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June 8, 1981

Dominick CARUSO, Petitioner,
Mr. Donald ZELINSKY, Acting Superintendent, Youth Reception & Correction Center, Yardville, New Jersey; and John Degnan, Attorney General of the State of New Jersey, Respondents

The opinion of the court was delivered by: STERN

In this petition pursuant to 28 U.S.C. § 2254 for a Writ of Habeas Corpus, petitioner Dominick Caruso contends that he was denied the effective assistance of counsel at four critical stages of the proceedings which culminated in his present incarceration.


 In the early morning of June 4, 1972, two white men drove through the City of Elizabeth, New Jersey, randomly threatening and shooting at black men who happened to be walking on the street. One person was killed and at least four others were wounded. Petitioner was charged by a Union County, New Jersey, grand jury with twenty-three crimes in connection with this incident: one count of murder, eight counts of assault with an offensive weapon, eight counts of assault and battery with intent to kill, one count of possession of a rifle with intent to use it unlawfully, and four counts of atrocious assault and battery. Petitioner's alleged accomplice, Michael DeSanto, was charged in two separate indictments with the same twenty-three crimes.

 Pursuant to a plea agreement, DeSanto pleaded non vult to the murder charge and guilty to all other charges. See State v. DeSanto, 157 N.J.Super. 452, 384 A.2d 1169 (Law Div. 1978). Under New Jersey law in effect at the time, a defendant who pleaded not guilty to murder and was convicted received a mandatory sentence of life imprisonment; a defendant who pleaded non vult could receive either a sentence of life imprisonment or a fixed term not to exceed thirty years. *fn1" As part of the plea agreement, the State recommended that DeSanto's sentence on the other counts run concurrent to that imposed on the murder count. The court followed this recommendation and sentenced DeSanto to an aggregate term of 25 to 30 years.

 The parties dispute whether the prosecution made any efforts to negotiate a plea with petitioner, a dispute which figures prominently in this petition. Neither Caruso's local counsel, William Kaufmann, nor the Texas lawyer who tried his case, Percy Foreman, informed Caruso that the prosecution evinced any interest in a plea bargain, and Foreman denies that the prosecution gave any indication that it would consent to a plea. However, petitioner now contends, based on affidavits by two persons involved in the prosecution of his case, that a plea offer was in fact communicated to his lawyers.

 In either event, Caruso pleaded not guilty to all counts. Trial commenced on November 27, 1972, and continued for about ten days. The evidence, which included a videotaped four-and-one-half hour confession, proved conclusively that petitioner had committed the acts charged against him. In fact, Foreman told the jury in his opening statement that petitioner would rely solely on an insanity defense.

 The State introduced testimony that Caruso and his girlfriend attended an engagement party at a hotel in Elizabeth on June 3, 1972; that when Caruso attempted to park his car in a lot near the hotel he became engaged in an argument with the attendant, who was black; and that he left the party about two hours later to find a friend, Billy DeSanto. He was apparently heavily intoxicated the entire evening. The evidence showed that Caruso and DeSanto returned to the hotel shouting racial epithets, and attempted to assault the parking lot attendant with a tire iron and a jack stand. Both men were arrested and taken to Elizabeth Police Headquarters. Caruso was released after his parents posted bail, and he returned home at about 1:00 A.M. on June 4, 1972.

 According to petitioner's confession, he then went to his bedroom and pretended to go to sleep. After his parents fell asleep, he took a .22 caliber rifle and ammunition belonging to his father and drove to a tavern in Elizabeth where he met Michael DeSanto, Billy DeSanto's younger brother. Caruso and DeSanto drove Caruso's car around a predominantly black neighborhood in Elizabeth, shooting at people on the street. They would sometimes approach a pedestrian, usually by calling out to him and asking for money. When the pedestrian approached the car, petitioner or DeSanto would point the rifle at him and shoot. Other victims were approached without warning and shot from the rear. Caruso and DeSanto shot at at least nine persons: one died, four were wounded, and four escaped unharmed.

 In support of his insanity defense, petitioner called his uncle and a psychologist to testify about Caruso's behavior in the years prior to the incident, and a psychiatrist who testified that Caruso was psychotic at the time the acts occurred. The State also called a psychiatrist, Dr. David Flicker, who testified that petitioner was sane on the evening of the shootings, although he believed that petitioner's intoxication contributed to his actions.

 On December 6, 1972, after less than six hours of deliberation, the jury returned its verdict of guilty on all counts. The trial judge, as required by law, immediately imposed the mandatory sentence of life imprisonment on the murder count. On January 5, 1973, the court sentenced petitioner to an aggregate sentence of eight to twelve years on the other twenty-two counts, to run consecutively to the sentence of life imprisonment.

 Petitioner's counsel filed a notice of appeal with the New Jersey Superior Court, Appellate Division. *fn2" Counsel did not move before the trial court for a reduction of sentence, nor was the severity of sentence one of the issues raised on appeal. *fn3" On February 22, 1974, the Appellate Division affirmed the conviction. A petition for certification, filed with the New Jersey Supreme Court, was denied on May 14, 1974.

 On March 20, 1979, petitioner filed a petition in Superior Court pursuant to N.J. Court Rule 3:22-1 for post-conviction relief. He alleged that he was denied his Sixth Amendment right to the effective assistance of counsel in that: (1) trial counsel failed to communicate to petitioner a plea offer by the State; *fn4" (2) trial counsel failed to request the judge to charge the jury only on second-degree murder; (3) trial counsel failed to move the trial judge for a reduction of sentence; and (4) appellate counsel failed to raise on appeal the issue of the severity of petitioner's sentence. The trial judge heard argument on the petition on May 11, 1979, and denied it from the bench.

 On July 3, 1979, a notice of appeal was filed with the Appellate Division. The instant petition, raising arguments identical to those raised in the state petition, was filed on November 2, 1979. Because appeal from denial of the state petition was pending, this petition was dismissed without prejudice for failure to exhaust state remedies. 28 U.S.C. § 2254(b). Subsequently, the Appellate Division rejected petitioner's appeal, *fn5" the Supreme Court of New Jersey denied certification, and this matter was reopened. Oral argument was heard on February 23, 1981.


 A. Counsel's Obligation to Inform the Defendant of any Plea Offer or Negotiations:

 The standard of representation required in this circuit to satisfy the Sixth and Fourteenth Amendment guarantees of effective assistance of counsel is "the exercise of the customary skill and knowledge which normally prevails at the time and place." Moore v. United States, 432 F.2d 730, 736 (3rd Cir. 1970). This standard requires petitioner to establish that counsel acted in derogation of the customary responsibility imposed upon him, and that petitioner was prejudiced by counsel's action. Petitioner alleges that representatives of the state explored the interest of defense counsel in a plea bargain, and in fact offered defense counsel a plea carrying a maximum sentence of life imprisonment and the possibility of a term of thirty years or less. If petitioner proves this allegation, he will have met both prongs of that test.

 The obligation of counsel to permit the client to make final determinations concerning a plea, and consequently to inform the client fully on the available alternatives, is set forth in the various codes of conduct with which all attorneys are expected to comply. The Code of Professional Responsibility states:

A defense lawyer in a criminal case has the duty to advise his client fully on whether a particular plea to a charge appears to be desirable and as to the prospect of success on appeal, but it is for the client to decide what plea should be entered and whether an appeal should be taken.

 Ethical Consideration EC7-7. The obligation is more clearly set forth in the ABA Standards for Criminal Justice (2nd Ed. 1980). Standard 4-6.2, relating to the "defense function," provides:

(a) In conducting discussions with the prosecutor the lawyer should keep the accused advised of developments at all times and all proposals made by the prosecutor ...

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