United States v. Murphy

• Decision Date: 15 April 1958
• Docket Number: Docket 24513.,No. 191,191
• Citation: 254 F.2d 438
• Parties: The UNITED STATES of America, ex rel. James FARNSWORTH, Relator-Appellant, v. Robert E. MURPHY, Warden of Auburn State Prison and The People of the State of New York, Respondents-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

254 F.2d 438 (1958)

The UNITED STATES of America, ex rel. James FARNSWORTH, Relator-Appellant, v. Robert E. MURPHY, Warden of Auburn State Prison and The People of the State of New York, Respondents-Appellees.

No. 191, Docket 24513.

United States Court of Appeals Second Circuit.

Argued December 13, 1957.

Decided April 15, 1958.

Nicholas John Stathis, New York City, for relator-appellant.

George K. Bernstein, Deputy Asst. Atty. Gen., of the State of New York (Louis J. Lefkowitz, Atty. Gen., of the State of New York, John R. Davison, Sol. Gen., Albany, N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., Raymond B. Madden, Asst. Atty. Gen., and Allan N. Smiley, Deputy Asst. Atty., Gen., of counsel on the brief), for respondents-appellees.

Before MEDINA, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

Farnsworth appeals from an order of Judge Brennan, Northern District of New York, denying, without a hearing, his petition for a writ of habeas corpus on the ground that it failed to allege an exhaustion of state remedies or a substantial federal question. The case is before us by virtue of Judge Brennan's issuance of a certificate of probable cause, 28 U.S.C.A. § 2253.

The petitioner is presently incarcerated in Auburn State Prison, Auburn, New York, as the result of his conviction for attempted burglary in the third degree in the County Court of Westchester County in December 1946 and his subsequent conviction as a fourth felony offender under which he was sentenced on March 26, 1947 to a term of from fifteen years to life imprisonment under the provisions of the New York Multiple Offender Act, New York Penal Law, McKinney's Consol.Laws, c. 40, § 1942. His prior felony convictions at the time of the 1947 sentence were four in number:¹

1. A plea of guilty on September 9, 1929 to four indictments charging forgery in the Criminal Court of Baltimore, Maryland. Sentence imposed was one year in prison for each count, to be served concurrently.

2. Conviction on May 3, 1935 for burglary and grand larceny in the United States District Court for the District of Columbia. Sentenced to 3 to 6 years.

3. Conviction on November 17, 1939 in the Corporation Court of the City of Norfolk, Virginia for a burglary committed on March 5, 1935. Sentenced to 15 years.

4. Conviction on December 14, 1939 in the Corporation Court of the City of Norfolk, Virginia for burglaries committed on February 18, 1935 and March 1, 1935. Sentenced to 5 years to run concurrently with the 15 year sentence above.

Since his sentence in 1947 the petitioner has engaged in various legal maneuvers in an attempt to have it reduced. See Farnsworth v. Maryland, 1948, 334 U.S. 853, 68 S.Ct. 1508, 92 L.Ed. 1775; Farnsworth v. United States, 1952, 198 F.2d 600, 91 U.S.App.D.C. 121, certiorari denied 344 U.S. 915, 73 S.Ct. 338, 97 L.Ed. 706; People ex rel. Farnsworth v. Murphy, 4 Dept. 1952, 279 App.Div. 968, 112 N.Y.S.2d 311, affirmed 1953, 305 N.Y. 630, 111 N.E.2d 889, reargument denied 305 N.Y. 828, 113 N.E.2d 565; and United States ex rel. Farnsworth v. Murphy, 2 Cir., 1953, 207 F.2d 885 wherein Judge Learned Hand alludes to five or six previous unreported petitions from the prisoner. He finally succeeded in having the District of Columbia conviction vacated. Farnsworth v. United States, 1956, 98 U.S.App.D.C. 59, 232 F.2d 59. This did not, however, affect the term of his present prison confinement, for the Westchester County Court, on an application for a writ of coram nobis, ruled that Farnsworth was still properly sentenced as a fourth felony offender by reason of his prior Baltimore conviction and the two prior Norfolk, Virginia convictions.² By the present petition Farnsworth seeks to upset the 1929 Baltimore convictions hoping thereby to be resentenced as a third offender.

The petitioner alleges that on December 24, 1947, after discovering that his conviction in Baltimore in 1929 was for a felony, he moved in the Baltimore Criminal Court to "correct the record" to show that he had been convicted of a misdemeanor rather than a felony. On January 6, 1948 this motion was denied. Thereafter, on February 19, 1948 Farnsworth petitioned the Supreme Judicial Bench of Baltimore by a writ of coram nobis to vacate his 1929 Baltimore convictions on the ground that his constitutional rights had been violated in that his plea of guilty was entered under circumstances which deprived him of due process of law and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution. The specific grounds set out in that petition are the same on which Farnsworth is presently relying. On February 26, 1948 an order issued from the Supreme Judicial Bench, signed by its eleven judges, which, after reciting the making of the motion and its consideration, reads: "Ordered that the same be and it is hereby denied and stricken from the files." Thereafter Farnsworth wrote to the Chief Judge of the Court of Appeals of Maryland requesting permission to appeal from the determination of the Supreme Judicial Bench in forma pauperis. On March 30, 1948 the clerk of the Court of Appeals in replying to Farnsworth advised him that no forma pauperis appeal was permitted except in capital cases. A petition for certiorari to the United States Supreme Court was likewise denied. Farnsworth v. Maryland, 1948, 334 U.S. 853, 68 S.Ct. 1508, 92 L.Ed. 1775. There is no allegation in the present petition that Farnsworth was a pauper at the time when he sought to appeal to the Court of Appeals of Maryland, but since he was in prison at the time, and the petitions he has sent us all appear in forma pauperis, we will treat it as if such allegation was made.

The District Court in deciding that Farnsworth had not exhausted his state remedies as required by 28 U.S.C.A. § 2254, relied on the decisions of United States ex rel. Kalan v. Martin, 2 Cir., 1953, 205 F.2d 514 and United States ex rel. Rheim v. Foster, 2 Cir., 1949, 175 F.2d 772. Those decisions no longer represent the law. United States ex rel. Marcial v. Fay, 2 Cir., 1957, 247 F.2d 662, 665. "Where the only state remedies are inaccessible to a prisoner because of his poverty, his failure to pursue those remedies does not bar him from applying to the federal courts for relief." United States ex rel. Embree v. Cummings, 2 Cir., 1956, 233 F.2d 188, 189.

Moreover, it would appear that Maryland does not provide any way in which Farnsworth may test his 1929 Baltimore conviction. Coram nobis is unavailable, Bernard v. State, 1949, 193 Md. 1, 65 A.2d 297, as is habeas corpus. Code of Maryland (1951 Edition) Article 42, § 3. Nor would relief lie in the New York courts. People v. McCullough, 1949, 300 N.Y. 107, 89 N.E.2d 335, certiorari denied 1950, 339 U.S. 924, 70 S.Ct. 615, 94 L.Ed. 1346; United States ex rel. Smith v. Jackson, 2 Cir., 1956, 234 F.2d 742.

The petitioner has thus exhausted his state remedies and we turn now to the petitioner's allegations. We find they are not sufficient to present a federal question.

The four 1929 indictments with which Farnsworth was charged in the Baltimore court each contain three counts: (1) forgery of a check; (2) uttering the check; and (3) obtaining money in the amount of the forged check by false pretenses. Under the Maryland statutes the first two counts charged felonies, the third a misdemeanor.

The petitioner in fact pleaded guilty to Count 1 of each indictment. He claims that his constitutional rights were violated in "* * * that said Baltimore Criminal Court wrongfully and unlawfully accepted * * * petitioner's plea of guilty without benefit of counsel and without advising petitioner of the true nature of the various crimes charged against him, or, the legal consequences or the effect of his plea, or, asking petitioner if he had any cause to show why judgment should not be pronounced against him. * * *" He further alleges that "* * * he believed he was being tried for obtaining money by false pretenses (bogus checks)" and that he pleaded guilty on the advice of some unnamed "officials of the Baltimore City Jail," apparently in order to get a light sentence.

In fact Count 1 of each indictment charged a felony and it was these counts to which the records show Farnsworth pleaded guilty. The four counts charged that on four occasions he drew checks to himself in the sums of $93.10, $93.10, $46.10 and $46.10 respectively, and forged the name of Lieutenant Sylvan Berliner as signer. All of the checks were payable to Corporal James B. Farnsworth. Three of the checks were drawn on the Battery Fund of Battery C, 62nd Artillery, with Lieutenant Berliner's name signed as commanding officer. The fourth check was drawn on the personal account of Lieutenant Berliner. All of the forgeries took place in December of 1928, and according to the third count of each indictment, Farnsworth used the checks to purchase civilian clothes, pay a hotel bill, and purchase some undescribed article from the Arundel Building & Construction Co. of Baltimore. Nowhere does Farnsworth allege that he was innocent of forging Lieutenant Berliner's name to those checks or cashing them. He himself states that he believed he was being tried for obtaining money by bogus checks. The tenor of all that he says makes it clear that he concedes his guilt to obtaining money by bogus checks.

The petitioner's main contention is that he was deprived of his constitutional rights under the Fourteenth Amendment because he was not assigned counsel and was not advised of his "right" to assigned counsel at the time of the entry of his plea of guilty.

The crime of forgery was not a capital offense in Maryland, Annotated Code of Maryland (1924 Edition) Article 27, § 44. The due process clause of the Fourteenth Amendment does not give to a defendant charged with a non-capital criminal offense a right to assigned counsel unless there are circumstances surrounding the conviction showing that "* * * for want of...