Lumbard, Chief Judge, and Medina and Waterman, Circuit Judges. Waterman, Circuit Judge (dissenting and concurring).
This appeal by a state prisoner concerns the propriety of the district court's finding, after a hearing, that appellant had waived his right to contest the validity of a predicate New York State conviction used in sentencing him as a second felony offender.
Charles Kenny is presently incarcerated pursuant to a judgment of the Kings County Supreme Court, rendered on October 27, 1965, convicting him on his plea of guilty to second degree robbery and sentencing him to a term of 7 1/2 to 10 years as a second felony offender. The predicate felony conviction was also rendered in Supreme Court, Kings County, in February, 1962, convicting him on his plea of guilty to first degree manslaughter and sentencing him to 3-5 years imprisonment. It is this 1962 conviction which Kenny now attacks as unconstitutional, alleging that his guilty plea was involuntary because the sentencing Judge failed to keep a promise respecting his sentence. After a hearing in the Southern District, at which Kenny and the other people involved testified, Judge Tenney concluded that Kenny had deliberately bypassed orderly state procedures for raising this claim and therefore was not entitled to relief. As we agree with the district court, we affirm the order denying the writ.
As revealed at the district court hearing and in the state court opinions, Kenny and two co-defendants were indicted in 1961 for first degree murder. All three pleaded guilty to reduced charges: Kenny, because of his greater culpability, to manslaughter I; the other two to manslaughter II. Prior to the entry of the pleas, on December 4, 1961, the presiding Judge, Judge Barshay, agreed "that all three defendants will receive the same treatment on sentencing day." At sentencing, on February 5, 1962, one of Kenny's co-defendants, Murphy, was given a suspended sentence; the other co-defendant, McLoughlin, was given a 3-5 year prison term; and Kenny was given a 3-10 year prison term. When the prior agreement was brought to Judge Barshay's attention, he resentenced Kenny to the same term as McLoughlin, 3-5 years.
Kenny did not move to withdraw his plea, nor did he appeal his conviction, though his counsel advised him to do so. Thereafter, he sought coram nobis in Kings County Supreme Court, claiming that he was improperly sentenced. After a hearing, Judge Barshay denied relief on the ground that the probation reports made it clear that Murphy deserved special leniency, and that "it would have been as unjust to imprison Murphy as it would have been not to imprison Kenny and McLoughlin." People v. Kenny, 236 N.Y.S.2d 911 (1962). The New York Appellate Division affirmed without opinion, 19 A.D.2d 948, 245 N.Y.S.2d 320, and leave to appeal to the New York Court of Appeals was denied.
Kenny then sought a writ of habeas corpus in the Southern District. On July 24, 1964, Judge Weinfeld ordered a hearing and assigned counsel to represent Kenny. United States ex rel. Kenny v. Fay, 232 F. Supp. 899 (S.D.N.Y.1964). Kenny, however, wrote to Judge Weinfeld, stating that if the Federal court could merely vacate the guilty plea, leaving him subject to trial on the original indictment, he wished to withdraw his petition. Judge Weinfeld accordingly ordered the petition withdrawn, without prejudice.
No further action was taken in the state court. Kenny was released on parole in November, 1964, but thereafter three indictments were filed against him. In October, 1965 he pleaded guilty to robbery second degree to cover all three indictments. He was sentenced as a second felony offender, pursuant to New York Penal Law, McKinney's Consol.Laws, c. 40, § 1943, to 7 1/2 years to 10 years.*fn1 At that time he made no objection to the use of the 1962 conviction as a predicate for second offender treatment. So far as we are advised, he has never attacked his second felony conviction in the state courts.
In September, 1966, Kenny brought the present application for a writ of habeas corpus in the Southern District, alleging the unconstitutionality of his 1962 conviction and therefore the invalidity of its use as a basis for multiple offender treatment. A hearing was held, wherein Kenny was represented by retained counsel. Kenny testified, and also called Harry Blum, his 1962 trial counsel. Respondent called Judge Barshay and the court stenographer from the 1962 sentencing. After the hearing, the district court held:
"Taking all relevant factors into consideration, this seems to be one of those relatively rare cases mentioned in Fay v. Noia, supra [372 U.S. 391, 83 S. Ct. 822, 9 L. Ed. 2d 837], where 'a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks,' and where petitioner 'has deliberately by-passed the orderly procedure of the state courts.' All of petitioner's actions indicate an intelligent knowledge of the law and a well-considered attempt to avoid its consequences."
We think that the district court's conclusion, far from being clearly erroneous, is amply supported by the record.
First, Kenny made no attempt to withdraw his 1961 plea, although Judge Barshay testified at the habeas corpus hearing that if such a request had been made, he would have granted it and gone on with Kenny's trial. Secondly, Kenny failed to appeal this conviction, although his lawyer advised him to do so.
Third, in 1964, after a hearing had been ordered by Judge Weinfeld on Kenny's application for a writ of habeas corpus, Kenny sought leave to withdraw the application. At the hearing below, Kenny stated the reason for this action:
"Well, after having served almost 4 years out of that sentence, I was a little scared to go back down ...