Lumbard, Chief Judge, Anderson, Circuit Judge, and Bryan, District Judge.*fn* Frederick van Pelt Bryan, District Judge (dissenting).
The State of New York appeals from an order of the Western District which granted relator Charles Scott's petition for a writ of habeas corpus after a hearing. Scott claimed that his conviction, entered on a plea of guilty to manslaughter in the second degree, and his subsequent sentence to 7 1/2 to 15 years in Attica State Prison, was invalid because (1) his plea was involuntary as it was induced by the assurances given to him by his own counsel that he would be sent to Washington, D.C.; (2) his plea was involuntary as his counsel had led him to believe that the plea could be withdrawn at any time before sentence; and (3) it was error for the trial judge not to accept his application to withdraw the plea before sentence when there was no apparent prejudice to the state. We find that the plea was voluntary and that there was no abuse of discretion. On the facts shown we believe there was insufficient evidence as a matter of law to support the conclusion of the district court that the plea was involuntary, and that the determination to the contrary was clearly erroneous. We reverse and dismiss the petition.
Scott was indicted in Erie County on November 30, 1962, charged with first degree manslaughter. Scott had fatally stabbed Arthur Lewis, aged 41, in a barroom brawl early in the morning of October 2, 1962. At the time, he was on parole, from a conviction in Washington, D.C., where on January 21, 1952, he had been convicted of second degree murder for the slaying of his paramour, and had been sentenced to 15 years to life. The stabbing in this case took place in a bar and it was apparently not disputed that Scott actually killed Lewis, the only issue being whether or not the killing was in self-defense. Scott had a prior conviction, was a parole violator, and whatever the outcome of the New York trial he was certain to be returned to Washington to serve more time. Consequently, counsel had good and sufficient reason to feel that Scott should plead guilty to a lesser offense and not stand trial.
On March 4, 1963, Scott's attorney, Herald P. Fahringer, Esq., met with the assistant district attorney and the trial judge, Frederick M. Marshall, and discussed the possibility of Scott pleading guilty to a reduced charge of manslaughter in the second degree. Counsel wanted the judge to suspend the sentence in New York and return Scott to Washington, D.C., as a parole violator. The judge, refusing to make any promises, said he would consider a suspended sentence if he could be assured that Scott would be required to serve at least five years upon his return to Washington. Counsel called the parole officials in Washington and a letter was subsequently sent by the Board of Parole stating that it would not consider any application for release until Scott had served at least two years and that there was "little possibility" that the Board would entertain such an application for at least five years.
The letter had been mailed, but not received when Scott and his counsel came before Judge Marshall on March 13, 1963. Scott then withdrew his earlier plea of not guilty to first degree manslaughter and entered a plea of guilty to second degree manslaughter. The court, after confirming Scott's desire to be near his family in Washington, then said:
"Your attorney has indicated to me that he's getting some correspondence from the correction or prison officials in Washington, D.C., which will indicate to the court what action they are going to take and he's going to submit that to me and after I have had this documentary evidence I will then have to make a determination as to whether or not I can send you back or whether you should go to Attica here in this state, are you aware of that?"
Scott responded affirmatively and then engaged in the following colloquy with the court:
The Court: In other words, I am not telling you now and I have not told your attorney or the assistant district attorney that you are under all conditions, under all circumstances going back to Washington, D.C. That might not happen.
The Court: You are aware of that?
The Court: It might well be, after reviewing the papers and probation investigation that I might feel that the interest of justice might be served by your being sentenced to serve your term here in New York State.
The Court: Now, with that explanation do you want to say anything?
The Defendant: Well, I don't guess I have anything to say.
The Court: Has everything I said been understandable to you?
The Defendant: It's been understandable to me.
The Court: Does it fairly and accurately represent the discussions that you have had with your lawyer and your understanding?
The Defendant: Yes, sir. But may I say this?
The Defendant: I don't think anyone is justified in taking a life but in this particular incident I was reluctant to enter a plea, sir, but I have been advised by my legal counsel and I think he was in better position to know than I.
The Court: Has any undue influence --
The Defendant: No, sir, none whatsoever.
The Court: -- been exercised upon your will?
The Defendant: None whatsoever.
The Court: Are you being forced ...