United States of America Ex Rel. John McGrath v. J. E. Lavallee, Warden of Clinton Prison, Dannemora, New York

(cid:127)308 ex rel. America

UNITED STATES McGRATH, Petitioner- John Appellant, Prison, LaVALLEE, of Clinton Warden E.

J. nnemora, York, New Da Respondent-Appellee. 354, Docket 28087.

No. Appeals States Court Circuit. Second

Argued May 1963. June

Decided defendant, attor- judge, the defendant’s Attorney,

ney, the the Assistant District stenographer, one court and at least 1954, appel- February 2, attendant. On felony lant was sentenced a second a term of less than offender for twenty-nine thirty years. nor more than City, Zener, for York New Robert V. validity appellant’s contention petitioner-appellant. involuntary as to his the character of Deputy Offenkrantz, Asst. J. Ronald guilty plea resulting the and violation of Lefkowitz, Atty. Atty. (Louis J. Gen. upon due turns an evaluation Irving York, and of New Gen. of State place the conversation which be- took brief), Gen., for Galt, Asst. Sol. on appellant, judge, tween the trial respondent-appellee. during appellant’s attorney the con- ference on November FRIENDLY, KAUFMAN Before Judges. MARSHALL, Circuit Accompanying application his District for Court writ of habeas cor- a pus setting was an Judge. affidavit out in con- KAUFMAN, Circuit appellant’s siderable detail version of Appellant prison serving sentence transpired the conference County judgment under a entered judge’s A chambers. similar affidavit Queens York, County, upon Court of New by appellant had been submitted guilty plea of second the crime support New York courts in of his degree robbery. application for a His plication nobis; for coram truth of corpus, writ of habeas founded the matter asserted sworn therein was plea guilty contention that his was not by appellant’s attorney trial as well as voluntarily, entered was Dis- denied appellant Appellant himself. hearing. Brennan trict without charges entering papers in his Appellant previously con- had raised this judge’s the by chambers he was informed application tention in the state courts judge that the discussion was to applica- coram his for writ of nobis that, fact, off the record and there without also denied hear- (although appel- minutes were recorded ing. Ap- The denial was affirmed in the stenogra- lant does concede that a court pellate Division, York the New Court of pher present). appellant Appeals appeal, denied leave to and cer- says, stated that he had been told Supreme tiorari was denied Court. attorney appellant the district that the State court remedies have been exhaust- trial’; “didn’t a chance have ‘on a 2254; Fay Noia, ed. 28 U.S.C. § they bringing had ‘like this’ me both his 9 L.Ed.2d 837 body arms front across the to in- his dicate I that was vise. He went on say On October if went to trial and was degree was indicted for convicted, of first crimes would never see the sunshine robbery, petit larceny, degree my again, second as because record alone would possession sault, dangerous Appellant’s attorney of a convict me.” is al- weapon. leged On November told that his date the ease ap trial, plead called for client was reluctant to the re- pellant plea withdrew of not duced count of in the second and, guidance degree experienced with the feared a sentence of counsel, years. (In entered a York, to rob 15 to 30 New manda- bery degree. Appellant’s tory in the second felony a second or sentence as third decision during to alter his was made offender for second is 7% years, mandatory course of conference cham to 30 while sen- bers of tence as or third a second offender is —attended away degree robbery. going until are old to 60 1941.) emphasize I am not man. But N.Y. Penal Law §§ indicating telling you head, do, The tran- what to son.” “The shook attorney script appellant’s negation my this, trial attor- reveals that and told as to ney fully sympathy anyone pleaded was in with the views before that who judge: automatically the trial received considera- him ** * Appellant he there- that tion.” contends “The Court: what From upon requested postponement in order case, I have heard about this this is pleading to consider the alternative of guilty, very serious crime. The defend- judge’s refusal that but ant must consider that in relation to judge yield.” his chances which are-— n compelled is- “I The felt to appel- then to admonished said have George: “Mr. I know hasn't he you the court- lant: “When room, return to Judge. any, going you I am to ask he convicted, “The Court: If you promise you, are to was made to mandatory am faced with a first- answer, ‘no.’ Is that understood?” degree robbery as a second offender. responded appellant in which “Mr. Your hands affirmative. Your tied. are tied at 15.” hands conference version of The State’s transcript appellant The reveals that judge’s in differs in trial chambers agreed thereupon guilty plea, to enter a respects material from that certain to the lesser and his counsel con- attorney. appellant his trial decision; returning- curred in the upon stenographic tran- State relies courtroom, judge the trial directed scripts proceedings in chambers of the appellant to in answer the affirmative- in when the well as the courtroom when asked whether or not he wished to. formally plea tran- entered. The was plead guilty. script re- of the in conference chambers allegations challenge Petitioner’s the- judge outset, veals that at the authenticity transcript of the State’s you trial, you will that “if want stated certainly proceedings of the in cham- conference get a fair trial.” But he noted Indeed, papers bers. his raise the claim- appellant’s acquit- that the likelihood that no minutes of the conference were- good,” that if “not too tal was taken, ever immediately for the convicted he would be entitled to no noted that was to “off be the record.'” “might from the who consideration that, He also contends even if the min- you away for the rest have to send your taken, they utes were apparently were judge constantly life.” re- not transcribed later, until six making prom- that “no iterated he was that the transcribing stenographer might, your sentence,” and that “You ises as well been have different from the re- very here, able counsel one of the porter present judge’s in chambers, telling you you I am not what best. accounting thus for errors or inconsisten- you do or what should not should do. transcript. cies in the Moreover, peti- merely pointing you out am conference, version of tioner’s stated that He the accused face.” in transcript itself calls the question,, into responsible not he was knew whether or attorney sworn to his trial in an charged, for the crimes and that the de- incorporated affidavit in application proceed guaranteed trial, cision papers. trial, be a fair the defendant n Appellant alone. was reminded that a Petitioner dispute does the ac- curacy - the second of the proceed- of the ings in, appellant oppor- place offer the subsequently would “some which took receiving tunity courtroom, formally shorter sentence when he entered' ** he, guilty plea. If I *. sentence after a con- his This reveals that degree, you responded affirmatively judge- viction when the protest lant’s failure to to the trial realize further (cid:127)asked: “And do you, your imposed promise the sentence violated made to has been implicit promise anyone behalf “indicates an after- .attorney, else or thought punishment concerning any petitioner.” part sentence might time, therefore, should At no state meted out to either you?” accepted court, from re- me or the federal such does, however, question state ceived a Petitioner on the question- regarded plication authenticity stenographic “I tran- dressing.’ accurately im- ing script purporting I trusted record as ‘window given Judge’s plicitly assurance the conference in chambers on No- held given ‘con- in chambers that would be vember 1953. record dis- the sideration’.” Nonetheless We therefore hold that District occasions, four closes that on at least disposing appellant’s erred in of pellant apprised in was hearing application a as to the without consequence a open of court authenticity questioned of steno- away “going guilty for plea would be graphic transcript, and we remand for long prison. a time” in proceedings further consistent with opinion. later, the court and a half months Two years im imposed of 29 to 30 a sentence conviction, It is clear that a just prisonment; imposing in a sentence court, in a state federal based or statutory maximum, the trial short of involuntary plea upon an —one clearly made known that was by promises or induced threats —is in appellant’s un most influenced with due If consistent law. savory was before criminal record which plea product coercion, was the sentencing probation report in him on a physical, “un mental or or was either him time he ac and unknown to at the given through igno fairly obtained or appellant’s plea.1 cepted inadvertence,” rance, or fear Kercheval States, 224, 220, United 274 U.S. 47 S. v. upon application passing appellant’s In (1927), 71 L.Ed. 1009 Ct. corpus, for a writ of habeas court judgment upon which rests of conviction papers sub- below examined subject and is to collateral at it is void opposition support in in mitted of and corpus. on federal habeas See tack steno- the motion. He found that States, United 368 U.S. Machibroda v. graphic transcript offered and records 510, 487, 493, 82 473 peti- S.Ct. L.Ed.2d “conclusively 7 by the State refute Waley Johnston, (1962); v. 316 U.S. either contention that he was tioner’s ; 964, 101, L.Ed. 1302 62 86 S.Ct. threatened, promised, or in overreached Johnston, 275, 61 S. Walker v. entry of his matter of the (1941); 574, United L.Ed. 830 Ct. 85 applica- plea,” therefore denied F.Supp. (S.D. Tateo, 214 560 v. petitioner’s hearing. The a without N.Y.1963). rejected “con- not because were (cid:127)affidavits vincing steno- petition support a contradiction in When the appel- corpus transcript,” application graphic habeas re- ap robbery in the third the words In 1. record, starting long Reception with pellant has “a to Elmira Cen- was sentenced apparently yet 1945, being at in In involved another After misdemeanors.” ter. charged 15, offense, appellant guilty, age he was found battery, Jersey, but assault and of armed sen- with New Bronx dismissed because in the state reform- had to be to fifteen tenced indictment badly paroled year later, atory. complainant was too beaten to He was after, case, testify against he was In the instant the crime for him. Soon charged sodomy, burglary (cid:127)charged and rob involved which larceny petit completed bery, after which the victim was ac but severely by appellant given suspended cepted beaten with a sen and he was pistol 1947, appellant, upon and a bottle. loaded In Queens tence. 312 palpably incredible”, v. defective or Machibroda face that its veals may States, at 495, 82 law, U.S. at S.Ct. the habeas as a matter of 514, 473, “patently application hear L.Ed.2d or dismiss the without false,” 2243; ing. v. frivolous Commonwealth Walker See U.S.C. § 578, Pennsylvania Claudy, Johnston, ex rel. Herman at v. at U.S. Moreover, at 100 L. S.Ct. at

85 L.Ed. 830. required court Ed. 126. the habeas when uncontested it a full and mind, principles in these With proceedings fur record of state impelled Dis that the we are to conclude necessary for a nishes all of the data denying the writ trict Court erred satisfactory factual determination allega hearing. without a Petitioner’s Sain, issues. Townsend v. accuracy contesting of the tran tions (1963); 9 L.Ed.2d 770 S.Ct. believe, script question cannot, we Machibroda United justly their face be found 513-514, L.Ed.2d at 473; at Johnston, S.Ct. patently palpably frivolous. incredible or at Walker marginal cases, always “There will 830; 85 L.Ed. line. is not far from and this case Carolina, F.2d 283 North Grundler v. specific as detailed factual But the and 1960); ex Cir., United (4th 798 improb petitioner, sertions of the able, while (2d Jackson, 256 7 F.2d rel. Wade juncture said to. cannot be at this 908, denied, Cir.), 78 S.Ct. 357 U.S. cert. Machibroda v. be incredible.” (1958). When, 1152, L.Ed.2d 1158 2 States, 82 at 514- 496, 368 U.S. at S.Ct. alleges petitioner however, that a fully agree 515, 7 with L.Ed.2d 473. We product by of him the entered transcript the offer court below that the threat, are deceit, promise, and facts greatest, by ed the State is entitled to the support that specifically set forth which weight. spe of But also it is true that allegation in create issues and which irregularity allegations fraud or of cific by simple capable a exam of resolution accuracy dispute of' the which call into and records before the ination of files prisoner hear record entitle the to a Court, District that court the federal ing. Johnston, 312 U.S. See Walker v. hearing. grant petitioner 830; must 286, at 85 579, at 61 L.Ed. S.Ct. petitioner States, U.S.App.D. cannot be denied Certainly, 107 Daniel v. United denied, (1960), merely 110, hearing F.2d cert. the facts C. 274 768 assert 1935, 970, 6 81 S.Ct. L.Ed.2d the answer are contradicted him ed States, (1961); Smith v. United 1260 officers, prosecuting for it of the State’s Cir., 1954); (5th F.2d Winhoven 216 724 factual which creates the denial (9th Cir., States, 174 201 F.2d v. United Commonwealth of be resolved. issue to Claudy, 1952); Pennsylvania Machibroda v. United cf. rel. Herman v. ex 223, 494-495, 123, 513-514, 76 100 L.Ed. 82 at 116, S.Ct. 368 U.S. at S.Ct. U.S. 350 Cunningham, 473; Teets, (1956); Reickauer v. Chessman v. 350 7 L.Ed.2d 126 (4th Cir.), denied, 34, (1955); 3, 4 cert. 100 L.Ed. F.2d 170 76 S.Ct. 127, Dickson, F.2d L.Ed.2d 103 737— S.Ct. Chavez Sain, 1960), denied, (9th cert. Cir., Townsend v. . L.Ed.2d 770 L.Ed.2d 366 than, principle: (1963), done sets out the basic Petitioner more has facts, dispute, merely set forth a version of are fed “Where facts corpus contradictory in habeas must hold an to that offered court eral hearing alleges State; evidentiary appli specificity, if the habeas he which, above, not a full fair certain did receive evi noted cant dentiary conditions court, accuracy question in a state either into call and in authenticity or in a transcript. the trial collateral of the the time of deed unless, petition proceeding”; course, thus raises a triable of He issue which war hearing. allegations “vague, conclusory, are rants er’s gestures e., briefly that statements on true —i. but comment needWe not were made that Court District the observation transcript they are in suspect reflected allegations on were petitioner’s — guilty plea his sufficient to establish lapse more that because of their face ges These statements and was coerced. years between half and a than six accurately tures, if in fact made but sentencing and the date date may recorded, the Dis considered application state nobis coram determining trict Court in facts version in which his courts promise thought threat or sufficient to make out that this presented; he prima afterthought.” case of has been coercion “indicates facie dilatoriness peti established. lapse time that It is true light, bringing this issue tioner’s reasons, we cannot For much same time of failure at the addition his argument a hear- adopt appellant’s that implied protest sentencing that an unnecessary ing and that by the trial promise had broken been prison- and the reversed below should issue to raise the his failure theory discharged on the er appeal from coercion direct facts establishes version State’s conviction, doubt all some cast state The steno- of law. a matter coercion as allegations veracity petitioner’s graphic the conference credibility would cast doubt the trial reveals chambers hearing. at a reiterate them were go chose to if he informed consistently held that But it been one, a fair he would receive to trial improbability or incredibil assertions being acquitted were the chances delay ity merely upon founded good,” that if he was convicted “not too right, are a constitutional assertion of “might” away the have to be sent for he deprive petitioner to the of not sufficient (appellant was 24 his life of rest hearing in the first instance on contest for rob- maximum sentence and the old ed facts. Machibroda v. United See bery of the four first one the States, 495-496, 368 at 82 at U.S. S.Ct. charged, 60 in this case crimes 473; 514-515, 7 L.Ed.2d Walker John v. years), if and that he entered ston, 287, 579, 312 at 61 at S.Ct. plea lesser he would “have offense passage 85 L.Ed. 830. The mere of time receiving opportunity shorter some deprive petitioner does not of his through judge’s considera- sentence” right challenge constitutionality his desire to a new life” for “start tion his cor confinement writ of habeas himself. The trial stated that for pus. See United ex rel. Wade v. States promise no sen- “I make as 7, Cir.), (2d Jackson, 256 F.2d 10 * * cert. on some six occa- tence denied, 908, 1152, 357 2 78 S.Ct. emphasized that the decision as sions (1958); L.Ed.2d 1158 v. Farnsworth or not to enter the to plea States, U.S.App.D.C. 98 59, United 232 completely in the hands of 59, (1956); F.2d 62 A.L.R.2d 423 United judge, he, pellant was not Morgan, (2d Cir., States v. 222 F.2d 673 telling Appellant him what do. was at 1955); Haywood States, v. United 127 by experienced assisted counsel all times F.Supp. (S.D.N.Y.1954). 485 in fact commendedthe for his who considering and who we fairness We remand that, after the en- of law even thanked find a matter as cannot accepted in the assuming courtroom. petitioner’s contentions to be tered Cir., 1960) ; States, (8th See, g., Berry, F.2d 281 805 States v. 309 e. United States, (7th Cir., 1962) (dictum) ; 311, F.2d v. United 249 293 Euziere F.2d 314 1957) ; Lias, Cir., States, (10th United States v. v. United 292 F.2d 346 Shelton Cir., ; (4th 1949) Cir., 1961), denied, (7th United F.2d 685 cert. 173 369 U.S. Tateo, F.Supp. (S.D. 877, (1962) ; 1149, 214 v. 560 L.Ed.2d States 82 S.Ct. 280 8 N.Y.1963). v. United F.2d 646 Hassell 287 1961) ; Cir., (9th Heideman United v. 814 entering 875, denied, 120, 364 The' record while 81 5 shows L. acknowledged ;

plea,- appellant Smyth, Ed.2d 97 Brown v. 271 (4th Cir., promises 1959) ; him to made induce 227 had been F.2d Decatur v. plead; (5th Cir., 1950); on issue Hiatt, so evidential 184 F.2d 719 this is although conclusive, Diggs Welch, U.S.App.D.C. 5, voluntariness, v. 80 148 Tateo, F.Supp. (concurring opinion), F.2d denied, 670 see United States v. cert. (S.D.N.Y.1963). It is corrobo- 65 S.Ct. judge’s open (1945); rated statement L.Ed. 2002 Tateo, United v. States occasions, court, F.Supp. (dictum); four that the on some at 567 prisoner’s guilty plea expose him Monti, F.Supp. would United States v. long imprisonment, (E.D.N.Y.1951). Court,, term to a The District hearing, may after a well conclude that say a matter cannot We attorney and his trial had a inference reasonable of law hope expectation lighter that a sen transcript supports one the cold which imposed; tence would be but it is well entering of involuntariness guilty disappointed settled expecta that a mere explanation to plea.3 The mere leniency, opposed an under prisoner the alternatives standing judge, with the trial is not improper coer viewed as him cannot plea. sufficient cause vitiate a See judge; part coer on the cion States, U.S.App. Futterman United may prisoner well sensed cion (1952); D.C. F.2d realities of emanated from (2d Cir.), Lowe, 173 F.2d 346 hap wholly apart situation, from what denied, cert. pre appellant’s pened in chambers. (1949) ; Huff, 93 L.Ed. 1747 Monroe v. grave of the manda risk dicament—the U.S.App.D.C. F.2d higher tory for the recidivist sentence hearing, A time the convicted —had may participants court call the habeas explained him been occasions several ap the conference in chambers—the consequences attorney, attorney, pellant, his the district attor largely could offense on this conviction ney, necessary, simple from a exam deduced have been stenographer and other officers— sections the relevant of the ination of may well unearth facts as to the sur judge’s the re We read penal code. rounding circumstances and unrecorded by or threat an enticement gestures as point not marks comments or which to an by prior commitment the opposite aof conclusion. We are mindful that means sentence, prisoner’s memory ig judge but as the the dulls of some and time description fancy merely conse the a fair the of others. How this nites prisoner’s by presented ap quences attendant the case affect will description plea, proof which pellant, has the burden who at choice manifestly Johnston, to an de hearing, essential informed Walker v. 312 prisoner. See, part 579, 286, 830; of the at on 61 S.Ct. 85 L.Ed. cision Long States, Zerbst, v. 290 F.2d g., Johnson v. 468- e. 1961); Cir., (9th (1938), Jones v. United 82 L.Ed. 1461 58 S.Ct. (9th Cir.), F.2d cert. District Court for the to decide. quoted portion ty (compare of the in v. A Euziere United States convey dissenting opinion Tateo, sup- in order to v. cited and United chambers, dissenting opinion), port conference in “tone” but rather Judge judge sympathetic Marshall which believes to and able a “tone” a seasoned oppressive. preeminently or coercive dilemma in which the with the defendant transcript, however, seeing it is himself and interested in As we view found fully precisely with a view far more consonant of the defendant understood stern, judge him as one who is not both and the trial over- what faced overbearing, eager, light realities of the or determined to in- of the situation. guil- pleading the defendant into timidate great guilty plea place type us with a criminal defendant Cases already when, awaiting trial strained trial before him—even burdens machinery here, acting as soundly federal appellate and what vintage, of ancient considers courts. cases the defendant’s best State frequently in interest prosecution and in witnesses line with the recommenda with body, presently experienced counsel, tions of accessible of mind or being defense judiciary likely by result federal reviewed abstention is to be a heavier for new courts sentence for returned to the state the defendant whose rights proc pro “due due of a failure of clause aims to trials because original proceedings. However, tect. This one ess” contends only by such a per can conversation cause frustration ais se judge, prosecutor process; denial indeed to due decision turns judge. probable frustra federal district But this said and its effect. reviewing A ignoring justify impose the mandate cannot court must not on a given hard-pressed Court, partic prius Supreme judge, speaking nisi us ularly Fay Noia, extemporaneously recent cases of criminal defend ant, precise L.Ed.2d standard of and balanced Sain, (1963), expression always Townsend realized even in (1963), opinions judges appellate L.Ed.2d have had proper ample opportunity to reexamine these cases where to revise. We must bring peti phrases .and them if the look not to isolated but to the general allegations tioner’s and the record re tenor. As Weinfeld said quire thorough inquiry Tateo, F.Supp. as to the merit United States v. charges. not, however, (S.D.N.Y.1963), my .of I do share cited my Friendly brother concern for MARSHALL, brother the issue is the predicts opening what he will be state of the defendant’s mind and that floodgates prisoners’ petitions as “is fact, to be decided the trier of the holding today. a result of our For we just jury, any whether court or other shall still assume that the District Court fact issue—the reasonable inferences to jaundiced eye any will view with a mere surrounding be drawn from all the facts allegation, more, steno without Where, here, and circumstances.” this graphic proceeding of a are in minutes issue fact has been tried ato district ; accurate we do not hesitate to hold that findings the absence of —in this itself is insufficient to necessi applied indication that he hearing. erroneous sub simply tate a It is that the un procedural stantive standards —are presented by usual circumstances entitled to the benefit of the “unless margins case the barest of raise— clearly erroneous rule” of F.R.Civ.Proc. —a triable issue which warrants what 52(a). Crump ex rel. may generis well be sui treatment. (7 Cir., 1961), F.2d 699 Sain, 295 cert. grateful We are Zener, to Robert V. denied, 7 L.Ed. assigned Esq., who, as counsel for (1962), and cases 2d 794 cited. It is pellant, ably conscientiously has most and insofar as this rule true that on the rests represented preparation him in the and observation of the trier’s and witnesses presentation appeal. of this findings credibility consequent upon We therefore reverse and remand for a that, force is its diminished where there hearing. appel and both trial was no and proceed on written late courts records. Judge FRIENDLY, (concur- Circuit may wholly disregard rule But the not be ring dissenting). case; “applies in such ed also to Perhaps, undisputed avoid a factual from order to later inferences claim basic consequent Duberstein, I. R. v. facts.” C. of coercion denial of due judge process, would be wiser to ab- L.Ed.2d any stain from conversation about a Judge why

The conference in cham Groat’s should he have been entitled to “con objective, sideration,” bers why sentencing was ad devoted would a mittedly beneficent, exploring required approach wheth not feel er judge’s- McGrath’s interests would be better maximum? The context is the by standing repeated served emphasis trial on indict the decision as degree robbery pleading ment for first a light make, was for McGrath to conduct, degree robbery. to second There of what he knew of his own surely being impropriety against was People’s no and of the his him. evidence ranges advised of min affidavit,, the different conceded in own As McGrath’s imum and counsel, maximum sentence for the two he had told his even enter crimes, which, indeed, willing room, he seems al ing the court that he to- ready degree plead robbery have been made well aware to second if commitment, get counsel. Where the state counsel could a written strayed beyond per sentence; remaining- claimed have as to the the issue saying, missible was in at various bounds discussion in chambers was whether times, that if McGrath were convicted he would do this without one. Doubtless degree might robbery, “I by pleading guilty first hoped to- McGrath you away your life,” degree send for the rest receive a he would second “you will be entitled to no consideration maximum, he- sentence less than the but going me,” you kind from to and knew full that their counsel well away avoiding “until are an old man” or only assurance was that he was long time,” “for a mandatory and “there can be minimum sentence of 15' no consideration.” No doubt it would years permissible and a maximum of 60.. had sentencing, well Groat insert have been At the two and a half months. qualifications that we ed more of later, the stated with obvious sin though judges qualified love—even cerity, that when McGrath was first be might in fact have less statement been him, fore he “was still not familiar with unqualified But accurate than one. details,” all and that when he ascer determining whether the district full tained the extent of McGrath’s vi finding judge erred in that these state record, cious summarized footnote to1 McGrath, had not we ments overawed my opinion, brother KAUFMAN’S background must consider the and the itself, learned more about the crime his- background context. was a first permit go conscience would not him to degree robbery being that had missed materially statutory below the maximum felony only by good murder fortune surviving lesser which, for the offense victim’s to his. a violent att McGrath, multiple offender, regret, expressed 2*****If ack.1 he had allowed Mc- crime, jury were convicted plead.2 For us to turn a Grath man proceedings 1. In the case, it. You will accuracy sentence, of which is unchal- agree with me on that. lenged, Judge said, Groat without contra- “Mr. have no doubts as to diction, “very lucky that McGrath was that, Judge. charged here that he is not with murder question “The Court: There degree” and that the victim whatsoever the defendant would be- “almost killed.” convicted. was still not familiar with details; say you quite following excerpt all I transcript and to 2. The from the honestly quotation: now that had I known all the de- merits boy very and the fact sentence, tails that this proba- is No “The Court: with lucky charged exception one, that he is not bly here has caused this in murder the first I doubt wheth- more concern —concern Court because of I would youth er have taken the I did. defendant and concern may, through your my duty But be that as it society, ef- is to for what to the Peo- forts, George — n County. Mr. ple orig- of this When this was you trial, inally up your you, for “Mr. will Thank remember Honor. spoke spoke I to and through that we both to “The Court: —and the Court’s If defendant. there ever this was a first soft-headedness soft-heartedness —I allegations society except to men on true as those loose record with McGrath’s circumstances, he tioned after information and belief under these true”; mini- those he as only than the believes them be more served a little corpus mandatory lesser tells- McGrath’s habeas us, affidavit mum sentence People prepared now himself this were had form offense—unless the agreed lawyer prove bru- sent it of the who had able to the commission sign in they prepared to do advance to it. Since McGrath’s tal as were years ago be, my eoram in nobis had view and affidavit in fact ten —would challenged authenticity my Mar- tran brother of the with all deference to shall, script, corpus apparently of whose habeas existence he an abuse federal great People was response principles not aware filed it in and the that it serves. until the attorney’s. petition, my KAUFMAN’S brother As read jurat likewise Moreover, did not. Mc- agree if it that opinion, would he and Grath’s own version of what occurred Judge not to Brennan proper for was Judge in Groat’s 1953 re chambers in transcript proceed- go beyond presump inforces rather than rebuts the denial ings the state regularity transcript, to which the petition affirmed. should be of McGrath’s Apart naturally being is entitled. from holding disagree an with his IBut chiefly more abbreviated, it differs required in this evidentiary making judge’s remarks somewhat good case, fortune we have the where more colorful in two instances and in transcript face and fair its possess a including supposedly tell-tale shake of transcript “to be an accurate certified judge’s my Attorney head “when Official Court proceeding” of this years.” Assuming mention 15 to 30 in. applications, both Reporter. McGrath’s McGrath’s favor this assertion as- habeas federal nobis and in state coram corpus, judge’s to the shaking of the head in stenographer admit that the go unchallenged hearing- 1953 should at a present the conference years later, imagine ten I cannot charac- is now What Groat’s chambers. give trier of the facts would it the challenge as a McGrath terized slightest transcript effect when the re transcript authenticity a state- is episode alleged cords no such is coram, initially ment, in his made state have occasioned the shake.3 “Where- after nobis affidavit seven ** * testimony is in conflict with corpus event, repeated in his habeas contemporaneous give documents we can application, the con- that the said * * weight it little United States record,” “strictly off ference was v. Gypsum Co., reports whereas 364, 396, 68 S.Ct. 92 L.Ed. 746 beginning the conference chambers by saying “Let the show record jury It is in Supreme there here. chambers.” no Recent decisions of Court alleged grounds “chal- expanded The lenge” corroboration the substantive attorney prisoners con- may McGrath’s on which state seek fed- affidavit, Mapp form corpus, Ohio, sists a seven-line eral habeas generally verify plead- used New York L.Ed.2d 1081 Colorado, ings, (1961), overruling “That he has read the affidavit of Wolf v. your depo- John McGrath L.Ed. knowledge ; nent’s the attached affidavit is Wainwright, Gideon approach judge’s don’t know which—a closest re- accepted promises mark, the defendant, knowing from the second “I make as to give you every sentence, would face I will but degree. had been the I have ex- consideration are truthful and there my I have talked to hausted people. conscience. indication that want to start a yourself.” I have searched the and I record new life for have examined conviction record boy.” 318 397, Allen, 335, (1963), 443, 537, 792, 799 v. 344 73 S.Ct. 83 S.Ct. 9 L.Ed.2d U.S. 455,

overruling (1953); Brady, Clark 316 97 L.Ed. 469 Justice Betts U.S. Mr. v. dissenting (1942); Noia, supra, 1252, Fay 372 62 1252 86 L.Ed. S.Ct. v. 852-853, Douglas 353, 445-446, 9 California, 83 at at 372 U.S. U.S. 83 S.Ct. v. rights Draper impair 814, (1963); 837, S.Ct. 9 L.Ed.2d 811 L.Ed.2d and Washington, 487, a new v. 83 S.Ct. other constitutes suitors, 372 U.S. federal major 774, (1963); problem 899 Ker Cal administration v. in the L.Ed.2d ifornia, justice. -, federal S.Ct. have eliminated Other decisions handled, problem largely must requiring compliance previous conditions Supreme said, “on Court has very appellate procedures with state by judges line, front who district largely, prior application Su paramount responsibil- conscious of their preme Fay entirely, Court for certiorari ity area”, Sain, in this v. Townsend Noia, v. 745, 760, 9 83 S.Ct. L.Ed.2d overruling (1963), L.Ed.2d 837 Daniels (1963), York, partic- 770 ularly, by New more Allen, —in the 443, 482-487, 73 S.Ct. judges for the Northern (1953) implicitly 97 L.Ed. 469 whom, and Western Districts on Burford, Darr v. 70 S.Ct. prisons, of the location of the state (1950) explicitly. L.Ed. disproportionate share of burden opinion writer’s in United ex rel. appeals falls. The courts of should not Vallee, (2 LaNear Cir., 1962), La 306 F.2d 417 already make the hard task of these way pris cleared judges by perfectionist harder attitude oner, sentenced under New York’s multi evidentiary hearings require that would challenge ple law, offender the con in cases where no substantial reason has validity prior stitutional conviction, out-state holding only been advanced for one. Not used York New as basis promiscuous grant would “the too taking sentence, for increased without * * * evidentiary hearings swamp proceedings in the These sister state. the dockets of the District Courts and decisions render inevitable that unnecessary cause acute and friction federal courts in districts where state organs justice,” with state of criminal prisons are located will be inundated Sain, supra, Townsend v. atU.S. corpus applications. habeas Since L.Ed.2d it would were decisions not stated to have high purposes defeat the also of the Su- prospective effect, the tide rise to will by relegating preme Court the occasional proportions during flood the next few worthy applicant position a remote many prisoners, when hundreds of queue. There is a limit to fed- way years, over convicted scores whose judges do; eral district can to the extent corpus federal habeas had seemed bar up that hearings their time is taken useless procedural grounds, on red substantive or applications by prison- state be, had been held to will or even be simul pressing ers, useful ones and other busi- taneously pressing for relief. Until the ness of court will have to wait. Here pressure eased, basis, on a short term matters, in other the best can become Congressional provision good. enemy for more of the McGrath has supporting judges personnel showing require these made no sufficient otherwise, and, ultimately, judges districts or that one of the two of the North- raising by the of state spend day standards crim ern District New York procedure busy taking inal to the level of due of his life in or two the testi- Supreme Court, handling mony set prosecutor, state of the n litigation way counsel, this wave such a McGrath’s and the corpus ap stenographer, the' sheer mass of habeas to determine that what the prevent plications will not Reporter the effective Official Court certified to disposition ones, transcript” proceed- meritorious see “an accurate concurring ing judge’s Mr. Jackson Justice in Brown chambers was what it charges against purports concerning unusual circum- the court I see no to be. alleged warrant them.” The stances in McGrath’s ease to other involved eases generis by bad counsel, sui in his favor. treatment advice defense and/or promises by prosecuting or threats attor- Judge Bren- I would therefore affirm neys government agents. None comes However, since denial the writ. nan’s my even appellant’s close to this case. Here merits are views on the ultimate attorney only carefully not advised him Judge to closer than KAUFMAN’s possibilities urged of all the but also him Judge join MARSHALL’S, I with the plea. take Appellant the lesser con- simply reversing hearing, former in for sistently going refused and insisted on disposition can be order that some to trial. This was situation when the made. Shortly case was thereafter, called. pellant agreed plead guilty to the lesser Judge MARSHALL, (dissent- Circuit offense. What intervened in the mean- ing). time? The conference held in chambers Disagreement goes my brothers request at the only was to the result reached. The remand order intervening event. by majority purpose ed is for here concerned with al We not determining authenticity of the “the legations given the defendant was questioned stenographic transcript.”1 by attorney his own or was bad advice questioned transcript The introduced promises prosecuting made ney. attor State, which rested case its usually The former are considered appel support it. If it sufficient to inadequate process ques to raise a due claim, granting justifies lant’s it were sufficient to “[i]f because prayer discharged that he “be from cus intelligently plea show that his not tody.” Certainly the not en State is few, any, made if convictions sen titled to a new as to the au guilty pleas would be valid.” tences thenticity transcript of a which it itself Huff, U.S.App.D.C. Monroe v. challenge Appellant’s introduced. validity (1944). The latter are F.2d transcript for was a usually inadequate considered “for the relief, transcript alternative if the supposed must know, defendant be controlling Therefore, insufficient. experienced, advised, or to he is if he question is whether or not “the cold counsel, promise that such a transcript” support appel is sufficient to binding ought way my clearly In lant’s claim. view is. judgment prisoner’s not to affect the pleading.” Judge opinion KAUFMAN United ex rel. Wissen pro- Wilkins, (2 Cir., 281 F.2d holds that feld ceedings provide 1960). States, in chambers does Cf. v. United Shelton invalidating (5 Cir.), grounds banc, of F.2d 101 rev’d en 246 F.2d (1957), error, in the second rev’d on confession of did no than the trial more S.Ct. L.Ed.2d 579 (1958). explain defendant the Machibroda realities See United States, in which he faced a choice the situation 7 L.Ed. concept pleading proc lesser Our of- 2d due between standing between, trial for must draw a distinct line fense or ess degree. hand, Of the cases cited in on the one advice from and “bar gaining” any par- prosecut opinion, one involved between defense judge. ing attorneys opin- and, ticipation the trial on the other hand, dis by judges ultimately Futterman v. who are ion in cussions length U.S.App.D.C. 202 F.2d 186 determine sentence to especially appellants imposed. when, mentions that were ad- This true attorneys here, the conference in their “as well chambers is vised or- IOrafman, opinion supra, 319 F.2d at 311. See '320 any bery? by without That is one of reasons himself dered talking you not by I I do apparent request defendant am to now. either give long long,

prosecutor. like sentences. to George: him, “Mr. advised have safeguard procedural proc- due Judge. long is adequate it so as remains ess Joseph Yards Yes, Stock “inexorable.” St. “The Defendant: sir. Co. v. United George: a “Mr. and 16 (1936) (Bran- S.C. 80 L.Ed. first— déis, J., concurring). A you think “The Court: advise due a all of the in lieu of trial with full you convicted, I it If over. are safeguards protected itself is might you away have to send by federal Due Process Clause your rest of life. question of and state statutes. On your it, “As I see likelihood ability a enter of the defendant being good. acquitted Of too is not guilty plea assistance without you you course, trial, if want will a counsel, Frankfurter, in a Mr. Justice certainly get you fair But trial. Gillies, separate opinion in Moltke v. Von you are must remember If this: 325-326, S.Ct. convicted as second offender clearly (1948), L.Ed. 309 set forth you robbery degree, in the first will process requirements: due basic be entitled no consideration capacity “There must be both kind from me.” understanding to make an choice subverting an factors so proceeding absence The conclusion clearly illuminating: choice is free equally responsible. If the choice is be- If is a convic- “The Court: there clouded, duress or first tion of misleading honestly advice, however there can no consideration. then prosecu- offered a member of do, you son? want to do “What guilty accepted tion, a with- take it. “The Defendant: will out more than what this dis- record accept the hardly can We will closes called a refusal “Mr. put feeling plea. the inner of innocence to the fair test of law with Son, if this is what Court: “The intelligent conse- awareness you do, when we return to want to quences.” you question and I the courtroom concerning you plea, an- principles must apply In these order to categorically. means, necessary present case, swer That have you you plead guilty, understanding when I ask of the tone .an which yes. say proceedings must set at which chambers: he held Defendant: Yes.” “The Let the record “The Court: show long In line of from Brown v. cases jury here. It is in there is cham- Mississippi, State of bers. Haynes 80 L.Ed. boy “They me that tell Washington, p. 503, caught by off-duty policeman. an Supreme expressly Court long has a record. He repeatedly declared that the inno- George guilt of the is irrele- “Mr. attor- cence or accused [defendant’s right. ney] : the determination of whether or That’s vant squares conviction with the re- “The Court: Do realize what process. quirements of due happening? you realize the Do many you might “Indeed, cases in .sentence to face first-degree Due the command of the Proc- offender in a rob- second compelled re- us to after conviction of ess Clause has involving degree, you going away are to be verse state convictions until im- obtained old man.” At the same use of confessions independent judge methods, time the lant, permissible appel- trial advised the corroborating very, very “On hand, left little the other evidence plea being fair Attorney” de- is what the offered doubt of the truth of the District Despite promised, “I fendant had confessed. make no promises your verification, sentence, were confessions such but will give you every product you found to tionally impermissible of constitu- be the consideration if truthful and methods there is an indication that you Rogers your- Rich- want to inducement.” v. start their a new life for mond, 534, 541, self.” In purport 81 S.Ct. order that the full of proceedings 735, 739-740, may 5 L.Ed.2d 760 in chambers grasped, pro- the entire is on a It likewise clear a conviction ceedings is appen- attached hereto as an plea guilty con coerced of more is no dix. process sistent with due than a conviction supported requires a coerced confession. Wa plea New York law that a of ley Johnston, guilty put v. 62 S. “can the defend- (1942). For, open Ct. L.Ed. 1302 ant himself in court.” N.Y.Code of requirement “aim of the of due Crim.Proc. 335. At the § conclusion of presumptively proceedings is not to exclude false evi in chambers the trial dence, prevent judge said, but to un “Son, fundamental you if this is what evidence, do, the use fairness of whether want to when we return to the court- California, true question you or false.” Lisenba concerning v. room and I your 219, 236, 289-290, you plea, categorically. must answer (1941).2 means, 86 L.Ed. 166 That guilty, plead when I ask say yes.” must This direc- qua judge judge In this case the open foreclosed the usual court in- appellant long he had “a told the vestigation as to the voluntariness of a it, record.” “As see the likelihood of plea guilty. resulting of formal an- your being good.” acquitted is not too gave which swers Attorney that, defendant then “The District has told me questions opinion, many open which he in his was asked in has witnesses provide “Considering any court prove support thus can little if who case.” argument plea your case, only you that his record and the can was not go Haley, Ohio, coerced. See decide whether wish to to trial in v.

the indictment of in the first L.Ed. 224 de Haynes gree jury. said, Washington, before a IAs if the Attorney proves p. 503, District the case as he S.Ct. 1336. outlined, has the likelihood of be opinion KAUFMAN’s accurate- ing good.” acquitted is not ly plea states the basic rule that if a of Against background judicial product coercion, this of the physical, either pre-judgment, Camp- see United unfairly States v. or was mental or ob- bell, (4 1963), 9 Cir., given through F.2d the trial ignorance, tained or fear made it judgment clear that inadvertence, conviction or which degree appellant in the first subject void and rests

would corpus. “be entitled to no consideration of habeas attack As one of the any controlling kind from me” states, “[i]f sentence cases “Fundamental States, Regardless See Kadwell v. United 315 F.2d formation before the trial. (9 Cir., 1963). this, given the im- of pression try who was to nothing already 3. There is in the record to show the case convinced that he how or where the robbery. obtained this in- would be convicted of first Appeals, procedure cases some in criminal Courts statement, standards require charge activity, promise or prosecution charges or an indictment threat al- contained legedly freely, voluntar entered vitiated the voluntariness information be guilty. coer semblance Nor without situa- ily, and F. tion where a yer cion.” Euziere United defendant and law- 1957) (em accept Cir., (10 2d 294-295 the realities fact as developed during phasis added). progress In Euziere a lower of a recognize judg trial, denying order a motion to vacate force Gov- reversed because ernment’s case, ment of conviction was consult with one an- judge accepted plea other and the trial a then the defendant makes had deliberate defendant he threatened and measured after choice. give In such the defendant the maximum sen circumstances a defendant plead guilty attorney upon tence if he did not act their government “put praisal would the evidence and the de- expense guilty.” of a when according- was] trial [he fendant ly. choice makes his Appeals 249 F.2d at 294. The Court of decision, Whatever his concluded, “We think it is clear plead guilty or to continue with statements made reasonably the trial court were trial, prospec- if found calculated to influence de tive sentence quan- is an unknown point fendants to en coercion into tity yet to be determined tering pleas guilty.” their Id. at 295. Judge Trial after an evaluation of Tateo, F.Supp. In United significant all factors which normal- judgment (S.D.N.Y.1963) of con- ly are considered before sentence is guilty plea viction based imposed. In the instant case there during the trial vacated because is an distinguishing added and fact kidnapping, a trial bank for —the during Court’s announcement impose a life sentence threatened to the trial and in advance of a verdict consecutively run if other sentences to impose what sentence he would continuing the defendant insisted the event of conviction.” found the trial to conclusion judge by In instant case trial Judge guilty. Weinfeld, opinion of The his statement chambers added the F.Supp. 566-567, accurately at compulsion necessarily element applicable law: restates subsequent from the defendant’s took issue, “To further confine the guilty plea the voluntariness which our preliminary some observations are concept requires of due that he guilt The in order. defendant’s possess. Whether these statements were innocence is not issue this mo- gestures or without the made with al- passage tion. And neither the leged any showing is nor the absence of immaterial. time that in the event of a new therefore I would reverse and order likely requires result is different to issue. the writ denial defendant’s motion. Moreover, the fact that the defend- APPENDIX TO DISSENT- open ant in entry court at the time of the ING OPINION stated that it was against People of Court: Clerk Thom- coerced, while not issue, evidential on the McGrath; George, Salvatore M. coun- inquiry not foreclose does sel. to its voluntariness.

[******] The Court: Good morning. (The brought “We are not here concerned defendant was Court.) among a situation much'debated ready. People Yes, The Mr. Di Paola: Defendant: sir. discussing matter. hand, very, Counsel The is Court: On the other very plea being fair offered the Dis- ready, George: Defendant Mr. Attorney. willing give trict He is

Judge. you you go downstairs and you Ready Do trial. The Court: tell the whole truth. happening ? realize what you promises make as to explaining just finished Mr. give you every sentence, but I will con- Judge. believe, him, toit —- sideration if are truthful and there what? Come You believe The Court: is an indication that want to start a up and tell me. here yourself. new life for Do under- stand me? (Whereupon, off-the-rec- there was bench between discussion ord Yes, Defendant: sir. George out of and Mr. Court up your Court: You have to make reporter.) of the court mind, son, now. Once are before the Bring into The Court: the defendant you jury, will be tried as indicted.

chambers. very You have a here, able counsel one following (Whereupon, ensued telling you the best. I am not what chambers:) you you should do or what should not do. merely pointing I am you out to what Let the record show there The Court: you face. jury here. It is in chambers. is no you The give Defendant: Could me a caught boy They me that this tell up my chance to make mind ? long off-duty policeman. has a an He record. The certainly give Court: you I will up your chance mind, to make but this right. George: Mr. That’s ready today, case is son. Both Dis- you Do realize The Court: what is Attorney your lawyer trict own have you happening? realize the sentence Do ready, answered ready and we are might you have to face a second offen- as proceed today. to trial first-degree robbery? der in a That you all, up your First of have make talking you I am the reasons one of asking yourself, mind, “Did I do what is give long, long I do not like to now. alleged in the indictment?” You and God sentences. question. know the answer The George: him, I advised have Mr. Attorney District that, has told me Judge. opinion, many he has witnesses who Yes, prove You, sir. The Defendant: yourself, can his case. know you did it or not. 15 and 16 Mr. first— We are in chambers. There is no jury repeat you I here. will receive you I advise Court: think it a fair trial. convicted, might you are I have If over. away you your yours. for the rest of The decision send You know you life. whether or not you did what is claimed Considering your did do. record and being your it, I likelihood of see As only you case, you can decide whether good. course, acquitted is not too Of go wish to to trial on the indictment of trial, you get certainly you will want robbery degree in the jury. first before you trial. But must remember this: fair you said, as a are convicted second offender As I Attorney If if the District you robbery proves in the first will outlined, case as he has your being acquitted to no entitled consideration of likelihood kind is not good. you from me. Or do want to take a the second YOUNT, Plaintiff-Appellant, receiving Marie opportunity a shorter some you a con- after ? If I sentence sentence degree, you

viction of MANUFACTUR- POSITIVE SAFETY you old COMPANY, Defendant-Appellee. going away until are ING are to be not emphasize that I am But I man. YOUNT, Plaintiff-Appellant, Hershel F. telling you do, son. what to The POSITIVE Are married? MANUFAC SAFETY COMPANY, TURING Defendant- The Defendant: No. Appellee. considering your After The Court: Nos. 14781. your very carefully, I find this is case Appeals United States Court of term. If a shorter chance to serve Sixth Circuit. convicted, are course and choose you other long away June going to be You are a second offend- time. know telling But I am not er. reiterate that do. boy George, like to see a Mr. do is offered a such this—

who George: Judge, I have be-

Mr. worked many occasions. Honor on

fore fair-

have been out here and know the

ness of Court. boy bad has been a Court: This The question that. boy. about There ease, about this have heard From very defend- crime. The serious relation must consider ant are—

chances George: any, I know he hasn’t Mr.

Judge. convicted, I am If he is Court: The first-degree mandatory rob- with a

faced

bery offender. second George: Your hands are tied.

Mr. hands are tied

Your is a conviction of If there The Court:

robbery in there then no consideration.

can do, do want son?

What I will take Defendant: it.

The accept plea. willWe

Mr. Son, if this what Court: return to do, when we the court-

want you concerning question room categorically. you must answer plea, means, you plead I ask when

That guilty, say yes. must Defendant: Yes.

Case Details

Case Name: United States of America Ex Rel. John McGrath v. J. E. Lavallee, Warden of Clinton Prison, Dannemora, New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Jun 12, 1963

Citation: 319 F.2d 308

Docket Number: 28087_1

Court Abbreviation: 2d Cir.