The opinion of the court was delivered by: Whitman Knapp, District Judge.
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.
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
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.
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.
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
Q When was the last time you took any
Q What kind of medication was that?
MR. CONCANNON: He doesn't know what the drug
Q You haven't taken any of that for the last