told he had a right to counsel and that he might have been asked if he had funds to engage one, although he believed that he had not been.

It is, of course, true that the mere denial by petitioner of the rubber-stamped entry on the judgment roll does not compel acceptance by the Court, nor does it, in and of itself, satisfy petitioner's burden of overcoming the presumption of regularity. On the other hand, the Supreme Court has repeatedly admonished in both Federal and state collateral attacks upon judgments of conviction "that `courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental rights.' * * * Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver."¹²

The State called no witness to rebut petitioner's testimony. Also, offered the opportunity to present the stenographic transcript, it produced none. It is true that the judgment was first attacked twenty years after its entry, but lapse of time presents problems to petitioner, as well as to the State.¹³ There is no contention that minutes were not taken and no adequate explanation was offered for their nonproduction. In any event, a stenographic transcript would have put beyond challenge what was said by the Court to petitioner and his response, if any. Moreover, the State offered no testimony either as to what had occurred at petitioner's pleading and sentencing or as to the practice or custom of the Trial Judge in advising defendants of their right to counsel.¹⁴ The cryptic rubber-stamped endorsement, evidently intended to indicate compliance with New York law,¹⁵ even if accepted at face value, leaves much to be desired. It contains no statement...