United States v. Fay

• Decision Date: 29 May 1963
• Citation: 219 F. Supp. 262
• Parties: UNITED STATES of America ex rel. Charles R. NOLL, Relator, v. Edward M. FAY, as Warden of Green Haven State Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

219 F. Supp. 262

UNITED STATES of America ex rel. Charles R. NOLL, Relator, v. Edward M. FAY, as Warden of Green Haven State Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

May 29, 1963.

Anthony F. Marra, Legal Aid Society, Leon B. Polsky, New York City, of counsel, for relator.

Louis Lefkowitz, Atty. Gen. State of New York, Ronald Offenkrantz and Stephen Rubin, Deputy Asst. Attys. Gen., of counsel, for defendant.

EDELSTEIN, District Judge.

Petitioner, presently incarcerated at Greenhaven State Prison, New York, has brought a petition for a writ of habeas corpus, 28 U.S.C. § 2242. Petitioner was convicted on September 14, 1949, in the County Court of Nassau County, New York, on two counts of forgery in the second degree and was sentenced as a second felony offender to a minimum term of five years to a maximum term of twenty years on each count, the sentences to run concurrently. N.Y.Penal Law, McK.Unconsol.Laws, c. 40, § 1943. The predicate for the second felony offender sentence was petitioner's conviction on May 10, 1943, in the Circuit Court of Jackson County of the crime of uttering a forged instrument. Fla.Stat. Ch. 831, § 831.02 (1941).¹ In his papers, petitioner claimed that he was not advised of his right to obtain counsel of his choosing and that he was ignorant of that right. He contends that the Florida conviction which was imposed upon him without having provided him with the opportunity to avail himself of the assistance of counsel was so lacking in fundamental fairness that it was violative of due process as guaranteed by the Fourteenth Amendment. He concludes that his New York second felony offender conviction is improper since it was grounded upon the allegedly unconstitutional Florida conviction.

Since there was no problem of exhaustion of state remedies, see United States ex rel. LaNear v. LaVallee, 306 F.2d 417 (2d Cir. 1962), the way was clear for a consideration of the petitioner's writ on its merits. This court assigned counsel to the petitioner and ordered that a hearing be held to explore the merits of petitioner's contentions. At the hearing the petitioner testified at length and, in addition, certain exhibits were received in evidence on behalf of petitioner and respondent.² The respondent did not produce any witnesses. At the hearing the following facts were adduced:

Petitioner was born in Mineola, Long Island (New York), on September 16, 1922, and attended public schools in Nassau County, New York. Petitioner's schooling was completed after he finished the eighth grade. Petitioner testified that he had made good grades until he reached the seventh grade, at which time his grades "fell off." Counsel have stipulated that in 1949 petitioner's score on the Stanford-Binet Intelligence Test was within a range to indicate that petitioner was a man of "above average" intelligence. Petitioner has had no history of mental deterioration or psychological problems requiring treatment for mental illness. After leaving school petitioner worked at odd jobs, including work in the moving business, work as a gas station attendant, and various odd jobs. Prior to his Florida conviction petitioner's only involvement in legal proceedings was in a juvenile delinquency proceeding in 1937 in the Nassau County Children's Court. At that time petitioner was fifteen years old. He was not represented by counsel at the hearing and was accompanied to the juvenile delinquency proceeding by his mother and stepfather. The juvenile delinquency adjudication resulted in petitioner being placed on probation.³

In May 1940 petitioner, then 18 years of age, enlisted in the United States Army. After completing his basic training at Fort Dix, New Jersey, he was transferred to Craig Field, Selma, Alabama, and in 1942 to the Air Force Base at Marianna, Florida. On January 3, 1943, petitioner was taken into custody by the military authorities as a result of charges stemming from the passing of two forged checks. An abstract of the Department of the Army records, Petitioner's Exhibit 4, reveals that Charles R. Noll, service number 12 027 760 was released by the military authorities into the custody of the Sheriff of Jackson County on January 3, 1943.

Petitioner testified that from January 3, 1943, until May 10, 1943, he was confined in the Jackson County Jail at Marianna. He was not taken from the Marianna Jail until May 10, 1943, when he pleaded guilty in the Jackson County Circuit Court to the information charging him with uttering a forged instrument. While in jail the petitioner testified that he was never contacted by anyone connected with the Air Force nor by anyone connected with the Circuit Court Prosecutor's Office. During 127 days of incarceration he was never advised of the specific charges upon which he was held or of his right to obtain counsel. Noll had no friends or relatives, other than enlisted men, in the Marianna area with whom he could have discussed the nature of the charges and the extent of his constitutional rights. Noll was married in Selma, Alabama, in 1942, but when he was transferred to Florida his wife remained in Alabama. Petitioner's wife never came to Florida and while petitioner was serving his sentence in the Florida State Prison at Raiford he was notified that his wife had obtained an annulment of the marriage.

Petitioner was denied the use of the telephone but the jail officials permitted him to write to the military authorities concerning his plight. Noll attempted to establish contact with a Lieutenant Garwacki, who was the Provost Marshal at Marianna Air Force Base, and a Lieutenant Robert Lee, the adjutant of the company to which petitioner was assigned. No contact was established and petitioner remained incarcerated until May 10, 1943. On that date he was taken from jail to the Circuit Court in Marianna to plead to an information charging him with uttering a forged instrument,⁴ a bearer check in the amount of $25.00.⁵ Petitioner asserts that he was not represented by counsel in the court proceedings leading to his plea. This contention is not disputed by the respondent. Petitioner, an enlisted man, was indigent at the time of the Florida proceedings. He testified that he entered jail with the sum total of $2.33.

According to the petitioner's testimony, his name was called and he was led to the bench by a sheriff to whom he was manacled. Noll testified that he was shown the check by the presiding judge and was asked if he had cashed it. Upon replying in the affirmative petitioner testified that he was requested to sit down. A few minutes later Noll testified that he was taken before the bench again and was thereupon sentenced to confinement in the State Prison at Raiford, Florida, at hard labor, for two years.⁶

Noll further testified that the court did not ask him whether he wished the assistance of counsel. Petitioner testified that he did not request that counsel be assigned to him because he "wasn't familiar with court procedure."⁷ The judge who sentenced the petitioner was E. C. Welch, who is still alive. Judge Welch did not testify but he was able to provide information to the respondent's counsel which the parties have incorporated in a stipulation which, in substance, contains the following: That if Judge Welch were called upon to testify he would testify that he has no recollection of the prosecution of the petitioner for uttering a forged instrument (State v. Noll, Information # 482) but that the usual procedure in his court was to inquire of a defendant if he had counsel representing him. If a defendant answered in the negative the court would ask whether time was requested to secure counsel. If a defendant did not request time to secure counsel the information would be read and the defendant would be asked to plead. Upon a plea of guilty a date would be set for sentencing.

A certified photostatic copy of the Minute Book of the Circuit Court for Jackson County, Respondent's Exhibit B, does not illumine the circumstances surrounding the plea. The minute book contains two relevant entries on page 380. The entry corresponding to State of Florida v. Charles Null sic states "Uttering forged instrument. On this day came the State Attorney and the defendant in person, into open court, and the defendant was duly arraigned and entered a plea of guilty to the charge of the information, filed herein." On Page 381, the entry recites the proceedings upon Noll's sentence which, in substance, states that he was led to the bar of the court in the custody of the sheriff and asked if he had anything to say before sentence was imposed. The record indicates that Noll had nothing to say whereupon he was sentenced.⁸

Petitioner testified without contradiction that on the day that the forged check had been passed he had completed a tour of duty at three o'clock in the afternoon and had cashed the check at about ten o'clock at night. From three o'clock until ten o'clock that night petitioner had been drinking with other enlisted men. Beer and liquor were consumed alternately. The petitioner could not remember how many drinks he had consumed but he did testify that he had been drinking "all day practically."⁹ However, the information concerning his consumption of alcoholic beverages prior to his passing the checks did not come to the attention of the Florida court. After sentence petitioner was remanded to the custody of the Sheriff and was in due course taken to the Raiford State Prison and placed in a chain gang. Petitioner was twenty years old at the time of his conviction.

Under the doctrine of Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942) and its progeny not every state conviction obtained without the assistance of counsel is violative of the due process clause of the Fourteenth Amendment. Only where the failure to assign counsel as in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Com. of Pa. ex rel....