United States v. Fay

• Decision Date: 01 June 1960
• Citation: 184 F. Supp. 535
• Parties: UNITED STATES of America ex rel. Harvey FOREMAN, Petitioner, v. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent.
• Court: U.S. District Court — Southern District of New York

184 F. Supp. 535

UNITED STATES of America ex rel. Harvey FOREMAN, Petitioner, v. Edward M. FAY, as Warden of Green Haven Prison, Stormville, New York, Respondent.

United States District Court S. D. New York.

June 1, 1960.

Anthony F. Marra, New York City, for petitioner; Edward Q. Carr, New York City, of counsel.

Louis J. Lefkowitz, Atty. General of State of New York, for respondent; Philip Weinberg, New York City, of counsel.

IRVING R. KAUFMAN, District Judge.

Relator Harvey Foreman has petitioned this Court for a writ of habeas corpus.¹ He is presently incarcerated in Green Haven State Prison in Stormville, New York, where respondent is warden. He was convicted on his plea of guilty to a charge of Robbery in the First Degree² in the County Court of Kings County, New York. On June 22, 1955, relator was sentenced as a second felony offender to a prison term of not more than 30 nor less than 15 years.³

The prior felony relied upon by the sentencing court was relator's January 29, 1943 conviction in the Magistrate's Court of York County, Toronto, Canada. On that date he pleaded guilty to two informations⁴ charging him with breaking and entering, and attempting to break and enter, with the intent to commit an indictable offense therein.⁵ It is the constitutional validity of that Canadian conviction, as the basis of his New York sentence as a second offender, which relator seeks to challenge by the instant petition.

In order to explore the circumstances surrounding the Canadian conviction this Court issued a writ of habeas corpus ad testificandum to respondent. On May 24, 1960 petitioner was produced and the hearing took place.

Before the facts developed at that hearing may be discussed, however, certain threshold issues must be disposed of. First, it should be noted that the petitioner does not dispute the right of the State of New York to use a Canadian conviction in the application of its multiple offender law. That is a matter of state procedure and presents no federal question. United States ex rel. Dennis v. Murphy, 2 Cir., 1959, 265 F.2d 57, 58; United States ex rel. Read v. Martin, 2 Cir., 1959, 263 F.2d 606.

The respondent, on the other hand, does not dispute petitioner's right to challenge the Canadian conviction on due process grounds, in the same manner in which he could challenge a conviction in a sister state if it were used by New York to increase his sentence. See United States ex rel. Dennis v. Murphy, supra; United States ex rel. Dennis v. Murphy, D.C.N.D.N.Y.1959, 184 F.Supp. 384, opinion on remand, sustaining the writ.

The respondent contends, however, that the validity of the Canadian conviction need not be determined at this time because (a) the petitioner has failed to exhaust his state remedies⁶ and (b) his present petition is premature.

Respondent's first contention may be dealt with briefly. The petitioner has no remedies to exhaust in the New York courts. The State of New York "* * * will not entertain an attack on a judgment of conviction entered in another state." United States ex rel. Savini v. Jackson, 2 Cir., 1957, 250 F.2d 349, 351.⁷ As to the possibility of a New York prisoner attacking his Canadian conviction in a Canadian court, the Court of Appeals for the Second Circuit has stated:

"We do not believe 28 U.S.C. § 2254 requires relator, in his present position, to exhaust whatever remedies may exist in a foreign country and * * * the requirement of exhaustion of other remedies is deemed to have been complied with. United States ex rel. Savini v. Jackson, 2 Cir., 1957, 250 F.2d 349." United States ex rel. Dennis v. Murphy, 2 Cir., 1959, 265 F.2d 57, 58.

The "state" remedies available to the relator being deemed exhausted therefore, the sole remaining question (other than the determination on the facts) is whether the instant petition is premature.

Respondent points out that relator has served less than 5 years of his 15 to 30 year sentence. He further alleges that the minimum sentence for First Degree Robbery in New York is ten years imprisonment.⁸ Respondent argues, therefore, that even if petitioner had been sentenced as a first offender, he would not be eligible for release at this time, and thus the validity of the prior Canadian conviction is irrelevant. It is respondent's position that the federal writ of habeas corpus is available only when granting the writ would entitle the prisoner to immediate release. See, e. g., United States ex rel. Smith v. Martin, 2 Cir., 1956, 239 F.2d 530. Cf. Holiday v. Johnston, 1941, 313 U.S. 342, 349, 61 S.Ct. 1015, 85 L.Ed. 1392; McNally v. Hill, 1934, 293 U.S. 131, 138, 55 S.Ct. 24, 79 L.Ed. 238.

Respondent overlooks, however, the authoritative array of cases in which the writ was sustained because the prisoner, upon resentencing, might be sentenced to a term which had already expired. As was stated in United States ex rel. Smith v. Martin, 2 Cir., 1957, 242 F.2d 701:

"The federal writ of habeas corpus * * * can issue only to release a prisoner from custody, or to order a resentencing where it is possible that on resentence he will be sentenced to no more than the period he had already served." (Emphasis supplied.)

In another case the Second Circuit Court of Appeals rejected an argument that the petition was premature because the prisoner had not served the maximum sentence he might have received as a first offender, with the words:

"* * * there is no reason to assume that the petitioner would have received the maximum sentence for his crime if he had been sentenced as a first offender. If the Virginia conviction was erroneously taken into account, Smith is entitled to resentence as a first offender. See United States v. Morgan, 2 Cir., 1953, 202 F.2d 67, 68, affirmed 1954, 346 U.S. 502, 74 S.Ct. 247, 98 L. Ed. 248. On resentence the term imposed might well be less than the nine years he has already served." United States ex rel. Smith v. Jackson, 2 Cir., 1956, 234 F.2d 742, 749.⁹

Thus, the question is reduced to whether upon being resentenced, as of the date of his original sentence, as a first offender, this petitioner might be sentenced to a term which he has already served.

While the minimum sentence for First Degree Robbery under New York Penal Law § 2125 is ten years imprisonment, there are other provisions available under which offenders like the relator may be sentenced. For instance, a first offender between the ages of 21 and 30,¹⁰ convicted of a felony in 1955, might have been sentenced to a reformatory term not to exceed 5 years.¹¹ Thus, petitioner's status as a second offender at the time of his original sentencing rendered unavailable to the sentencing judge a sentence which would by now have expired.¹²

The language quoted above from United States ex rel. Smith v. Martin and United States ex rel. Smith v. Jackson, supra, seems to imply that a resentencing would have to be ordered whenever it was established (a) that a prior conviction which was taken into consideration when imposing sentence was invalid and (b) that the sentencing judge might at the time of the original sentence have imposed a prison term which at the time of the application for the writ would have expired.¹³ However, the reformatory sentence under New York Penal Law § 2185, which would by now have expired, was foreclosed to the sentencing judge as an alternative sentence, so long as Foreman was considered a second felony offender. Thus, to order a resentencing in this case is not to order that the state judge consider imposing a sentence which he decided in his discretion not to impose once before, but to allow him for the first time to take into consideration an alternative sentence not previously open to him.¹⁴

I find that the instant petition is neither premature nor defective for failure to exhaust "state" remedies, and I shall therefore proceed to the factual questions upon which the issuance of the writ depends.

The legal framework within which this factual determination must be made has been recently summarized by the Court of Appeals:

"* * * where a conviction in a non-capital case has been based upon a plea of guilty in a state court, a mere allegation that petitioner was of low intelligence and neither had nor was offered a lawyer at the time the plea was entered will not suffice. Cf. Quicksall v. People of State of Michigan, 339 U.S. 660, 70 S.Ct. 910, 94 L.Ed. 1188. There must be some showing that the attendant circumstances were such as to make it appear that there was some essential unfairness in the state court proceedings. United States ex rel. Turpin v. Warden of Green Haven Prison, 2 Cir., 190 F.2d 252. On the other hand, it seems clear to us that the sufficiency of the showing cannot depend upon the use of any precise formula * * *."¹⁵

At the hearing held on May 24, 1960, the petitioner was the only witness. It was not contraverted that at the time of his Canadian conviction upon a plea of guilty he was but 17 years of age, did not have the assistance of counsel, and that he had left school when he was 15, after having completed the eighth grade.¹⁶ Petitioner contended, moreover, that he did not know that he had a right to counsel, and that neither the presiding judge nor any other person advised him of that right.¹⁷

The respondent challenged petitioner's contention in regard to counsel by offering evidence (a) that one of petitioner's co-defendants was represented by counsel at the Canadian prosecution; (b) that petitioner himself had been represented by counsel during a previous brush with the law;¹⁸ and (c) that petitioner had previously admitted that he was offered counsel at the Canadian proceeding now in issue.

The alleged admission took place during a habeas corpus hearing in a state court, dealing with petitioner's contention (not raised here) that the Canadian conviction was not a "felony" for purposes of New York law.¹⁹

The state court proceeding was concerned with another matter and the so-called...