United States v. Reincke

Decision Date21 April 1965
Docket NumberDocket 29262.,No. 323,323
Citation344 F.2d 260
PartiesUNITED STATES of America ex rel. Otis SWANSON, Appellant, v. Frederick G. REINCKE, Warden, Connecticut State Prison, Appellee.
CourtU.S. Court of Appeals — Second Circuit

Charles D. Gill, New Haven, Conn., for appellant.

John D. LaBelle, State's Atty. (George D. Stoughton, Harry W. Hultgren, Jr., Brandon J. Hickey, Asst. State's Attys.), for appellee.

Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.

FRIENDLY, Circuit Judge:

On February 1, 1963, the State of Connecticut charged Otis Swanson with violation of § 19-246 of its General Statutes (Revision of 1958 and Supplemental Laws),1 providing that:

"No person shall manufacture, possess, have under his control, sell, prescribe, dispense, compound, administer to himself or to another person or be addicted to the use of any narcotic drug, except as authorized in this chapter."

The information also referred to § 19-265, entitled "Penalty for illegal possession or dispensing," which provides that violation "other than by administering to himself or by being addicted to the use of narcotic drugs" carries a fine or a minimum imprisonment of five years for the first offense and ten for the second, and a mandatory minimum imprisonment of fifteen years for any subsequent offense. Swanson, who was charged as a third offender, pleaded not guilty.

On May 9, 1963, the Superior Court authorized the State to withdraw the information and substitute one which, while again charging violation of § 19-246, made reference not to § 19-265 but to § 19-265a. This section, entitled "Penalty for self-administration or addiction," provided that, with exceptions not here material, "Any person who administers to himself or is addicted to the use of any narcotic drug * * * shall be imprisoned not more than five years, provided the court may commit the accused" to the custody of a probation officer or a hospital (shortly changed to the commissioner of mental health). The severe minima of § 19-265 are thus inapplicable when the prosecutor concedes that § 19-246 has been violated only by the conduct described in § 19-265a. Swanson pleaded guilty to the substituted information, which charged self-administration of heroin and that alone. When he appeared for sentencing, the Public Defender sought a postponement until Swanson should receive permission he had requested to enter the United States Public Health Service Hospital at Lexington, Kentucky, although conceding that previously Swanson had obtained permission to enter Lexington but had not gone. The court denied the request, noting that Swanson had eleven prior convictions on drug charges and saying, "Sometimes it is a meritorious situation and deserving of it, but I see no reason to defer sentence in this case based upon this man's record." The judge sentenced Swanson to a prison term of not less than a year and a half nor more than four years; we take it that he is still confined.

A year later Swanson filed a Connecticut habeas corpus petition attacking the constitutionality of the Connecticut statute as applied to him. Having exhausted state procedures, he filed a petition for habeas corpus in the District Court alleging that § 19-265a was unconstitutional under Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Judge Anderson appointed counsel and held a hearing. Counsel made no request to offer evidence on the extent of Swanson's addiction, and the only evidentiary material before us on this issue is the fact of his past narcotics convictions and a report of a physician who had treated Swanson on his arrest, which states that the latter "was suffering from withdrawal symptoms characteristic of those manifested by a narcotic addict." Judge Anderson denied the writ in a brief opinion, pointing out that Swanson pleaded guilty to self-administration of narcotics and not to addiction, but granted a certificate of probable cause and appointed counsel to represent Swanson on appeal.

Although it is somewhat of a surprise to see federal habeas corpus used to test the substantive constitutionality of a state criminal statute as distinguished from its common use in challenging procedures alleged to infringe federal rights, decisions of many years' standing appear to support the propriety of this. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1884) (federal statute); Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620 (1890). While the writ seems to have been rarely employed for this purpose in recent times, it would be rather an understatement to say that the Supreme Court has not shown a disposition to shrink its scope. We likewise do not rest our decision on a procedural ground suggested by the State — that Swanson's plea of guilty, given after consultation with counsel and directed to a lesser offense than that originally charged, should bar this collateral attack. The cases most nearly in point but by no means exactly so concern guilty pleas proper in other respects, such as right to counsel, but lodged after the police had obtained evidence in violation of constitutional rights; a number of circuits have said such guilty pleas are not subject to attack, Gonzalez v. United States, 210 F.2d 825 (1 Cir. 1954); Hall v. United States, 259 F.2d 430 (8 Cir. 1958), cert. denied, 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959), even when induced by that evidence, Watts v. United States, 107 U.S. App.D.C. 367, 278 F.2d 247 (1960); United States ex rel. Staples v. Pate, 332 F.2d 531 (7 Cir. 1964). But cf. United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 (2 Cir. 1963) (dictum). Compare Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940).2 The State has intimated that habeas corpus is even less appropriate in Swanson's case because it forwent an opportunity to try him on a different charge not possibly subject to constitutional infirmity. But we have been told only that Swanson was first charged with possession and control of narcotics, and while this is a "separate and distinct" offense in Connecticut carrying a higher penalty than self-administration, State v. DaVila, 150 Conn. 1, 5, 183 A.2d 852, 854 (1962), we do not see, as will be developed below, that it stands differently as to constitutional attack on the part of an addict. In any event, it is unnecessary here to pursue the question when habeas corpus will lie after a voluntary plea of guilty entered after consultation with counsel, for we are satisfied that Swanson has not shown that the Connecticut statutes are unconstitutional as applied to him.

Although Swanson has characterized his attack as being upon § 19-265a, the statute defining the crime is § 19-246. Section 19-265a, like § 19-265 with which it interlocks, simply specifies the measure of punishment for crimes previously defined. To the extent that the two sections prescribe different punishment for the same act, they provide a means for distinguishing at the prosecutorial level persons recognized to be deserving of greater or lesser penalties. This means was employed in Swanson's case, for the substituted information was an election by the prosecutor to assert violation of § 19-246 only by self-administration, even though the same evidence would almost always support a conviction for possession and control and thus entail a larger sentence.

The DaVila opinion recognized that "the validity of the part of § 19-246 which makes addiction to narcotics a crime in and of itself is open to question" under Robinson v. California, see 150 Conn. at 5, 183 A.2d at 854, a question which we should suppose would likely be answered against the statute. But the fall of that provision does not necessarily carry in its train the condemnations of self-administration or of possession and control incident thereto which DaVila indicates are separable under state...

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  • Watson v. United States, 21186.
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • July 15, 1970
    ...which is not addicting and which was found on the appellant's person by a customs inspector at the border. United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir. 1965), cert. denied, 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108, is more directly in point. But there an addict was sente......
  • Duncombe v. State of New York
    • United States
    • U.S. District Court — Southern District of New York
    • April 11, 1967
    ...the substantive constitutionality of a state statute may be attacked on a petition for habeas corpus. See United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2d Cir. 1965). 10 There is no indication here of "the existence of circumstances rendering the State process ineffective to prote......
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    • U.S. Court of Appeals — Second Circuit
    • February 26, 1969
    ...plea waives prior defects in the proceedings against the defendant. The court relied on two cases in Glenn: United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir.), cert. denied 382 U.S. 869, 86 S.Ct. 144, 15 L.Ed.2d 108, 1965 and United States ex rel. Boucher v. Reincke, 341 F.2d 9......
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    ...Morales v. United States, 9 Cir., 344 F.2d 846 (1965); with Bailey v. United States, 5 Cir., 386 F.2d 1 (1967); United States v. Reincke, 2 Cir., 344 F.2d 260 (1965); State v. Margo, 40 N.J. 188, 191 A.2d 43 (1963); Salas v. State, Tex.Cr.App., 365 S.W.2d 174 168 392 U.S. at 517, 88 S.Ct. a......
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