129 F. Supp. 564 | S.D.N.Y. | 1955
This is a motion in the nature of a writ of error coram nobis to invalidate a judgment of conviction by this court in 1938 on the grounds that “petitioner was without counsel to represent him, nor, did the Court advise the petitioner of his right to the aid of court-assigned counsel.”
The affidavits and annexed records show that petitioner was indicted on two counts in this court on May 9, 1938, charging him with unlawful sales of heroin in violation of 21 U.S.C.A. §§ 173, 174. Petitioner pleaded not guilty and was continued on bail by one district judge on May 12, 1938. On July 26, 1938, he withdrew his plea of not guilty and pleaded guilty to both counts of the indictment before another district- judge
On May 26, 1942, petitioner was convicted of the crime of robbery in the first degree, N.Y.Penal Law, McK.Consol. Laws, c. 40, § 2124, in a State court. In accordance with the State’s multiple offender statute, N.Y.Penal Law, § 1941, the district attorney at that time filed an information charging petitioner with a prior New York felony conviction, viz., robbery in the third degree, N.Y.Penal Law, § 2128, in the same State court committed on July 13,1931. No mention was made in that information of conviction of any federal offense. Petitioner admitted the prior conviction for third-degree robbery and was sentenced as a second offender, receiving the minimum term of 30 to 60 years under the multiple offender statute as it then read. Petitioner’s subsequent effort to nullify his State conviction of robbery in the third degree of July 13, 1931, on the identical grounds urged here, viz., that he pleaded guilty without aid of counsel, and by identical motion, viz., coram nobis, was rejected by the State courts.
This court will assume arguendo, without by any means deciding that such is the case, that petitioner was deprived of his right to assistance of counsel in connection with his federal conviction,' so that no hearing to establish that point is necessary.
Petitioner of course is not now in federal custody.
The petition is accordingly dismissed.
. People v. Oddo, 283 App.Div. 497, 128 N.Y.S.2d 394.
. Cf. Morgan v. United States, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248.
. Constitution Art. III, Section 2, clause 1; St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199. And cf. Eisler v. United States, 338 U.S. 189, 69 S.Ct. 1453, 93 L.Ed. 1897 with Id., 338 U.S. 883. 70 S.Ct. 181. 94 L.Ed. 542.
. Cf. 28 U.S.C.A. § 2255.
. Cf. Morgan v. United States, supra, note 2.
. 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196.
. Fiswiek v. United States, 329 U.S. 211, 222, 67 S.Ct. 224, 230, 91 L.Ed. 196.
. See N. Y. Penal Law, §§ 272-a, 345, 350, 510. 510-a.