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July 16, 1969

UNITED STATES ex rel. Stephen J.B., Petitioner,
Joseph A. SHELLY, Chief Probation Officer Probation Department, Supreme Court, 2d Judicial Department, Kings County, New York, Respondent

The opinion of the court was delivered by: WEINSTEIN


 WEINSTEIN, District Judge.

 Petitioner was convicted of being a Youthful Offender by the Nassau County Court on November 1, 1969. The conviction - his first - was obtained upon a plea of guilty after the trial judge had determined, in a hearing held pursuant to People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965), that certain statements and confessions made by the relator were admissible against him.

 On appeal the conviction was unanimously affirmed by the Appellate Division. The New York Court of Appeals also unanimously affirmed with a full opinion. People v. Stephen J.B., 23 N.Y.2d 611, 298 N.Y.S.2d 489, 246 N.E.2d 344 (1969).

 Now on probation, petitioner seeks to overturn his conviction on the ground that the confessions, obtained when he was sixteen and in the absence of a parent or counsel, were utilized to coerce his plea in violation of the United States Constitution. State remedies have been exhausted (28 U.S.C. § 2254; United States ex rel. Kemp v. Pate, 359 F.2d 749 (7th Cir. 1966)) and petitioner remains "in custody." 28 U.S.C. § 2241; Jones v. Cunningham, 371 U.S. 236, 83 S. Ct. 373, 9 L. Ed. 2d 285, (1963) (parole); see also Nash v. Purdy, 283 F. Supp. 837 (M.D.Fla.1968); Foster v. Gilbert, 264 F. Supp. 209 (S.D.Fla.1967). Cf. Carafas v. La-Vallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968). For the reasons stated below, the writ of habeas corpus must be granted.

 The facts surrounding the arrest and statements are summarized in the opinion of the New York Court of Appeals, and are set forth here in a close paraphrase of that decision. People v. Stephen J.B., 23 N.Y.2d 611, 298 N.Y.S.2d 489, 491, 246 N.E.2d 344 (1969). The events of the evening before, as set out below, were related upon sentencing, and are apparently undisputed.

 Petitioner, 16 years old at the time, a teen-age friend, and his friend's parents attended a wedding. The boys drank. While driving them home, the parents became annoyed when the petitioner became ill, and put the boys out of the car, leaving them stranded several miles from home. The two took a stranger's car and apparently wandered about. At approximately 6:00 A.M. the next morning, while the car was being driven by the petitioner's friend, they were stopped by a patrolman for making an illegal turn. Both youths attempted to escape when asked for the registration of the vehicle. The patrolman radioed for assistance, and then apprehended petitioner in the backyard of a nearby home. Petitioner was forcibly returned to the patrol car, and advised that he was entitled to an attorney and had the right not to make any statements. He was not informed, however, that, if indigent, a lawyer would be appointed to represent him or that any statement he might make could be used against him. The patrolman then asked if the car was stolen and petitioner admitted that it was. Shortly thereafter a police sergeant arrived in response to a radio call for assistance. Without giving the fourfold Miranda warnings, the sergeant asked petitioner why he had run away from the car. Petitioner replied that he believed the vehicle was stolen. The sergeant then fully advised petitioner of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Petitioner stated that he waived his rights and would voluntarily answer questions. He then identified the driver of the car and confessed that they had stolen the car the night before. After unsuccessfully touring the area with the police in an attempt to identify the place from which the car was stolen, defendant was taken to the police station. There he was readvised of his constitutional rights, and he then prepared a written confession in his own handwriting. He was released at 10:00 A.M.

 Questioning elicited four statements and took less than four hours, including time spent in trying to determine where the car had been stolen. Petitioner's parents were not informed of the arrest; it is not clear from the record whether he was told that he could call home, but we assume that he was afforded this opportunity. Although there were apparently no threats or brutality, petitioner was observed by the sergeant to be crying. That officer stated that in the stationhouse petitioner looked "like he hadn't received enough sleep and his clothes looked like he had slept in them."

 Although 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," (United States ex rel. Glenn v. McMann, 349 F.2d 1018 (2d Cir. 1965)), no waiver of constitutional claims arising under the self-incrimination or right to counsel clauses of the federal Constitution may be presumed from a guilty plea in New York. As a result of Jackson v. Denno, 378 U.S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), the New York courts have established a procedure for testing the admissibility of confessions before the judge outside the presence of the jury; the decision of the judge on this issue may be appealed even after a plea of guilty. People v. Huntley, 15 N.Y.2d 72, 255 N.Y.S.2d 838, 204 N.E.2d 179 (1965); N.Y. Code of Criminal Procedure § 813-g. As is the case with pretrial motions to suppress illegally seized evidence under section 813-c of the New York Code of Criminal Procedure (upon which the Huntley proceeding is patterned), it

"would be anomalous if a defendant by scrupulously following a sanctioned and reasonable state procedure for preserving his federal constitutional claims on appeal in the state courts, simultaneously waived his right to present these same claims to a federal court in an application for habeas corpus because he was lulled into following state procedure." United States ex rel. Rogers v. Warden of Attica State Prison, 381 F.2d 209, 215 (2d Cir. 1967).

 Thus, a conviction upon a plea of guilty, which in turn is based upon an involuntary confession, is invalid in New York. No separate determination of the voluntariness of the plea in a federal habeas corpus proceeding is required since no waiver of constitutional rights may be implied from the plea.

 This result accords with common sense and good judicial administration. In the overwhelming majority of cases, as in this case, once a confession is declared admissible, the pressure on the defendant to plead guilty becomes almost overwhelming. The issue of coercion of a plea of guilt is not - as a matter of practicable factfinding judicial capability - separable from the issue of illegality of the underlying confession under such circumstances.

 In passing upon petitioner's contentions, the New York courts determined that his confessions given after appropriate warnings were "voluntary" even though those statements made before full Miranda warnings were given were suppressed. People v. Stephen J.B., 23 N.Y.2d 611, 298 N.Y.S.2d 489, 492-93, 246 N.E.2d 344 (1969). But in considering the "voluntariness" of the confessions the state courts failed to give adequate weight to a fundamental aspect of the Miranda equation.

 Not only must a confession be voluntary, but the waiver of the rights protected by Miranda must be voluntary. It must, for example, be found that the defendant knowingly and willingly waived his rights to silence and counsel. The question left unanswered by the New York courts is whether, under the circumstances of this case, the petitioner knowingly and willingly waived his rights to silence and counsel under Miranda. Since the state courts have not passed upon this issue, this Court must independently apply the appropriate federal law. 28 U.S.C. § 2254(d)(1); Townsend v. Sain, 372 U.S. 293, 318, 83 S. Ct. 745, 760, 9 L. Ed. 2d 770 (1963); United ...

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