Friendly, Chief Judge, and Moore and Oakes, Circuit Judges. Oakes, Circuit Judge (dissenting).
Relator-appellant, John Martinez (Martinez), appeals from an order denying without a hearing his petition for a writ of habeas corpus wherein he sought to review a judgment of conviction entered in the County Court of Monroe County, New York, upon his plea of guilty to the Class C felony (second degree) of selling a dangerous drug.*fn1
Martinez challenges the validity of his conviction, claiming that his guilty plea was not voluntary because it was "based upon misunderstanding and confusion and made under threat of immediate trial without the effective assistance of counsel" (Applt's Br. p. 7). The facts surrounding the plea in the County Court reveal the following.
October 23, 1968, Martinez indicted in the Monroe County Court for selling a dangerous drug in the second degree (N.Y. Penal Law, McKinney's Consol. Laws, c. 40, § 220.35) and also in the third degree (Id. § 220.20).*fn2
November 22, 1968, Martinez indicted (Monroe County) for selling a dangerous drug in the second degree (Indictment 593).
November 25, 1968, arraignment. Martinez represented by retained counsel. Martinez pleaded "not guilty" to crime of selling a dangerous drug in the second degree (Indictment 593). Counsel requested an adjournment until December 3, 1968. Granted.
December 3, 1968. Martinez' counsel requested case be placed on the trial calendar. Any motions to be made "before December 30th trial calendar date."
December 30, 1968, January 27, 1969, case appeared on "ready trial" calendar.
February 17, 1969. Colloquy in Court, the Court saying that disposition of the two indictments might be made through one plea "but it was not a plea to Selling a Dangerous Drug in the Third Degree" (Tr. 10). Martinez' counsel then said that he was not prepared to go to trial although his office had answered "ready" for the February calendar. He requested an adjournment "until at least tomorrow morning" because he couldn't defend Martinez "without some preparation." The Court granted an adjournment until 3:00 P.M. Upon a later call Martinez was advised of the charges and of the District Attorney's understanding based upon word from Martinez' counsel that he wished to substitute a plea of "guilty" under Indictment 593 to the crime of selling a dangerous drug in the second degree in satisfaction of Indictments 512 and 593.
To questions by the Court to Martinez and his counsel to verify Martinez' understanding of all consequences, counsel replied, "I have explained to Mr. Martinez the difference between the two degrees of the crime, yes." Martinez responded that he knew that both degrees were felonies and that he understood that second degree "permits a greater, longer sentence" than third degree (Tr. 13, 14). Finally, the record discloses Martinez' answers that his plea was voluntary, entered with the knowledge and consent of his attorney, given without promises or threats, without knowledge of what the sentence might be and without inducement of any nature. The plea of guilty to second degree was accepted. March 7, 1969 was set for sentence. March 7, 1969 Martinez' counsel requested an adjournment. Granted to March 14th.
March 14, 1969. Martinez' counsel sought to withdraw guilty plea, because of asserted "confusion about the whole matter," lack of preparedness and the necessity of his picking a jury in another case. The Court sentenced Martinez who was then on probation and had been previously convicted of assault (second degree) to 5 to 15 years for selling "narcotic drugs, particularly, heroin." (Tr. 20, 21).
The facts with respect to Martinez' background in crime are set forth in the Appellate Division opinion (nine convictions in nine years, ranging from burglary to six narcotics convictions). 34 A.D.2d at 176, 311 N.Y.S.2d 117. That Court affirmed the denial of the motion to withdraw the plea. The District Court below found that the plea was knowingly made with full knowledge of the consequences and that Martinez had not been denied effective assistance of counsel.
There is no support for any argument that a promise of any sort was made or even intimated by the County Court judge. Nor is there proof that the prosecutor induced the plea by an undertaking to recommend to the Court acceptance of a particular plea. Even had there been such proof, Martinez' counsel was experienced enough to know that the parties inter se could not bind the Court. For a situation most analogous to the present case, see Judge Kaufman's opinion and the cases cited therein, in United States ex rel. Rosa v. Follette, 395 F.2d 721 (2d Cir.), cert. denied, 393 U.S. 892, 89 S. Ct. 216, 21 L. Ed. 2d 172 (1968), a decision which supports the denial of a motion to withdraw a guilty plea under rather similar circumstances. Nor is there anything in the Supreme Court's recent decision in Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed. 2d 427, 1971, which dictates a different result. In Santobello the plea was made "on condition that no sentence recommendation would be made by the prosecutor." (404 U.S. at 262, 92 S. Ct. at 499). The prosecutor (a different prosecutor than the one who had negotiated the plea) "recommended the maximum ...