United States v. LaVallee

• Decision Date: 26 March 1964
• Docket Number: Dockets 28174,No. 131-135,28280.,28279,28190,28243,131-135
• Citation: 330 F.2d 303
• Parties: UNITED STATES of America ex rel. Raymond DUROCHER, Relator-Appellant, v. J. E. LaVALLEE, Warden, Clinton State Prison, Dannemora, N. Y., Respondent-Appellee. UNITED STATES of America ex rel., James Jesse BROWN, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, N. Y., Respondent-Appellee. UNITED STATES of America ex rel. Marion RIPPLE, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, N. Y., Respondent-Appellee. UNITED STATES of America ex rel. William H. MOORE, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, N. Y., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

330 F.2d 303 (1964)

UNITED STATES of America ex rel. Raymond DUROCHER, Relator-Appellant, v. J. E. LaVALLEE, Warden, Clinton State Prison, Dannemora, N. Y., Respondent-Appellee.

UNITED STATES of America ex rel., James Jesse BROWN, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, N. Y., Respondent-Appellee.

UNITED STATES of America ex rel. Marion RIPPLE, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, N. Y., Respondent-Appellee.

UNITED STATES of America ex rel. William H. MOORE, Relator-Appellant, v. Robert E. MURPHY, Warden, Auburn Prison, Auburn, N. Y., Respondent-Appellee.

Nos. 131-135, Dockets 28174, 28190, 28243, 28279, 28280.

United States Court of Appeals Second Circuit.

Argued October 11, 1963.

Submitted January 6, 1964.

Decided March 26, 1964.

Certiorari Denied June 22, 1964.

Leon B. Polsky, The Legal Aid Society, New York City (Anthony F. Marra, The Legal Aid Society, New York City, on the brief), for relators-appellants.

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

Ronald J. Offenkrantz, Deputy Asst. Atty. Gen. of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of New York, Irving Galt, Asst. Sol. Gen., and Stephen N. Rubin, Deputy Asst. Atty. Gen., New York City, on the brief), for respondent-appellee Murphy in Nos. 28190, 28279, 28280.

Barry Mahoney, Deputy Asst. Atty. Gen. of New York, New York City (Louis J. Lefkowitz, Atty. Gen. of New York, Irving Galt, Asst. Sol. Gen., New York City, on the brief), for respondent-appellee Murphy in No. 28243.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and MARSHALL, Circuit Judges.¹

Submitted to In Banc Court January 6, 1964.

Certiorari Denied June 22, 1964. See 84 S.Ct. 1921.

KAUFMAN, Circuit Judge, with whom WATERMAN, SMITH, HAYS and MARSHALL, Circuit Judges, concur:

Claiming that they were not advised of their right to counsel when pleading guilty, four New York prisoners serving increased sentences as second offenders seek to invalidate their first convictions under the due process clause of the Fourteenth Amendment. In District Court opinions which preceded the Supreme Court's decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), all four relators were denied relief on the ground that they had failed to establish that their convictions were lacking in fundamental fairness, as required by Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942). On appeal, all claim that the overruling of Betts by Gideon requires that they be afforded hearings in which an express finding of prejudice would be unnecessary. They argue, in essence, that a criminal conviction cannot stand under Gideon if the convicted defendant was at no time apprised of his right to counsel, even in the absence of the sort of "special circumstances" which were long indispensable to relief under Betts.

These appeals mark the first occasion upon which this Court has been required to consider the scope and far-reaching implications of the Gideon decision. Specifically, we must now determine whether Gideon compels the offer of counsel to an indigent defendant who has pleaded guilty, and who has not expressly requested the services of an attorney. Finally, we must decide whether Gideon may be invoked by defendants whose convictions preceded that of Clarence Gideon himself.

I.

The relevant facts of the individual cases may be briefly summarized.

1. #28174 — Raymond Durocher was convicted in May of 1959, of third-degree burglary and second-degree grand larceny, and was sentenced as a second offender to concurrent terms of 5-10, and 2½-5 years imprisonment.² His earlier conviction, used as a predicate for second-offender treatment, was for breaking and entering with intent to commit larceny, and was entered in Massachusetts on a plea of guilty in September of 1950. In his application for a writ of habeas corpus, Durocher alleged that he had been unaware of his right to counsel at the time of his guilty plea, that he had not been offered an attorney, although indigent, and that he had not understood the "legal interpretation" of the charges against him.

At a hearing granted upon his application, it was revealed that Durocher had been seventeen years of age at the time of his Massachusetts conviction, and that he had received a "partial seventh grade education." Testifying below in his own behalf, Durocher asserted that he could "read average," but admitted to considerable difficulty with "big words." The hearing further established that the Massachusetts offense had been Durocher's first, and that he had run away from home a year prior to his arrest.

Although finding no indication that Durocher had been advised of his right to counsel, the District Judge denied the petition on the basis of his conclusion that Durocher's conviction was not lacking in fundamental fairness. In so holding, the Judge emphasized that Durocher had understood the nature of the charges against him, and had not requested the assistance of an attorney. He relied heavily, moreover, upon Durocher's admission, at the time of his arrest, to entering a home and stealing several wrist watches; he abruptly dismissed Durocher's contentions that an attorney might have been able to prove that he had not `broken" into the home, as charged in the complaint, but rather had entered through an open door.

2. #28190 — Four years after his Florida conviction for escape from a road gang, James Jesse Brown was convicted in June of 1958 of second-degree grand larceny and was sentenced as a second offender to 5-10 years imprisonment. In his petition, Brown alleged that he had been illiterate at the time of the Florida conviction, and that the Assistant County Solicitor had threatened him with "plenty of time in prison" unless he pleaded guilty to the charges of escape. He further contended that he had "walked away" from the road gang because of the "inhumane conditions" of his imprisonment.

Once again, despite a record which showed that Brown had appeared without counsel at his Florida conviction, the District Judge denied his petition. Rejecting Brown's claim of coercion as "vague, indefinite and implausible," the Judge concluded that "the petitioner voluntarily pleaded in Florida to simple charges that he well understood from previous criminal experience; that he was treated fairly; that his sentence was lenient and he was not misled, and under his own testimony he was not constitutionally deprived of counsel as the law now stands." The fact that Brown's petition was determined under the test of "fundamental fairness" was emphasized by the Court's citation of Betts v. Brady, as an indication of where "the law now stands," followed by the notation that Gideon was then pending before the Supreme Court.

3. #28279, 28280 — Unlike Durocher and Brown, William Moore was never afforded a hearing below. Convicted of manslaughter on April 18, 1952, he was sentenced as a second offender to from 12½ to 25 years; his prior conviction was entered in Maryland, nine years earlier, upon a plea of guilty to attempted burglary. In his petition, he alleged that he had not known of his right to counsel at the time of his plea, and that he was never advised of any such right; he also claimed that he had been unaware of the "seariness" of the Maryland charges, and was never informed that they constituted a felony. His petition was denied, largely on the ground that his allegations were too "vague" to establish a denial of fundamental fairness. In so holding, the District Judge noted that Moore had been thirty-four years of age at the time of the Maryland conviction, and "not too immature" to understand the charges which he faced.

4. #28243 — Marion Ripple, the fourth and final appellant, was convicted of first-degree manslaughter in September of 1954, and, as a result of a 1931 Indiana conviction for armed robbery, was sentenced as a second offender to from fifteen to thirty years. Finding that "petitioner was a mature man of thirty-nine years of age in 1931 and the crime to which he entered a plea of guilty was easily understandable," the District Judge denied Ripple's petition without a hearing.

Ripple's case differs from that of the other appellants in several significant respects. Alone among the various petitioners, Ripple specifically alleged that he had requested counsel, and that his request had been denied. And in the application which he submitted to the District Judge for a certificate of probable cause, Ripple further maintained that he was "not financially unable to retain counsel," but instead asserted that he was "denied the opportunity to do so." In effect, therefore, Ripple was not claiming a denial of his right to court-appointed counsel, but a denial of the opportunity to secure private counsel of his own choosing.

II.

As the state implicitly concedes, no procedural obstacles bar our consideration of the merits of appellants' contentions. Since all of the second-offender sentences were imposed in New York and since all of the prior convictions were obtained in other states, there is no problem of exhaustion of state remedies. A New York prisoner is not obligated to challenge out-of-state convictions in the courts of the rendering state, and New York provides no procedure whereby these prior convictions may be challenged in the New York courts. United States ex rel. LaNear v. LaVallee, 306 F.2d 417 (2d Cir. 1962); see People v. Wilson, 13 N.Y.2d 277, 246 N.Y.S.2d 608, 196 N.E.2d 251. It is clear, moreover, that a prior conviction may be invalidated upon federal habeas corpus by a prisoner serving an increased sentence under a second-offender statute. United States ex rel. Easterling v. Wilkins...