Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays, Anderson and Feinberg, Circuit Judges. Waterman, Circuit Judge (concurring). Irving R. Kaufman, Circuit Judge (concurring) (with whom Waterman, Anderson and Feinberg, Circuit Judges, concur). Anderson, Circuit Judge (concurring). Feinberg, Circuit Judge (concurring). Lumbard, Chief Judge (dissenting) (with whom Circuit Judges Moore and Friendly concur). Moore, Circuit Judge (dissenting) (with whom Chief Judge Lumbard and Circuit Judge Friendly concur). Friendly, Circuit Judge (dissenting) (with whom Lumbard, Chief Judge, and Moore, Circuit Judge, concur).
J. JOSEPH SMITH, Circuit Judge (with whom WATERMAN, IRVING R. KAUFMAN, HAYS, ANDERSON and FEINBERG, Circuit Judges, concur):
United States ex rel. Ross v. McMann is an appeal from a dismissal without hearing of an application by a state prisoner for writ of habeas corpus in the District Court for the Eastern District of New York, Walter Bruchhausen, Judge. Relator, confined in a New York State prison for a term of 45 years to life on conviction upon plea of guilty to murder in the second degree, petitioned the Supreme Court of the State of New York for Kings County for a writ of error coram nobis on the ground that his guilty plea was induced by coerced confessions. The writ was denied without a hearing, the decision affirmed without opinion by the Appellate Division, People v. Ross, 26 A.D.2d 773, 272 N.Y.S.2d 969 (2d Dept. 1966) and leave to appeal denied by the New York Court of Appeals.
The District Court entertained the application for writ of habeas corpus, and dismissed the petition without a hearing on the ground that "a voluntary guilty plea entered on advice of counsel is a waiver of all non-jurisdictional defects in any prior stage of the proceedings against him," relying on United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2 Cir. 1965), cert. denied 383 U.S. 915, 86 S. Ct. 906, 15 L. Ed. 2d 669 (1966). In his complaint and supplemental affidavit Ross alleges that he pleaded guilty because his attorney had refused to attempt to suppress a confession which had been illegally obtained from him and had warned him that if he risked a trial, the confession and other evidence against him would surely lead to his conviction for first degree murder and sentence to the electric chair.*fn1 We hold that these allegations raise a sufficient question as to the voluntariness of the plea of guilty to require a hearing before the issue is determined.
On the record before us, it appears that Ross has sufficiently raised his present claims in the state courts to satisfy the requirement of exhaustion of state remedies. On oral argument, however, it was represented that a second petition by Ross for relief by writ of error coram nobis has been brought to and is pending in the state courts. If this is determined by the District Court to be the fact, that court may defer hearing in this matter pending final determination of the action in the state courts. And, if hearing is had on the issue in the state courts, the District Court may find further hearing before it unnecessary to its determination of the merits. We reverse and remand to the District Court for further proceedings not inconsistent with this opinion.
This case raises the narrow question whether a District Court should apply the standards of Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963), in determining whether to hold an evidentiary hearing upon a habeas corpus petition where the petitioner is confined after a plea of guilty and is contending that the plea was not voluntary, because it was induced by the existence, or threatened use, of an allegedly coerced confession.
It is clear, first of all, that a plea of guilty, even where the defendant is represented by counsel, is not an absolute bar to collateral attack upon a conviction. Waley v. Johnston, Warden, 316 U.S. 101, 62 S. Ct. 964, 86 L. Ed. 1302 (1942). Cf. Pennsylvania ex rel. Herman v. Claudy, Warden, 350 U.S. 116, 76 S. Ct. 223, 100 L. Ed. 126 (1956). (In Herman, petitioner did not have benefit of counsel.) See also Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473 (1962): "A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collateral attack." To paraphrase Harrison v. United States, 392 U.S. 219, 223, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), "The question is not whether the petitioner made a knowing decision to [plead] but why." Nor is the mere existence of a coerced confession enough to invalidate a later guilty plea by a defendant represented by counsel.
The question to be answered in any case involving a collateral attack on a conviction based upon a plea of guilty is usually expressed in terms of whether or not the plea was a "voluntary" act. [An "involuntary" plea of guilty is inconsistent with due process of law, see Waley v. Johnston, supra, 316 U.S. at 104, 62 S. Ct. 964, and thus invalid whether made in federal or state court.] And Townsend v. Sain, supra, 372 U.S. at 312-313, 83 S. Ct. 745, requires that where the petitioner in such a case has not received a "full and fair evidentiary hearing" in a state court as to the voluntariness of the plea, a hearing be held in the federal District Court.
The question of when to hold a hearing has apparently been complicated in this Circuit, however, by confusion between the doctrine that an involuntary guilty plea may be collaterally attacked and the well-established doctrine that if the plea is voluntary, it is an absolute waiver of all non-jurisdictional defects in any prior stage of the proceedings against the defendant.
Judge Weinfeld said in United States v. Colson, 230 F. Supp. 953, 955 (S.D.N.Y.1964), "The determination of the ultimate question of whether the defendant, at the time he pled guilty, had the free will essential to a reasoned choice, rests upon probabilities and, of course, cannot be resolved with mathematical certainty. It involves an evaluation of psychological and other factors that may reasonably be calculated to influence the human mind. * * * It is necessary to consider the plea of guilty against the totality of events and circumstances which preceded its entry." The determination is difficult, but it is not necessarily rendered more difficult simply because a coerced confession or an illegal search and seizure is one of the factors which may be taken into account.
In the case at bar, the court, relying on Glenn, found it unnecessary to make such a determination. This, we think, resulted from a too expansive reading of Glenn. The opinion in Glenn may be read either of two ways: (1) the allegation of a coerced confession, without more, is not sufficient to raise the issue of the voluntariness of a guilty plea; or (2) an unconstitutionally coerced confession is never relevant to the issue of the voluntariness of a guilty plea. The first, more narrow reading, seems to us to state the proper rule. But the second reading (the much more likely meaning of the opinion despite the use of the word "voluntary," in view of the allegation that the plea was coerced by the existence of an involuntary confession) confuses the doctrine that an involuntary guilty plea may be collaterally attacked with the doctrine that if it is voluntary, a guilty plea waives prior defects in the proceedings against the defendant.
The court relied on two cases in Glenn : United States ex rel. Swanson v. Reincke, 344 F.2d 260 (2 Cir.), cert. denied 382 U.S. 869, 86 S. Ct. 144, 15 L. Ed. 2d 108, 1965 and United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2 Cir. 1965). Neither of those cases holds that the waiver rule should operate to make an invasion of the defendant's Constitutional rights irrelevant to the issue of the voluntariness of the guilty plea.
In Swanson, this court affirmed the denial of relief in a habeas corpus proceeding challenging the constitutionality of the statute under which petitioner had been convicted, where a hearing had been held below. There is language in the court's opinion refusing to rest affirmance on the ground that a plea of guilty should bar collateral attack. In discussion of that issue, 344 F.2d at 261-262, it was said:
The cases most nearly in point but by no means exactly so concern guilty pleas proper in other respects, such as right to counsel, but lodged after the police had obtained evidence in violation of constitutional rights; a number of circuits have said such guilty pleas are not subject to attack [citing cases], even when induced by that evidence [citing cases].*fn2
In Boucher, the other case cited in Glenn, the petitioner sought to attack his conviction based upon a guilty plea. After stating the waiver rule, this court said:
To circumvent the effect of the guilty plea as a waiver, the petitioner asserts that his plea was induced by inadequate representation by counsel and by the fear that unconstitutionally obtained evidence would be used at his trial.
341 F.2d at 981. The opinion then goes on to explain how the petitioner's representation by counsel had been entirely competent, there were no circumstances indicating an illegal search and seizure, and "There is not a shred of evidence that anyone induced him to plead guilty and the court concluded 'it was made freely, voluntarily and intelligently.'" A hearing was held in Boucher.
The meaning of the rule was also left somewhat uncertain by a per curiam opinion in United States ex rel. Martin v. Fay, 352 F.2d 418 (2 Cir. 1965), cert. denied Martin v. Follette, 384 U.S. 957, 86 S. Ct. 1581, 16 L. Ed. 2d 552 (1966). There, a denial without a hearing of an application for habeas corpus was affirmed, where appellant claimed, inter alia, that he pleaded guilty because a coerced confession had been obtained from him. The court said: "An examination of the facts and circumstances surrounding the taking of the plea convinces us that the plea was made voluntarily, the colloquy between the sentencing judge and appellant being decisive." The court then cited the waiver rule, as stated in Glenn, along with a "see also" citation to Swanson and Boucher. Judge Waterman concurred on the ground of failure to exhaust state remedies, and stated that he thought the court had made an ambiguous use of the word "voluntary," since although the petitioner had not demonstrated that a hearing would prove his allegation that his guilty plea was "required by an alleged prior forced confession," "Nevertheless, I can conceive of situations in which a plea of guilty upon the advice of counsel would have been caused by circumstances entitling the defendant to challenge his own act on the ground it was a compelled act." 352 F.2d at 419.
We have in other cases also used language inconsistent with the District Court's reading of Glenn here. In United States ex rel. Siebold v. Reincke, 362 F.2d 592 (2 Cir. 1966), a denial of a petition for a writ of habeas corpus was affirmed per curiam on the ground that "the hearing before the District Court indicated that petitioner's guilty plea was not the result of unconstitutionally obtained evidence." 362 F.2d at 593. In the course of the opinion, it was noted that "A conviction will not be sustained if it rests upon a plea of guilty which is the result of coercion, nor, perhaps, if the plea of guilty resulted from other violations of constitutional rights," citing Vaughn, supra, (United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 [2d Cir. 1963]), and United States ex rel. McGrath v. LaVallee, 319 F.2d 308, 311 (2 Cir. 1963). Neither Glenn nor Martin was mentioned. In McGrath, the court split three ways (for no hearing, a hearing and outright granting of a writ of habeas corpus) in a case where petitioner contended that his guilty plea had been involuntary -- the claim of coercion was based upon what the trial judge said to the petitioner just before the guilty plea was entered.
The rule should be stated as follows: Where a petition for habeas corpus raises a claim that a guilty plea was not voluntary, the standards of Townsend v. Sain are applicable in determining whether to hold a hearing; and although the waiver rule means that an allegation that the petitioner's constitutional rights were violated before the plea was taken is not, standing alone, sufficient to call the validity of the plea into question, nonetheless if it is alleged that the plea was coerced in a manner spelled out in the petition, the alleged violations are not irrelevant to the issue of the voluntariness of the plea. An alleged violation of constitutional rights is simply another factor to be taken into account in determining the voluntariness of the plea.
On the other hand, the fact that the petitioner was represented by counsel and acted after consultation with counsel is also to be given substantial weight in determining the issue of voluntariness of plea.
From and after Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), the state and federal courts have stressed the value and necessity of providing an accused with counsel because, except in the very few cases of inadequate representation, the professional skill and judgment of the attorney, exercised on his client's behalf, affords the accused protection of his rights. The role of the attorney in advising a plea of guilty should not, therefore, be ignored. Even where there is evidence that a confession has been coerced, there may be factors which would justify counsel for the accused, once a fair hearing by the state court has been held on a motion to suppress the confession and suppression has been denied, to advise a plea of guilty. Therefore, a mere conclusory allegation by a prisoner without more, that the existence of a coerced confession induced his guilty plea, in the absence of any particularized allegations as to how that confession rendered his plea involuntary, should not ordinarily be considered sufficient to predicate an order for a hearing.*fn3 See United States ex rel. White v. Fay, 349 F.2d 413 (2 Cir. 1965); United States ex rel. Homchak v. New York, 323 F.2d 449 (2 Cir. 1963), cert. denied 376 U.S. 919, 84 S. Ct. 677, 11 L. Ed. 2d 615 (1964).
The rule we have set out is apparently consistent with the views of at least the Third, Fifth, Sixth, Seventh, and Ninth Circuits. See United States ex rel. Collins v. Maroney, 382 F.2d 547 (3 Cir. 1967) (per curiam); Smith v. Wainwright, 373 F.2d 506 (5 Cir. 1967); cf. Carpenter v. Wainwright, 372 F.2d 940 (5 Cir. 1967), a stronger case for the petitioner; Reed v. Henderson, 385 F.2d 995 (6 Cir. 1967), dictum: "Appellant apparently attempts to circumvent the waiver attending the plea of guilty by claiming that the plea was involuntary in that it was the product of, or induced by, certain coerced admissions which had been obtained from him by the police. That this may be a ground for habeas corpus relief appears to be well settled," 385 F.2d at 996; Shelton v. United States, 292 F.2d 346 (7 Cir. 1961), cert. denied 369 U.S. 877, 82 S. Ct. 1149, 8 L. Ed. 2d 280 (1962); Doran v. Wilson, 369 F.2d 505 (9 Cir. 1966).
To sum up: Glenn says, in effect, that a "voluntary" plea of guilty wipes out all prior invasions of the defendant's constitutional rights. Whether that is correct or not depends on the meaning of "voluntary"; it must be recognized that a prior invasion of the defendant's rights, even if not sufficient after the taking of the plea to overturn the conviction, may still be entirely relevant to the issue of the plea's voluntariness. The problem is that Glenn, together with Martin, is sometimes being read by the District Courts to say that a coerced confession or other violation of a defendant's rights is never relevant to the issue of voluntariness, and in these cases the District Courts are relying upon representation by counsel and proper questioning by the judge at the plea taking to establish voluntariness without more, even where the allegations of the habeas corpus petition raise questions which cannot be answered by reference to the transcript alone.
This court has recently discussed the reasons why the voluntary guilty plea constitutes a waiver of all non-jurisdictional defects, United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209 at 213 (2 Cir. 1967):
There is nothing inherent in the nature of a plea of guilty which ipso facto renders it a waiver of a defendant's constitutional claims. Rather, waiver is presumed because ordinarily such a plea is an indication by the defendant that he has deliberately failed or refused to raise his claims by available state procedures; therefore, principles of comity and the interests of orderly federal-state relations require that he should not be allowed to present these claims to the federal courts.
A distinguishing feature of the present case, however, is that the only available state procedure by which he could contest the validity of the confession was the one declared retroactively unconstitutional in Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964). This is even more damaging to an accused than the lack of a right to appeal the intermediate order denying the Fourth Amendment motion to suppress in Rogers, supra, 381 F.2d at 214.
Faced with that hazard as his only alternative recourse, made particularly perilous in the context of the first degree murder charge with a possible death penalty, the decision of the accused, on advice of counsel, to plead guilty to second degree murder might well be held to have been involuntary. The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest.
The judgment is reversed and the case remanded with instructions to hear and determine petitioner's application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner's plea*fn4 within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow.
Turning to United States ex rel. Dash v. Follette, Foster Dash was sentenced on August 3, 1959, in the New York state courts on plea of guilty to a charge of robbery second degree, to imprisonment for a term of 8 to 12 years as a second felony offender. Dash sought release by writ of error coram nobis on the ground that a false confession was obtained from him after indictment in violation of his right to counsel, and that his plea of guilty was induced by advice of counsel that the confession would negate any chance of acquittal and by a threat by the trial judge that he would receive the maximum possible sentence if he went to trial and was found guilty. The writs were denied without hearing, and the orders affirmed by the Appellate Division (People v. Dash, 21 A.D.2d 978, 252 N.Y.S.2d 1016) and by the Court of Appeals (16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965)), two justices dissenting.
Petitioner then applied for writ of habeas corpus, alleging similar grounds, in the United States District Court for the Southern District of New York. The Court, John M. Cannella, J., denied the application, relying principally on United States ex rel. Glenn v. McMann, supra, United States ex rel. Swanson v. Reincke, supra, and United States ex rel. Boucher v. Reincke, supra,*fn5 and petitioner appeals. We reverse and remand with instructions.
In this case, as in United States ex rel. Ross v. McMann, decided herewith, a state prisoner's application for writ of habeas corpus was denied without hearing, the court relying largely on United States ex rel. Glenn v. McMann, since the petitioner, represented by counsel, had pleaded guilty in the state court. Here Dash alleges coercion of his confession. (Conviction of two of his co-defendants who went to trial was set aside because it was held that their confessions were coerced. People v. Waterman, 12 A.D.2d 84, 208 N.Y.S.2d 596, aff'd 9 N.Y.2d 561, 216 N.Y.S.2d 70, 175 N.E.2d 445 (1961).) He also alleges coercion of his plea, relying partly on the existence and threatened use of his coerced confession, and partly on an alleged threat by the judge to impose the maximum possible sentence if he were found guilty after a trial. The latter ground was dismissed from consideration by the judge because the report of the state court proceeding, People v. Dash, 16 N.Y.2d 493, 260 N.Y.S.2d 437, 208 N.E.2d 171 (1965), indicated that the prosecutor had filed an affidavit categorically denying that the trial judge ever threatened the defendant.
In this case, as in Ross v. McMann, the claim is made that the existence of a coerced confession, in a case determined prior to Jackson v. Denno, supra, so tainted the state court proceedings that the plea was not voluntary. For the reasons set forth in Ross v. McMann, we think the allegations here sufficient to call for a hearing on the voluntariness of the plea unless a full hearing and determination of the issue is provided in the courts of the state. As we held in Ross, "The petitioner cannot be deemed to have waived his coerced confession claim by deliberately by-passing state procedures when the state failed to afford a constitutionally acceptable means of presenting that claim, and he cannot be deemed to have entered a voluntary plea of guilty if the plea was substantially motivated by a coerced confession the validity of which he was unable, for all practical purposes, to contest." In these circumstances there is an issue as to the motivation of the plea which cannot be resolved without a hearing. If it was motivated by the claimed threat of the judge, or the existence and threatened use of a coerced confession, it may be found not to have been voluntary. On the other hand, if it is found that there was no such threat by the judge, and if the plea was freely made on advice of counsel because of the weight of the state's case aside from the confession, with apparent likelihood of conviction regardless of the confession, in a considered effort to obtain a lighter sentence, the court may find the plea voluntary, and the conviction unassailable.
Reversed and remanded with instructions to hear and determine petitioner's application unless a hearing is held by the courts of the state determining under the standards set forth herein the issue of the voluntariness of petitioner's plea*fn6 within 60 days from the date of issuance of the mandate herein, or such further time as the District Court may for good cause allow.
WATERMAN, Circuit Judge (concurring):
I concur in the opinion for the majority of the in banc Court written by Circuit Judge J. JOSEPH SMITH.
I accept Circuit Judge IRVING R. KAUFMAN's approach in his concurring opinion, and I concur in that opinion, also.
IRVING R. KAUFMAN, Circuit Judge (concurring) (with whom WATERMAN, ANDERSON and FEINBERG, Circuit Judges, concur):
I am in full accord with my brother SMITH'S opinion.
Because we are not writing on a clean slate, and the majority accordingly came to the only conclusion open to it in Ross and Dash, I feel impelled to respond to the objections raised by my dissenting brothers.
Notwithstanding the caustic tones in which one of them has retorted I believe it my responsibility to set forth my views lest one believe that only the dissenters seek to protect us "against those who have made it impossible to live today in safety" Harrison v. United States, 392 U.S. 219, 235, 88 S. Ct. 2008, 2017, 20 L. Ed. 2d 1047 (1968) (dissenting opinion) and that the majority has become an ally of criminals, devoid of all interest in the community's safety and living insensitively in its ivory tower.
First, I should hardly have thought it necessary, but for my brothers' dissent, even to mention the judicial precept that the ultimate guilt or innocence of the defendants has no bearing on the issues before us. Under our system of criminal justice two indispensable conditions must be met to render valid a determination of guilt: not only must the accused actually be guilty of the crime for which he was convicted, but the procedure leading to his conviction must comport with the requirements of due process. Thus, even if we were to agree with my dissenting brother's declamation that "Men who first confess and then, on the advice of counsel, plead guilty to serious crimes, do so because they are," I submit that such an observation is gratuitous and irrelevant to the issue before us: whether the state procedures leading to the entry of the pleas of guilty in question were fundamentally fair in a constitutional sense.
Second, I am impelled to dissipate the impression that our decision is somehow a novel departure from established constitutional tenets. On the contrary our decisions here are absolutely required by the principles the Supreme Court has long enunciated. Thus, in Machibroda v. United States, 368 U.S. 487, 493, 82 S. Ct. 510, 513, 7 L. Ed. 2d 473 (1962) the Court cautioned:
"* * * A plea of guilty differs in purpose and effect from a mere admission or an extra-judicial confession; it is itself a conviction. Like a verdict of a jury it is conclusive. More is not required; the court has nothing to do but give judgment and sentence. Out of just consideration for persons accused of crime, courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences." [quoting Kercheval v. United States, 274 U.S. 220, 223, 47 S. Ct. 582, 71 L. Ed. 1009 (1927)].
This instruction of the Court cannot be ignored merely because the particular facts of that case are somewhat different from those in the cases before us, or because nonessential distinctions might be spun. If we could turn our backs on a pronouncement as clear as that quoted merely because the facts in the case under consideration may not be on all fours, no precept or ratio decidendi of the Supreme Court would have any force. It does not require too much imagination to recognize that the principles and the problems we are dealing with are the same. Machibroda mandated that, because of the extreme gravity of a guilty plea, in all cases where a conviction based upon such a plea is attacked we must carefully and conscientiously consider the surrounding circumstances to determine whether is was properly and voluntarily made. And since Machibroda itself involved a collateral attack on a conviction based upon a guilty plea we cannot, as one of my dissenting brothers suggests, ignore the applicability of this mandate to other cases where post conviction attacks are made on the propriety of the guilty pleas merely because they come "long after the defendant has gotten the benefit of his bargain."
Moreover, in Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 118, 76 S. Ct. 223, 224, 100 L. Ed. 126 (1956), the Court further instructed:
"* * * [A] conviction following trial or on a plea of guilty based on a confession extorted by violence or by mental coercion is invalid under the Federal Due Process Clause." [Italics added.]
While the petitioner in Herman alleged a more aggravated deprivation of rights than appears in the cases before us, such a distinction is not compelling. Although the court was dealing with a greater degree of contamination, I do not read Herman as preaching a doctrine that the taint must reach only the gradations found there before one may claim the pleas were induced by fundamentally unfair procedures. If the Supreme Court had intended to limit the holding to the precise facts in that case it would have done so explicityly, or at least by intimation, a course it has followed in so many other cases where it desired to achieve such a limited goal. When instead the court enunciated a clear, unqualified, and unequivocal principle of general applicability, we, as an inferior court, are duty bound to regard it as governing in analogous cases presenting the same question of law. My brother Friendly made the point when he said in another context, "Our duty as an inferior federal court is to apply, as best we can, the standards the Supreme Court has ...