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January 17, 1995

HARRY NICKS, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: CHARLES S. HAIGHT, JR.

HAIGHT, District Judge:

 This is a petition for a writ of error coram nobis. Petitioner Harry Nicks seeks to vacate his 1974 conviction and 1975 sentencing before Judge Whitman Knapp of this Court on a charge of armed bank robbery. Nicks claims that he was deprived of a constitutionally required competency hearing before sentencing. Judge Knapp granted relief. The Second Circuit reversed and remanded the case to a non-participating district judge for further proceedings.

 The underlying facts are set forth in Judge Knapp's opinion granting the writ, 760 F. Supp. 293 (S.D.N.Y. 1990); the Court of Appeals' opinion reversing and remanding the case, 955 F.2d 161 (2d Cir. 1992); and this Court's opinion dealing with the first of the two questions posed on remand, 835 F. Supp. 151 (S.D.N.Y. 1993). Familiarity with all these opinions is presumed. This opinion sets forth only those particular facts necessary to understand the remaining points at issue.


 On remand the Second Circuit identified two issues to be addressed: whether sound reasons existed to excuse Nicks' delay in seeking coram nobis relief; and, if the delay was excusable, whether a competency hearing was constitutionally required on the basis of the evidence actually before Judge Knapp at the time of the initial proceedings. This Court's opinion reported at 835 F. Supp. 151 resolved the first issue in Nicks' favor, and so I come to the second.

 I must first consider what evidence of Nicks' mental state was actually before Judge Knapp at the time of Nicks' plea in 1975 and sentencing in 1976. There are two primary sources of pertinent evidence: what was written to Judge Knapp, and what was said to him. *fn1" What was written takes the form of psychiatric and psychological reports and evaluations. They form part of the record on this petition. What was said came from Nicks at the plea and sentencing hearings, and from Thomas J. Concannon, Nicks' court-appointed lawyer.

 The statements in open court of Nicks and his counsel are preserved by the hearing transcripts. But there is an added dimension to the question of what was said to Judge Knapp. Concannon testified in 1990 at the hearings on the petition *fn2" that in off-the-record conferences prior to Nicks' sentencing in 1976, he disclosed to Judge Knapp certain of his misgivings concerning Nicks' competency. In his 1990 opinions addressing the petition, Judge Knapp said he had no recollection of such disclosures. I said in my prior opinion that a further evidentiary hearing on remand would be necessary "because Judge Knapp's and Concannon's accounts appear to differ on a central point." 835 F. Supp. at 156. *fn3" However, neither party wished to offer further proof on the point. They agreed that this Court should decide the issue after a de novo review of the existing record. On reflection, I agree that this is the sensible course. Recollections of 1975 and 1976 events will be no better today than they were in 1990.

 The written record establishes the pertinent dates. Nicks offered a plea of guilty on June 17, 1974. During the allocution Concannon responded affirmatively to a guest ion Judge Knapp was prompted to ask: "Are you perfectly satisfied that [Nicks] knows what he is doing?" However, on July 1, 1974, Concannon swore to an affidavit reciting his belief "that defendant's condition indicates that he may be suffering from a mental disorder." That affidavit also recited that Robert Ohannessian, the Probation Officer assigned to Nicks' pre-sentence report, recommended a psychiatric interview of Nicks because he was unresponsive and uncooperative. Concannon asked for a psychiatric examination pursuant to 18 U.S.C. § 4244. The Court (Ward, J.) granted that order on July 2, 1974. Dr. Norman Weiss, the examining psychiatrist, submitted a report dated July 15, 1974, which Concannon forwarded to Judge Knapp on July 19.

 Judge Knapp was scheduled to sentence Nicks on July 25, 1974. Instead, he committed Nicks for an additional 60-day study to the Federal Correctional Institution in Milan, Michigan. That order was made under former 18 U.S.C. § 5010(e), a part of the Federal Youth Correction Act, 18 U.S.C. § 5006 et seq., since repealed. § 5010(e) authorized a pre-sentence committal of a defendant "for observation and study." At Milan Dr. Peter Davol, a psychiatrist, and Dr. Thomas Rosenbaum, a psychologist, examined Nicks and prepared written reports, as did Lenny Graves, a Youth Corrections Act case manager. These reports were included in a classification study presented to Judge Knapp on December 11, 1974.

 Nicks was scheduled for sentencing on January 9, 1975. Following a discussion the content of which is in dispute, Judge Knapp adjourned the sentence for one week to January 16, 1976 and passed sentence on that date. Adopting the recommendation contained in the Milan classification study, Judge Knapp sentenced Nicks to an eight-year indeterminate sentence under § 5010(c) of the Youth Corrections Act.


 In a characteristically wise and self-effacing reflection on the vagaries of human memory, Judge Knapp wrote at 760 F. Supp. 301 n.1:

Concannon's and my recollections are affected by opposing institutional biases. As a lawyer, he would obviously like to remember himself as completely candid with the court. As a Judge, I would--equally obviously--have a strong bias against remembering myself as knowingly committing constitutional error. At the same time, we were both under the constraint of trying to achieve what we then conceived to have been in petitioner's best interest. I suspect that if the Almighty were to provide us with a videotape of what we actually did and said sixteen years ago we would both be very surprised.

 The Almighty has not favored this Court with a videotape. Accordingly the task borne by this imperfect judicial instrument is to consider all the evidence and decide what I think probably happened. I can do no more, but for present purposes it must suffice.


 I begin with the observation that while (not surprisingly) Judge Knapp made no personal notes of the events of January 9 and 16, 1975, Concannon (again not surprisingly) kept a contemporaneous file and log. That document is of considerable assistance.

 First, it sheds light on what occurred during the off-the-record discussion with Judge Knapp on January 9, 1975. It was apparently Judge Knapp's practice to hold robing room discussions with counsel before the formal sentencing proceeding. At least he did so in this case. The government has never denied that the January 9 discussion took place, although it does not mention it in its briefs on remand or in the statement of facts in its appellate brief, which I was asked to read.

 Concannon's case file contains the following handwritten notation for January 9, 1975: "Request plea withdrawal, adj. for 1 wk. to work out best plan with Ohannessian." A.425. *fn4"

 At the May 22, 1990 hearing before Magistrate Judge Roberts, on direct examination by counsel for Nicks, Concannon referred to that entry and then described the January 9, 1975 discussion with Judge Knapp:

Q. Your file shows that a hearing was held on January 9, 1975. Do you see that entry?
A. Yes.
Q. Next to that entry, page 2 of Exhibit 1, it states: "Request plea withdrawal." Do you see that?
A. Yes.
Q. Do you know what that particular entry signifies with respect to what occurred before Judge Knapp on January 9?
A. Yes. I am sure that we had a meeting, again in the robing room, and we discussed the various reports and the options, and I believe that I at the time didn't think that I had any choice but to move to have the plea withdrawn. I think that Judge Knapp suggested that I try to work out something with O'Hannessian [sic], something coherent to present to Judge Knapp as a suggestion how to proceed.
A. Yes. What happened was, he would be brought to the courtroom and sit there with marshals. He wouldn't have come back into the robing room where we were discussing these personal things about him.
Q. So your memory is that that there would have been a discussion with Judge Knapp in the presence of Assistant U.S. Attorney, prior to a session in open court?
A. Yes.
Q. And at that time you advised Judge Knapp that you didn't feel you had any choice ...

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