533 F.

2d 1322

Joseph Edward Francis LUNZ, Petitioner-Appellant,

v.
Robert J. HENDERSON, Superintendent, Auburn
Correctional
Facility, Auburn, New York, Respondent-Appellee.
No. 128, Docket 75-2079.

United States Court of Appeals,

Second Circuit.
Argued Sept. 17, 1975.
Decided Feb. 26, 1976.

Leslie A. Blau, New York City (Paula Van Meter, New York City, on the
brief), for petitioner-appellant.
Burton Herman, Asst. Atty. Gen. of the State of New York, New York
City (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First
Asst. Atty. Gen., New York City, on the brief), for respondent-appellee.
Before FRIENDLY, TIMBERS and GURFEIN, Circuit Judges.
TIMBERS, Circuit Judge:

On this appeal from a judgment entered March 26, 1975 in the Eastern District
of New York, Edward R. Neaher, District Judge, dismissing a petition for a writ
of habeas corpus by a state prisoner1 who pleaded guilty to second degree
murder more than ten years ago, the essential issue is whether Judge Neaher
correctly rejected petitioner's claims (1) of an involuntarily entered guilty plea,
(2) of denial of effective assistance of counsel, and (3) of denial of right of
allocution. We hold that Judge Neaher correctly rejected each of petitioner's
claims and accordingly we affirm.

On June 7, 1965 petitioner Joseph Edward Francis Lunz, accompanied by

counsel, pleaded guilty to second degree murder 2 before Justice Shapiro in the
Queens County Supreme Court. On August 23, 1965 he was sentenced by

Justice Shapiro to a term of twenty years to life. His conviction was

unanimously affirmed by the Appellate Division on December 11, 1967.
People v. Lunz, 29 App.Div.2d 631, 286 N.Y.S.2d 787 (2nd Dept. 1967)
(mem.). The New York Court of Appeals denied leave to appeal on July 1,
1968.
3

After exhausting his state remedies,3 Lunz filed a petition for a writ of habeas
corpus in the Eastern District of New York on January 28, 1974, from the
denial of which by Judge Neaher in a well reasoned opinion filed March 26,
1975, and a judgment entered the same day dismissing the petition, the instant
appeal has been taken.

I.
4

On June 7, 1965, prior to accepting Lunz' guilty plea to second degree murder,
Justice Shapiro requested Lunz to tell him in his own words what he did on the
day of the crime. He did so. Among other things, Lunz stated that he stabbed a
Queens building superintendent to death with a letter opener after Lunz was
caught in the act of robbing the building. It is the guilty plea that was accepted
after this admission which Lunz seeks to have set aside in the instant habeas
corpus proceeding.

In order to focus upon Lunz' claims, it is necessary to back up a bit and recount
certain events of the preceding year or so.

Early in 1964 he pleaded guilty to grand larceny. He was sentenced as a

youthful offender. This offense was unrelated to the instant offense.

In September 1964 he again was arrested and charged with grand larceny. On
December 1, 1964 he was committed to the Kings County Hospital for a
psychiatric examination. While in the hospital he was questioned by two
detectives about the stabbing of the building superintendent.4 According to
Lunz, the detectives told him that they knew he had committed the murder; and
that if he confessed he would not be prosecuted for that crime and they would
arrange to have him transferred to a hospital of his choice. Lunz requested
access to counsel during the questioning. It was refused. At first he denied any
knowledge of or involvement in the murder. On the second day of questioning
in the hospital, however, he made an oral confession which was tape-recorded.
When requested to sign a written confession he refused and recanted his oral
confession.

The detectives used Lunz' oral confession to obtain a confession from his co-

The detectives used Lunz' oral confession to obtain a confession from his coconspirator, James Mannion. Based on Mannion's confession, a grand jury on
February 1, 1965 indicted both Lunz and Mannion for first degree murder.

On February 10 the court assigned James P. McGrattan, Esq., a former County

Court Judge, and James F. McArdle, Esq. to represent Lunz.

10

On February 17 the court ordered a psychiatric examination of Lunz to

determine whether he was competent to stand trial. The examination was
conducted at Kings County Hospital. The report of this examination concluded
that, although Lunz was disturbed in some respects, he nevertheless was
capable of understanding the charges against him and of assisting in his
defense. Following a hearing on the psychiatric examination and report, the
court on April 2 found that Lunz was competent to stand trial.

11

Thereafter his counsel urged him to plead guilty to second degree murder
because of the strength of the State's case and to avoid the risk of a death
sentence. At first Lunz refused.

12

On June 7, the day his case was to be called before Justice Shapiro, Lunz' sister
was in the courtroom. She was in an advanced stage of pregnancy. She was
there at the request of counsel for Lunz to persuade him to plead guilty to
second degree murder. Justice Shapiro granted the request of defense counsel to
permit Lunz to speak with his sister. Lunz did so. She became agitated and
upset when Lunz told her he would not plead guilty. She begged him to do so to
avoid being executed. Eventually, upon the urging of his counsel and his sister,
Lunz decided to plead guilty to second degree murder. He claims that he did so
because he did not wish to risk impairing his sister's health in view of her
pregnancy.

13

When Lunz was presented for a change of plea, Justice Shapiro conducted what
strikes us as an unusually careful voir dire examination to determine whether
there was a factual basis for the plea and whether it was being entered
voluntarily.5 Immediately after admitting that he had stabbed the building
superintendent with a letter opener upon being caught in the act of robbing the
building, Lunz responded to Justice Shapiro's question as follows:

14
"THE
COURT: Now, knowing everything that I have told you and knowing what
the sentence may very well be and that the minimum, at any rate, is not less than
twenty years, do you still say you desire to withdraw your plea of not guilty and
plead guilty to the crime of murder in the second degree?

DEFENDANT LUNZ: Yes, sir."

15
16

Justice Shapiro thereupon permitted Lunz to withdraw his not guilty plea to the
charge of first degree murder and to plead guilty to second degree murder.

17

Two and a half months later, on August 23, 1965, Lunz was sentenced by
Justice Shapiro to a term of twenty years to life. In view of his claim of denial
of the right of allocution, discussed more fully below, we set forth in the margin
the relevant portion of the sentencing minutes.6

II.
18

Turning directly to Lunz' claim that his guilty plea was involuntarily entered,
the controlling guidelines are set forth in McMann v. Richardson, 397 U.S. 759
(1970). There the Supreme Court held that the mere fact that a confession was
coerced does not, without more, afford a basis for setting aside a guilty plea.
On the record before us, we hold not only that Lunz' plea was voluntary but that
there was a factual basis for it as well.

19

We reject out of hand Lunz' claim that his confession given to the detectives in
the hospital was in reliance upon their promise that he would not be prosecuted
for the crime of murder. Apart from the utter improbability of this story, Lunz'
answers to Justice Shapiro's questions immediately prior to entry of the plea
provide a sufficient basis for the district court's finding that no such promise
was made. In short, as Judge Neaher's opinion below makes clear, before Lunz
was permitted to enter his guilty plea, Justice Shapiro's thorough voir dire
examination established that Lunz knew he was going to prison, that he knew
the term would be not less than twenty years, that he knew the term might be
even longer because of his prior felony record, and that he knew, and
unequivocally assured the court, that nobody had made any promises to him.

20

Nor do we find any merit in Lunz' claim that he was coerced into pleading
guilty by pressure from his counsel and his sister. Advice even strong urging by
those who have an accused's welfare at heart, based on the strength of the
State's case and the weakness of the defense, does not constitute undue
coercion. North Carolina v. Alford, 400 U.S. 25, 29-32 (1970); Brady v. United
States, 397 U.S. 742, 757 (1970); United States ex rel. Brown v. LaVallee, 424
F.2d 457, 460-61 (2 Cir. 1970), cert. denied,401 U.S. 942 (1971). This is
especially so where, as here, an accused's life is at stake. As Judge Neaher aptly
put it:

"Petitioner had already given a verbal confession to the two detectives and
21

petitioner's co-conspirator, Mannion, had also confessed. With his life at stake, it
certainly cannot be said under the circumstances that petitioner's choice was not free
and rational or that it was 'coerced' because prompted by advice received from those
who stressed the risk involved in any other decision."
22

We agree.

III.
23

Lunz also claims that he was denied the effective assistance of counsel by their
failure to consult with him sufficiently at two stages of the state court
proceedings: prior to the April 2, 1965 hearing to determine his competence to
stand trial (including what he now asserts as the overlooking of a possible
insanity defense); and prior to his change of plea on June 7, 1965. We disagree.

24

Our Court for a quarter of a century, going back at least to Judge Smith's
seminal opinion in United States v. Wight, 176 F.2d 376, 379 (2 Cir. 1949),
cert. denied, 338 U.S. 950 (1950), uniformly has adhered to stringent
requirements for establishing a claim of ineffective assistance of counsel. See,
e. g., United States ex rel. Marcelin v. Mancusi, 462 F.2d 36, and cases cited at
42 (2 Cir. 1972), cert. denied, 410 U.S. 917 (1973) (state prisoner's Sixth
Amendment claim of ineffective assistance of counsel for failure to assert
insanity defense rejected).

25

In the instant case Lunz' claim of ineffective assistance of counsel was the
subject of his second and third coram nobis proceedings in the New York state
courts, note 3 supra, in the latter of which he was accorded an evidentiary
hearing.7 Our examination of the record of the state court proceedings leaves us
with the firm conviction that Lunz was not denied his constitutional right to the
effective assistance of counsel. We agree with the district court that there was
no need to hold a further hearing on the matter. 28 U.S.C. 2254(d).

IV.
26

Finally Lunz claims that he was denied the right of allocution at the time
sentence was imposed on August 23, 1965. Specifically he asserts that he was
denied due process when Justice Shapiro said to him at the time of sentencing,
"Just keep still." Note 6 supra. Again we disagree, viewing in context what took
place at the sentencing proceedings as well as at the change of plea
proceedings.

27

As Judge Neaher noted in his opinion below, the Supreme Court held in Hill v.

27

As Judge Neaher noted in his opinion below, the Supreme Court held in Hill v.
United States, 368 U.S. 424, 428 (1962):

28 failure of a trial court to ask a defendant represented by an attorney whether he

"The
has anything to say before sentence is imposed is not of itself an error of the
character or magnitude cognizable under a writ of habeas corpus. It is an error which
is neither jurisdictional nor constitutional. It is not a fundamental defect which
inherently results in a complete miscarriage of justice, nor an omission inconsistent
with the rudimentary demands of fair procedure. It does not present 'exceptional
circumstances where the need for the remedy afforded by the writ of habeas corpus
is apparent.' Bowen v. Johnston, 306 U.S. 19, 27."
29

True, the Supreme Court in Hill indicated a distinction between failure to ask
an accused whether he had anything to say and cutting him off from saying
something. Whether the latter constitutes denial of due process was left open in
Hill. On the record before us, we hold that Lunz was not denied due process.

30

The sentencing colloquy, note 6 supra, must be considered in the light of Lunz'
answers to Justice Shapiro's questions during his careful voir dire examination
before Lunz' guilty plea was accepted. Note 5 supra. In view of Lunz'
admissions at that time, his undoubted knowledge of the crime to which he was
pleading guilty and his understanding of the extent of punishment which would
be imposed, the surprise he expressed on the day of sentencing that he was
being sentenced at all appears to have been feigned. We hold that Justice
Shapiro was fully justified in thinking that Lunz was simply endeavoring to
interrupt orderly proceedings, particularly since his counsel had already spoken
on his behalf.8

31

We have considered carefully all of Lunz' claims of error and find them to be
without merit.

32

Affirmed.

This appeal was docketed in our Court and argued before us under the caption:
The records of the district court support the statement in Judge Neaher's opinion
that Lunz, at least at that date, was incarcerated at the Auburn Correctional
Facility. The caption therefore is amended to reflect that he is in the custody of
the superintendent of that facility.
Moreover, the Second Circuit Judicial Council on December 1, 1975 ordered

that in all pending and future appeals involving state prisoners' petitions for
writs of habeas corpus there should be eliminated from the caption the words
which theretofore had preceded the name of the petitioner, i. e. "United States
ex rel."
The caption in the instant case accordingly is amended to read as set forth
above.
2

Lunz had been indicted on February 1, 1965 for first degree murder, to which
he pleaded not guilty. At the change of plea proceedings before Justice Shapiro
on June 7, 1965 Lunz withdrew his not guilty plea to the charge of first degree
murder and was permitted to plead guilty to a charge of second degree murder

Lunz filed three coram nobis petitions in the Queens County Supreme Court.
The first such petition, in which he claimed that his guilty plea had been
involuntarily entered, was denied by Justice Shapiro on February 19, 1970. The
Appellate Division affirmed on June 14, 1971. People v. Lunz, 37 App.Div.2d
697, 323 N.Y.S.2d 654 (2nd Dept. 1971) (mem.)
The second coram nobis petition, in which he claimed denial of effective
assistance of counsel as well as an involuntarily entered guilty plea, was denied
by Justice Buschmann on April 25, 1972.
The third coram nobis petition, in which he raised substantially the same two
claims as in his second petition, was denied by Justice Buschmann on June 13,
1973, after an evidentiary hearing.
We are informed by Lunz' counsel that leave to appeal to the Appellate
Division and to the New York Court of Appeals was denied with respect to the
orders denying the second and third coram nobis petitions.
Lunz' denial of right of allocution claim, aside from having been raised in a
motion for resentence which was denied by Justice Shapiro on September 29,
1969 (from which no appeal was taken), appears also to have been raised in a
petition for a writ of habeas corpus filed in the Clinton County Supreme Court
on April 16, 1970. This petition was denied by Justice Soden on May 16, 1970
on the ground that "(t)he issue raised by the petitioner at this time should
properly have been raised in one of the prior Appellate Division proceedings
(cf. People ex rel. Keitt v. McMann, 18 N.Y.2d 257)." The Appellate Division,
Third Department, affirmed without opinion on March 4, 1971 (unreported).
The New York Court of Appeals denied leave to appeal on May 12, 1971.
We are constrained to note our displeasure with the casual indifference of
counsel on both sides of the instant appeal with respect to their duty to provide

this Court with the relevant state court records to enable us to determine
whether state remedies have been exhausted as required by 28 U.S.C. 2254(b)
(1970). Among indicia of the casual indifference which we criticize was the
leaving of critical state court records with a guard in the lobby of our courthouse
(records which consequently were long mislaid) and the furnishing to us of state
court records regarding the denial of right of allocution claim two months after
the appeal was argued before us. We think the Court deserves better of counsel.
4

One of the detectives had questioned Lunz about the stabbing before he was
hospitalized. Lunz denied any knowledge of the crime

The colloquy between Justice Shapiro and Lunz prior to the change of plea on
June 7, 1965 included the following:
"The Court: In other words, you say now to the Court that you desire to
withdraw your plea of not guilty and plead guilty to the crime of murder in the
second degree?
Defendant Lunz: Yes, sir.
The Court: You realize under that plea, if I accept it, that the penalty will be not
less than twenty years. It may be more than twenty years and not less than life.
You understand that?
Defendant Lunz: Yes, sir.
The Court: The law also requires me to tell you that if you have previously
been convicted of a felony, the sentence in this case must be increased by
reason of that fact. Do you understand that?
Defendant Lunz: Yes, sir.
The Court: Has anybody made you any promise? Judge McGrattan, Mr.
McArdle, the District Attorney or anybody else made you any promise as to
what my sentence in this case will be if I accept the plea?
Defendant Lunz: No, sir.
The Court: You have had no talk with me until just now, is that right?
Defendant Lunz: That's right.
The Court: And that's here in open court, is that right?
Defendant Lunz: Yes."

The colloquy between Justice Shapiro, defense counsel and Lunz at the time of
sentencing on August 23, 1965 included the following:
"Court Clerk: Have you any legal cause to show why judgment of this Court
should not be pronounced upon you?
Mr. McGrattan: No.
The Court: I'll hear you, sir.
Mr. McGrattan: If your Honor pleases, I don't think any point would be served
by any extended plea here. You have a report of this defendant's background.
Whether it was his fault, partly his fault or possibly the fault of someone else,
he left his home when he was fifteen years of age and got into trouble.
I am acquainted with the position you have adopted formulated since you
became a member of the judiciary in not imposing heavy sentences.
The Court: No choice here, Judge.
Mr. McGrattan: I ask you not to make any exception here. You have a
minimum and a maximum. I am going to ask you to impose a minimum
sentence because I feel he's now nineteen years of age and there may be some
possibility of rehabilitation after he serves his sentence.
The Defendant: What do you mean 'sentence'?
The Court: All right. The sentence of the Court
The Defendant: Wait a minute. Sentence for what? What are you, serious?
The Court: Just keep still.
The Defendant: What do you mean 'keep still'? Now I get sentenced in
Manhattan court. I don't get sentenced here.
The Court: Sentence of the Court
The Defendant: What do you mean 'sentence of the Court'?
The Court: Sentence of the Court
The Defendant: Get the fuck out of here.
(A scuffle then ensued between the defendant and court officers.)

The Court: Sentence of the Court in this case is the defendant be committed to
the Elmira Reception Center for an indeterminate sentence of not less than
twenty nor more than life."
7

The crux of Justice Buschmann's decision on this issue, after the evidentiary
hearing, was set forth in his opinion of June 13, 1973:
"In the matter at hand the Court appointed two members of the bar in good
standing, experienced and well known in their field. As Mr. Justice Shapiro
pointed out in his coram nobis decision of February 19, 1970 in discussing the
qualifications of these attorneys (page 2):
'Mr. McGrattan has been an assistant district attorney for more than 20 years,
has prosecuted a great number of important cases in the former County Court of
this County and has served as a County Court judge for a period of time. Mr.
McArdle for the past 20 years has been engaged to a great extent in
representing defendants in criminal cases and has tried a number of important
cases during that period and bears an excellent reputation as a trial lawyer.'
It may be noted that such reputation continues until the present day.
As to the representation of petitioner, the gist of his complaint is that they did
not fully explore the question of sanity. The record shows this allegation to be
without foundation. Both counsel clearly recognized the possibility of this
defense. A sanity hearing was held: the issue litigated and the Court found
petitioner competent to stand trial. Shortly thereafter, petitioner freely and
voluntarily chose to plead guilty and must abide by the consequences of that
choice. While petitioner has every right to speculate on the wrong road taken,
and to consider what might have happened if he elected trial, such a possibility
cannot in law impose a duty of foresight on his appointed counsel. An attorney
must act on the facts presently before him and, in this case, assigned counsel
had to balance the merits of an uncertain defense against the real dangers of
capital punishment. Under the circumstances, a negotiated plea could not be
deemed an abandonment of the defendant's interests but rather a valid
courtroom representation.
Therefore, taking all the facts of this case into consideration and evaluating the
credible testimony of the witness in this hearing, this court finds that this is not
'one of those rare cases in which the representation of a defendant by his
assigned counsel was so inadequate and ineffective as to deprive him of a fair
trial.' (People v. Bennett (29 N.Y.2d 462, 280 N.E.2d 637, 329 N.Y.S.2d 801
(1972)))."

As appears from our summary of Lunz' exhaustion of state remedies, note 3

supra, it is a close question whether the exhaustion requirement has been

satisfied with respect to his claim of denial of right of allocution, even in light
of the state court habeas corpus records furnished to us two months after the
argument. We nevertheless have resolved this issue by assuming that state
remedies have been exhausted, preferring to rest our decision on the merits in
view of the clarity of the state court sentencing and change of plea records