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October 14, 1976

THOMAS PERRY, Petitioner,
LEON VINCENT, Superintendent Greenhaven Correctional Facility, Respondent

The opinion of the court was delivered by: PLATT


 By petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2241, Thomas Perry challenges the New York Courts' refusal to permit him to withdraw his plea of guilty to attempted possession of a weapon.


 On October 1, 1971 at 1:30 A.M. Patrolman Manuel Garcia was cruising in his police car at Kennedy Airport. As he approached the taxi line at the Northwest Airlines Terminal building, he saw three men arguing in front of the first taxi in line. When the patrolman stopped his car, one of the men, later identified as petitioner Thomas Perry, got into his car and drove away. The remaining drivers told Patrolman Garcia that Perry had threatened them with a gun.

 Patrolman Garcia chased Perry's car and ordered him to stop on the Van Wyck Expressway. Garcia noticed Perry bending over in the front seat toward his right side. Perry stopped his car and stepped out.

 Patrolman Garcia questioned Perry about the information supplied by the other taxi drivers. Perry denied threatening anyone or possessing a gun. However, after frisking him, Garcia reached under the front seat of Perry's car and found a loaded.32 caliber revolver.

 Petitioner sought to suppress the gun seized by Patrolman Garcia. However, the Supreme Court, Queens County (Leahy, J.) ruled that there was probable cause for the search and seizure, and accordingly denied the motion.

 An examination of the record *fn1" shows that petitioner subsequently made two attempts to plead guilty. At the conclusion of the first attempt the State Court rejected his plea in that petitioner's claims with respect to the facts indicated that he might be innocent of the charges, and the Court set the matter down for trial. On the date set for trial the petitioner admitted facts showing his guilt, and the Court accepted his plea. During the course of the exchanges between the petitioner and the Court in both proceedings, the Court in its effort to be certain that petitioner's plea was completely voluntary, repeatedly told petitioner that he alone (and not his lawyer) could plead guilty, that the Court would not accept a guilty plea from an innocent man, that if he was innocent he could go to trial, and that if he was found guilty he might be sentenced to four years in jail. The Court asked him several times whether any promises had been made to him, receiving in each instance a negative reply.

 Petitioner was later sentenced to the maximum term of four years. Evidently disappointed with his sentence, petitioner immediately sought to withdraw his guilty plea. This application was denied by the New York Courts.

 Petitioner now asks this Court to intervene and permit him to withdraw his guilty plea and order his criminal record expunged. Two arguments are advanced. First, petitioner contends that the state courts erred in not granting his motion to suppress the gun. Second, he argues that his guilty plea was constitutionally infirm under Boykin v. Alabama, 395 U.S. 238, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969).


 Petitioner has exhausted his State remedies. 28 U.S.C. § 2254(b). His judgment of conviction was unanimously affirmed without opinion by the Appellate Division, Second Department on February 25, 1974. An application for leave to appeal to the New York Court of Appeals was denied on April 17, 1974. The issues raised in the instant petition were argued in petitioner's appellate briefs to the State courts.


 Subsequent to the filing of this action, petitioner was unconditionally released from jail. However, since this Court took jurisdiction while petitioner was in custody, the controversy is not moot. Carafas v. LaVallee, 391 U.S. 234, 88 S. Ct. 1556, 20 L. Ed. 2d 554 (1968).


 Petitioner's argument that the state courts improperly denied his motion to suppress is not cognizable in federal habeas corpus. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067, 44 U.S.L.W. 5313 (1976). As the Court said in Stone (at p. 465).


"We hold, therefore, that where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at trial."

 Stone is dispositive of petitioner's first argument.


 Petitioner's second argument presents a more difficult question. Specifically, petitioner contends that the state court failed to warn him that by pleading guilty he waived three constitutional rights: 1) the privilege against self-incrimination; 2) the right to confront one's accusers; and 3) the right to a jury trial with the burden of proof resting on the government.

 The starting point for a discussion in this area must be the Supreme Court's decision in Boykin v. Alabama, supra.

 In Boykin, the defendant pled guilty to five indictments charging him with common law robbery, an offense punishable by death under Alabama law. The Court reasoned that because the record was silent, the trial judge had failed to ask the defendant any questions concerning the facts surrounding his plea, and had failed to warn him of the constitutional rights he was waiving. Furthermore, the Court noted that no evidence concerning the defendant's character, background, or prior criminal record was introduced.

 The defendant here argues that in Boykin, the Supreme Court said (at p. 243):


"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 88 S. Ct. 1444, 20 L. Ed. 2d 491. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923. We cannot presume a waiver of these three important federal rights from a silent record."

 Boykin is not dispositive of the instant petition. First, the facts of this case are distinguishable from those in Boykin. Unlike in Boykin, here the New York Court repeatedly sought to ascertain whether or not the petitioner's plea was voluntary. The Court told petitioner four times that only he could plead guilty, not his lawyer. The Court cautioned petitioner four times that he might be sentenced to four years in jail. The Court asked petitioner six times whether or not any promises had been made to him. The Court admonished petitioner that it would not accept a guilty plea from an innocent man. The Court informed petitioner that he could go to trial if he was innocent of the charge. Indeed, the second guilty plea was entered on the very morning that the trial was scheduled to begin.

 Furthermore, unlike in Boykin, the record in this case is not silent as to petitioner's background. The record reflects that the petitioner was thirty-one years old and the sole support for his five children. He was regularly employed and earned a modest salary. Significantly, petitioner did have a prior criminal record.

 Moreover, unlike in Boykin, the New York Court persistently sought to ascertain petitioner's complete involvement in the events leading up to his arrest. The Court's refusal to accept petitioner's first plea is convincing evidence of its persistence in this regard.

 Second, the true test of the voluntariness of a guilty plea was stated in the Supreme Court's later decision in Brady v. U.S., 397 U.S. 742, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970). In Brady, the Court upheld a guilty plea even though the defendant had not expressly been advised of all of the constitutional rights mentioned in Boykin. The Court held that voluntariness can only be determined by considering "all of the relevant circumstances surrounding it." Brady v. U.S., supra, at 749. Brady clarifies Boykin and clearly implies that in reviewing the voluntariness of a guilty plea the failure of a state court to read a litany of constitutional rights is not the determining factor. See Parker v. North Carolina, 397 U.S. 790, 25 L. Ed. 2d 785, 90 S. Ct. 1458 (1970); North Carolina v. Alford, 400 U.S. 25, 27 L. Ed. 2d 162, 91 S. Ct. 160 (1970).

 The Second Circuit has recently considered Boykin in a case not dissimilar to the instant petition. Kloner v. U.S., 535 F.2d 730 (2d Cir. 1976).

 In Kloner, the trial judge informed the defendant of his right to trial by jury, advised him of the maximum sentence that could be imposed, elicited assurances that he was voluntarily entering the plea, and ascertained the factual basis for the plea. The Second Circuit upheld the guilty plea. The Court said (at p. 733):


"[A] resulting plea may be upheld as long as the district judge has adequately informed the defendant of 'the alternative courses of action open to' him, North Carolina v. Alford, 400 U.S. 25, 31, 91 S. Ct. 160, 164, 27 L. Ed. 2d 162, 168 (1970), so that the defendant has not, either because of ignorance or misinformation been misled into entering the plea."

 The Court rejected the argument that the defendant should have been expressly told of the right to remain silent and the right to confront one's accusers.

 The facts presented by the instant petition are closely analogous to those in Kloner. Here, as in Kloner, petitioner was told of the charges and advised of the maximum sentence. Here, as in Kloner, the Court inquired into the factual basis for the plea.

 The only significant difference between this case and Kloner is that here the Court did not expressly warn petitioner of his right to trial by jury. However, four factors point to the fact that contrary to his contentions, petitioner knew that his plea waived the right to a trial by jury. First, petitioner was represented by competent counsel. Second, petitioner had a past criminal record. Third, petitioner was told by the trial judge that, "if you are innocent of this charge we are going to trial on the charge". In addition, petitioner's counsel was asked when he wanted to go to trial. Fourth, petitioner pled guilty on the morning that the trial was scheduled to begin. These factors are compelling evidence that petitioner knowingly waived his right to a jury trial.

 Furthermore, the guilty plea reduced petitioner's exposure to more severe charges. The Second Circuit has held that in assessing the voluntariness of a guilty plea the courts must look also to the rational motivations of the defendant for pleading guilty, U.S. ex rel. Brown v. LaVallee, 424 F.2d 457 (2d Cir. 1970), cert. denied, 401 U.S. 942, 91 S. Ct. 946, 28 L. Ed. 2d 223 (1971), and to whether the lack of knowledge affected the defendant's ability to make an intelligent decision. Kelleher v. Henderson, 531 F.2d 78 (2d Cir. 1976); Caputo v. Henderson, 541 F.2d 979 (2nd Cir. 1976).

 Other Circuits have held that Boykin does not require that the state courts read a litany of constitutional rights to defendants in order to ensure that their guilty pleas are voluntarily entered. See Wade v. Coiner, 468 F.2d 1059 (4th Cir. 1972); McChesney v. Henderson, 482 F.2d 1101 (5th Cir. 1973), cert. denied, 414 U.S. 1146, 39 L. Ed. 2d 102, 94 S. Ct. 901 (1974); Stinson v. Turner, 473 F.2d 913 (10th Cir. 1973); Wilkins v. Erickson, 505 F.2d 761 (9th Cir. 1974). As the Court said in Stinson, supra (at p. 915):


". . . We feel that Boykin imposed only that requirement of an affirmative record showing of a voluntary and intelligent plea. The remainder of the opinion does expressly discuss the three enumerated constitutional rights. We feel, however, that these rights were set out to demonstrate the gravity of the trial court's responsibility, but that no procedural requirement was imposed that they be enumerated. The main purpose is '. . . to make sure [the accused] has full understanding of what the plea connotes and of its consequence.'" 395 U.S. at 244, 89 S. Ct. at 1712.

 For the foregoing reasons petitioner's application for a writ of habeas corpus must be, and the same hereby is, denied.


 Thomas C. Platt / U.S.D.J.

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