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March 28, 1979

UNITED STATES of America ex rel. David HOOVER, Petitioner,
The STATE OF NEW YORK, Respondent

The opinion of the court was delivered by: CANNELLA


Petition for a writ of habeas corpus is denied. 28 U.S.C. § 2254.

 Pursuant to an Order of the Court, United States Magistrate Leonard Bernikow conducted an evidentiary hearing and submitted proposed findings of fact accompanied by a recommendation that the writ be granted. The Magistrate found that petitioner's state court plea of guilty to robbery in the first degree, was involuntary because petitioner was unaware of the elements of that crime.

 Respondent filed objections to the Magistrate's report and asserted that the writ should be denied because petitioner waived his right to challenge the adequacy of his guilty plea by failing to raise this issue on direct appeal in the state courts. The waiver issue was not referred to the Magistrate and, accordingly, not considered by him.


 Following his defective plea of guilty, *fn1" petitioner was sentenced on May 16, 1973, by the Bronx County Supreme Court, to the maximum allowable term of imprisonment for the crime of robbery in the first degree, an indeterminate term of imprisonment of eight and one-third to twenty-five years. Petitioner appealed the judgment of conviction, and counsel was appointed to represent him. In his appellate brief, petitioner raised four issues: (1) the trial court improperly denied his motion to withdraw his plea because of an alleged violation of the plea bargain; (2) the court improperly refused to adjourn the sentence; (3) the plea was invalid because petitioner was not informed that it embodied a waiver of his privilege against self-incrimination; and (4) the sentence was excessive. The judgment of conviction was affirmed, without opinion, by the Appellate Division of the New York State Supreme Court, on March 3, 1975, and leave to appeal to the New York Court of Appeals was denied.

 According to the attorney who was appointed to represent petitioner on his direct appeal, the voluntariness of petitioner's plea was not raised in the appellate courts because "under existing New York law in 1974 it would have been frivolous and meaningless to argue to a New York appellate court that Mr. Hoover's plea was invalid because he was not explicitly told in court that he was pleading to a crime that included the use or possession of a weapon." *fn2"

 On June 17, 1976, the United States Supreme Court decided the case of Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976). On January 12, 1977, petitioner filed a motion, Pro se, in the trial court, seeking to vacate his judgment of conviction on the ground that his guilty plea was defective. The trial court denied the motion, relying on a New York statute, which states, in part:

(T)he court must deny a motion to vacate a judgment when:
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's . . . unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him . . . .

 N.Y.Cr.Proc.Law § 440.10(2) (McKinney 1971). Petitioner was denied leave to appeal the denial of his motion to vacate the judgment.


 In Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977), the Supreme Court applied a "cause and prejudice" standard in determining whether a federal habeas corpus court should review the merits of a constitutional claim that the state courts found had been waived under the state's procedural rules. In the instant case, the involuntariness of petitioner's guilty plea was not considered on his motion to vacate judgment because of his failure to raise it as an issue on direct appeal. See N.Y.Cr.Proc.Law § 440.10(2) (McKinney 1971); People v. Sullivan, 3 N.Y.2d 196, 165 N.Y.S.2d 6, 144 N.E.2d 6 (1957); People v. Justiniano, 29 A.D.2d 569, 286 N.Y.S.2d 302 (2d Dep't 1967). This Court therefore finds Wainwright v. Sykes directly applicable here.

 Petitioner satisfies the "prejudice" branch of the Sykes test: the Magistrate found that petitioner could not be convicted of robbery in the first degree on the basis of his guilty plea. However, the "cause" of petitioner's procedural default was that, in the judgment of the attorney appointed to prosecute his appeal, a claim that petitioner was unaware of the elements of the ...

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