Appeal from an order of the United States District Court for the Southern District of New York, John M. Cannella, Judge, which denied appellant's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 because he had not been properly apprised of all elements of the crime to which he had pleaded guilty. The District Court held that appellant had waived his right to complain on this score by failing to raise the point in the New York courts in his direct appeal from the judgment of conviction. The Court of Appeals held that appellant had not so waived his right since he could not have made his point without use of extra-record material but the judgment should nevertheless be affirmed since appellant had not presented the point to the New York courts as the exhaustion doctrine requires. Affirmed.
Before Lumbard, Friendly and Gurfein, Circuit Judges.
Petitioner-appellant David Hoover appeals from an order entered on March 28, 1979 by the District Court for the Southern District of New York, John M. Cannella, Judge, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 because he had not been properly apprised of all elements of the crime to which he had pleaded guilty. Judge Cannella decided that appellant had waived his right to complain on this score by failing to raise the point in the New York courts in his direct appeal from the judgment of conviction, but granted a certificate of probable cause.
Appellant pled guilty on May 16, 1973 in New York State Supreme Court, Bronx County (Tonetti, J.) to one count of robbery in the first degree, a Class B felony in Indictment No. 1018/1973 in satisfaction of this and seven other pending indictments which contained ninety-one counts.
The crime of robbery in the first degree is defined in New York Penal Law § 160.15 in pertinent part as follows:
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
1. Causes serious physical injury to any person who is not a participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument; or
4. Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm . . .
The maximum sentence for robbery in the first degree is an indeterminate term of 81/3 to 25 years imprisonment. New York Penal Law § 70.00(2)(b), (3)(b). The crime of robbery in the second degree does not require a threat to use a dangerous weapon, is a Class C felony, and carries a maximum sentence of 5 to 15 years. New York Penal Law §§ 160.10,*fn1 70.00(2)(c), (3)(b).
On the allocution by Justice Tonetti, appellant was asked whether he admitted that "on January 13, 1973, together with (his) co-defendants (he) forcibly stole property from one Ansel Grau." Although the indictment charged that the appellant was "armed with and used and threatened the immediate use of a dangerous instrument, to wit, knives," he was not asked whether he admitted this particular allegation. Justice Tonetti sentenced Hoover to the maximum term authorized for robbery in the first degree. After sentence was imposed, counsel moved to withdraw the guilty plea on the ground that the court had conditionally agreed to impose less than the maximum sentence. The court categorically denied that any such agreement had been made and denied the motion.
Appellant appealed to the Appellate Division, First Department on four grounds, none of which was that he was improperly sentenced for the commission of robbery in the first degree though he had not been informed of or admitted an essential element of that Class B felony.*fn2 The Appellate Division unanimously affirmed the conviction on March 3, 1975, and leave to appeal to the Court of Appeals was denied on May 2, 1975.
On June 17, 1976 the United States Supreme Court decided Henderson v. Morgan, 426 U.S. 637, 96 S. Ct. 2253, 49 L. Ed. 2d 108 (1976) holding that a plea of guilty to second degree murder without adequate notice to the defendant that he was admitting an essential element of that offense, intent to cause death, was ...