The opinion of the court was delivered by: COOPER
Petitioner, Francis Seible, was convicted on July 14, 1965 of robbery in the third degree in Westchester County Court, White Plains, New York, after entering a plea of guilty on June 24, 1965. He is presently incarcerated in Clinton Prison, Dannemora, New York. On February 13, 1968, petitioner submitted a request for a writ of error coram nobis alleging that his plea of guilty was induced by a deliberate misrepresentation of his counsel. The application was denied, without a hearing, on June 5, 1968, by Judge Marbach of the Westchester County Court; order affirmed without opinion by the Appellate Division, Second Department, on March 24, 1969; leave to appeal to the New York Court of Appeals was denied on July 2, 1969. Petitioner now moves this Court for a writ of habeas corpus, contending that his defense counsel's "misrepresentations" constituted violations of his sixth and fourteenth Amendment rights.
Petitioner claims that on June 24, 1965, immediately prior to entering his plea of guilty, he was informed by his defense counsel, Natalie Steinbock, that she had made a motion to suppress certain pieces of physical evidence,
and that this motion had been denied; that upon learning of the denial, his "will to resist was overborne" and he "reluctantly agreed to plead guilty";
that in fact no such motion had been made and that his guilty plea therefore was not voluntary.
In United States ex rel. Ross v. McMann, 409 F.2d 1016 (2d Cir. 1969), our Circuit clearly established the responsibility, and the scope of review, of a district court when considering a petition for habeas corpus by a state prisoner convicted upon a plea of guilty, holding that a guilty plea even when the defendant is represented by counsel, is not an absolute bar, upon conviction, to a collateral attack that the plea, either because of threats or promises, was in fact not voluntary.
"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. * * * And Townsend v. Sain * * * 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." 409 F.2d at 1019 (emphasis added)
In applying this standard, our Circuit cautioned that mere conclusory allegations by the petitioner of the existence of factors which induced his guilty plea, without particularized factual support as to how his plea was rendered involuntary, should not be sufficient to predicate an order for a hearing. (409 F.2d at 1022). While the court in Ross was satisfied from petitioner's affidavit alone that he was entitled to the requested hearing on the voluntariness of his plea, it suggested that "to enable the district court to decide whether or not a hearing should be ordered, additional supporting material such as the affidavit of the attorney * * * exhibits or affidavits of persons having knowledge of the claimed facts, should be appended * * *."
After a full examination of the evidence before us concerning the events of June 24, 1965, we find that petitioner is entitled to a hearing on his application.
The State concedes that there is no record in the Westchester County Clerk's office indicating that a motion to suppress was made by defense counsel. Yet, at the time of petitioner's plea of guilty (June 24, 1965), the following colloquy took place:
DEFENSE COUNSEL: May it please the Court, the defendant, Francis Seible requests the Court's permission to withdraw his plea of not-guilty entered heretofore and to enter a plea of guilty to the crime of Robbery in the 3 degrees under the first count of the indictment to cover the indictment pending against him.
DEFENSE COUNSEL: The defendant withdraws the application for the Huntley Hearing but on the motion to suppress, there has been a decision made.
THE COURT: There has been a decision?
DEFENSE COUNSEL: Yes. That motion was decided, only the Huntley ...