United States v. LaVallee

• Decision Date: 12 June 1963
• Docket Number: No. 354,Docket 28087.,354
• Citation: 319 F.2d 308
• Parties: UNITED STATES of America ex rel. John McGRATH, Petitioner-Appellant, v. J. E. LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

319 F.2d 308 (1963)

UNITED STATES of America ex rel. John McGRATH, Petitioner-Appellant, v. J. E. LaVALLEE, Warden of Clinton Prison, Dannemora, New York, Respondent-Appellee.

No. 354, Docket 28087.

United States Court of Appeals Second Circuit.

Argued May 7, 1963.

Decided June 12, 1963.

Robert V. Zener, New York City, for petitioner-appellant.

Ronald J. Offenkrantz, Deputy Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of State of New York, and Irving Galt, Asst. Sol. Gen., on the brief), for respondent-appellee.

Before FRIENDLY, KAUFMAN and MARSHALL, Circuit Judges.

KAUFMAN, Circuit Judge.

Appellant is serving a prison sentence under a judgment entered in the County Court of Queens County, New York, upon a plea of guilty to the crime of second degree robbery. His application for a writ of habeas corpus, founded upon the contention that his guilty plea was not entered voluntarily, was denied by District Judge Brennan without a hearing. Appellant had previously raised this contention in the state courts on application for a writ of coram nobis and his application was there also denied without hearing. The denial was affirmed in the Appellate Division, the New York Court of Appeals denied leave to appeal, and certiorari was denied by the Supreme Court. State court remedies have been exhausted. 28 U.S.C. § 2254; Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963).

On October 20, 1953, appellant was indicted for the crimes of first degree robbery, petit larceny, second degree assault, and possession of a dangerous weapon. On November 17, 1953, the date the case was called for trial, the appellant withdrew his plea of not guilty and, with the guidance of experienced counsel, entered a plea of guilty to robbery in the second degree. Appellant's decision to alter his plea was made during the course of a conference in the chambers of the trial judge — attended by the judge, the defendant, defendant's attorney, the Assistant District Attorney, the court stenographer, and at least one court attendant. On February 2, 1954, appellant was sentenced as a second felony offender for a term of not less than twenty-nine nor more than thirty years.

The validity of appellant's contention as to the involuntary character of his guilty plea and the resulting violation of due process turns upon an evaluation of the conversation which took place between the appellant, the trial judge, and the appellant's attorney during the conference on November 17, 1953.

Accompanying his application in the District Court for a writ of habeas corpus was an affidavit setting out in considerable detail appellant's version of what transpired at the conference in the judge's chambers. A similar affidavit had been submitted by appellant to the New York courts in support of his application for coram nobis; the truth of the matter asserted therein was sworn to by appellant's trial attorney as well as by the appellant himself. Appellant charges in his papers that upon entering the judge's chambers he was informed by the judge that the discussion was to be off the record and that, in fact, no minutes were recorded (although appellant does concede that a court stenographer was present). The judge, appellant says, stated that he had been told by the district attorney that the appellant "didn't have a chance `on a trial'; that they had me `like this' bringing both his arms across the front of his body to indicate that I was in a vise. He went on to say that if I went to trial and was convicted, I would never see the sunshine again, because my record alone would convict me." Appellant's attorney is alleged to have told the judge that his client was reluctant to plead to the reduced count of robbery in the second degree because he feared a sentence of 15 to 30 years. (In New York, mandatory sentence as a second or third felony offender for second degree robbery is 7½ to 30 years, while the mandatory sentence as a second or third offender is 15 to 60 years for first degree robbery, N.Y. Penal Law §§ 2125, 2127, 1941.) "The judge shook his head, indicating negation as to this, and told my attorney that anyone who pleaded guilty before him automatically received consideration." Appellant contends that he thereupon requested a postponement in order to consider the alternative of pleading guilty, but that upon the judge's refusal "I felt compelled to yield." The judge is then said to have admonished the appellant: "When you return to the courtroom, I am going to ask you whether any promise was made to you, you are to answer, `no.' Is that understood?" to which the appellant responded in the affirmative.

The State's version of the conference in the trial judge's chambers differs in certain material respects from that of the appellant and his trial attorney. The State relies upon stenographic transcripts of the proceedings in chambers as well as in the courtroom when the plea was formally entered. The transcript of the conference in chambers reveals that at the outset, the trial judge stated that "if you want a trial, you will certainly get a fair trial." But he noted that the likelihood of appellant's acquittal was "not too good," and that if he was convicted he would be entitled to no consideration from the judge who "might have to send you away for the rest of your life." The judge constantly reiterated that he was making "no promises as to your sentence," and that "You have a very able counsel here, one of the best. I am not telling you what you should do or what you should not do. I am merely pointing out to you what you face." He stated that only the accused knew whether or not he was responsible for the crimes charged, and that the decision to proceed to trial, guaranteed to be a fair trial, was with the defendant alone. Appellant was reminded that a plea to robbery in the second degree would offer the appellant "some opportunity of receiving a shorter sentence * * *. If I sentence you after a conviction of robbery in the first degree, you are going to be away until you are an old man. But I emphasize that I am not telling you what to do, son." The transcript reveals that appellant's trial attorney was fully in sympathy with the views of the trial judge:

"The Court: * * * From what I have heard about this case, this is a very serious crime. The defendant must consider that in relation to his chances which are —

"Mr. George: I know he hasn\'t any, Judge.

"The Court: If he is convicted, I am faced with a mandatory first-degree robbery as a second offender.

"Mr. George: Your hands are tied. Your hands are tied at 15."

The transcript reveals that appellant thereupon agreed to enter a guilty plea to the lesser degree, and his counsel concurred in the decision; before returning to the courtroom, the trial judge directed appellant to answer in the affirmative when asked whether or not he wished to plead guilty.

Petitioner's allegations challenge the authenticity of the State's transcript of proceedings of the conference in chambers. Indeed, his papers raise the claim that no minutes of the conference were ever taken, for the judge immediately noted that it was to be "off the record." He also contends that, even if the minutes were taken, they were apparently not transcribed until six years later, and that the transcribing stenographer might well have been different from the reporter present in the judge's chambers, thus accounting for errors or inconsistencies in the transcript. Moreover, petitioner's version of the conference, which in itself calls the transcript into question, was sworn to by his trial attorney in an affidavit incorporated in his application papers.

Petitioner does not dispute the accuracy of the transcript of the proceedings which took place subsequently in the courtroom, when he formally entered his guilty plea. This reveals that he responded affirmatively when the judge asked: "And do you realize further that no promise has been made to you, your attorney, or anyone else in your behalf concerning any sentence or punishment that might be meted out to you should such plea be accepted by me from you?" Petitioner does, however, state in his application that "I regarded the questioning as `window dressing.' I trusted implicitly in the Judge's assurance given in chambers that I would be given `consideration'." Nonetheless the record discloses that on at least four occasions, appellant was apprised by the judge in open court that the consequence of a guilty plea would be his "going away for a long time" in prison.

Two and a half months later, the court imposed a sentence of 29 to 30 years imprisonment; in imposing a sentence just short of the statutory maximum, the trial judge made known that he was clearly influenced by the appellant's most unsavory criminal record which was before him on sentencing in a probation report and unknown to him at the time he accepted appellant's plea.¹

In passing upon appellant's application for a writ of habeas corpus, the court below examined only the papers submitted in support of and in opposition to the motion. He found that the stenographic transcript and records offered by the State "conclusively refute petitioner's contention that he was either threatened, promised, or overreached in the matter of the entry of his guilty plea," and therefore denied the application without a hearing. The petitioner's affidavits were rejected because not "convincing as a contradiction of the stenographic transcript," and because appellant's failure to protest to the trial judge that the sentence imposed violated an implicit promise "indicates an afterthought on the part of the petitioner." At no time, therefore, either in the state or the federal court, has appellant received a hearing on the question of the authenticity of the stenographic transcript purporting to record accurately the conference held in chambers on November 17, 1953.

We therefore hold that the District Judge erred in disposing of ap...