United States of America Ex Rel. George H. Moore, Relator Appellant, v. Walter B. Martin, Warden, Attica Prison, and People of State of New York, Appellees, 273 F.2d 344 (2d Cir. 1959)

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US Court of Appeals for the Second Circuit - 273 F.2d 344 (2d Cir. 1959) Argued December 7, 1959
Decided December 29, 1959

Sidney G. Sparrow, Ridgewood, N. Y., for appellant.

Louis J. Lefkowitz, Atty. Gen. of State of New York, for appellees, Paxton Blair, Sol. Gen., Albany, N. Y., Irving Galt, Asst. Sol. Gen., New York City, Michael Freyberg and George K. Bernstein, Asst. Attys. Gen., of counsel.

Before SWAN, LUMBARD and FRIENDLY, Circuit Judges.

SWAN, Circuit Judge.

This is an appeal by the relator from dismissal of a writ of habeas corpus after a hearing. Judge Burke, before whom the hearing was had, granted a certificate of probable cause.

The relator is presently serving a 30 to 60 year sentence as a second felony offender. The sentence was imposed in 1946 by the County Court of Queens County, New York, after relator's conviction of the crime of first degree robbery. The underlying felony was a 1934 conviction by a Pennsylvania court upon relator's plea of guilty to the crime of armed robbery. He served his Pennsylvania sentence of 10 to 20 years and has exhausted remedies available for attacking that conviction, since Pennsylvania procedure requires his presence there and New York authorities cannot release him to go to Pennsylvania. See United States ex rel. Savini v. Jackson, 2 Cir., 250 F.2d 349. The present petition, filed in the court below on December 29, 1958, seeks to have the Pennsylvania conviction and sentence set aside on the ground that they were obtained in violation of relator's constitutional rights.

The relator testified in person and was also represented by counsel at the hearing before Judge Burke. His claim there, repeated here, was that he was not represented by counsel in "any meaningful sense" when he pleaded guilty to the Pennsylvania charge of armed robbery. The official record of the Pennsylvania arraignment proceedings noted that Attorneys Cline and Weintraub represented the defendant and that a plea of not guilty was entered. The relator testified that he never saw Mr. Weintraub and he was induced to change his plea of "not guilty" to "guilty" after a five minute conference with Attorney Cline, who represented several of relator's co-defendants and promised to get him a five year sentence if he pleaded guilty. Judge Burke found expressly that relator was represented by counsel of his own choice at the arraignment in Pennsylvania; that he voluntarily pleaded guilty, and that his plea was not induced by any representations as to the length of sentence which he would receive. He rejected as unworthy of belief relator's testimony that he was not represented by counsel at his arraignment and expressly held that when he entered his guilty plea he had the benefit of counsel of his own choice. These findings are not clearly erroneous. See United States v. Embarrato, 2 Cir., 253 F.2d 947.

In oral argument appellant moved to strike from appellees' brief references to the sentences imposed by the Pennsylvania Court on co-defendants of appellant. These sentences were not put in evidence before Judge Burke, and have not been considered by us. We know of no principle by which we can take judicial notice of unreported legal proceedings foreign to the forum and not offered in evidence before the district court.

Appellant also complains that he was not represented by counsel at his sentence on December 17, 1934. The court record was silent as to this. Assuming arguendo that he was not then represented by counsel, Judge Burke found that there was no showing that because of lack of counsel at his sentence any element of unfairness attended the proceedings which resulted in his conviction and sentence. This was correct. See United States ex rel. Marcial v. Fay, 2 Cir., 267 F.2d 507, 509.

It was also correct to reject relator's claim that his constitutional rights were violated by his arrest in Florida and his transportation to Pennsylvania against his will and without any extradition hearing. The Supreme Court has never departed from its rule "that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a `forcible abduction.'" Frisbie v. Collins, 342 U.S. 519, 522, 72 S. Ct. 509, 511, 96 L. Ed. 541.

Judgment affirmed.