United States v. Murphy

• Decision Date: 08 March 1963
• Docket Number: Civ. No. 9225.
• Parties: UNITED STATES of America ex rel. Lee Arthur VINES, Petitioner-Relator, v. Robert E. MURPHY, as Warden of Auburn State Prison, Auburn, N. Y., Respondent.
• Court: U.S. District Court — Northern District of New York

214 F. Supp. 642

UNITED STATES of America ex rel. Lee Arthur VINES, Petitioner-Relator, v. Robert E. MURPHY, as Warden of Auburn State Prison, Auburn, N. Y., Respondent.

Civ. No. 9225.

United States District Court N. D. New York.

March 8, 1963.

Joshua N. Koplovitz, Troy, N. Y., for petitioner-relator.

Louis J. Lefkowitz, Atty. Gen. of New York, Albany, N. Y., Raymond B. Madden, Asst. Atty. Gen., of counsel, for respondent.

JAMES T. FOLEY, District Judge.

The petitioner is another of an increasing number of New York State prisoners sentenced under the Multiple Offender Law of that State who take advantage of the recent ruling in United States ex rel. LaNear v. LaVallee, 2 Cir., 306 F.2d 417, and file directly in this District Court for a federal writ of habeas corpus without any attempt to review challenged state convictions rendered in the Courts outside New York. It is apparent to me after reviewing since LaNear a substantial number of similar petitions attacking convictions from various States of the Union and holding hearings in enough so far concerning convictions used in New York from Virginia, Florida, and in this instance North Carolina, that the State prisoners, always alert, recognize a windfall. New York not only now has a heavy burden by an abrupt change of federal policy to uphold the convictions used against habitual offenders in these situations, but in my judgment is in a position of extreme disadvantage. It seems a fair interpretation that a number of the Judges of the Court of Appeals, Second Circuit, do not look with much favor on multiple offender sanctions. (United States ex rel. Savini v. Jackson, 2 Cir., 250 F.2d 349, 354-355; United States ex rel. Farnsworth v. Murphy (Waterman dissenting), 2 Cir., 254 F.2d 438, 448; United States ex rel. LaNear v. LaVallee, supra, 306 F.2d pg. 421). The young and able attorney who accepted willingly this assignment contends in his exemplary brief that such statements in the above cases and other pertinent rulings of the Court of Appeals, Second Circuit, may indicate a shift to the State of New York in the burden of proof concept in federal habeas corpus historically placed in some degree upon the petitioners. (United States ex rel. Wissenfeld v. Wilkins, 2 Cir., 281 F.2d 707, 716; United States ex rel. Easterling v. Wilkins, 2 Cir., 303 F. 2d 883; compare Johnson v. Zerbst, Warden, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461; Darr v. Burford, 339 U.S. 200, 218, 70 S.Ct. 587, 94 L.Ed. 761).

Be that as it may, the Multiple Offender Law of New York has long been a part of its criminal procedures and apparently the citizenry of New York, speaking its will through its Legislature and Executive feel such habitual offender or recidivist law a necessary safeguard in a struggle intense at times for law and order to survive in New York. It must be felt this stringent statute reduces the lawless activity of a considerable and continuous influx of hard-core criminals into its borders, particularly in and around the large metropolitan areas of New York City. The New York Multiple Offender Law has been upheld by its highest court. (Sections 1941-1943 Penal Law, New York, McKinney's Consol.Laws c. 40; People v. Gowasky, 244 N.Y. 451, 458-460, 155 N.E. 737, 58 A.L.R. 9; People ex rel. Fernandez v. Kaiser, Warden, 256 N.Y. 581, 177 N.E. 149, cert. den. 284 U.S. 631, 52 S.Ct. 16, 76 L.Ed. 537.) The constitutionality of similar statutes in any State is beyond question, and the only doubtful area is the procedure available in the States to challenge, when presented, the recidivist charge in accordance with due process requirements. (Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446; Compare Gayes v. New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962). In the return here to this application by the Attorney General, it is again contended that there may be remedy in New York by motions in arrest of judgment, to vacate the sentence, to withdraw the plea and a new trial, or by appeal through the Courts of New York in the usual course to the United States Supreme Court. Such contentions are presently answered for this Court by the LaNear ruling (306 F.2d pg. 419), that there is no method provided in New York State for testing the validity of convictions by other sovereigns used as a basis for multiple offender sentences.

There exists now a distressing stalemate between the federal-state systems, the result of which is to bypass the acknowledged value of screening and review by any State before direct intervention by federal habeas corpus, with inevitable disruption to the comity and true balance about which so much is written as necessary to maintain. (28 U.S. C.A. § 2254; Ex parte Hawk, 321 U.S. 114, 64 S.Ct. 448, 88 L.Ed. 572; Wade v. Mayo, 334 U.S. 672, 68 S.Ct. 1270, 92 L.Ed. 1647; Darr v. Burford, supra, 339 U.S. 200, 70 S.Ct. 587; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Irvin v. Dowd, 359 U.S. 394, 79 S.Ct. 825, 3 L.Ed.2d 900.) Fortunately, there may not be too serious reaction or consequence from the resentencing at times of long-term prisoners of New York after immediate and direct review by a United States District Court, because often little is gained by the prisoner.

New York is not a backward State in any sense, has a good record in its criminal procedures with many safeguards therein for individual rights and an elaborate set of post conviction remedies unmatched, in my judgment, by any other State. I have found its Courts, in private practice and as a judge, progressive and responsible, never stubbornly resistant to constructive change in criminal prosecutions that might insure more efficiently constitutional protections. The Court of Appeals, New York, is second to none in the enunciation of principles for the lower courts to protect constitutional rights. (United States ex rel. Kiernan v. La Vallee, N.D.N.Y., 191 F.Supp. 455.) Courts of this character, in my judgment, need little supervision or prodding by the federal power to insure the proper administration of its criminal justice. Perfect justice will never be attained, and credit to integrity and competence should be given when due. In challenges to state custody the federal writ of habeas corpus is extremely limited in its function by statute and settled law. (28 U.S.C.A. § 2241(c) (3); McNally v. Hill, Warden (1934), 293 U.S. 131, 135-140, 55 S.Ct. 24, 79 L.Ed. 238; Parker v. Ellis (1959), 362 U.S. 574, 80 S.Ct. 909, 4 L.Ed.2d 963.)

This petitioner was accorded a hearing and assigned counsel upon his challenge by federal habeas corpus application herein against the New York sentence imposed upon him as a second offender. The hearing was satisfactory, the minutes transcribed and shall be filed with the Clerk.

In 1960 the petitioner was indicted in New York County for Manslaughter, Second Degree, for being involved in the killing of a man with his fists. On April 25, 1960, he pleaded guilty to the reduced charge of Assault, Second Degree, in the Court of General Sessions. He was then properly informed against, pursuant to the New York Statute, by District Attorney Frank S. Hogan of New York County as having been previously convicted of the crime of Manslaughter upon his plea in the Superior Court of Wake County, North Carolina where he was sentenced to not less than ten nor more than twelve years. In the Court of General Sessions pursuant to the law of New York the petitioner, being represented by counsel, admitted he was the same person convicted in North Carolina, made no challenge to the multiple offender information and was sentenced to a term of three years and six months minimum and seven years maximum, hardly to be considered an extreme or excessive sentence. As a first offense, the punishment allowable for Assault, Second Degree, is a term not exceeding five years. (Penal Law, Section 243.) It was developed at the hearing before me that the incident in North Carolina involved the killing of a human being by a rock instead of by fists, as later done in New York.

The petitioner was quite straightforward and honest in his testimony at the hearing. As a federal judge in this type evaluation I do not...