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NICKS v. U.S.

March 28, 1990

HARRY NICKS, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Whitman Knapp, District Judge.

MEMORANDUM & ORDER

In his petition for a writ of error coram nobis, petitioner Harry Nicks seeks to vacate a 1974 conviction on the ground that the lack of a competency hearing at the time of plea and/or sentence rendered void the plea upon which the conviction was based. For reasons that follow, the writ will be granted in twenty days unless the government requests a hearing before that time.

BACKGROUND

On June 7, 1974, petitioner Harry Nicks was charged in a two-count indictment with the armed robbery of the Franklin National Bank in New York City. He faced sentences of up to twenty years' imprisonment on Count One (18 U.S.C. § 2113(a), bank robbery) and twenty-five years on Count Two (18 U.S.C. § 2113(d), assault with a dangerous weapon during the robbery). On June 17, he pleaded guilty to Count Two ("the 1974 conviction"), and, on January 16, 1975, was sentenced under the Youth Corrections Act to an eight-year indeterminate sentence. At both proceedings he was represented by Thomas J. Concannon, Esq., who at the time was an associate attorney on the regular staff of the Legal Aid Society.

It would appear that the most significant consequence of the conviction occurred four years after petitioner's release from federal custody when, on August 2, 1984, he was sentenced to death by the Jefferson County Circuit Court of Alabama after a jury had found him guilty in the first degree of an unrelated murder. In deciding to impose the death penalty, the Alabama trial judge, pursuant to state statute, considered two aggravating circumstances, one of which was the 1974 conviction.

FACTS

On July 27, 1989, petitioner filed his petition for a writ of error coram nobis pursuant to 28 U.S.C. § 1651, seeking relief from the 1974 conviction on the ground that "the Court improperly accepted his guilty plea — without conducting a competency hearing — despite clear evidence before the Court that he was not competent." Petition, p. 1.

In support of his contention that there had been "clear evidence" of incompetency, petitioner initially relied on the transcript of the plea; three evaluations of petitioner's mental health, which were prepared after the plea and were made available to me before the sentencing; and the transcript of the sentencing. The record was later supplemented with an affidavit by Concannon, in which he described his thought processes during the course of his representation of petitioner; and Concannon's testimony before me at a hearing on the petition in which he explained in greater detail the bases for his thoughts and actions.

(1) The Plea.

The petition focuses on two aspects of the plea proceeding. First, it notes that I twice commented that petitioner's version of the crime to which he was pleading did not "make sense." Petition, Appendix A-3, at p. 6. Although petitioner was pleading guilty to endangering the life of another during the course of a bank robbery, he contended that his gun was not loaded at the time he pointed it at the bank teller, and that he did not load it until he was "coming on the outside of the bank, leaving." Id. After a discussion with Concannon, petitioner retracted this contention, and indicated that he had, in fact, entered the bank with the gun loaded. Id. at 7.

Second, the petition refers to the following exchange:

    THE COURT: Are you prefectly [sic] satisfied
  that he understands what he is doing?

MR. CONCANNON: Yes, your Honor.

    THE COURT: He is not under any mental condition,
  it doesn't seem to me.

THE WITNESS: No.

    MR. CONCANNON: I have discussed it with him
  three or four hours. He seems to understand very
  well what he is doing.
    MR. SCHATTEN [Asst. U.S. Atty.]: Your Honor,
  could we find out if he takes narcotic drugs?
    Q When is the last time you stopped taking any
  narcotic drugs?

A Never.

Q It was just medicine?

A Medication.

    Q When was the last time you took any
  medication?

A Last week.

Q What kind of medication was that?

A Small pills.

    MR. CONCANNON: He doesn't know what the drug
  was.
    Q You haven't taken any of that for the last
  ...

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