Rеnnie JOHNSON, Petitioner-Appellant, v. Walter T. FOGG, and the Attorney General of the State of New York, Robert Abrams, Respondents-Appellees
No. 1396, Docket 80-2373
United States Court of Appeals, Second Circuit
July 14, 1981
Rehearing and Rehearing In Banc Denied September 9, 1981.
750 F.2d 750
Though structured in a slightly different framework,6 Judge Conner‘s findings fully justify disqualification under the approach we have outlined. Judge Conner relied upon the risk that the issue of whether Logan had cause to terminate Glueck might well arise in the course of collective bargaining discussions conducted by Phillips Nizer for the Association. He also noted the risk that in preparing for collective bargaining sessions, the law firm might learn of Logan‘s policies or past practices bearing on the subject of Glueck‘s termination. These risks demonstrate the requisite relationship between Glueck‘s lawsuit and the subject matter of Phillips Nizer‘s reрresentation of the Association. Because of that relationship, the strict standards of Cinema 5 apply,7 and we agree with Judge Conner that appellant has not sustained the heavy burden of demonstrating that, under those standards, disqualification can be avoided. The entry of an order of disqualification was wеll within the proper exercise of discretion by the District Court.8 Cheng v. GAF Corp., 631 F.2d 1052 (2d Cir. 1980), vacated on other grounds and remanded, --- U.S. ---, 101 S.Ct. 1338, 67 L.Ed.2d 327 (1981); Hull v. Celanese Corp., 513 F.2d 568 (2d Cir. 1975). The order is affirmed.
David Seth Michaels, The Legal Aid Soc., Federal Defender Services Unit, New York City, for petitioner-appellant.
Lucille Dibello, Asst. Dist. Atty., Brooklyn, N.Y. (Eugene Gold, Dist. Atty., Kings County, Brooklyn, N.Y., of counsel), for respondents-appellees.
PER CURIAM:
Petitioner Rennie Johnson appeals from an order of the United States District Court for the Eastern District of New York, Henry Bramwell, J., which denied his petition for a writ of habeas corpus. Johnson is currently imprisoned at the Eastern New York Correctional Facility, after his conviction in New York Supreme Court, Kings County, following a guilty plea, on one count of criminal weapons possession in the second degree and one count of attempted assault in the second degree.
When he pled guilty, Johnson admitted shooting at a police officer who stopped him and several co-defendants after they failed to stop their automobile at a red light. Johnson was then sentenced to from five to fifteen years on the weapons charge, and to a concurrent zero to four years on the assault charge. He appealed to the Appellate Division, arguing that his plea was not knowingly and intelligently entered and he was therefore denied due process; he also argued that under the circumstances his
In his habeas petition, Johnson repeated his contention that his plea was not knowingly and intelligently entered. In support of this contention, Johnson alleged that he was misled by his attorney as to the sentence he would receive, аnd that the sentencing judge failed during the plea colloquy to advise him of the maximum sentence that he faced. Respondents replied that Johnson had failed to exhaust his state remedies. The district judge rejected this argument and, after examining the transcript of the plea colloquy and sentencing, found Johnson‘s contention that he had been misled to be meritless. The judge also concluded that the failure of the state trial judge to advise Johnson of the maximum sentence that could be imposed as a result of his plea did not violate Johnson‘s due process rights.
Appellees arguе to us that Johnson has not exhausted his state remedies; they contend that there was no substantial evidence in the state record to support Johnson‘s claims on state appeal, so that Appellate Division review of his claims on the merits was “impossible.” Johnson‘s correct remedy, appellees urge, is to petition for a writ of coram nobis, and the continuing availability of this state remedy bars habeas relief. On the record before us, we find this argument unpersuasive. When Johnson raised his claims in his Appellate Division brief, appellees did not rely on the procedural argumеnt now advanced. Although appellees alluded to the availability of coram nobis, they did not press the point, even as an alternative argument. In a recent case with a procedural history similar to that before us here, we held that where the State does not rely on a proсedural bar in the Appellate Division, this court will not “guard[] state procedural rules more vigilantly than the State itself does.” Washington v. Harris, 650 F.2d 447, 452 (2d Cir. 1981). Under the circumstances, we feel that it is inappropriate to send this case back to the state courts for further consideration on the merits. Cf. Kelleher v. Henderson, 531 F.2d 78, 80-81 (2d Cir. 1976); U. S. ex rel. Leeson v. Damon, 496 F.2d 718, 720-21 (2d Cir.), cert. denied, 419 U.S. 954, 95 S.Ct. 215, 42 L.Ed.2d 172 (1974).
Johnson argues that we shоuld remand this case to the district court for a hearing, because the petition states valid claims that cannot be properly resolved on the record now before this court. Johnson cites Williams v. Smith, 591 F.2d 169, 172 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289 (1979), and Jones v. United States, 440 F.2d 466 (2d Cir. 1971), for the proposition that the failure of a trial judge in a plea colloquy to advise а defendant of the maximum sentence he faces may deprive the defendant of knowledge of the consequences of his plea, thereby rendering it invalid. But Jones was a federal case, governed by
Johnson also cites Leeson, supra, for the proposition that where counsel has misinformed a defendant as to his sentencing exposure, an allegation in a habeas petition of lack of knowledge requires a federal hearing into defendant‘s actual knowledge. But Johnson‘s claim about being misled by his attorney is belied by his own statement, on the record during the plea colloquy, that he had received no “promises as to a definite or spеcified period of imprisonment.” As the district judge observed, “[s]uch ‘representations of the defendant . . . constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.’ Blackledge v. Allison, 431 U.S. 63, 73-74, 97 S.Ct. 1621, 1628-1629, 52 L.Ed.2d 136 (1977).” Johnson also relies on a sup
Moreover, during the plea colloquy, the рrosecutor stated on the record, with Johnson present, that “defendant had pled guilty to a crime in which mandatory time is provided by the law.” Also, when Johnson returned for sentencing, a co-defendant was sentenced immediately beforehand to fifteen years, the maximum possible sentence, оn the assault charge. The court then reviewed Johnson‘s probation report, and noted that the maximum sentence had been recommended for him, as well. He then sentenced Johnson. At no time during or after the sentencing of his co-defendant or himself did Johnson express any surprise at the sentеnces, or attempt to withdraw his plea. Indeed, Johnson‘s habeas petition does not even allege that his decision to plead guilty would have been altered by fuller knowledge of the consequences of his plea, even though he would have had to establish this as a prerequisite to habeas relief under Williams, supra, and other decisions of this court, e. g., Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976); Del Vecchio v. United States, 556 F.2d 106, 113 (2d Cir. 1977). Nor does Johnson meet our requirement, as set forth in United States v. Welton, 439 F.2d 824 (2d Cir.), cert. denied, 404 U.S. 859, 92 S.Ct. 157, 30 L.Ed.2d 102 (1971), that “the defendant submit an affidavit of his attorney in support of his claim or his own affidavit giving a satisfactory explanation of why he cannot submit an affidavit from his attorney.” 439 F.2d at 826. Cf. also Del Vecchio, supra; United States ex rel. Roldan v. Follette, 450 F.2d 514, 517 (2d Cir. 1971). We also note that although Johnson was represented by counsel on this appeal, his brief did not explain the failure to provide in the district court an affidavit from his state court attorney, nor did it indicate that such an affidavit could in fact be obtained.
Although we agree with our dissenting brother that habeas petitions submitted by pro se litigants are liberally construed, the district court is not required to provide an evidеntiary hearing to such litigants when their petitions do not raise issues sufficient to merit a hearing. United States ex rel. Spina v. McQuillan, 525 F.2d 813, 818 (2d Cir. 1975); United States ex rel. Marinaccio v. Fay, 336 F.2d 272, 274 (2d Cir. 1964); United States ex rel. Nixon v. Follette, 299 F.Supp. 253, 254-55 (S.D.N.Y. 1969). Having taken into account Johnson‘s pro se status, we nevertheless find that on this record, the district court was not required to grant a hearing on Johnson‘s habeas petition. We affirm the judgment of the district court.
Mansfield, Circuit Judge, dissented and filed opinion.
MANSFIELD, Circuit Judge (dissenting):
I resрectfully dissent. In my view the proper disposition of this appeal is to remand the case for an evidentiary hearing to determine whether Johnson pleaded guilty under the mistaken impression that he faced a maximum sentence of 7 years and, if so, whether he would have pleaded not guilty if he realized that he in fact faced a maximum of 15 years. See Williams v. Smith, 591 F.2d 169 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289 (1979);1 Kelleher v. Henderson, 531 F.2d 78 (2d Cir. 1976); Jones v. United States, 440 F.2d 466 (2d Cir. 1971).
The issue is not resolved by Johnson‘s admission that he did not receive any “promises as to a definite or specified period of imprisonment.” He may still have pleaded guilty in the erroneous belief, based on misinformation from his attorney, thаt
Nor can Johnson‘s claim be dismissed on the grounds (1) that the state prosecutor stated that the law provided for “mandatory time” upon his guilty plea, and (2) that a co-defendant had been sentenced to 15 years. As far as Johnson was concerned the “mandatory time” was a maximum of 7 years. Whether Johnson understood that his co-defendant had pleaded to the same felony classification and, if so, believed he might be subject to a higher maximum penalty as a second felony offender,
Although Johnson‘s petition does not expressly allege that he would not have pleaded guilty if he had known that the maximum sentence he fаced was 15 years rather than 7 years, that clearly is its import and in my view it must as a pro se petition be so construed. Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972); Haymes v. Montanye, 547 F.2d 188, 190 (2d Cir. 1976), cert. denied, 431 U.S. 967, 97 S.Ct. 2925, 53 L.Ed.2d 1063 (1977); Morgan v. Montanye, 516 F.2d 1367, 1370 (2d Cir. 1975), cert. denied, 424 U.S. 973, 96 S.Ct. 1476, 47 L.Ed.2d 743 (1976). We and other circuits have steadfastly adhered to the view that pro se habeas petitions must be construed liberally in the petitioner‘s favor. Jennings v. Casscles, 424 F.Supp. 280, 283 (E.D.N.Y.1976), aff‘d, 568 F.2d 229 (2d Cir. 1977); United States ex rel. Buford v. Henderson, 524 F.2d 147, 152 (2d Cir. 1975), cert. denied, 424 U.S. 923, 96 S.Ct. 1133, 47 L.Ed.2d 332 (1976); United States ex rel. Johnson v. Chairman of New York Board of Parole, 500 F.2d 925, 926 (2d Cir.), vacated on other grounds, 419 U.S. 1015, 95 S.Ct. 488, 42 L.Ed.2d 289 (1974); White v. Wyrick, 530 F.2d 818 (8th Cir. 1976); McCloud v. Wainwright, 508 F.2d 853, 854 n.2 (5th Cir. 1975); West v. Louisiana, 478 F.2d 1026, 1030 (5th Cir. 1973). Here it would be the height of formalism to insist that the petition be dismissed because of failure to express what is clearly implied. The present case is therefore governed by our decision in United States ex rel. Leeson v. Damon, 496 F.2d 718 (2d Cir.), cert. denied, 419 U.S. 954, 95 S.Ct. 215, 42 L.Ed.2d 172 (1974), where we reversed the dismissal of a state prisoner‘s habeas рetition alleging that the petitioner had pleaded guilty in a mistaken belief as to the maximum sentence he would face, based on erroneous information received from his attorney.
For these reasons I would remand the case for an evidentiary hearing.2