United States v. Murphy

LUMBARD, Circuit Judge.

Farnsworth appeals from an order of Judge Brennan, Northern District of New York, denying, without a hearing, his petition for a writ of habeas corpus on the ground that it failed to allege an exhaustion of state remedies or a substantial federal question. The case is before us by virtue of Judge Brennan’s issuance of a certificate of probable cause, 28 U.S.C.A. § 2253.

The petitioner is presently incarcerated in Auburn State Prison, Auburn, New York, as the result of his conviction for attempted burglary in the third degree in the County Court of Westchester County in December 1946 and his subsequent conviction as a fourth felony offender under which he was sentenced on March 26, 1947 to a term of from fifteen years to life imprisonment under the provisions of the New York Multiple Offender Act, New York Penal Law, McKinney’s Consol.Laws, c. 40, § 1942. His prior felony convictions at the time of the 1947 sentence were four in number :1

1. A plea of guilty on September 9, 1929 to four indictments charging forgery in the Criminal Court of Baltimore, Maryland. Sentence imposed was one year in prison for each count, to be served concurrently.

2. Conviction on May 3, 1935 for burglary and grand larceny in the United States District Court for the District of Columbia. Sentenced to 3 to 6 years.

3. Conviction on November 17, 1939 in the Corporation Court of the City of Norfolk, Virginia for a burglary committed on March 5, 1935. Sentenced to 15 years.

4. Conviction on December 14, 1939 in the Corporation Court of the City of Norfolk, Virginia for burglaries committed on February 18, 1935 and March 1, 1935. Sentenced to 5 years to run concurrently with the 15 year sentence above.

Since his sentence in 1947 the petitioner has engaged in various legal maneuvers in an attempt to have it reduced. See Farnsworth v. Maryland, 1948, 334 U.S. 853, 68 S.Ct. 1508, 92 L.Ed. 1775; Farnsworth v. United States, 1952, 198 F.2d 600, 91 U.S.App.D.C. 121, certiorari denied 344 U.S. 915, 73 S.Ct. 338, 97 L.Ed. 706; People ex rel. Farnsworth v. Murphy, 4 Dept. 1952, 279 App.Div. 968, 112 N.Y.S.2d 311, affirmed 1953, 305 N.Y. 630, 111 N.E.2d 889, reargument denied 305 N.Y. 828, 113 N.E.2d 565; and United States ex rel. Farnsworth v. Murphy, 2 Cir., 1953, 207 F.2d 885 wherein Judge Learned Hand alludes to five or six previous unreported petitions from the prisoner. He finally succeeded in having the District of Columbia conviction vacated. Farnsworth v. United States, 1956, 98 U.S.App.D.C. 59, 232 F.2d 59. This did not, however, affect the term of his present prison confinement, for the Westchester County Court, on an application for a writ of coram nobis, ruled that Farnsworth was still properly sentenced as a fourth felony offender by reason of his prior Baltimore conviction and the two prior Norfolk, Virginia convictions.2 By the present petition Farnsworth seeks to upset the 1929 Baltimore convictions hoping thereby to be resentenced as a third offender.

The petitioner alleges that on December 24, 1947, after discovering that his conviction in Baltimore in 1929 was for a felony, he moved in the Baltimore Criminal Court to “correct the record” to show that he had been convicted of a misdemeanor rather than a felony. On January 6, 1948 this motion was denied. Thereafter, on February 19, 1948 Farns-worth petitioned the Supreme Judicial Bench of Baltimore by a writ of coram nobis to vacate his 1929 Baltimore convictions on the ground that his constitutional rights had been violated in that his plea of guilty was entered under circumstances which deprived him of due process of law and equal protection as guaranteed by the Fourteenth Amendment to the United States Constitution. The specific grounds set out in that petition are the same on which Farnsworth is presently relying. On February 26, 1948 an order issued from the Supreme Judicial Bench, signed by its eleven judges, which, after reciting the making ■of the motion and its consideration, reads: “Ordered that the same be and it is hereby denied and stricken from the files.” Thereafter Farnsworth wrote to the Chief Judge of the Court of Appeals of Maryland requesting permission to appeal from the determination of the Supreme Judicial Bench in forma pauperis. On March 30, 1948 the clerk of the Court of Appeals in replying to Farnsworth advised him that no forma pauperis appeal was permitted except in capital cases. A petition for certiorari to the United States Supreme Court was likewise denied. Farnsworth v. Maryland, 1948, 334 U.S. 853, 68 S.Ct. 1508, 92 L.Ed. 1775. There is no allegation in the present petition that Farnsworth was a pauper at the time when he sought to appeal to the Court of Appeals of Maryland, but since he was in prison at the time, and the petitions he has sent us all appear in forma pauperis, we will treat it as if such allegation was made.

The District Court in deciding “that Farnsworth had not exhausted his state remedies as required by 28 U.S.C.A. § 2254, relied on the decisions of United States ex rel. Kalan v. Martin, 2 Cir., 1953, 205 F.2d 514 and United States ex rel. Rheim v. Foster, 2 Cir., 1949, 175 F.2d 772. Those decisions no longer represent the law. United States ex rel. Marcial v. Fay, 2 Cir., 1957, 247 F.2d 662, 665. “Where the only state remedies are inaccessible to a prisoner because of his poverty, his failure to pursue those remedies does not bar him from applying to the federal courts for relief.” United States ex rel. Embree v. Cummings, 2 Cir., 1956, 233 F.2d 188, 189.

Moreover, it would appear that Maryland does not provide any way in which Farnsworth may test his 1929 Baltimore conviction. Coram nobis is unavailable, Bernard v. State, 1949, 193 Md. 1, 65 A.2d 297, as is habeas corpus. Code of Maryland (1951 Edition) Article 42, § 3. Nor would relief lie in the New York courts. People v. McCullough, 1949, 300 N.Y. 107, 89 N.E.2d 335, certiorari denied 1950, 339 U.S. 924, 70 S.Ct. 615, 94 L.Ed. 1346; United States ex rel. Smith v. Jackson, 2 Cir., 1956, 234 F.2d 742.

The petitioner has thus exhausted his state remedies and we turn now to the petitioner’s allegations. We find they are not sufficient to present a federal question.

The four 1929 indictments with which Farnsworth was charged in the Baltimore court each contain three counts: (1) forgery of a check; (2) uttering the check; and (3) obtaining money in the amount of the forged check by false pretenses. Under the Maryland statutes the first two counts charged felonies, the third a misdemeanor.

The petitioner in fact pleaded guilty to Count 1 of each indictment. He claims that his constitutional rights were violated in “ * * * that said Baltimore [Criminal] Court wrongfully and unlawfully accepted * * * petitioner’s plea of guilty without benefit of counsel and without advising petitioner of the true nature of the various crimes charged against him, or, the legal consequences or the effect of his plea, or, asking petitioner if he had any cause to show why judgment should not be pronounced against him. * * * ” He further alleges that “ * * * he believed he was being tried for obtaining money by false pretenses (bogus checks)” and that he pleaded guilty on the advice of some unnamed “officials of the Baltimore City Jail,” apparently in order to get a light sentence.

In faet Count 1 ©f each indictment charged a felony and it was these counts to which the records show Farnsworth pleaded guilty. The four counts charged that on four occasions he drew checks to himself in the sums of $93.10, $93.10, $46.10 and $46.10 respectively, and forged the name of Lieutenant Sylvan Berliner as signer. All of the checks were payable to Corporal James B. Farnsworth. Three of the checks were drawn on the Battery Fund of Battery C, 62nd Artillery, with Lieutenant Berliner’s name signed as commanding officer. The fourth check was drawn on the personal account of Lieutenant Berliner. All of the forgeries took place in December of 1928, and according to the third count of each indictment, Farnsworth used the checks to purchase civilian clothes, pay a hotel bill, and purchase some undescribed article from the Arun-del Building & Construction Co. of Baltimore. Nowhere does Farnsworth allege that he was innocent of forging Lieutenant Berliner’s name to those checks or cashing them. He himself states that he believed he was being tried for obtaining money by bogus checks. The tenor of all that he says makes it clear that he concedes his guilt to obtaining money by bogus checks.

The petitioner’s main contention is that he was deprived of his constitutional rights under the Fourteenth Amendment because he was not assigned counsel and was not advised of his “right” to assigned counsel at the time of the entry of his plea of guilty.

The crime of forgery was not a capital offense in Maryland, Annotated Code of Maryland (1924 Edition) Article 27, § 44. The due process clause of the Fourteenth Amendment does not give to a defendant charged with a non-capital criminal offense a right to assigned counsel unless there are circumstances surrounding the conviction showing that “ * * * for want of benefit of counsel an ingredient of unfairness actually operated in the process that resulted in [the defendant’s) confinement.” Quicksall v. Michigan, 1950, 339 U.S. 660, 666, 70 S.Ct. 910, 913, 94 L.Ed. 1188; Uveges v. Pennsylvania, 1948, 335 U.S. 437, 69 S.Ct. 184, 93 L.Ed. 127; Com. of Pa. ex rel. Herman v. Claudy, 1956, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126. 3 Only where the unfairness is of greater substance than that which incidentally and ordinarily results from the failure of a defendant to have legal advice at the time of his plea do we get to the inquiry of whether there has been a failure of due process.

The petitioner in an attempt to make out the requisite showing of “fundamental unfairness” alleges that;

“(a) * * * petitioner’s plea of guilty was entered through ignorance as to the true nature of the charges against him and of the consequences of such plea; that he was never furnished with a copy of the charges alleged against him and did not know he was entitled to the same; that when arraigned in Court the charges were not read to him and he believed he was being tried for obtaining money by false pretenses (bogus checks).”

“(b) That petitioner was unable to procure counsel for want of funds; that he had never previously been arrested,4 and was unfamiliar with criminal law, and was bewildered by court procedure; that he was not furnished with counsel; and that he was not cautioned by the Court as to the nature or the consequences of his guilty plea.”

“(c) That officials of the Baltimore City Jail advised petitioner his trial would be treated as a misdemeanor case; and that influenced by their representations and instructions he pleaded guilty when prompted to do so.”

“(d) That had petitioner been advised as to the true nature and serious consequences of his guilty plea, he would not have pleaded guilty but would have elected to stand trial.”

At the time that Farnsworth’s plea of guilty was accepted he was twenty-three years of age. He had a high school education. His claim of ignorance as to the charges against him is incredible for the charges against him were simple and easily understood. Farnsworth apparently knew that there was a difference between a felony count and a misdemeanor count and that both felony and misdemeanor counts had been lodged against him.

Nor on this record does there appear any basis for the charge that there was overreaching on the part of the Maryland officials. It hardly lends color to what he now charges that some part of the indictment was dismissed, perha-ps in order to give him a lighter jail sentence. If Farnsworth had pleaded guilty to the misdemeanor count he could have received a maximum sentence of ten years on each count of the four indictments. Annotated Code of Maryland, 1924 Edition, Article 27, § 139.5 The one year sentences for each forgery count, to be served concurrently, were reasonable. There is no reason to believe that he would have received a lesser sentence even if he had pleaded to the four misdemeanor counts instead of the four felony counts as the maximum sentence for forgery was 10 years and the maximum sentence for obtaining money by false pretenses was 10 years.

Thus Farnsworth’s petition shows only that a mature young man, with an adequate understanding of what he was doing, pleaded guilty to a charge in a proceeding in which he seems to have been fairly treated. That he was not assigned counsel to explain to him all the possible legal ramifications of his plea does not constitute fundamental unfairness so that the proceedings would be violative of the requirements of due process. What the petitioner is really complaining about is that someone did not advise him in Baltimore in 1929 that New York had a Multiple Offender Act and if he were later convicted of a felony in New York he would be subjected to additional penalties. Thus Farnsworth waited until 1947 to “correct” the 1929 record because it was not until then that he became aware of the unforeseen consequences of the 1929 plea.

We deplore the fact that Farnsworth was not represented by counsel if that be the fact. But we cannot believe that this is sufficient to justify inquiry into what a state court did 29 years ago when a defendant was sentenced to a year in prison for fraudulently securing a total of $278.40 by cashing four forged checks.

Due process does not require that a state should advise of the possible legal effect of pleading to non-capital charges any more than it requires assignment of counsel in such cases where the net result of what happens and the manner of its happening do not offend generally accepted notions of fair play. Here, on the contrary, it would seem that the net result shows that Farnsworth was fairly treated. In such a case the federal courts are well advised not to interfere with the administration of criminal justice of a state. This is not to say that the state may not be required to meet a charge that a conviction is unconstitutional because of the difficulties involved, United States ex rel. Savini v. Jackson, 2 Cir., 1957, 250 F.2d 349. But where in a petition a prisoner asserts only vague and conclusory allegations, in what is palpably a desperate effort to evade a lawful sentence, we should not call for such effort from the state. Indeed what would be required here to refute Farnsworth's conclusory charge, which gives no names, details or descriptions, would be to produce every court and jail official and employee who had any contact with Farnsworth at any time during his incarceration until the time of his plea. So to dignify charges such as this would further encourage groundless allegations, already swollen to many hundreds each year. We should not permit the use of the federal court forum to harass the officials of both New York and Maryland in the business of administering criminal justice where a claim is so ancient, indefinite, implausible, and patently void of any possible merit. The state governments and the people they protect are also entitled to due process. Stein v. New York, 1953, 346 U.S. 156, 197, 73 S.Ct. 1077, 97 L.Ed. 1522.

We take this opportunity to express our appreciation to Nicholas John Stathis for the most able representation given the petitioner as assigned counsel.

1 Not included was a 1931 conviction for desertion from the United States Army.

2 On appeal to the Appellate Division, Second Department, the order was affirmed without opinion on October 1, 1956, People v. Farnsworth, 2 A.D.2d 852, 156 N.Y.S.2d 137. Leave to appeal to the New York Court of Appeals was denied by Judge Desmond of that court on November 7, 1956.

3 We are mindful of Zavada v. United States, 1958, 355 U.S. 392, 78 S.Ct. 383, 2 L.Ed.2d 356, wlierein the Supreme Court remanded for a hearing on Za-vada’s petition that he had pleaded gHilty in federal court to a bank robbery charge carrying a minimum sentence of 25 years without being advised of his right to counsel. It is one thing to grant a hearing to a federal prisoner who alleges he was not advised of Ms right to counsel in violation of the rights guaranteed to Mm by the Sixth Amendment to the Constitution; it is quite another thing for a federal court to inquire into what a state court has done where the result seems wholly fair and reasonable and not inconsistent with the traditional concepts of justice envisaged by the due process clause of the Fourteenth Amendment.

4 The brief submitted by assigned counsel for tbe petitioner shows that Farns-*443worth did have one previous arrest, on June 22, 1929 in New York City. The charge upon which the arrest was based was dismissed on July 1, 1929 (Appellant’s Brief, p. 37).

5 “Any person who shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to defraud any person of the same, shall be guilty of a misdemeanor, and being convicted thereof shall be liable, at the discretion of the court, to be punished by fine and imprisonment, or by confinement in the penitentiary for not less than two years nor more than ten years, as the court shall award; * * *".