United States of America Ex Rel. Melvin Oliver, Petitioner-appellee, v. Leon Vincent, Warden of Green Haven Correctional Facility,respondent-appellant, 498 F.2d 340 (2d Cir. 1974)

Frederick H. Block, New York City, for petitioner-appellee.

Michael Colodner, Asst. Atty. Gen. of New York, with whom Louis J. Lefkowitz, Atty. Gen. and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, were on the brief, for respondent-appellant.

Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, Senior District Judge.^* 

CHRISTENSEN, Senior District Judge:

There is before us for review an order of the district court granting a writ of habeas corpus to a state prisoner, hereinafter 'petitioner', who had been sentenced to a ten-year term on a plea of guilty found below to have been induced by his attorney's false assurances that an agreement had been reached for the imposition of a more favorable sentence.

Decided after the proceedings below were concluded Mosher v. LaVallee, 491 F.2d 1346 (2d Cir. 1974), cert. denied, 416 U.S. 906, 94 S. Ct. 1611, 40 L. Ed. 2d 111 (1974), affirming, 351 F. Supp. 1101 (S.D.N.Y. 1972), involved surprisingly similar circumstances.¹  This decision would render any discussion of the governing principles and other cases superfluous and would justify affirmance of the order in question without extended comment were it not for two contentions principally relied upon here and not considered there: that the district court 'erred in ordering an evidentiary hearing in the face of implicit findings of credibility (against petitioner) by the State court judge', and that 'the petitioner could not credibly believe that any such promise was made' as represented by his attorney.

In proceedings in the Supreme Court, New York County, petitioner was indicted in September, 1968, for robbery in the first degree, grand larceny in the second degree, and felonious possession of a weapon, and there were other state charges pending against him. He had also been indicted by a federal grand jury, pleaded guilty in October of that year on two counts and was sentenced in November to federal prison for two consecutive two-year terms.

In December, 1968, petitioner declined an 'offer' of the prosecution to satisfy all state indictments in return for a plea of guilty to a 'class C' felony to be treated as a 'class D' felony.²  He later testified that his refusal to so plead was because his retained attorney had assured him that a 'deal' would be worked out for a sentence in the state court to run concurrently with, and not to exceed, his four-year federal sentence. On Friday, January 10, 1969, petitioner again declined to plead guilty to a 'class C' felony apparently for the same reason. However, the following Monday petitioner did plead guilty to the Class C felony of attempted robbery in the first degree, for which on February 4, 1969, he was sentenced to an indeterminate term of not exceeding ten years, without reference to his federal sentence.³ 

Petitioner maintained in the habeas corpus court that he agreed so to plead guilty only after he was assured by his attorney that the 'deal' described above had been arranged with the prosecutors and the judge. He further testified that a comment by his attorney following this plea caused him to become worried that his lawyer actually might not have closed the arrangements. Thereafter, but prior to the imposition of sentence, he unsuccessfully attempted to withdraw his plea, and when he appeared for sentencing the state justice acknowledged the withdrawal request but did not afford him an opportunity to state his supporting reasons. On appeal his sentence was vacated and he was remanded to the sentencing justice for resentence by reason of the denial of his right of allocution and particularly for his having been 'cut off' from his application to withdraw his plea of guilty. People v. Oliver, 34 A.D.2d 775, 310 N.Y.S.2d 689 (1st Dept. 1970).

Prior to resentencing in October, 1970, the state justice heard statements from the petitioner concerning his reason for wishing to withdraw his plea, consistent with his later testimony before the habeas corpus court, together with contradicting statements from his attorney. No findings concerning petitioner's claim were made but an evidentiary hearing was ordered, and a new attorney who had been assigned to represent petitioner was directed to file a written motion for leave to withdraw the plea of guilty. Such a written motion was not filed. In April, 1971, petitioner was resentenced, nunc pro tunc, as of February 4, 1969, to the same term of not to exceed ten years, over his objection that his request to withdraw his plea had not been heard. The Appellate Division unanimously affirmed on April 18, 1972, People v. Oliver, 39 A.D.2d 646, 331 N.Y.S.2d 587 (1st Dept. 1972), and leave to appeal to the New York Court of Appeals was denied on July 12, 1972.

Appellant insists that in view of 28 U.S.C. 2254(d),⁴  the state court proceedings somehow obviated any necessity of an evidentiary hearing in the habeas corpus court, justify our disregard of the latter court's findings and, indeed, rendered the holding of an evidentiary hearing by that court in itself error.

Even though no evidentiary hearing was had in the state court on the issues of voluntariness of the plea and the effective assistance of counsel, appellant argues in effect that the requirements of Section 2254(d) must be deemed satisfied because no formal motion or affidavit was filed as directed by the state justice and because it was obvious without such a hearing that the sentencing court credited the explanation of the attorney rather than the claims of the respondent. A variation of the latter theme is the contention in reliance upon United States ex rel. Robinson v. Fay, 348 F.2d 705 (2d Cir. 1965), cert. denied, 382 U.S. 997, 86 S. Ct. 583, 15 L. Ed. 2d 484 (1966), that a federal court is not obliged to hold a habeas corpus hearing where the state court has credited an attorney rather than his felon client. Granted that under some such circumstances a federal evidentiary hearing is not mandated, this does not answer the question whether a hearing properly may be held by a federal court should it elect to do so.

For the district court to hold an evidentiary hearing was not error per se. Irrespective of whether the conditions of 28 U.S.C. 2254(d) have been met, a federal court is not precluded from holding such a hearing to determine whether the claims of a petitioner raising as here, a substantial issue of fact can be established by the requisite degree of proof.⁵  If the presumption of correctness of state findings applies they can be overcome only by clear and convincing evidence; if no presumption operates, a petitioner has the burden of proving his case by a preponderance of the evidence. Here the conditions were not met since there had been no state 'determination after a hearing on the merits of a factual issue . . .' (2254(d)), resolving such factual issue (2254(d) (1)) by a fact finding procedure 'adequate to afford a full and fair hearing' (2254(d) (2)), adequately developing the material facts (2254(d) (3)), and affording the petitioner a full, fair and adequate hearing (2254(d) (6)).

Appellant contends that the petitioner waived an evidentiary hearing on the issue of the voluntariness of his plea because his counsel failed to file the written motion as directed by the state justice. This point relates more to an unraised question of the exhaustion of state remedies than to the effect of the state court determination upon, or the propriety of, the federal evidentiary hearing in view of 2254(d). If there were no state hearing on the merits of a factual issue, whether waived or not, a condition for the presumptive correctness of state court findings based on such a hearing would not be satisfied, even though habeas corpus relief in the district court might be barred for failure to exhaust state remedies. But we think the trial court's determination that there was no such waiver or failure is not clearly erroneous and should stand.⁶  Although the state justice indicated that Oliver's own lack of cooperation with his attorney contributed to the latter's failure to file the written motion, there are indications in the record to the contrary upon which it was within the province of the habeas corpus judge to rely.⁷ 

Thus, if by appellant's 'incredible' argument is meant that there was insufficient credible evidence of the counsel's false representations to support the trial court's findings⁸  we reject it.⁹  If appellant's initial statement of the question (p. 2 of appellant's brief), apparently concerned rather with claimed incredibility of any reliance by petitioner upon the representation of his attorney,¹⁰  is to be taken as the point, it becomes more troublesome.

The petitioner when he entered his plea was not a novice in criminal proceedings, and the evidence suggests that in some ways he was relatively bright. The oral argument in support of the latter version of the contention was that no matter what his attorney may have represented to him he should have known better. Undeniably the claimed deal for the state to waive a number of other indictments in return for his plea of guilty to a single charge involving the service of no time beyond the period of his federal sentence was an exceedingly good one for the petitioner under the circumstances. But for us to say contrary to petitioner's testimony, the circumstances supporting it, and the findings of the trial court, that in law or in fact he could not have relied upon his attorney's representation is another thing. We have concluded that the trial court's contrast of the attorney's situation with that of the petitioner¹¹  and the testimony supporting the implicit finding of reliance were not unreasonable, much less incredible, and should stand along with the other factual determinations of the trial court.

In granting the writ Judge Knapp directed 'that the relator be discharged unless we can have it retried by the state court within a period of sixty days.' Appellant complains that this limitation would afford insufficient time to prepare for trial, and in the same breath suggests that, by reason of prior delay occasioned by the proceedings thus far, proof of the offense may now be difficult to marshall. It is also suggested that, if the writ stands, the state should at least have the option of resentencing petitioner to the four years which he understood he was to receive, to which his present counsel indicated in oral argument that he would have no objection.

Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971) involved a remand with directions that the state court either allow a petitioner to withdraw his plea and stand trial or grant specific performance of the agreement which had induced the plea. But the present case is not one of a breached prosecutorial promise and a plea induced by that promise, as in Santobello, but rather a false representation by petitioner's counsel that a promise had been made, and a plea induced by that representation. Under the latter circumstances the district court with our approval in Mosher adopted, 351 F. Supp. at 1111-1112, a solution similar to that suggested by appellant here. Yet there are enough distinctions in the circumstances of the two cases¹²  to persuade us to accept here, as was done there, the variant discretion of the court below.¹³ 

Effective upon the filing of the mandate the stay heretofore granted is vacated and the order of the district court is affirmed.