The opinion of the court was delivered by: TENNEY
Petitioner moves under Title 28, United States Code, Section 2255, to vacate a judgment imposed upon his plea of guilty before Judge Mandelbaum of this court on May 31, 1946, which conviction was used as the basis for multiple offender treatment in the New York State Supreme Court on June 24, 1953. Petitioner is presently incarcerated pursuant to the State court judgment.
On May 21, 1946, petitioner was arraigned before a United States Commissioner and charged with forging, on May 20, 1946, a United States Government check. Bail was set at $500.00 and petitioner waived the preliminary examination. On May 29, 1946, a one-count indictment was returned which charged petitioner with uttering a forged United States Government check in violation of former Section 73 of Title 18, United States Code (presently 18 U.S.C. § 495).
A copy of the allegedly forged check was attached to the indictment. On May 31, 1946, petitioner appeared before Judge Mandelbaum, who assigned counsel at that time. A copy of the indictment was then given to defense counsel, and the matter was adjourned to the second call of the calendar. After consultation with assigned counsel, petitioner pleaded guilty to the one-count indictment. The Assistant United States Attorney recommended that the imposition of sentence be suspended and that petitioner be placed on probation for a period of one year. After further discussion, Judge Mandelbaum suspended the imposition of sentence and placed petitioner on probation for one day.
Since petitioner is no longer serving a sentence imposed by this court, but is incarcerated in a New York State Penitentiary as a result of a State prosecution, his application will be treated as one for writ of error coram nobis or other relief under the "All Writs Statute", 28 U.S.C. § 1651(a). United States v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (1954); United States v. Forlano, 319 F.2d 617, 618 (2d Cir. 1963); see Theriault v. Mississippi, 390 F.2d 657 (5th Cir. 1968).
Petitioner asserts various claims which, whether considered separately or together, do not warrant the granting of relief by this Court.
As error, petitioner claims, inter alia, that: (1) he was arrested on May 17, 1946 and not brought before a Magistrate until May 31, 1946; (2) he was not given a copy of the indictment before being called upon to plead; and (3) he was not informed of his rights to a preliminary examination. The record refutes these contentions.
The Commissioner's docket entries, attached to the Government's Affidavit in Opposition, show that the petitioner was arrested in connection with the same event for which he was thereafter indicted. The indictment charges him with an offense that occurred on May 20, 1946, the day prior to his arraignment. He obviously could not have been arrested and incarcerated on May 17, 1946 for an offense committed on May 20, 1946. Similarly, the May 31, 1946 Minutes of Plea and Sentence clearly indicate that petitioner was given a copy of the indictment prior to being called upon to plead. Although the docket entries further show that the petitioner waived his preliminary examination, it has been consistently held that an accused has no constitutional right to a preliminary hearing, and the failure to accord an accused a preliminary hearing is in no way violative of due process of law. United States v. Motte, 251 F. Supp. 601, 603 (S.D.N.Y.1966). As this Court noted in Motte, supra :
"The only purpose served by a preliminary examination is to determine whether there is sufficient evidence to warrant a defendant being held in custody or, as here, on bail to await action of a grand jury. The grand jury, by returning an indictment, resolved that issue, the indictment conclusively establishing the probable cause, and thereby eliminated the necessity for the preliminary hearing before the Commissioner."
Further, the petitioner asserts as error that he was not advised by the Commissioner of his right to assignment of counsel and that he was not provided counsel until called upon to plead to the indictment before Judge Mandelbaum.
Arraignment is an important step in a Federal criminal proceeding and, therefore, the need for the assistance of counsel may exist at that time. United States v. Washington, 341 F.2d 277, 284, 9 A.L.R.3d 448 (3d Cir.), cert. denied, De Gregory v. United States, 382 U.S. 850, 86 S. Ct. 96, 15 L. Ed. 2d 89, rehearing denied, 382 U.S. 933, 86 S. Ct. 317, 15 L. Ed. 2d 346 (1965) and cases cited therein. However, the denial of counsel in preliminary criminal proceedings is not in itself a denial of due process of law. McGill v. United States, 121 U.S.App.D.C. 179, 348 F.2d 791, 792-793 (1965); United States ex rel. Battle v. Fay, 219 F. Supp. 798, 800 (S.D.N.Y.1963). Petitioner was not called upon to plead before the Commissioner; he was informed of the charges against him and reasonable bail was set. The grand jury having subsequently returned an indictment, the necessity for a preliminary hearing, which petitioner waived, was eliminated. Therefore, even assuming the facts to be as petitioner alleges, this Court can find no prejudice to petitioner nor even a reasonable possibility of prejudice in fact. McGill v. United States, supra, 348 F.2d at 793.
Petitioner and his assigned counsel were allowed time to review the indictment, after which consultation the petitioner entered his plea of guilty. It should be noted that the indictment charged the utterance of a single, forged United States check, which check was attached to the indictment. It is therefore not unlikely that only a short time was needed for the petitioner and his counsel to examine the indictment and reach a conclusion as to a plea. On these facts, there is no support for petitioner's contention that counsel's assistance was ineffective. See Gray v. United States, 112 U.S.App.D.C. 86, 299 F.2d 467, 468 (1962).
Petitioner argues that he was denied due process of law in not being warned prior to his plea that should he subsequently be convicted of a felony in New York State he would be subject to multiple offender treatment. It is clear, however, that a defendant need not be apprised of all the collateral legal consequences of his plea. United States v. Cariola, 323 F.2d 180, 186 (3d Cir. 1963); United States v. Parrino, 212 F.2d 919, 921-922 (2d Cir.), cert. denied, 348 U.S. 840, 75 S. Ct. 46, 99 L. Ed. 663 (1954).
Petitioner, in conclusion, asserts that: (a) "he did not admit his guilt to the charge against him, but pleaded guilty in an effort to facilitate treatment of one (1) day Sentence Suspended, and promise that he would receive a suspended Sentence which would be tantamount to an acquittal" and (b) that Judge Mandelbaum, in accepting his plea, failed to first determine that the plea was voluntarily made with an ...