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Hunter v. Fogg

decided: February 15, 1980.

VINCENT HUNTER, PETITIONER-APPELLEE,
v.
WALTER T. FOGG, SUPERINTENDENT OF EASTERN CORRECTIONAL FACILITY, RESPONDENT-APPELLANT.



Appeal from a judgment of the District Court for the Southern District of New York, Charles H. Tenney, Judge, granting a petition for habeas corpus on the ground that appellee's guilty plea had not been voluntarily entered. Reversed.

Before Friendly, Oakes and Newman, Circuit Judges.

Author: Newman

This appeal from a judgment granting a state prisoner a writ of habeas corpus to vacate his conviction concerns a claim that a guilty plea was involuntarily entered for lack of adequate understanding about state parole opportunities.

Petitioner, Vincent Hunter, was indicted on August 16, 1974 by a New York county grand jury for second-degree murder in connection with the shooting death of John Powers. Hunter was also charged with possession of a weapon in connection with the same incident.

On June 14, 1976, Hunter pleaded guilty to manslaughter in the first degree before Justice Burton B. Roberts of the New York Supreme Court. This plea was in satisfaction of both counts of the murder indictment as well as an unrelated indictment charging Hunter with bail-jumping in connection with an earlier case.

At the plea proceeding, Hunter represented by Chester Mirsky and another attorney, admitted that he had intentionally shot and killed Powers on the morning of August 29, 1973. In addition, he acknowledged that he understood that by his plea of guilty he was waiving his right to a trial and his right to confront and cross-examine witnesses.

In response to the Court's questions, Hunter indicated that he understood that the maximum sentence that could be imposed for conviction of manslaughter in the first degree was an indeterminate sentence of eight and one-third to twenty-five years.*fn1 Justice Roberts then promised that if he ultimately decided to impose an indeterminate sentence with a maximum greater than ten years, Hunter would have the opportunity to withdraw his plea. The Court further indicated that Hunter would have no option to withdraw his plea if the sentence ultimately imposed were an indeterminate sentence with a maximum of ten years or less. Hunter then affirmed his understanding of the conditional nature of his plea. On July 21, 1976, Justice Roberts imposed an indeterminate prison term not to exceed ten years, thereby removing Hunter's option to withdraw the conditional plea.

In June, 1977, the New York State Parole Board established a minimum period of imprisonment (MPI) for Hunter of five years.*fn2 The Board's action meant that Hunter, who was entitled to credit toward his MPI for the more than two years he had served in pretrial custody,*fn3 would not be eligible for parole until mid-1979.

On November 11, 1977, Hunter filed a pro se motion to vacate his conviction, alleging that he had been misled by the court, the prosecutor, and Mirsky, with respect to the length of his possible minimum sentence. Justice Roberts denied the motion without a hearing on February 1, 1978. Hunter exhausted his state court remedies by presenting the same claim in proceedings under Article 78, N.Y.C.P.L.R. Matter of Hunter v. Roberts, 63 A.D.2d 1122, 406 N.Y.S.2d 646 (1st Dept.), leave to appeal denied, 45 N.Y.2d 710, 409 N.Y.S.2d 1029, 381 N.E.2d 616 (1978).

By pro se petition for habeas corpus dated November 3, 1978, filed in the United States District Court for the Southern District of New York, Hunter renewed his claim that he had been misled as to the consequences of his guilty plea. His petition essentially alleged that the court, the prosecutor, and his defense counsel had incorrectly informed him that he would be eligible for parole release consideration before he had served one-half of his maximum sentence, whereas as a result of the Parole Board's action in setting his MPI at five years, he was serving a minimum sentence equal to one-half of his maximum sentence.

Affixed to the petition for habeas corpus was an affirmation of Chester Mirsky, the court-appointed attorney who had represented Hunter during plea negotiations and at the plea hearing. In his affirmation Mirsky stated that he had advised his client that he "might anticipate" serving one-third of his maximum sentence prior to parole consideration. The affirmation also reflects Mirsky's belief that at the time of the guilty plea Hunter "hoped" that if the more than two years he had already served in pretrial custody were credited toward a parole eligibility date of one-third of his maximum term, he might be paroled within about one year of the time he started serving his sentence in state prison. Mirsky stated that he had never "promised" Hunter that he would be paroled in one year, but rather had told him that one year would be "the earliest possible eligibility date for parole." Mirsky also indicated that he thought there was merit to Hunter's claim of a misunderstanding concerning the possible sentence consequences of the guilty plea. Noting Hunter's conditional plea included an understanding that he would not be sentenced as a "predicate felon,"*fn4 Mirsky stated his belief that Hunter would not have pleaded guilty had he known that he would not be eligible for parole release until he served five years of his sentence.

On May 2, 1979, the District Court (Charles H. Tenney, Judge) granted, without a hearing, Hunter's petition for habeas corpus. Hunter v. Fogg, 470 F. Supp. 1041 (S.D.N.Y.1979). Judge Tenney found that during the plea proceeding Hunter was not told that the Parole Board had discretionary authority to set the minimum sentence for his crime nor that he "risked for all practical purposes the same sentence as or worse than a predicate felon's." Id. at 1045 (footnote omitted). Judge Tenney also accepted Hunter's claim that he had been incorrectly informed by Mirsky that his minimum sentence would be one-third of the maximum. Id. at 1042, 1044. In vacating Hunter's plea, Judge Tenney credited Hunter's assertion that had he known his plea would result in a five-year minimum sentence, he would have chosen to proceed to trial rather than plead guilty. Id. at 1046-47.

When a state court guilty plea is alleged to be constitutionally invalid because the defendant was not told or was misinformed about sentencing information requisite to an informed plea, the issue is "whether the defendant was aware of actual sentencing possibilities, and, if not, whether accurate information would have made any difference in his decision to enter a plea." Caputo v. Henderson, 541 F.2d 979, 984 (2d Cir. 1976); Kelleher v. Henderson, 531 F.2d 78 (2d Cir. 1976). In concluding that Hunter was not aware of sentencing possibilities, Judge Tenney considered both what Hunter was not told and what he was incorrectly told. We disagree that Hunter lacked information necessary for a constitutionally valid guilty plea, and do not reach the second issue under Caputo of whether ...


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