United States of America Ex Rel. Charles F. Scott v. Vincent R. Mancusi, Warden, Attica Prison, Attica, New York

States, sette United 240, L.Ed. 288. UNITED STATES America ex SCOTT, Charles F. Petitioner- Trucking Johnsbury The court St. Appellee, (1st F.2d 393 Co. v. Cir.), applied requirement an added MANCUSI,Warden, Vincent R. Attica culpable intent there be shown an actual Prison, Attica, York, Re Regulation relating to mark- violate spondent-Appellant. dangerous ing carrying loads. trucks No. Docket 33375. However, proof indicated that there Appeals, United States Court of the trucks not marked were Second Circuit. oversight by prior carrier Argued Nov. manifester. the defendant carriers’ July Decided court held that the Government

proved that the carrier aware deliberately

danger chosen and had placarding its

transport load without shipping papers, labeling or or its

trucks pre- proper wilfully to take failed discussed court there also

cautions. however, “knowledge”; do

corporate we appeal. on this an issue

not have such us, contrasted

In the case case, Johnsbury the defendants

the St. dangerous obviously aware

were originated having

nature of the load Depot,

shipment Naval of bombs awith having trailer marked the placard. There explosives

class A acts

here inadvertence

omissions. charged with The defendants

knowledge Regulation question, knowledge; they admit actual they

proof the contents knew that shows dangerous;

of the trailer were deliberately lo- placed in the

trailer was by the wit- observed

cation where was such

ness, this location and that stop the truck

distance from working said

employees cannot be “attending” the trailer. sufficient there was

Thus knowingly left unat-

that the trailer was

tended as concluded

finding the defendants

charge.

Affirmed. Fahringer, Buffalo, Herald Price N.

Y., petitioner-appellee. for Lewittes, Atty. Gen., Joel Asst. City (Louis Atty. Lefkowitz, J. Y., Gen. of State of N. and Samuel Hirshowitz, Atty. Gen., A. First on Asst. brief), respondent-appellant. LUMBARD, Judge, Before Chief AN DERSON, Judge, BRYAN, Circuit and Judge.* District LUMBARD, Judge: Chief appeals New York State an granted of the Western District order petition relator Charles Scott’s corpus hear- a writ of habeas after a ing. conviction, claimed that entered man- on slaughter degree, the second subsequent sentence to to 15 Prison, be- Attica invalid State was (1) involuntary cause was given was induced assurances counsel that his own he would C.; (2) sent to involuntary was as his counsel had led him to believe sentence; withdrawn before (3) it was error for the trial accept not to when there prejudice apparent no We state. voluntary find that there was abuse of discretion. shown On the facts we believe there was insufficient as a matter of law support the conclusion of the district involuntary, court that the contrary the determination to the clearly erroneous. We reverse petition. dismiss the County was indicted Erie 30, 1962, charged November with first manslaughter. degree fatally Scott had Lewis, aged 41, in a stabbed Arthur bar- morning early in the room brawl of Oc- * Sitting by designation. me time, “Your indicated he was At the tober getting correspondence Washington, he’s some in

parole, from a conviction prison or officials January the correction C., D. where Washington, C., degree in will indi- D. second convicted been they paramour, cate to the court what action are slaying of his murder for the going going years to to to take and submit to 15 he’s had been sentenced and stabbing to and after I had this took me have this case in life. The documentary apparently not evidence I will then have place and it bar Lewis, to whether actually make a determination as to killed disputed that Scott you being or not I not the can send back or whether or issue you go in had a should to Attica here this killing Scott in self-defense. violator, state, you ?” parole are aware of conviction, prior awas New the outcome and whatever affirmatively responded and Scott then returned he was certain York trial engaged following colloquy in the with Washington Con- more time. to serve the court: good sequently, suffi- and counsel had words, The Court: In other I am should to feel cient telling you not now and I have not not guilty and lesser offense your attorney assistant stand trial. attorney you under district conditions, all under 4, 1963, attorney, all circumstances On Scott’s March going Washington, D. back to C. Fahringer, Esq., met with P. Herald might happen. That not attorney assistant district Marshall, judge, dis- Frederick M. The Defendant: Yes. possibility cussed The Court: You are aware that? charge of man- to a reduced Yes, The Defendant: sir. degree. slaughter Counsel in second might be, The Court: well after suspend the sen- wanted reviewing papers probation and return Scott tence New York investigation might I feel parole C., violator. as a might justice interest served any prom- refusing judge, to make being your your sentenced serve ises, consider said term here in State. if he could be assured The Defendant: Yes. at least to serve Scott would be Washing- years upon his return to Now, five expla- The Court: with that officials ton. called say anything? Counsel you nation do want subse- and a letter was guess Well, The Defendant: I don’t quently of Parole the Board say. anything I have stating that it not consider everything The Court: Has I said release until Scott you been understandable to ? years and that served least two The Defendant: under- It’s been possibility’’ the Board was “little standable to me. application for would entertain such years. at least five fairly The Court: Does and accu- rately represent the discussions mailed, The letter but you your lawyer with received when Scott your understanding? Judge came Marshall on March his ear- Yes, then withdrew But The Defendant: sir. degree lier say first I this ? manslaughter plea of and entered The Court: Yes. manslaughter. degree guilty to second confirming any- court, de- after Scott’s The Defendant: don’t think Washing- family justified taking sire to be near his one life but in ton, particular then said: reluc- incident sir, tant to enter a I have Scott was then sentenced legal by my counsel and advised Attica State Prison. The next position day, April 2, 1963, I think he in better requesting know than I. wrote to applica- reconsider denial of undue influ- Court: Has plea, pointing tion to withdraw the out ence— “prevailed that he had [Scott] sir, No, The Defendant: none what- vigor some to enter soever. because I felt he sent would be to Wash- upon The Court: exercised —been ington.” your will? The district court found that there The None Defendant: whatsoever. promises by were no made being you The Court: Are forced to judge attorney prosecuting or the do this? kept. 4, 1963, were not March On there participation by was minimal The Defendant: No. attorney assistant district the exam- entering The Court: This of this place ination which took at the time the your— is plea was taken clear was a indication to My The decision. Defendant: promises Scott that had no been made by anyone. agree with the We district your The And conclusion Court: sup- court that no “there evidence way is proper it’s the out port” promises thing? claim that whole judge prosecuting made Yes, say I would Defendant: attorney. that. However, district court also right, now, you The Court: All petitioner’s found retained manslaughter charged stand misrepresentations counsel made degree. you plead, do the 2nd How concerning defendant the sentence which sir? petitioner plead if would receive he plead guilty, Defendant: sir. guilty, upon petitioner relied appeared pleading misrepresentations these When Scott and 1963, and, 1, therefore, Judge April plea of was not Marshall before voluntarily he al- We for made. believe Scott asked findings clearly plea. to be erroneous as the He lowed to withdraw presented insuffi just with his attor- Scott is had a conversation giv- misrepresentations. ney, apparently cient to show Scott impression en the guilty plea, in ei A entered had a “cold atti- “somewhat cold” and court, ther a state or must be federal day. asked He had his coun- tude” knowingly voluntarily Ma made. “guaranteed” that he sel States, 487, chibroda v. 368 U.S. United Washington, sent coun- would be (1962); 510, 7 L.Ed.2d “guar- responded were no sel 101, Waley Johnston, 316 U.S. S. to al- refused antees.” (1942); Ct. Kerchev 86 L.Ed. 1302 withdrawn, stating: low al v. S. (1927). Further, “If reason as Ct. 71 L.Ed. 1009 there is some substantial why permitted an in conviction which based he should voluntary permit plea will is inconsistent it. If subject process really he with due of law he’s afraid it’s because might go habeas cor rather than Wash- collateral attack federal to Attica there, pus. Richardson ington, his time United States ex serve C. and McMann, going permit him with- 51-52 I’m not 1969); ex rel. McGrath v. those draw his under circum- Valle, (2d stances.” La 319 F.2d 308 Although he that his was sentenced. first claim is exactly told evidence is not clear as to what involuntary counsel had because his appears if told and it counsel be sent he would directly plea. no evi- told him that There is counsel never entered however, dence, was told had an absolute that Scott whatsoever, definitely there is that he would his counsel testimony indicating he entered that Scott sent although testify at the did that he could withdraw counsel believed however, is, hearings question how weight testimony attach “felt that he would be much sure” apparent arising Washington. first time al- and claim 5y2 dis- “guarantees” made most after the events in were Furthermore, pute. collo- Scott. quy demon- which occurred statement Counsel’s matter knew strates contrary certainly could be withdrawn is from settled. still far law, plea to to New York allows a only in representations made be withdrawn before sentence lan in the the N.Y. couched the discretion of trial counsel to Scott were (McKinney). guage promise hope rather than of Code Cr.Proc. 337 good merely However, made in estimates is and were this misstatement of law thought result plea would faith to what he not so as to result in the serious being involuntary. Although letter from the authori the dis when the well settled ties received. is trict court that relied found heavi sen ly pleading, this that erroneous circuit on the advice counsel “[A]n suspend does defense counsel tence estimate which advice included the both involuntary.” representation rep United and the not render a Warden, West rel. Bullock v. resentation that he had the ex States Women, apparent F.2d 408 it that field Farm for withdraw his is State 1969); major 1326, (2d impetus United 1330 Cir. behind Parrino, (2d Cir. 212 F.2d 919 was his sent to States v. desire Lester, 1954); 247 v. and not reliance on the fact that see United States indicating (2d 1957) 496, F.2d could be withdrawn. 501 Cir. that fact the defendant that “[T]he regard important It is in this note expectations have had that his allegation counsel misstat leniency is not suffi result origi ed the law was not made in Scott’s cient, in the absence February 13, petition nal 1968. sworn govern expectation petition was induced focus of the is claim judge ment, justify plea.” trial indicated withdrawal Washington, he would be sent D. C. McGrath, supra; United ex rel. States regarding The claim misstatement of (2d Lowe, v. United 173 F.2d 346 States apparently the first law was made for Cir.), denied, 944, cert. 69 S.Ct. hearing. time at This claim is con 1499, (1949). 93 L.Ed. 1747 spicuously petition, from the absent alleges Scott next correspondence counsel his between Scott counsel,1 him his counsel and the letter of exchanged notifying Scott and his counsel several' had filed an letters after and conviction. On for writ of coram nobis 12, 1964, December Scott wrote a letter based on “the unconstitutional breech expressing promise perpetrated by he had frustrations after the Hon. [sic] * * rejected appeal learned that Frederick Marshall Counsel Appellate Division, replied July 23, 1966, counsel in a letter dated responded 28, expressing sympathy appli on December with the again July 1966, 18, offering wrote on cation and assistance.

109 2, Reincke, April v. Scott United rel. Boucher 1963.2 States ex 1965); (2d 977, quot 341 F.2d 982 Cir. the New statute aware ing Wight, petition argues extensively from v. United States 176 376, (2d 1949), de dis F.2d 379 Cir. cert. abused his nied, cretion, L. makes the ar 338 he never once 70 S.Ct. 94 Silva, (1950); gument Ed. 586 v. he had misled into be United States (2d 1969); lieving F.2d an absolute Cir. that he had Although argu Horton, (2d plea.3 F.2d withdraw his States strong also, perhaps have been a ex ment See Reincke, request Maselli one the time if made at made, coming now, 1967) it is stated that where compliance when for there to a lack of after event every past fairness essential there to recall con fundamental representation light, process, due counsel’s a favorable should versations in “ inept’ weight. ‘horribly amount so There is must be little accorded motivating legal duty faithfully to ‘a breach of his doubt the central represent desire client’s interests.’ to * factor was Scott’s behind * *” long disap present case to be sent meeting pointment way the tests set out failure over the above. warrant is not sufficient granting of the writ. point, final Scott’s third argument point should have been allowed to Scott’s real regard- plea of withdraw his before sentence was that the misstatement dep- imposed prejudice ing in a there no has resulted as New York law state, by deals not with the to effective counsel shown the rivation of his plea, by of his but rather Fourteenth voluntariness Sixth authority Wainwright, Amendments, discretionary v. 372 of the with Gideon 792, judge. 335, 799 9 L.Ed.2d trial A criminal defendant has U.S. 83 S.Ct. plea argument supported (1963). a is not no of This absolute Although guilty. surprising rests in it is do the record. Permission to so judge. In a not be aware of sound discretion of the trial counsel would statute, governing permission his conduct a New York federal trial withdraw “may granted plea con- “shock the at the discretion not such as would be pro- and make the a denial thereof science of the of the trial court and ceedings mockery justice.” appears of a farce and reversible if it merely expresses Washington, C., counsel’s dis- or in the al- This letter back to appointment ternative, going over the actual if sent he wasn’t plea? always no reference to the ceived and makes back he withdraw could Schroeder, Well, led to believe A. I didn’t tell claim that Scott Mr. plea. withdraw his him after sentenced he could that he could he was plea, I withdraw his because understand following redirect, 3. On was stated: law. be the No, given Tes, I Q. Q. he not assurance— A. did understand Was no. disposition plea withdraw his if the did the law could reassurance always up sentenced. not work he could until time he was out sorry Oh, yes, plea? I told him that. I if I said “after sen- Q. A. am understanding I him after we tence.” entered It was his indicated fact, going might plea, if he wasn’t sent a matter alternative and as that after sentence it he entered the D. C. have said always plea. any misgivings thought he could withdraw his That if he had understanding apply permitted we would be was Mr. —we Absolutely. arrangement? A. whole withdraw the actually susceptible language prior ambiguous This Q. to Mr. Scott So that judge plea interpretation entering it was his understand- may ing of the allow withdrawal if he entered mandatory charge, it do so. in return he is not reduced would be 110 best chance to receive the Unit ed that his abuse discretion.” strongly Lester, disposition desired supra, he so was to 247 F.2d v. States charge. Hughes, F.2d the lesser 500; 325 States v. 907, Cir.), denied, fact desire was buttressed 377 U.S. (2d cert. 789 (1964). good faith 1167, advice of his counsel does L.Ed.2d 178 84 12 corpus it not invalidate nor make invol- On an habeas untary. persuaded by prisoner, starts We our also far a state review belatedly put proposition motion the claims now forward

with the which, sustained, Scott, trial afford discretion rests in the easy Follette, an all too avenue for the invalidat- ex rel. Rosa v. United States guilty. denied, ing plea of Cir.), 393 of convictions on a (2d cert. 395 F.2d 721 Horton, supra; 216, 172 United States see also 21 L.Ed.2d 89 S.Ct. Weese, (1968); v. United rel. Best States 145 ex (2d 1944) F.Supp. (S.D.N.Y.1965), Ray, where basis for 1966), requesting aff’d, a cert. F.2d 832 denied, statement counsel that he had misled 87 S.Ct. being generally, hopeful (1967). into client too See L.Ed.2d 2.1(b) possibility sentence, ABA, Guilty, (Ap suspended of a Pleas of stating 1968).4 Draft, proved the court Here the state rejected passed on and courts flimsy this, “If on so a basis abuse of discretion Scott’s claims amounting, at least at the actual not interfere their deter we should plea, to no more than counsel's absent clear issue consti mination hope ear dimensions.5 As set forth tutional withdrawn, can be is obvious that lier, to allow refused indulge safely an accused he felt withdrawn because as a trial balloon to mere there was substantial judge, test the attitude of the trial say therefor, re that his we cannot being reasonably secure in the knowl- arbitrary so a clear fusal was as to be edge that he can withdraw it without unconstitutional abuse of discretion. great difficulty.” court The evidence before the district judgment the district of court knowing plea the shows that was petition and the a voluntary reversed for writ of and act man of a who weighed possibilities corpus decid- and had habeas dismissed. Guilty. 2.1(b) permit

4. Pleas of before sen- to withdrawal showing “In the absence of a in tence even absence of a manifest necessary solely injustice. a withdrawal to correct This matter with- is a injustice, may judge; may manifest a defendant in the discretion of the guilty grant withdraw his of or nolo con- need not the motion.” right as a tendere matter of once accepted by 3, 1964, appeal has been the court. December On April 1, 1968, af- Before its discre- of the conviction by Division, Appellate tion with- Fourth allow defendant to firmed just any opinion, Department, and leave draw his fair and without to prosecution Appeals appeal unless the has been to the New York Court substantially prejudiced up- reliance 1964. On was denied December plea.” September entered on the defendant’s an order was commentary p. County denying, with- See also Erie Court stating hearing, petitioner’s application for out a any appear June “There does writ of coram nobis. On a opinion good allowing reason for withdrawal was affirmed without the order showing right, Appellate Division, Fourth a matter of absent a De- injustice, 7, 1967, partment, August leave manifest once the court and on Ap- accepted appeal York Court to to peals gen- recognize “The standard was denied. does acknowledged erally discretion BRYAN, ger PELT FREDERICK van discussed the Scott course to be Judge (dissenting): District followed. evidentiary

The District held an Court believed could establish hearing facts circum- at trial in which the he had acted self-defense relating entry good acquittal. and thus had to a stances chance guilty plea hand, parole offense of sec- On the other to the lesser he was on manslaughter degree the occur- ond on a C. sentence of 15 years subsequent prior thereto to life after rences conviction on a explored. Upon degree fully the evidence to were second murder. hearing, at the District Scott and adduced his counsel were aware that (1) attorney, acquitted even if he found: that Scott’s were on the first degree manslaughter charge Buffalo, Fahringer, misrepresented to Scott Washington pleaded the lesser offense would still returned if he parole suspended sentence serve time as violator. he would receive Washington, D. C. remanded to and be situation, Fahringer Faced with this parole term as a finish out his limited County Judge Marshall, conferred with Fahringer wrongly violator; (2) judge, and the Assistant Dis- disposition did if this advised Scott Attorney. proposed suspend- trict He not work out Scott charge ed sentence on a reduced of sec- time; any guilty plea at withdraw his degree manslaughter ond so that Scott (3) induced that Scott Washington could be returned lesser offense mis- parole serve his time as a violator. representations of fact and law. refused make promise receiving suspended but indicated that he would con- Instead suspended he believed sentence which sider a sentence on such promised, charge Scott was sentenced if duced he were assured Scott years required Prison. When in Attica State would be to serve at least 5 attempted years he had Washing- exercise what when he was returned to Fahringer was his been advised ton. then made a call to the Washington sen- parole before authorities, indi- who tencing, request denied cated to him were returned ad- after a sen- This was because trial tence he would to serve at could withdraw that Scott vice contrary to New least 5 violator and law, permits of a that a letter to this effect would judge. Fahringer report- to the only in the discretion of so Judge ed to Marshall. of Cr.Proc. § N.Y. Code (McKinney). Fahringer then had further discus- family. my sions with Scott and evi- with Scott’s there was substantial In view Fahringer pleaded told the District Scott that if he dence in the record before guilty findings they support and to reduced offense of second its to Court degree manslaughter, clearly detailed “felt sure” he are not erroneous. findings suspended supports Scott would receive a sentence Washington. sent to He told the is as follows: thing Burt, nephew, same to Scott’s degree first indicted for Scott was McKinnon, sister, and to Mrs. who manslaughter November on repeated to Scott. this represented P. Fah- Herald He was Fahringer lawyer ringer, experienced Scott understood to mean criminal agreed upon represent family him. that that if I “It been to retained charge. charge plead guilty pleaded to the would to lesser not Scott degree manslaughter, approached second As date of trial suspend proceeded, preparations Fahrin- Court would therefore for trial Fahringer asked whether D. C.” titude.” Scott me to and remand “guaranteed” apprehen- he would it was “reluctant still Scott was Fahringer Washington. to told plea” he did because sive to enter time, Fahringer Scott, apparently for first told guilty. he was believe guarantees. Scott then he did not were no event got up the wind to al- determined with- ‘“he could ceive a Fahringer guilty, ways plea.” on draw It was withdraw agreed could, to understanding had told him stand he and to that Scott this charge. degree manslaughter charge. on the plead guilty first to lesser Judge appeared called When Scott the case was before On March sentencing, Fahringer Judge thereto Marshall Prior Marshall. application he was made an Fahringer Scott’s behalf Scott Fahringer any prom- plea. withdraw his whether asked the Court him, misgivings he was stated that Scott had some ises made Judge 13th, might to where he be sent on sentence. March “No.” On answer yet the ex- Scott told the he had been reluc- received Court had not Marshall Washington pa- place. first pected from the tant enter letter Scott, Fahringer conferring told the Court After with role authorities. Scott change plea. then stated to the Court that Scott said he wished to charge, Judge he advised was innocent then Scott Marshall plead guilty determination was not his intention to not make a Washing- misrepre- it and he had he would send Scott to done so on whether sentations ton or he would sentenced of counsel about which Fah- ringer until the Prison letter was “most embarrassed” and felt Attica State Washington badly.” explained authorities had “most received, might and that that he had acted in been self-defense Washington only pleaded guilty and had send Scott back to ad- might justice vice of feel the interests of counsel. served a term in Attica. would be reviewing After what had occurred on this, went Scott said he understood day entered, Judge say enter on to that he reluctant permit Marshall refused by my advised “but have been He then sentenced legal and I think to 15 Prison. Attica State position I.” After better to know than Fahringer day The next wrote to stating, response ques- Court’s Judge requesting Marshall reconsidera- tion, no undue influence had tion of entry upon exerted him and stating “pre- decision, was his own vigor vailed [Scott] some pleaded guilty degree to second man- enter felt he because slaughter. Washington.” Judge be sent Sentencing April down was set again permit Marshall refused to By plea to be withdrawn. the letter from the received resting solely This is not a case on the in The letter authorities. stated disappointed unsupported testimony aof if substance that returned to Scott were testimony as defendant. Scott’s to the probably he remain misrepresentations of fact and law made custody years. at for least Fahrin- him reliance thereon ful- to and his was ger copy received a of the letter. ly testimony the corroborated frank Immediately prior sentencing, Fah- attorney. of his embarrassed ringer Judge went to see Marshall. Fahringer Fahringer’s misrep- agree When in- do not returned from terview, respect he told the resentations with sentence were, law, representations was “somewhat cold” and “had a cold at- as matter of hope promise,” open as the than of believe “of rather him in such a con- tingency by seeking majority indicates. The District Court to withdraw his plea. Only find the was entitled to then he learn that at- did representations torney misrepresented before it that made law suspend- caught him amounted to an assurance of a also and he escape. which induced Scott’s web from sentence which he could not plea. Fahringer testimony of and Scott agree colloquy do I at Nor before the which its District Court pleading necessarily indicat- the time findings was, practi- were for all based ed that Scott the matter was far “knew purposes, cal The credi- uneontradicted. There is evi- from settled.” credible bility given testimony their by Fahringer dence Scott was evidently Court, for the District which hearing pleading opened before the testimony it had a believed as any promises if he was asked whether findings upon to do and its based made, he was answer been findings testimony. Dis- Thus the negative. enough is common where This supported trict Court are substantial negotiations.1 been evidence, clearly are not erroneous responses questions Scott’s Court’s accepted. 52(a), must Rule R. Fed. pleading hearing cir- at the under these Wright, Civ.P. See Federal Law overturning cumstances do not warrant Courts, at 429-432 ed. finding the District majority states, guilty plea “A As the he believed would receive a he entered in either a state or federal court pleaded guilty. he voluntarily knowingly must event, however, In Scott was led “a made” and conviction which is based string that he had another believe involuntary plea in- an from the mistak- bow. This resulted process consistent with due and is law en assurance of his that he subject federal collateral attack could time. corpus.” Brady In habeas v. United misrepresentation to sen- of fact as misrepresentation tence of law (1970), Supreme L.Ed.2d 747 Coiirt together should be considered the in- recently principles restated ducing cause following for in the reasons them together, they gave Taken he what language: ample grounds to believe ab- nothing go solute assurance guilty plea grave and so- That a awry. day When on the of sentence accepted lemn care act to be Scott, time, recog- long for the first learned that and discernment has been guaranties there were no and thus that nized. Central misrepresentation entering there had judgment been foundation sought to avail himself against the defendant is the defend- of the avenue he had been led open ant’s court admission part prosecution, formal judge, At more “If or the process, appearance the in-eourt at which makes statement defense counsel open parties contrary the defendant enters court to what typically though prior negotia especially act as believe, has been led to judges, promises prosecutor tions had occurred. Trial al made * * * though they negotiation counsel, are aware that [the defend- defense pleas routinely practice, challenge is a common would no more that state- ant] any promises ask the open defendant whether ment than Notwithstanding challenge clergyman’s have been made to him. sermon from subject pulpit.” Trebach, the fact Rationing negotiation, usually Justice, (1964). the defendant an 159-160 negative prosecutor swers in Relating and the A.B.A. Standards to Pleas commentary p. 61, 3.1(a) (ap- defense Guilty, counsel seldom indicate at contrary. proved 1968). draft, charged likely doing. consequences in-

committed the acts of so knowing stands A dictment. He thus as wit- so induced is not the against intelligent shield- himself and exercise of freedom of ness choice Amendment from which a defendant is can- Fifth entitled and being compelled voluntary. to do so—hence not be said be requirement minimum his not case does mere erro- This involve voluntary expression of his own possible neous estimates of counsel as to choice. But is more than an hopes or unrealized as to sen- sentence conduct; past admission of it is optimistic tence induced counsel’s judgment of defendant’s consent that which, majority as indi- statements may entered without a conviction cates, plainly to render insufficient trial —a his waiver of plea involuntary. A defendant who jury before a or rights Waivers pleads always the risk runs constitutional must be disappointment at the sentence. voluntary knowing, intel- but must be misrepresentations of fact Here the ligent acts done with sufficient aware- attorney, to- taken law ness of relevant circumstances and plead un- gether, induced Scott to likely consequences. Id. at 90 S. complete misapprehension der a as to Ct. at 1468. con- the relevant circumstances and the sequences misrepresentation by There was no doing. misrepre- of so prosecutor or here. The issue of fact was a blanket state- sentation guilty plea posed is whether a induced ment as what sentence Scott by misrepresentations of counsel toas Plainly, question of sen- receive. plea, consequence of such primest importance to tence of the bar, at were made the case should be problem faced with the defendant question allowed to That remains stand. guilty. plead not to or open in this United States ex Circuit. misinterpretation of law assured Scott Follette, 418 Callahan v. F.2d unlikely anything that in the event that Cir.1969).2 (2d wrong, always went withdraw with in such What we are concerned Having his been misled both cases is whether or and as the sentence he receive knowing intelligent de- act of the legal right his withdraw knowledge fendant, and un- made with Scott cannot be said to have known and derstanding consequences. The consequences understood the question the defendant basic is what guilty. reasonably in- to believe led position in no to make an Scott was him to and not who duced knowing intelligent, as to the best choice brought of mind. about state him, open course important con- Misinterpretations a waiver of there can be hap- rights. Indeed, egregious what stitutional as to induce a defendant so plead guilty attempt pened complete misappre- when his under a imposed and sentence relevant circumstances failed hension as question Callahan, must whether or not a was faced with this Court In voluntary state, guilty plea question unless the in- be held of whether .the prosecutor, judge representations is, induced of counsel as duced promises plea by voluntary. or state affirmative The Court did question was reserved as to sentence held that ments since not reach Horton, any objection F.2d 153 waived defendant had (2d plea by Machibroda Cf. failure to take the sentencing opportunity offered ; (1962) L.Ed.2d 473 move withdrawal McMann, request Ross v. ex rel. and to banc). (en 1969) 1016, 1021 said: determined. The Court Id.

115 very opposite rely he had re- Ct. at what 1449. Scott was was the entitled to complete to believe with and had been led lied confidence the advice guilty. elementary of his from an would result such le- gal proposition. I would circumstances Under misinterpretation Court was correct hold that the District fact as to concluding “gross was involun- sentence was also error.” A de- obligation viola- tary as in fendant’s should be set aside has an process. complete inform his client with tion of due candor accuracy plea nego- of the result of event, hold, any Finally, I would tiations. For the ultimate decision as to re- of counsel the misstatements plead guilty not to is that of regarding garding New York law and the client. light of all viewed circumstances, deprivation misrepresenta- resulted on the Scott’s reliance right assistance of tions of of Scott’s effective his counsel had most serious counsel, required consequences the Sixth for him. When his at- tempt Fourteenth Amendments. to withdraw his turned out to unsuccessful, Sott found ir- himself Fahringer’s advice to Scott revocably bound As a at sult, only receive, he not failed to directly contrary any time New suspended sentence which been York law. statute was get assured his counsel but unambiguous. Fahringer clear and exercising also was foreclosed from develop to foresee new trial, constitutional stand in- give in the or to ment law advice stead, he 15 was sentenced to might lawyers area where well have dif IV2 years in Attica. fering views. Cf. McMann v. Richard generally recognized 759, son, 769-771, is that a de 397 U.S. 90 S.Ct. deprived fendant 1441, (1970). the effective as 25 L.Ed.2d 763 Nor “hindsight sistance of counsel if his counsel’s con this a case where reveals tac strategic duct was of “such a kind as to shock the tical or con errors ‘over which ” might conscience of attorneys the Court and make the scientious differ.’ proceedings jus mockery Reincke, a farce and United States ex rel. Maselli v. Wight, 129, 1967). (2d tice.” United States v. 176 383 F.2d 132 Cir. See 376, (2d 1949); Garguilo, 379 Cir. United States v. 324 F.2d 795 Horton, (2d 1964); (2d 1963); v. 334 F.2d 154 Cir. Cir. United ex States rel. Reincke, Fay, (2d United States ex rel. Boucher v. 348 Fazio v. F.2d 418 Cir. 1965), 938, 977, 1965); cert. denied 383 U.S. 86 S.Ct. 341 F.2d Cir. Unit (1966); Reincke, 15 L.Ed.2d 854 Edwards ex Maselli su States rel. States, (6th pra. v. United 265 F.2d 909 “if There is conduct of such a kind ‘horribly representation This was advice that ordi counsel’s is so narily competent attorney inept’ should le as to amount to ‘a breach of his give difficulty. gal duty faithfully represent able to without All ” he had to do was to read the New York client’s interests.’ ex States Fahringer wrong, Reincke, supra 132; statute. quoting Not Maselli at Kennedy his “advice was within the [not] v. United 259 F.2d range competence (5th 1958), denied, demanded of attor cert. neys criminal cases.” McMann v. L.Ed.2d supra, Richardson, 7-11, at 90 S. (1959).3 corpus In the recent case McMann v. Richard- unless counsel’s conduct was such son, supra, Supreme Court held that that defendant was denied effective as- entering plea.because a defendant sistance of In counsel. this connection of his fear the state would use an it should be noted that the Court said: allegedly coerced confession trial could In our view a defendant’s challenge reasonably competent in federal habeas based on advice

Moreover, inept of compa- the results con- in thereon reliance were of preju- duct of counsel must been so have rable dimensions of the derelictions resulting prejudice de- dicial defendant have counsel and the in rights. prived him of Unit- Maselli. substantial Here Scott’s in reliance on Reincke, misrepresentations wrong su- ed States ex rel. Maselli fact and of pra, legal given F.2d at When these two advice his counsel present being deprived a right funda- in elements are there is sulted his of his due possible acquittal. of fairness essential mental lack a process been denied and defendant has difficult how see conduct of counsel of counsel could have the effective assistance conse- more disastrous quences under the Sixth and he is entitled which the client.4 Fourteenth Amendments. I would therefore hold that Scott was ex rel. Maselli v. In United States denied the effective of assistance counsel Court, applying Reincke, supra, this in guilty plea this case and that standards, held convicted should not be allowed to stand on assist- effective accused was denied ground also. retained coun- when his ance of counsel expressed to set aside move sel failed share concern and, although appeal an Friendly he knew verdict in United States Hor- appeal meritorious, ton, supra, danger an failed to take about of afford- ing easy As result requested client. “an all too avenue invalidat- deprived ing pleas guilty.” of his convictions on accused of But likely to appeal setting would have an do not see that aside Scott’s guilty plea of convic- highly in a reversal on have resulted unusual if not unique up open facts in tion. this case would any such avenue. misrepresentations fact and I would affirm the case and order the Dis- in the instant counsel law resulting trict Court. prejudice to Scott in evidence fession herent vulnerable tively on misjudged not on vice was demanded cases tive On fendant’s * * but on felony charges ***** intelligent plea assistance successfully * por consider the other grounds erroneously wrong within one confession. when predicting depends unintelligent attorneys hand, tile admissibility a court would counsel’s hand defendants motivated competent to claim entitled to respondents on whether range as an thought uncertainty counsel court Whether open criminal initial advice relief based competence by a counsel. admissible decisions; retrospec- to attack the effec- therefore in these the de- matter facing is in- cases. con- ad- tion the didly acknowledging Moreover, district It should be noted that allege trial. when ing and strate * * * ant on ^[*****] appeal. proceedings before Jackson v. part and his conviction cause as gross * * good intelligent he acted recommended of counsel prove [defendant] error faith of * Denno, serious not, act. commendably instead his mistakes assigned vigorously pressing sufficient Scott’s counsel each must demon- after the state is bound * * * I do not part derelictions on unless all, of counsel going to show in can- defend- he can know- court. ques-

Case Details

Case Name: United States of America Ex Rel. Charles F. Scott v. Vincent R. Mancusi, Warden, Attica Prison, Attica, New York

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 6, 1970

Citation: 429 F.2d 104

Docket Number: 33375_1

Court Abbreviation: 2d Cir.