Appeal from an order of the District Court for the Southern District of New York, Kevin Thomas Duffy, Judge, denying a petition for habeas corpus by a state prisoner convicted on the basis of a guilty plea, who claims that he was deprived of effective assistance of counsel and that his plea was involuntary. Affirmed.
FRIENDLY, MESKILL and PIERCE, Circuit Judges.
Steven Mitchell appeals from an order of the District Court for the Southern District of New York which denied his petition for habeas corpus under 28 U.S.C. § 2254. The court granted leave to appeal in forma pauperis and issued a certificate of probable cause.
On May 10, 1978, Mitchell was charged by a grand jury in the Supreme Court for Bronx County, New York in a six-count indictment, with the crimes of first degree burglary, first and second degree robbery, first degree rape, fourth degree criminal possession of a weapon and criminal impersonation. The State alleged that on April 21, 1978, with an unknown accomplice, Mitchell gained entrance to the house of a woman by representing himself as police officer; that once inside the house he threatened the woman with what appeared to be a pistol; that he forced her to engage in sexual intercourse with him; and that he stole a portable television, a portable radio, and electric fan and an exercise bar.
Mitchell was apprehended approximately two weeks after the crime, when the victim spotted him on the street and called the police. At his initial questioning Mitchell denied having committed the offense, claiming that he had been in the hospital on April 21. Mitchell explained that he had a colostomy that had already been operated on four times, and that he had been in the hospital for 12 to 14 days awaiting another operation; this fifth operation was not performed. Hospital records revealed that in fact Mitchell was discharged on March 27, nearly a month before the crime.
On October 20, 1978, in satisfaction of the full six-count indictment, Mitchell pleaded guilty to a charge of robbery in the first degree in violation of N.Y. Penal Law § 160.15(4). This provides:
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:
4.Displays what appears to be a pistol, revolver, rifle, shotgun, machine gun or other firearm; except that in any prosecution under this subdivision, it is an affirmative defense that such pistol, revolver, rifle, shotgun, machine gun or other firearm was not a loaded weapon from which a shot, readily capable of producing death or other serious physical injury, could be discharged. Nothing contained in this subdivision shall constitute a defense to a prosecution for, or preclude a conviction of, robbery in the second degree, robbery in the third degree or any other crime.
During the allocution at Mitchell's plea hearing, the trial judge questioned Mitchell concerning the crime. When Mitchell described the theft, the following exchange occurred:
THE COURT: I see. And at the time you had what? A pistol?
DEFENDANT: No. It was a play pistol.
THE COURT: I see. But it did look ...