United States v. Jackson

• Decision Date: 29 November 1957
• Docket Number: No. 125,Docket 24749.,125
• Citation: United States v. Jackson, 250 F.2d 349 (2nd Cir. 1957)
• Parties: UNITED STATES ex rel. James J. Savini, Petitioner-Appellee, v. J. Vernal JACKSON, Warden, Clinton Prison, Dannemora, N. Y., Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

250 F.2d 349 (1957)

UNITED STATES ex rel. James J. Savini, Petitioner-Appellee, v. J. Vernal JACKSON, Warden, Clinton Prison, Dannemora, N. Y., Respondent-Appellant.

No. 125, Docket 24749.

United States Court of Appeals Second Circuit.

Argued October 17, 1957.

Decided November 29, 1957.

Michael Freyberg, Asst. Atty. Gen., State of New York (Louis J. Lefkowitz, Atty. Gen. of the State of New York, John R. Davison, Sol. Gen., Albany, N. Y., Raymond B. Madden, Asst. Atty. Gen., and Allan N. Smiley, Deputy Asst. Atty. Gen., on the brief), for respondent-appellant.

Louis Lauer, New York City, for petitioner-appellee.

Before MEDINA, HINCKS and WATERMAN, Circuit Judges.

HINCKS, Circuit Judge.

This is an appeal from an order of Judge Brennan in the United States District Court for the Northern District of New York, sustaining, after hearing, a writ of habeas corpus which had issued on the petition of James J. Savini, an inmate of a New York State prison where he was confined by a judgment of conviction in 1954 in the County Court of Queens County, New York, on his plea of guilty to a felony charge of robbery, second degree. The sentence imposed, 7½ to 8 years in Sing Sing State Prison, under the Multiple Offender Law of New York, Section 1941 of New York Penal Law, was predicated upon the status of the relator (appellee) as a second offender by virtue of his conviction, in the Circuit Court of Calhoun County, Michigan, in 1943, on his plea of guilty to a charge of rape. The petition below was based on the conceded fact that he was convicted and sentenced to 7½ to 15 years in Michigan without having been advised of his right to counsel and in ignorance of that right.

The initial problem presented below was whether under the applicable state law a corrective process was available and had been exhausted within the requirements of 28 U.S.C.A. § 2254. As to this, it was undisputed that after conviction in the New York court the District Attorney had filed an information charging that the relator had previously, in 1943, been convicted and sentenced in Michigan for rape, and the relator, who had the benefit of counsel in New York, had acknowledged in open court that he was the person who had thus been convicted in Michigan. The respondent, appearing herein by the Attorney General and Assistant Attorney General of New York, asserts that under Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962, the relator at this juncture had opportunity to challenge the validity of his Michigan conviction and contends that his failure to do so now bars the present attack on that judgment. However, the respondent cites no New York authority for the assertion. People v. McCullough, 300 N. Y. 107, 89 N.E.2d 335, decided after Gayes v. State of New York, supra, is to the contrary. And believing that Gayes is no longer applicable we have previously held that under New York law the New York courts will not entertain an attack on a judgment of conviction entered in another state. United States ex rel. Smith v. Jackson, 2 Cir., 234 F.2d 742; United States ex rel. Turpin v. Snyder, 2 Cir., 183 F.2d 742; United States v. Morgan, 2 Cir., 202 F.2d 67, affirmed 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248. We adhere to that holding.

But had the relator exhausted his remedies in the courts of Michigan? As to this, the pertinent facts are that after his Michigan sentence in 1943 the relator raised no question as to the validity of the sentence until shortly before September 26, 1955, when the Michigan Circuit Court denied "an application for a Writ of Error, Coram Nobis" (in which relator attacked his rape conviction for failure to advise as to his right of counsel) because not timely made and not sufficient to show deprivation of any constitutional rights. Failure to appeal from this action resulted in the denial of his original habeas petition to the court below. He then again moved for coram nobis in Michigan and on the denial of his motion appealed to the Supreme Court of Michigan which on November 8, 1956, vacated the order denying the motion and directed a hearing thereon "if, as and when the defendant the relator in these proceedings finds it possible to be present in open court." Thereafter the Michigan Court refused to waive the requirement of his personal presence at the hearing thus conditionally authorized and the New York Department of Correction on November 23, 1956 advised the relator that under the law it could not arrange for his presence at a Michigan hearing in advance of his release.

On November 29, 1956, the relator again filed below a habeas petition; the writ issued and a hearing was had at which the relator appeared in person and by court-appointed counsel. Judge Brennan, in a memorandum decision, held that the relator's "state court remedies in Michigan are exhausted and this court may assume jurisdiction." We think that ruling right. United States ex rel. Smith v. Jackson, supra, and United States ex rel. Turpin v. Snyder, supra. It is true that ordinarily habeas corpus will not lie unless the relator has sought certiorari from the Supreme Court to review the state court proceedings. Darr v. Burford, 339 U.S. 200, 70 S.Ct. 587, 94 L.Ed. 761. But certiorari may be sought only from a final judgment, 28 U.S.C.A. § 1257, and it is clear that no such action has been taken by the Michigan Supreme Court in the present case. Moreover, where, as here, the state court's denial is based upon an adequate state ground, i. e., the refusal to hear the merits of the claim until the relator appears in open court, the failure to petition for certiorari does not bar a subsequent habeas corpus action. Darr v. Burford, supra; White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348. As Judge Brennan observed, if the relator "is to obtain any relief by way of a resentence in the New York State courts as a first, rather than a second felony offender, then of course he must be able to obtain same prior to his discharge from the New York State prison."

We come now to a recital of the facts relating to the constitutional question. It was undisputed that at the time of the Michigan episode the relator, a resident of New York, was a married man, 21 years old, and a private in the armed forces of the United States on duty at Fort Custer, Michigan. He was arrested on a charge of rape on Tuesday, June 29, 1943, and after a night in solitary confinement, on Wednesday morning, June 30, 1943, he was arraigned before the Circuit Court of Calhoun County, Michigan, at Battle Creek. In open court, an information^* as set forth in the margin was read, charging him in the language of the statute with the crime of rape, to which he immediately pleaded guilty. In answer to inquiries by the Judge he stated that his plea was given without inducement by promises of leniency or by coercion we may here interpolate that never thereafter has he asserted such inducement. He was then interviewed by the Judge in chambers, but what transpired at the interview does not appear in the record. Immediately thereafter he was sentenced in open court to a term of imprisonment of 7½ to 15 years.

At the time of his arraignment and sentence the relator was not represented by counsel and had never been advised that he was entitled to counsel. Indeed, it is stated in appellant's brief that in 1943 it was not the practice of Michigan courts to assign counsel in non-capital criminal cases: that it was not mandatory to assign counsel until the adoption of Rule 35-A, Michigan Court Rules, which became effective September 1, 1947. Nor had the relator been advised as to the factual elements of rape or the factual distinctions between the three cognate offenses in the statutory scheme, viz., rape, assault with intent to commit rape, and simple assault. He had not been advised that Michigan courts had held that to constitute rape "resistance to the utmost" was an essential element, People v. Geddes, 301 Mich. 258, 3 N.W.2d 266, 267; that it was essential that there be "no consent by the prosecutrix during any part of the act," Brown v. People, 36 Mich. 203, 205; and that specific intent, where an essential element, might be negatived by proof of voluntary intoxication, People v. Guillett, 342 Mich. 1, 69 N.W.2d 140.

At the hearing below the relator testified without contradiction that at the time of the alleged offense both the prosecutrix, whom concededly he had met for the first time on the day of the alleged offense, and he himself were intoxicated; that at his arraignment he was scared and confused; that he had never understood the implications of the charge and the consequences of his plea of guilty; that although he could not deny that he had committed the offense he did not actually know that he was guilty either.

Judge Brennan, in his opinion, after saying that at the hearing below "the petitioner testified in his own behalf and gave every appearance of an intelligent alert young man," came to the following conclusions:

"Here there is no lack of intelligence; no charge of overreaching on the part of the prosecuting authorities; no indication of anything but kindly treatment on the part of the trial court. Nevertheless I cannot say that this petitioner has had the full measure of the protection which the law affords when he is arrested, arraigned and convicted in a period of forty-eight hours of a crime for which he might be confined for life without the aid or assistance of family, friends or advisers and without any understanding that he had the right to the experienced advice of an attorney before being required to enter his plea. * * * As far as the record before me is concerned, the circumstances of the Michigan conviction, * * * are such as to lead to the conclusion that same lacks the traditional protection which is afforded persons charged with serious crimes under our notions of justice. * * *"

We think these conclusions were sound. Especially in...