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UNITED STATES EX REL. BURKE v. MANCUSI

November 15, 1967

UNITED STATES of America ex rel. Robert T. BURKE, Petitioner,
v.
Vincent R. MANCUSI, Warden, Attica State Prison, Respondent



The opinion of the court was delivered by: MISHLER

MEMORANDUM OF DECISION AND ORDER

 MISHLER, District Judge.

 This petition for a writ of habeas corpus attacks the validity of a judgment of conviction for unarmed robbery in the first degree entered against Robert T. Burke, the petitioner, in the County Court of Queens County on June 4, 1962. In addition to the above conviction, the petitioner is presently serving a concurrent sentence of 7 1/2 to 15 years imposed on July 11, 1962 in Nassau County. No appeal was taken from the latter judgment, and its validity is not challenged.

 The Queens grand jury returned two separate indictments against the petitioner; one charging him with the crime of grand larceny in the first degree, and the other accusing him of robbery in the first degree and several lesser included crimes. At his arraignment, the petitioner pleaded not guilty and the court appointed James E. Mulvaney, Esq. to represent him.

 On February 20, 1962, the petitioner and his counsel appeared in court before the Honorable J. Irwin Shapiro, County Judge of Queens County. Assistant District Attorney Morton Greenspan appeared for the state. At that time, the petitioner's counsel told the court that Assistant District Attorney Frank Cacciatore, the assistant in charge of the case, who was then outside the courtroom, had indicated that the state would accept a plea to attempted armed robbery in the first degree. The court accepted counsel at his word, and Mr. Greenspan indicated that under the circumstances the state would approve the acceptance of the plea. Thereupon, Mr. Mulvaney formally requested the court's permission to withdraw Mr. Burke's plea of not guilty, and to enter a plea of guilty to the lesser offense. In an effort to determine whether the petitioner understood his attorney's application, and was changing his plea voluntarily, the court queried him on the events of the robbery. During the course of the questioning, Mr. Burke admitted having committed several armed robberies. *fn1"

 At this point, however, Mr. Cacciatore entered the courtroom and denied that a final agreement had been reached on an acceptable plea. Therefore, the court declared that it would refuse to accept the proffered plea until the state's position had been clarified, and suggested that counsel resume discussing the matter.

 The petitioner claims that he then advised his attorney that he wanted to stand trial. When Mr. Mulvaney discussed the matter with Mr. Cacciatore, however, the latter raised the petitioner's confession in open court, and asserted that it would be admissible at the trial and would ensure a conviction. Mr. Mulvaney informed the petitioner of the state's position and stated that he believed that both the offer to plead guilty and the confession would be admissible at a trial. *fn2"

 The petitioner maintains that as a result of his reliance upon his counsel's recount of the negotiations and legal advice, he was given the impression that the admission that he had just made to the court would be used as a "whipping post," and that he would incur the court's wrath if he chose to stand trial. Accordingly, the petitioner says, he agreed to plead guilty to the crime of unarmed robbery in the first degree. On June 4, 1962, Judge Shapiro sentenced him to a prison term of 15 to 30 years. The judgment of conviction was affirmed, and leave to appeal to the Court of Appeals was denied. *fn3"

 Thereafter, the petitioner applied to the United States District Court for the Southern District of New York for a writ of habeas corpus, but on February 10, 1964, Judge McMahon denied the application for failure to pursue the available state post-conviction remedies. *fn4" A subsequent application for a writ was denied by Judge Weinfeld on July 8, 1964 on the ground that it was premature, since even if the petitioner's claim were upheld, he would be neither immediately discharged nor released on bail. *fn5"

 Reverting to the state courts, the petitioner's efforts to secure a writ of error coram nobis were unsuccessful. Judge Shapiro denied the petition without a hearing and his order was affirmed. *fn6" Returning to the federal courts, Judge Weinfeld again denied the petitioner's application, indicating that even if the court were to accept the applicant's theory, his petition would still be premature because he would not be eligible for parole on his Nassau County conviction until July, 1967. *fn7"

 Since it appears that the petitioner is now eligible for parole under the Nassau County sentence, this court must decide whether a writ of habeas corpus properly lies where a petitioner's opportunity for parole under an admittedly valid conviction is thwarted by the existence of a concurrent conviction of disputed validity.

 Essentially the same question was presented to the Supreme Court in McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934), where the petitioner attacked his conviction and sentence under the third count of a three count indictment. He had been convicted and sentenced on all three counts, the sentences under the first two counts to run concurrently with each other, but the sentence under count three to run consecutively with the one imposed under count two.

 When his petition reached the Supreme Court, however, the term imposed under the second count, less time off for good behavior, had not yet expired. Therefore, technically, the petitioner was not being detained pursuant to the challenged conviction and sentence. The Court concluded that a writ of habeas corpus is unavailable under such circumstances, and suggested that the appropriate procedure would be to mandamus the parole board to consider the prisoner's application.

 If McNally rested solely upon the point that the petitioner had not begun serving under the challenged conviction and sentence, the case at bar, wherein the sentences were imposed concurrently, would be readily distinguishable. In that case, however, after consulting the history of the Great Writ and judicial precedent, the Court declared that the purpose of a habeas corpus proceeding is to inquire into the legality of the detention, and that if the detention is found to be unlawful, the only judicial relief authorized is the prisoner's discharge or his admission to bail. McNally v. Hill, supra, at 136-137, 55 S. Ct. at 26. Accord, United States ex rel. Kling v. LaVallee, 306 F.2d 199, 203 (2d Cir. 1962) (concurring opinion); United States ex rel. Burke v. Fay, 231 F. Supp. 385, 386 (S.D.N.Y.1964). Even where a conviction is void, the Court added, "* * * its operation may be stayed by habeas corpus only through the exercise of the authority of the court to remove the prisoner from custody." McNally ...


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