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UNITED STATES EX REL. ROSNER v. WARDEN

September 30, 1974

UNITED STATES ex rel. Nancy ROSNER on behalf of Frank Ciapetta, Petitioner,
v.
WARDEN, SING SING PRISON, OSSINING, NEW YORK, Respondent



The opinion of the court was delivered by: MOTLEY

MEMORANDUM OPINION

 MOTLEY, District Judge.

 Introduction

 Petitioner in this habeas corpus petition is presently in the custody of the New York prison authorities within the Southern District of New York pursuant to a judgment of conviction entered on June 24, 1955 (Hon. Eugene G. Schulz, Bronx County Court) in which petitioner was sentenced to 20 years to life. Said conviction was founded upon petitioner's plea of guilty to murder in the second degree entered on May 2, 1955. The plea, which is the subject of the present application, was made after the trial of petitioner and four co-defendants for the crime of murder in the first degree had been in progress for two weeks. At all times petitioner was represented by retained trial counsel, Stephen A. Fuschino, Esq.

 The essence of petitioner's claim is that his guilty plea was entered without the knowledge of its consequences, hence in violation of due process of law. The basis for this claim is that at the time of pleading, petitioner, although informed of the maximum sentence, mistakenly believed that a minimum sentence in a reformatory was also available. In the alternative, petitioner argues that he was denied the effective assistance of counsel in violation of his Sixth Amendment rights. The basis of this claim is his trial counsel's admitted error in urging the legality of a reformatory sentence despite clear statutory language to the contrary. In opposition, the state contends that the petition should be dismissed for failure to exhaust state remedies. 28 U.S.C. § 2254 (b). On the merits, the state argues that petitioner's plea was compatible with the Constitution; that is, it was freely and voluntarily entered with adequate knowledge of its consequences. For the reasons which follow, the court, after finding exhaustion, agrees with respondent's position that petitioner's plea was constitutionally entered and accordingly denies the petition.

 Exhaustion

 While the procedural course of petitioner's claim is somewhat unique, the court is satisfied that the state courts have had a "fair opportunity" to decide the ultimate issue presented. Picard v. Connor, 404 U.S. 270, 276, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971).

 Following his conviction and entry of judgment as noted above, petitioner on August 31, 1955 brought on a motion in the nature of a writ of error coram nobis, seeking to vacate judgment of conviction. The ground asserted in that application was, as here, a challenge to the voluntariness of the plea. One of petitioner's co-defendants, Guglielmelli, made a similar application and a hearing on both applications was held on November 4, 1955. The minutes of the hearing coram nobis indicate that petitioner decided to plead guilty on the hope of being sentenced to the Elmira Reception Center for a maximum of five years. (Minutes, pp. 21, 22 and 47.) That is, petitioner and Guglielmelli were led to believe that due to their age a reformatory sentence was a possible sentencing alternative (Minutes, pp. 26, 27 and 48.), whereas due to the gravity of the offense, such alternative was not possible (Former N.Y. Penal Law § 1048).

 The County Court denied the application of both petitioner and Guglielmelli. The County Court found that the petitioner pled guilty on the representation made by counsel that there was a possibility of obtaining a reformatory sentence, and that such a claim was legally insufficient to invoke the remedial process of coram nobis. (Opinion of December 6, 1955 attached to original petition as Exhibit D.)

 Following this denial, petitioner filed a notice of appeal on January 13, 1956. Subsequently an agreement was made between petitioner's counsel and the Appeals Bureau of the Bronx County District Attorney's office to the effect that the appeal in petitioner's case would be determined by the decision on appeal in the case of petitioner's co-defendant Guglielmelli. This agreement is evidenced by affidavits by petitioner's appellate counsel on November 12, 1956, and January 4, 1957, submitted in support of petitioner's various requested adjournments. (See Exhibits B and C respectively attached to Amended Petition). In particular the November 12 affidavit asserts:

 
"Your deponent is of the opinion that the facts, circumstances and law are identical in both appeals and your deponent has discussed this matter with the Appeals Bureau of the District Attorney's Office: Bronx County and it has been agreed by and between us that the decision of the case of VINCENT GUGLIELMELLI shall be binding upon Appellant herein."

 Subsequently the order of the County Court denying coram nobis was affirmed as to Guglielmelli. People v. Guglielmelli, 5 A.D.2d 815, 170 N.Y.S.2d 986 (1st Dept.), cert. denied, Guglielmelli v. New York, 358 U.S. 899, 79 S. Ct. 224, 3 L. Ed. 2d 149 (1958). (Additionally leave to appeal to the Court of Appeals of the State of New York was denied by Judge Stanley H. Fuld on March 13, 1958.)

 In opposition to petitioner's contention that the above described course satisfies the exhaustion requirement of 28 U.S.C. § 2254(b), respondent argues that petitioner never perfected the appeal of the denial of coram nobis on December 6, 1955 and that indeed on May 16, 1957 the appeal he had initiated was dismissed for lack of prosecution. According to respondent, the affidavits, by his appellate counsel on which petitioner relies were treated simply as requests for extensions, and thus petitioner mistakenly relies on the agreement that the disposition of the Guglielmelli case would be controlling. Respondent further notes that Guglielmelli's briefs on appeal make no representation as to what petitioner's understanding was, thus the state has not had an opportunity to decide the issues as to petitioner.

 The court notes that, contrary to respondent's position, defendant Guglielmelli and petitioner were both represented by the same trial counsel and it is the constitutional significance of trial counsel's advice given to both defendants which was at issue in Guglielmelli's collateral proceedings. See United States ex rel. Figueroa v. McMann, 411 F.2d 915 (2d Cir. 1969). Further, as the above description makes clear, petitioner relied on the agreement reached between his appellate counsel and the state's authorized agents. In the court's opinion, the state is now estopped from arguing that petitioner has failed to exhaust when his failure was due to reasonable reliance on the ...


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