United States v. Wilkins

• Decision Date: 29 January 1963
• Docket Number: No. 395,Docket 27411.,395
• Citation: 312 F.2d 559
• Parties: UNITED STATES ex rel. Ronald J. SADNESS, Petitioner-Appellee, v. Walter H. WILKINS, as Warden of Attica State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

312 F.2d 559 (1963)

UNITED STATES ex rel. Ronald J. SADNESS, Petitioner-Appellee, v. Walter H. WILKINS, as Warden of Attica State Prison, Respondent-Appellant.

No. 395, Docket 27411.

United States Court of Appeals Second Circuit.

Submitted June 15, 1962.

Decided January 29, 1963.

Ronald J. Sadness, petitioner-appellee, pro se.

Anthony F. Marra, New York City (Leon B. Polsky, New York City, of counsel), Legal Aid Society, amicus curiae for petitioner-appellee.

Louis J. Lefkowitz, Atty. Gen., of the State of N. Y. (on the brief), (Joseph J. Rose, Asst. Atty. Gen., of counsel), for respondent-appellant.

Before LUMBARD, Chief Judge, and SMITH and MARSHALL, Circuit Judges.

MARSHALL, Circuit Judge.

On June 8, 1961, the relator-appellee, Ronald J. Sadness, petitioned the United States District Court for the Western District of New York for a writ of habeas corpus, alleging the invalidity of his 1940 conviction as a second felony offender and seeking release from the custody of the warden of the Attica State Prison.

The District Court, Henderson, J., after determining that the petitioner had exhausted his state remedies, took jurisdiction of the petition under 28 U.S.C. §§ 2241 and 2254. Hearings were held, and on December 29, 1961 the District Court sustained the writ and ruled that Sadness' conviction was invalid because his "assigned counsel failed to represent him in a competent manner." The District Court ordered that the petitioner be remanded to the custody of state officials for further proceedings under the 1940 indictment. On May 29, 1962 this Court granted the State's application for a certificate of probable cause pursuant to 28 U.S.C. § 2253.

After the case had been taken on submission, we were advised that Sadness had been released on parole, raising the question under the existing precedents of whether the cause had thereby become moot. Because that question was pending before the United States Supreme Court in a case identical in all important respects to this one, we reserved decision until the Court might have an opportunity to speak. Its opinion in Jones v. Cunningham, 83 S.Ct. 373 (1963), now makes clear that a prisoner who is released upon parole remains "in custody" within the meaning of federal habeas corpus jurisdiction, 28 U.S.C. § 2241, and that release upon parole does not render moot an appeal from a habeas corpus proceeding conducted prior to release.¹ We accordingly proceed to the merits.

The facts and circumstances relating to Sadness' 1940 conviction appear at length in the transcript of the habeas corpus hearing. They are essential to an understanding of the central issue presented by this appeal: whether Sadness received competent legal representation at the time of his conviction.

Sadness was brought before the New York Supreme Court for Ulster County on March 18, 1940, upon an indictment for grand larceny in the first degree. The case was subsequently transferred to the Ulster County Court and the judge of that court assigned James G. Connelly as counsel for Sadness. Connelly had been admitted to the bar three years prior to his assignment; during that period he had practiced law, including criminal law, privately and had served as an assistant district attorney for four or five months. The District Court at the habeas corpus hearing made a finding of fact that Connelly "visited defendant on a number of occasions (approximately four) prior to April 11, 1940 the date of pleading and sentencing for the purpose of consulting him with respect to the case." It further made a finding of fact that Connelly had "obtained the consent" of Sadness to enter a plea of guilty to the charge of grand larceny in the first degree.

On April 10, the day before Sadness was scheduled to appear in court, Connelly learned from the District Attorney's office that Sadness would be charged with being a second felony offender on the basis of a 1937 California conviction for statutory rape. Conviction on such a charge carried a mandatory ten to twenty year sentence. The District Court found that later that same day Connelly informed Sadness that he would be charged as a second felony offender. The District Court also found that Sadness "then denied that he was the same person as the man claimed to have been previously convicted of a felony. Counsel advised relator that the proper course would then be to require the state to prove the previous conviction." Connelly testified that when he entered the courtroom on April 11 to enter a plea of guilty to the charge of grand larceny in the first degree, he expected to deny and was prepared to deny that Sadness had been convicted of a prior felony and to demand that the State meet its burden of proof on that element of the complaint.

After Sadness had pleaded guilty to the charge of grand larceny in the first degree, the District Attorney filed the multiple felony offender information, charging Sadness with having been convicted of statutory rape in California in 1937:

"Mr. Haver District Attorney: * * * I wish to advise you at this time you are entitled to a trial of these issues as to the fact of your conviction and whether you are the same individual that was convicted, or you can admit the allegation that you were the individual so convicted.

"Sadness: I admit it.

"Mr. Haver: You admit the conviction?

"Sadness: Yes.

"Mr. Haver: I file the information with the clerk and I move sentence on this defendant as a second offender. I call your Honor\'s attention to the fact that the provisions of the penal law make it mandatory that the minimum sentence should be at least the maximum for which he could be sentenced for the crime of grand larceny, first degree, and that the maximum must be twice.

"The Court: Mr. Sadness, you have plead sic guilty. It becomes my duty, you being a second

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