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March 14, 1967

Julio D. LABOY, Petitioner,
The STATE OF NEW JERSEY and Warden of the New Jersey State Prison at Trenton, Respondents

The opinion of the court was delivered by: LANE

 LANE, District Judge:

 Petitioner's application for a writ of habeas corpus has been allowed to be filed in forma pauperis. Petitioner is incarcerated in the New Jersey State Prison, Trenton, serving a term of life imprisonment imposed by the Monmouth County Court on October 11, 1963, after the retraction of a previously entered plea of not guilty and the entering of a plea of non vult to an indictment charging petitioner with murder.

 It is petitioner's contention that his plea of non vult was not voluntarily entered in that (1) he did not and could not understand what was transpiring since his mental capacity was that of a moron; and (2) his mind was overborne by psychological coercion and fear of the electric chair. Petitioner has sufficiently exhausted his state remedies.

 The transcript of the proceeding in the Monmouth County Court at which petitioner entered the plea of non vult reveals explicit avowals by petitioner in open court as to the voluntariness of his plea. Other statements indicating that petitioner was aware of the nature of the proceedings also appear in the transcript as well as oral answers to the questions provided in the Form 13A required by N.J.R.R. 3:5-2(b). It is petitioner's contention, however, that we should go behind that record and should make an independent inquiry into the voluntariness of his plea. See, e.g., United States ex rel. Perpiglia v. Rundle, 221 F. Supp. 1003, 1006 (E.D.Pa.1963). In light of his allegations, we signed an order to show cause, appointed counsel, and held a hearing.

 Petitioner was born in Pattillas, Puerto Rico, on December 21, 1935, and came to the United States in 1951. Although he now speaks and understands English fairly well, an interpreter was provided at the hearing to make sure there would be no communication difficulties.

 The murder for which petitioner was convicted was a felony murder of a gas station attendant during a robbery on November 23, 1962. Petitioner's alleged participation in the holdup was that he parked the getaway car and was the "lookout." Petitioner was arrested the following day and on November 26 gave a statement to the police in which he admitted that he participated in the robbery. On November 30 he was given a psychiatric examination at the request of the Monmouth County Prosecutor's office. The report concluded that petitioner had a mental inadequacy but had sufficient mental capacity to have criminal responsibility and to cooperate in his own defense. Petitioner was taken to the Monmouth County Court on December 17, 1962, where he entered a plea of not guilty. The court told him that if he did not have sufficient funds an attorney would be appointed for him.

 On December 21, 1962, Peter Cooper, Esquire, was notified that he had been appointed to defend petitioner. On that day Mr. Cooper and an associate, Mr. David Knapp, went to the county jail in Freehold to talk with petitioner. According to Mr. Cooper they were able to converse in English and although he realized that petitioner was of low intelligence he "felt that he [Laboy] could thoroughly understand me and what I was saying, and I took extensive notes on what he told me * * *." They discussed the facts of the crime but did not discuss the possibility of entering a plea because there had been no indication that the court would accept a plea. At this first meeting Mr. Cooper became aware that petitioner had already given a statement to the police.

 Mr. Cooper next visited petitioner on January 4, 1963, and by this time he had obtained a copy of the confession. They discussed the statement and petitioner indicated that it was incorrect in several respects. The points with which petitioner took issue were minor and did not amount to a denial of participation in the crime charged. Mr. Cooper testified that he was positive that petitioner at this time understood their conversation.

 The third visit by counsel took place on January 18, 1963. Mr. Cooper testified that on this occasion petitioner appeared to be "more concerned about his plight and was upset."

 On January 25, 1963, petitioner underwent another psychiatric examination at the request of the Prosecutor after the jail warden reported bizarre and unusual behavior. Petitioner had become depressed, complained of headaches, and refused food. There was a fire in his cell which was suspected to be a suicide attempt. Subsequently he was found sitting on the floor of his cell sobbing convulsively. He apparently had become obsessed with the fear of death and the fear of the electric chair. He also experienced delusions and auditory hallucinations. No diagnosis was given but it was recommended that petitioner be sent to the State Hospital for further study, and on January 26 he was committed to the hospital. Petitioner was treated with tranquilizers and appeared to respond well. However, soon thereafter, he became agitated, very confused, and extremely delusional. He was given a series of shock treatments which were completed on May 3, 1963, and according to the State Hospital's "Summary of Hospitalization," responded very satisfactorily. It is indicated that petitioner showed some amnesia of events prior to his hospitalization but was "able to recall the incidents of the crime." He was returned to the Monmouth County Jail on September 19, 1963.

 On May 15, 1963, while petitioner was still at the State Hospital, Mr. Cooper, together with Mr. Knapp, visited him. Mr. Cooper says that petitioner appeared calm and less upset. He indicates that at this time he had some discussion with petitioner about the case but the discussion was in general terms because counsel felt that petitioner's ability to comprehend was somewhat impaired.

 Petitioner's testimony with respect to the period before his release from the State Hospital on September 19, 1963, is that he has no recollection of speaking with Mr. Cooper prior to the time on May 15, 1963, in the hospital. Petitioner also testified that he has no recollection of the facts surrounding the murder charge. The Hospital Summary, however, indicates that petitioner talked with the doctors about the facts of his case. Petitioner agrees that it is possible that he gave this information to the doctors who interviewed him, but contends that he learned of these facts from Mr. Cooper when he visited him in the hospital. Mr. Cooper's testimony to the effect that they only had a general discussion about the case does not support petitioner's assertion. Mr. Cooper also indicated that petitioner was not unfamiliar with the case when he spoke with him in the hospital.

 On September 20, 1963, the day after petitioner's return from the State Hospital, Mr. Cooper visited him in the county jail. On this occasion counsel's testimony is that he again explained to petitioner the nature of the charge, the possible pleas that could be entered, the degrees of punishment including the possibility of the electric chair, and the fact that he had a right to go to trial. Mr. ...

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