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September 14, 1967

UNITED STATES of America ex rel. Elliott THURMOND, Petitioner,
Vincent R. MANCUSI, Warden of Attica State Prison, Attica, New York, Respondent

The opinion of the court was delivered by: WEINSTEIN

OPINION AND ORDER (September 14, 1967)

 WEINSTEIN, District Judge.

 Petitioner pled guilty to the felony of attempting to sell six marijuana cigarettes. A first offender, he was sentenced in March of 1964 by the County Court, Nassau County, to a term of two and one-half to five years imprisonment. He did not appeal but commenced serving his sentence at once. After unsuccessfully seeking a writ of coram nobis in the state courts, petitioner now seeks release from Attica State Prison through a writ of habeas corpus from this Court.


 Petitioner collaterally attacked his sentence in the state courts on the ground that he pled guilty in reliance upon a promise of leniency which was not complied with. A full evidentiary coram nobis hearing was held in the County Court, Nassau County, in June of 1965. He was represented by counsel. Petitioner, a witness on his behalf, his former counsel, and the Assistant District Attorney who prosecuted the case testified.

 The County Court - presided over by the same judge who had conducted the prior proceedings in the case - found that no promise had been made by the District Attorney to the defendant. Its finding, amply supported by the record, was:

"The evidence justifies a determination that no promise was made by the District Attorney to the defendant. At most a finding might be made that defendant's counsel led him to believe that a suspended sentence was probable; but the courts have * * * held that the remedy of coram nobis is not available in a situation such as here presented." Opinion and order dated September 24, 1965, County Court, Nassau County, p. 3.

 This decision was unanimously affirmed by the Appellate Division. People v. Thurmond, 26 A.D.2d 622, 272 N.Y.S.2d 730 (2d Dep't 1966). Leave to appeal to the Court of Appeals was denied.

 On June 2, 1967 petitioner filed an application in this Court for a writ of habeas corpus, claiming that his plea of guilty was involuntary. This Court, on June 13, (1) granted leave to proceed in forma pauperis and (2) ordered the Attorney General of the State of New York, as counsel for relator, to show cause why a writ should not issue. The Attorney General submitted a return which included the transcripts of the coram nobis proceeding, the plea of guilt and the sentencing; correspondence between the prisoner and the County Court; the opinion and order on the coram nobis application; the brief of the District Attorney in the Appellate Division on the appeal from the order of the County Court in the coram nobis proceeding; and an affidavit from an Assistant Attorney General of the State of New York.

 Even after giving full effect to the rule that findings of fact by a state court upon a full hearing ordinarily require denial of a writ of habeas corpus by a federal court, the return was not dispositive of the issues raised by the petition. Accordingly, by memorandum and order dated August 8, 1967, this Court declared that petitioner had "posed a serious question with respect to whether the proper legal standard was utilized by the County Court." The Court appointed distinguished counsel for petitioner.

 Following an investigation by counsel for petitioner and the filing of his briefs and the state's, there was extensive oral argument. At the conclusion of the argument a writ of habeas corpus ad testificandum was issued requiring production of the prisoner at the Federal House of Detention in New York so that his counsel could consult with him and so that he would be available for a possible evidentiary hearing. Additional papers were then submitted by both parties.

 A subsequent oral hearing was held on the petitioner's application for bail. This application was denied.

 For the reasons indicated below, a full evidentiary hearing should now be held by this Court to test whether petitioner is being detained by the State of New York in violation of his rights to due process of law under the Fourteenth Amendment to the United States Constitution. To assist counsel in preparing for the hearing, this preliminary opinion is now filed. The evidence set out below is culled from the return of the Attorney General of the State of New York to this Court's order to show cause. No findings of fact are now being made.


 On July 16, 1963, petitioner was indicted for the felony of selling narcotics (six marijuana cigarettes) upon two occasions, once in December, 1962 and once in January, 1963. Upon arraignment, petitioner pled not guilty.

 According to petitioner's testimony at the coram nobis hearing - testimony which was disputed in part - petitioner consistently maintained his innocence. His attorney strongly urged him on several occasions to change his plea. Petitioner testified that he was told by defense counsel that "they have a pretty tough case against you" and that "you are facing 7 1/2 to 15 years." Petitioner steadfastly refused to plead guilty, insisting that he was going to "fight it."

 Petitioner further testified that immediately before his trial started he saw his attorney talking with the Assistant District Attorney and overheard the latter say, "if your man doesn't want to cooperate, I can prosecute him to the fullest extent of the law. I can see he gets lots of time [but] if your man cooperates with me, it will go easy on him." When the conversation ended, petitioner claimed that he was told by his attorney that since he had a clean record, the Assistant District Attorney would recommend a suspended sentence if he pled guilty to an attempted sale. Petitioner still refused to change his plea.

 The trial then began and one witness (the person to whom petitioner allegedly sold the marijuana) testified. Again, petitioner was urged by his attorney to plead guilty to an attempt. Finally, petitioner testified, after being assured that he would not go to prison, he agreed. The subsequent proceedings in the courtroom, as revealed by the full transcript, were as follows:

THE CLERK: Is there an application?
MR. FARRELL: Application at this time, I would like to withdraw the plea of not guilty and enter a plea of guilty to attempted felonious sale of narcotics under count number one in full satisfaction of the indictment.
MR. CESTARO: Your Honor, this is acceptable to our office. May the record indicate that no promises or representations have been made concerning punishment.
THE COURT: Eliot [sic] Thurmond, do you understand what is being done?
THE COURT: Do you understand that you are withdrawing your plea of not guilty?
THE COURT: To feloniously selling a narcotic drug and you are entering a plea of guilty to attempted selling of a narcotic drug?
THE COURT: That is your wish?
THE COURT: All right, that is acceptable.
THE CLERK: You are informed that if you have any prior convictions that may be proven and used against you you may be liable to additional punishment.
Do you wish to withdraw your plea of not guilty entered September 4, 1963, and at this time enter a plea of guilty to attempted feloniously selling a narcotic drug under the first count of the indictment in satisfaction of the indictment?
(Defendant sworn; pedigree taken.)
THE CLERK: Date of sentence?
THE COURT: March 6th.
THE CLERK: Bond here of $2500.
MR. FARRELL: Bail be continued, Judge?
THE COURT: Yes, bail continued.

 Petitioner claims not to have heard the District Attorney's statement that no promise had been made. As he put it, "I was upset and a little confused." The court's questions could reasonably be construed as inquiring only if defendant knew he was pleading guilty.

 On the day of sentencing, petitioner's attorney, apparently assuming that sentence would be suspended, allegedly told his client, "When this is over, be sure to ...

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