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United States v. Zelinsky

decided: September 22, 1982.

UNITED STATES EX REL. DOMINICK CARUSO, APPELLEE-CROSS-APPELLANT
v.
DONALD ZELINSKY, ACTING SUPERINTENDENT, YOUTH RECEPTION AND CORRECTION CENTER, YARDVILLE, NEW JERSEY, AND JOHN DEGNAN, ATTORNEY GENERAL OF NEW JERSEY, APPELLANTS-CROSS-APPELLEES



On Appeal From The United States District Court For The District Of New Jersey.

Seitz, Chief Judge, Van Dusen and Sloviter, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Chief Judge.

The State of New Jersey appeals from the district court's order conditionally granting Dominick Caruso a writ of habeas corpus. This court has jurisdiction under 28 U.S.C. § 1291 (1976).

I

On June 4, 1972, Caruso and Michael DeSanto ran amok in Elizabeth, New Jersey, indiscriminately threatening and shooting black men whom they came across. Both men were indicted and charged with twenty-three crimes relating to their June 4 activities, including one count of murder, eight counts of assault and battery with intent to kill, and four counts of atrocious assault and battery. Pursuant to a plea bargain, DeSanto pleaded non vult to the murder count and guilty to the other counts. In return, the State recommended that sentences on all counts run concurrently, a recommendation that the sentencing court followed. He was sentenced to a term of 25-30 years.

Caruso pleaded not guilty to all counts, and relied on an insanity defense at trial, at which he was represented by New Jersey attorney William Kaufman and Texas attorney Percy Foreman. After about a two-week trial, the jury returned a verdict of guilty on all counts. Under New Jersey law at that time, the trial court was required to impose a sentence of life imprisonment on a defendant found guilty of murder after a plea of not guilty. The trial court on January 5, 1973, duly imposed the mandatory life sentence, and in addition sentenced Caruso to a total of eight to twelve years on the other counts, to run consecutively to the life sentence.

After sentencing, Caruso obtained new counsel, the New Jersey law firm of Forman, Forman & Cardonsky, and then appealed to the Appellate Division of the New Jersey Superior Court, which affirmed the conviction. The New Jersey Supreme Court denied Caruso's petition for certification. Caruso, represented by still different counsel, then returned to the state trial court and moved for a new trial, claiming that Foreman's trial preparation was inadequate. That motion was denied. On appeal that decision was affirmed by the Appellate Division.

On March 15, 1979, more than five years after sentence was imposed, Caruso, represented by his present counsel, filed a petition for post-conviction relief in the Superior Court of New Jersey. In particular, Caruso alleged ineffective assistance of counsel in the failure: (1) of trial counsel to tell Caruso that the State had offered him a plea bargain; (2) of trial counsel to request the trial court not to charge the jury on first-degree murder; (3) of trial counsel to move the trial court for a reduction of sentence; and (4) of appellate counsel to raise as an issue on appeal the severity of Caruso's sentence. Caruso submitted six affidavits in support of his petition. The State submitted none in opposition.

Without holding an evidentiary hearing, the same trial judge who had presided at Caruso's trial denied the petition, apparently holding that Caruso had not presented sufficient evidence that a plea offer had been made. The trial judge also rejected Caruso's other three claims. The Appellate Division affirmed the trial court's decision, both on the merits and for failure to comply with various state procedural rules. The New Jersey Supreme Court denied Caruso's petition for certification.

Caruso then filed in the district court a petition for a writ of habeas corpus under 28 U.S.C. § 2254 (1976), raising the same four arguments advanced in the state court. See Caruso v. Zelinsky, 515 F. Supp. 676, 679 (D.N.J. 1981). The district court held that the finding of the state trial court that no plea bargain was ever offered was not fairly supported by the record, see 28 U.S.C. § 2254(d) (8), and therefore could not be presumed to be correct. The district court then concluded that the merits of the plea bargain claim could not be decided solely on the basis of the submitted affidavits and the state trial transcript, and that the state court should have had a hearing. 515 F. Supp. at 683.

Without holding an evidentiary hearing of its own, the district court proceeded to order that a writ of habeas corpus issue "unless the state court within ninety days (1) affords [Caruso] an evidentiary hearing and makes findings, fairly supported by the record, contrary to [Caruso's] allegations, or (2) grants [Caruso's] request for the benefit of the proffered plea bargain." Id. at 685. In a separate order, the district court held that the other grounds advanced by the petitioner did not constitute ineffective assistance of counsel and therefore would not support the issuance of the writ. The State appeals from the order conditionally granting the writ on the first ground (No. 81-2395). Caruso appeals from the order denying the writ on the other grounds (No. 81-2484).

II

The federal courts have jurisdiction over a state prisoner's claim for habeas corpus relief only if "he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). Preliminarily, we are satisfied that a Sixth Amendment right to effective assistance of counsel claim is cognizable under the federal habeas corpus statute. Sallie v. State of North Carolina, 587 F.2d 636, 640-41 (4th Cir. 1978), cert. denied, 441 U.S. 911, 60 L. Ed. 2d 383, 99 S. Ct. 2009 (1979).

We proceed to consider whether Caruso's petition presents sufficiently substantial federal constitutional claims.*fn1 For the reasons that follow, we conclude that his trial counsel's alleged failure to advise him of a plea bargain offer presents a substantial constitutional claim.

Caruso's petition before the district court restates the claim he made before the state court and alleges that he was denied:

due process of law and the effective assistance of counsel [in that] the then Union County Prosecutor, Karl Asch, offered to [Caruso's] then trial counsel, William Kaufman of Elizabeth, New Jersey and Percy Foreman of Houston, Texas, a plea bargain [--] that in exchange for a guilty plea to the first count of murder in the first count of murder in the first degree all other charges . . . would be dropped. This plea offer was never communicated to [Caruso] for his consideration and had it been communicated, would have been accepted and would have resulted in a much reduced sentence. . . .

Under New Jersey law at the time, a defendant who pled guilty to murder could be sentenced to less than life imprisonment. Because Caruso pled not guilty and was convicted of murder, he received the mandatory life sentence. He also received a sentence of eight to twelve years on the other counts to run consecutively with the life sentence. Thus, if his allegations are true, he might well be serving a significantly lesser sentence but for the failure to communicate the plea bargain.*fn2

In general, the right to counsel attaches during "critical stages" of the criminal process. See United States ex rel. O'Brien v. Maroney, 423 F.2d 865, 868 (3d Cir. 1970). We have held that entering a guilty plea to an indictment, without the benefit of counsel, is a critical stage, and that,

the guidance of counsel is so essential a protection for an accused during plea bargaining and in the making of a decision to plead guilty that a plea entered without such guidance must be set aside. . . .

Gallarelli v. United States, 441 F.2d 1402, 1405 (3d Cir. 1971) (footnote omitted). Accord, Colson v. Smith, 438 F.2d 1075, 1078 (5th Cir. 1971) ("defendant is entitled to the effective assistance of counsel in determining how to plead"). It seems to us that the decision to reject a plea bargain offer and plead not guilty is also a vitally important decision and a critical stage at which the right to effective assistance of counsel attaches.

This court has held that "the standard of adequacy of legal services . . . 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 (3d Cir. 1970) (in banc). The decision to reject a plea bargain offer and plead not guilty is a decision for the accused to make. It would seem that, in the ordinary case, a failure of counsel to advise his client of a plea bargain would constitute a gross deviation from accepted professional standards. The district court, in a thoughtful discussion, held that failure to communicate a plea bargain offer would deny Caruso his sixth and fourteenth amendment rights. 515 F. Supp. at 679-80. We agree.

This court has also held that the accused must be prejudiced by counsel's incompetence before relief will be granted. See United States ex. rel. Johnson v. Johnson, 531 F.2d 169, 177-78 (3d Cir.), cert. denied, 425 U.S. 997, 48 L. Ed. 2d 823, 96 S. Ct. 2214 (1976). Caruso alleges the requisite prejudice, a significant additional term of imprisonment that resulted from counsel's failure to communicate the plea offer which he would have accepted.

The State argues that because Caruso received a fair trial he is not entitled to a habeas remedy even if he could prove ineffective assistance of counsel in the manner alleged. This argument is untenable on the plea bargaining issue. Failure by defense counsel to communicate a plea offer to defendant deprives defendant of the opportunity to present a plea bargain for the consideration of the state judge and, on acceptance by the state judge, to enter a guilty plea in exchange for a lesser sentence. A ...


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