United States v. Snyder

• Decision Date: 06 July 1950
• Docket Number: Docket 21688.,No. 247,247
• Citation: United States v. Snyder, 183 F.2d 742 (2nd Cir. 1950)
• Parties: UNITED STATES ex rel. TURPIN v. SNYDER.
• Court: U.S. Court of Appeals — Second Circuit

183 F.2d 742 (1950)

UNITED STATES ex rel. TURPIN v. SNYDER.

No. 247, Docket 21688.

United States Court of Appeals Second Circuit.

Argued June 8, 1950.

Decided July 6, 1950.

Henry K. Chapman and Joseph Aronstein, New York City, for relator-appellant.

Nathaniel L. Goldstein, Attorney General of the State of New York, Louis Winer, Assistant Attorney General, of counsel, for appellee.

Before AUGUSTUS N. HAND, CLARK and FRANK, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

On August 22, 1945 the relator William Turpin, Jr., pleaded guilty in Wisconsin to an information charging him with larceny and an illegal use of an automobile. He was sentenced by the County Court of Richland County to two terms of one to three years each, to run consecutively, but in December 1946 was released on parole and permitted to go to New York, under supervision, pursuant to the Wisconsin statute.

On October 1, 1947, the relator was convicted of the crime of attempted grand larceny in the second degree, upon his plea of guilty in the Queens County Court of New York.

Thereafter, in an information, pursuant to Section 1943 of the Penal Law of New York, Consol.Laws, c. 40, filed November 19, 1947, he was charged with having been convicted of a crime in Wisconsin which, if it had been committed in New York, would have been a felony and was sentenced as a second offender, because of his prior Wisconsin conviction, to an indeterminate term in Sing Sing Prison of from two to four years. After the Queens County conviction he was advised by counsel that his conviction in Wisconsin was illegal and void because the court had failed to advise him of his right to counsel as prescribed by the provisions of the statutes and Constitution of Wisconsin and by the Fourteenth Amendment of the Constitution of the United States.

On December 7, 1948, the relator moved in the court which had originally sentenced him in Wisconsin for the issuance of a writ of error coram nobis to set aside the conviction there because of the failure of the court to advise him of his right to counsel. The matter was transferred to the Circuit Court of Richland County which denied his application on the ground that coram nobis was not the proper remedy. Its decision was affirmed by the Supreme Court of Wisconsin which held that the proper remedy was not coram nobis but habeas corpus. State of Wisconsin v. Turpin, 255 Wis. 358, 38 N.W.2d 495. But the latter writ would only be available in the event that the relator surrendered himself to the Wisconsin authorities. The Wisconsin Supreme Court did not pass upon the question whether the relator had been deprived of his constitutional rights through the failure of the county court to advise him of his right to counsel and limited its decision to a holding that a writ of coram nobis would not issue from that court. A petition to the United States Supreme Court for a writ of certiorari was denied. 338 U.S. 936, 70 S.Ct. 351.

Thereafter, the relator filed his petition in the United States District Court for the Southern District of New York for a writ of habeas corpus, which was denied, 91 F.Supp. 47, on the ground that he had failed to raise the question of the invalidity of the Wisconsin conviction at the time when he was sentenced in Queens County, New York, as a second offender. In reaching this result the District Court relied on the decision in Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711, 91 L.Ed. 1962. That was a case in which a petitioner had failed to raise the question of the invalidity of his prior conviction in another New York court when he was being sentenced as a second offender. Mr. Justice Frankfurter, who announced the judgment of the Supreme Court which denied relief, said: * * * Gayes is complaining of his sentence following his plea of guilty in 1941. What he wants is to be relieved of his imprisonment under that sentence. That sentence, to be sure, partly took into account his earlier sentence in 1938. But upon his subsequent sentence, as a second offender, in 1941, he had full opportunity, so far as appears, to contest whatever infirmity he may have claimed in the earlier sentence when the fact of that sentence was included in the sentence which he is now serving." 332 U.S. at page 148, 67 S.Ct. at page 1713. In a footnote, the Justice added:

"According to the State, Gayes could have raised the claim he now makes against the 1938 conviction at the time he was sentenced in 1941, and from a denial of relief could have appealed to the higher courts. This was not contradicted by the petitioner and is not brought into question in any opinion of the higher courts of New York. It has been ruled in courts of very limited authority that a second offender cannot apply for resentence on a claim that there was a defect in the first sentence imposed by another court. See People v. Keller, 37 N.Y. S.2d 61 (Gen.Sess. N. Y. County), and People v. Paterno, 182 Misc. 491, 50 N.Y.S.2d 713 (Chatauqua County Court). Neither case, however, presented the claim that a violation of the United States Constitution vitiated the first sentence, and neither case raised the power of the court at the time of sentencing to consider such a claim. It is certainly within the power of a duly advised defendant, before pleading guilty as a second offender, to raise the constitutional invalidity of the first sentence so as to secure opportunity appropriately to challenge such invalidity. Nothing that is herein decided precludes petitioner from raising a denial of his constitutional right upon a record that discloses circumstances other than those before us. An order on such a motion is now reviewable by the New York Supreme Court and in certain instances by the New York Court of Appeals." 332 U.S. at page 149, 67 S.Ct. at page 1713.

The New York Court of Appeals in a decision later than the one by the Supreme Court in Gayes v. State of New York, 332 U.S. 145, 67 S.Ct. 1711,...