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UNITED STATES EX REL. HARDEN v. FOLLETTE

August 10, 1970

UNITED STATES of America ex rel. Major HARDEN, a/k/a "Major X Brown", Petitioner,
v.
H.W. FOLLETTE, Warden of Green Haven Prison, Stormville, New York, Respondent


Motley, District Judge.


The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

This proceeding is before the court on a petition for a writ of habeas corpus involving three convictions of petitioner by the courts of New York.

 Initially, petitioner filed a habeas corpus petition attacking only his conviction of May 11, 1966, which this court denied on March 29, 1968 on the ground that since petitioner was not challenging the validity of a prior conviction and sentence of March 26, 1965 which he was then and is presently serving, habeas corpus would not lie, citing McNally v. Hill, 293 U.S. 131, 55 S. Ct. 24, 79 L. Ed. 238 (1934) and United States ex rel. Burke v. Fay, 231 F. Supp. 385 (S.D.N.Y. 1964).

 Petitioner thereupon filed a pro se motion in the Court of Appeals for a certificate of probable cause which was granted on January 20, 1969 and the case remanded for a hearing. After this court's ruling of March 29, 1968, the Supreme Court on May 28, 1968 in Peyton v. Rowe, 391 U.S. 54, 88 S. Ct. 1549, 20 L. Ed. 2d 426 (1968) expressly overruled McNally v. Hill, supra, and held that a prisoner serving consecutive sentences is "in custody" under any one of them for the purposes of the federal habeas corpus statute 28 U.S.C. § 2241 (c)(3). After the case was remanded, this court appointed counsel for petitioner. Petitioner, however, now also challenges the validity of his 1965 conviction and his 1958 conviction, which he has already served.

 On January 8, 1958, petitioner was convicted and sentenced to an indeterminate term with a five year maximum after pleading guilty to forgery in the second degree. He served three years.

 A jury found petitioner guilty of robbery in the first degree and rape in the first degree (which occurred on July 17, 1964) in February 1965. Petitioner was sentenced on March 26, 1965 to 15 to 40 years as a multiple felony offender on the robbery count and an indeterminate sentence of one day to life on the rape count. On April 11, 1969, petitioner was given a new psychiatric examination and a hearing pursuant to Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967). The court resentenced him to one day to life on that day. Petitioner is presently appealing that sentence in the state court and withdrew the Specht hearing and sentence question in the instant petition for habeas corpus.

 On May 11, 1966, after petitioner had begun serving his sentences on his 1965 convictions, a jury found him guilty of two counts of robbery in the first degree, two counts of grand larceny in the second degree, two counts of assault in the first degree, and one count of possession of dangerous weapons, instruments and appliances. For these offenses, which occurred on August 17, 1964, plaintiff was sentenced as a multiple felony offender to 25 to 60 years on the robbery counts. The court suspended sentence as to each of the other counts. The court expressly made the sentences on the robbery counts concurrent with each other but consecutive to any other sentence on any other indictment.

 I. The 1958 Conviction

 Petitioner has already served his sentence under the 1958 conviction. He challenges that conviction because it was used as the basis for his sentencing as a multiple felony offender at the 1965 sentence and conviction. Petitioner makes three claims: 1) ineffective assistance of counsel; 2) unconstitutional guilty plea; 3) failure to be given notice of right to appeal. Petitioner has commenced two separate and distinct post conviction proceedings arising out of his 1958 conviction. In November 1966, petitioner submitted his first application for a writ of coram nobis to the Suffolk County Court on the grounds that he was denied effective assistance of counsel at his arraignment, that he had ineffective counsel retained for him by his family, that a "deal" was made as to sentence, and that his confession was involuntary.

 On January 5, 1967, the Suffolk County Court denied his coram nobis petition. The Appellate Division, Second Department, affirmed on June 5, 1967. 28 A.D.2d 827, 282 N.Y.S.2d 457. On September 28, 1967, leave to appeal was denied.

 Petitioner thereafter commenced a second coram nobis petition urging that the sentence imposed upon him in January, 1958 be vacated and that he be resentenced nunc pro tunc so that he might file a notice of appeal. On October 6, 1969, his second petition was denied. The appeal is pending before the Appellate Division, Second Department.

 Respondent argues that petitioner has not exhausted his state remedies because petitioner's second coram nobis petition which raises a new issue (notice of right to appeal) is currently pending before the appellate courts and because new evidentiary facts are presented for the first time in petitioner's federal habeas corpus petition.

 Respondent's claim that petitioner has failed to exhaust his state remedies is without merit. Petitioner has pressed his claims here of lack of effective assistance of counsel and his involuntary confession in every state tribunal and has alleged no new facts; instead, petitioner asks to call two additional witnesses at a requested evidentiary hearing to corroborate the facts set out in his affidavit.

 Petitioner's principal ground for his claim of ineffective assistance of counsel is that retained counsel did not contact petitioner or his relatives until a few minutes before the trial. Trial counsel's brief consultation with petitioner does not, in itself, mean that petitioner was denied effective assistance of counsel. Petitioner is not unconstitutionally denied effective assistance of counsel unless "the proceedings which followed were, as a result, 'a farce and a mockery of justice.'" United States v. Tribote, 297 F.2d 598, 601 (2d Cir. 1961); see Chambers v. Maroney, 399 U.S. 42, 90 S. Ct. 1975, 26 L. Ed. 2d 419 (1970). The transcript of the guilty plea shows that the resultant proceedings were not "a mockery of justice." Counsel succeeded in obtaining the district attorney's acquiesence to petitioner's guilty plea to only one count of a 21 count forgery indictment in the face of signed statements confessing to eight different incidents in which he forged a check.

 Petitioner's allegation, without anything more, that his illegally obtained confession induced his plea of guilty cannot be an independent ground for attacking the guilty plea. McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 25 L. Ed. 2d 763 (1970). Instead, it is another aspect of ineffective assistance of counsel. Id. 397 U.S. at 771, 90 S. Ct. at 1449, 25 L. Ed. 2d at 773. Was counsel's advice to plead guilty in light of petitioner's present allegations that his confession was coerced "within the range of competence demanded of attorneys in criminal cases"? Id.

 Petitioner does not state that he had informed counsel that the confession was coerced; his allegation of a coerced confession was made for the first time in his 1967 coram nobis petition, some 10 years after his guilty plea. Such a long delay in presenting his claim casts doubt on its credibility. See United States ex rel. McGrath v. La Vallee, 348 F.2d 373 (2d Cir. 1965). Moreover, his present habeas corpus petition does not state any circumstances that would indicate that it was a coerced confession under the pre- Miranda standards. Therefore, counsel, even with these allegations before him, would not have been giving ineffective assistance if he recommended that petitioner plead guilty to the one count. See United States ex rel. Boucher v. Reincke, 341 F.2d 977 (2d Cir. 1965). *fn1"

 The petition for a writ of habeas corpus with respect to the 1958 forgery conviction is denied.

 II. The 1965 Conviction

 There is no dispute that petitioner has exhausted his state remedies on his claims concerning his 1965 conviction for first degree robbery and first degree rape. *fn2" Petitioner claims that his 1965 conviction was unconstitutional because: 1) the confession admitted into evidence against him, and 2) the in-court and out-of-court identification evidence admitted into evidence against him, should have been excluded.

 The Confession

 As to his confession, petitioner makes alternative claims. First, he says the signature thereon was not his. Secondly, he says, if it is his signature, he was coerced into signing the confession.

 This court found that the Huntley hearing afforded petitioner by the state court was inadequate in respect to petitioner's contention that he did not sign the confession because the state court refused to appoint a handwriting expert to aid it in making this determination. This court thereupon appointed a handwriting expert, Mr. Ordway Hilton, to aid it in deciding whether the confession was signed by petitioner. It also ordered an evidentiary hearing which was held on December 19, 1969.

 In preparation for the December 19 hearing, Mr. Ordway Hilton studied the signatures on the two confessions that petitioner denied signing (one relating to the 1965 conviction and one relating to the 1966 conviction) *fn3" and compared them with the acknowledged signatures of petitioner. In Mr. Hilton's December 17 report, after concluding that the denied signatures were the petitioner's, he added that:

 
It is my opinion that the signatures on the confessions are written in a much poorer less vigorous, and less well developed handwriting than any of the other signatures.

 Ct. Exh. 1, at 2.

 Mr. Hilton analyzed the possible reasons for this marked deterioration in ...


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