Warren E. Burger: We'll hear arguments next in 73-1627, Lefkowitz against Newsome. Mr. Hammer, you may proceed whenever you're ready.
Robert S. Hammer: Mr. Chief Justice, may it please the Court. The issue presented by this case is the exact same issue which the Court reserved to itself from the case of McMann against Richardson in 397 U.S. at footnote 13 of its opinion. And that question is whether the federal habeas corpus remedy is available to a defendant who pleads guilty, whether it is permitted under state law to appeal the denial of a pretrial motion to suppress evidence. In February of 1970, Mr. Newsome was arrested for loitering. Loitering is a violation carrying a maximum 15 days imprisonment sentence. Incidental to this loitering arrest, Mr. Newsome was searched and it appeared that on his person were concealed narcotics and narcotic implements so that he was also charged with the crime of possession of a dangerous drug. This was a Class A misdemeanor, carrying a maximum one year imprisonment. A trial on the loitering charge was combined with a pre-trial motion to suppress the evidence. The defendant contended that the loitering arrest which predicated the incidental search was invalid and that the loitering statute was unconstitutionally vague. The lower criminal court denied this motion and convicted him of loitering. At that point, in May of 1970, the defendant pleaded guilty to a reduced charged of attempted possession of a dangerous drug and he was sentenced to three months imprisonment, which was the maximum on the so-called Class B misdemeanor. At that point under what was then Section 813-c of the New York Code of Criminal Procedure, he appealed, he was enlarged on bail and has remained free ever since.
William J. Brennan, Jr.: Now, what did he appeal from, the loitering conviction as well as the other one?
Robert S. Hammer: He appealed from both the loitering conviction and the conviction of attempted possession of a dangerous drug. The --
Warren E. Burger: Is that a -- attempted possession is a -- at least its novel to me, is that what you just --
Robert S. Hammer: It's a perhaps a theoretical offense. I should point out Your Honor that the New York Court of Appeals has allowed this as a plea bargaining device in a case of so called attempted manslaughter so that while there are certain theoretical problems with such a charge for purposes of pleading to a reduced charge, the New York Court's uphold such an arrangement.
Potter Stewart: You see it quite recently -- quite frequently in New York and I don't see anywhere else attempted possession and attempted manslaughter when indeed it is conceded that there was a killing and so on?
Robert S. Hammer: Well this is -- as I pointed out as vehicle for allowing the plea to a reduced charge.
Potter Stewart: The New York peculiarity, right?
Robert S. Hammer: I should point out Your Honor, that there are analogous provisions of the now criminal procedural law to permit the review of convictions where there has been a pretrial motion to suppress a confession or to invalidate an identification under the Wade rules.
William H. Rehnquist: What's open on that appeal so far as the appellate division in the Court of Appeals are concerned?
Robert S. Hammer: The appellate court may review the denial of the suppression motion notwithstanding the plea of guilty. This is the only issue before the Court on such an appeal.
William H. Rehnquist: And what does it do if it decides that the decision on the suppression motion was erroneous, does it reverse the denial of the motion or does it reverse the conviction?
Robert S. Hammer: It -- the appellate court reverses the conviction, Mr. Justice Rehnquist.
Harry A. Blackmun: Is this procedure open if the defendant made no motion to suppress?
Robert S. Hammer: The statute requires that a motion to suppress be made otherwise the --
Byron R. White: And overruled?
Robert S. Hammer: I beg your pardon, sir.
Byron R. White: And overruled.
Robert S. Hammer: And overruled otherwise, there is no right to take an appeal and the matter is waived even at a trial should the defendant plead not guilty.
William J. Brennan, Jr.: But I gather in this case when that went up to the appellate division?
Robert S. Hammer: To the appellete term, Your Honor.
Byron R. White: Appellate term, the decision turned on the issue of constitutionality of the loitering statute, is it?
Robert S. Hammer: The appellate term never reached that issue. What -- it decided the loitering conviction was bad on non-constitutional grounds that there was insufficient evidence to convict and that the information itself charging the offense was defective.
William J. Brennan, Jr.: And did it also decide the motion to suppress was improperly overruled?
Robert S. Hammer: No, Your Honor. It held that the arrest was made on probable cause so that the incidental search was upheld and for this reason, the conviction was affirmed.
William J. Brennan, Jr.: Right.
Robert S. Hammer: At that point a certificate for leave to appeal to the Court of Appeals was sought and denied and this Court itself in February 1972, denied a petition for certiorari.
Harry A. Blackmun: Let me ask you one other question? Suppose he made his motion to suppress and it was denied but he didn't appeal in the state system, is it your position that this is still open on federal habeas?
Robert S. Hammer: If the defendant had then gone on to trial and was convicted after a trial, we would have a totally different situation. Our contention is that it's the plea of guilty which forms the barrier to federal collateral review.
Thurgood Marshall: It does form a barrier to state review?
Robert S. Hammer: No, Your Honor. It's our contention --
Thurgood Marshall: It's a created state review, created by the state?
Robert S. Hammer: Exactly and of course --
Thurgood Marshall: And now the state says but he can't -- because of that he can't use the federal court?
Robert S. Hammer: Well Your Honor, under Lego against Twomey the states are always free to be more generous than -- more generous than the federal constitution requires and this we suggest is what happened. The state legislature enacted a statute designed exclusively for the internal management of the state criminal law procedure. They have permitted an appeal under the circumstance of this case but we insist with all respect Your Honor that such a statute cannot under any circumstances enlarge the jurisdiction of the United States District Court, only Congress can.
Harry A. Blackmun: Do you think there's any validity in your opponents argument about this being a trap for the unwary?
Robert S. Hammer: No, Your Honor. I suggest that their point is not well taken. At the outset it should be emphasized that the state attorney general's office at least has never conceded the issue that Section 813 appeal, automatically gives defendant a right if he's unsuccessful to go into the Federal District Court. We have resisted it in Rogers, we petitioned for certiorari before if I'm not mistaken. We have insisted that all 813-c does is promise a state appeal and of course the state delivered on that promise.
William H. Rehnquist: I presume if we reverse that judgment of the Court of Appeals at least there will thereafter be no trap for the unwary?
Robert S. Hammer: Absolutely. I should add Mr. Justice Rehnquist that what is involved here is no different than when good, competent counsel may miscalculate upon the effect of -- or mis-predict what a higher court will do. From the outset as I mentioned before, our office has always insisted that the federal habeas corpus remedy may not be maintained where a defendant enters a provident voluntary plea of guilty and this is precisely what we have here. There is no dispute that the plea was voluntary and I submit that it was quite provident in view of the fact that this defendant when charged with an offense carrying a possible one-year sentence was able to bargain it down to three months. So regardless of the legal point raised on the motion to suppress, we have here a plea of guilty which stands independently. The District Court originally dismissed the federal proceeding, the case was remanded to it under the authority of this Court's decision in Hensley. As we pointed out, the District Court granted the writ on the theory that the loitering statute was unconstitutionally vague, citing the New York Court of Appeals decision in people against Berk. They did not -- the District Court did not discuss our defense that it lacked jurisdiction because of the guilty plea. In January of this year, we argued the matter before the second circuit and that Court was urged to reconsider its line of cases in Rogers on the authority of McMann and Tollett. We pointed out to the second circuit that in the case of Man against Smith decided few months previously by the ninth circuit, that Court had conformed its decision to the Tollett ruling and we urge that Rogers had been overruled in essence by Tollett. However, that Court in our view erroneously adhered to its own rule and permitted the habeas corpus remedy to be maintained. We submit, Your Honors, that the decisions of this Court in McMann, in Tollett and more recently in Blackledge against Perry, have set forth a firm rule that a conviction based upon a voluntary provident plea of guilty is immune from federal collateral attack on all federal constitutional claims except those relating to the right of the state to bring the defendant to trial.
Thurgood Marshall: Can you read McMann as relying on the fact that under the state procedure there was -- this was final, the guilty plea?
Robert S. Hammer: We submit Your Honor that the --
Thurgood Marshall: Was that true in McMann?
Robert S. Hammer: As I understand the McMann plea Your honor, McMann's plea --
Thurgood Marshall: Waived everything in the state court?
Robert S. Hammer: That's correct.
Thurgood Marshall: And that's not true here? He didn't waive his attack on the suppression?
Robert S. Hammer: In McMann, of course the Court --
Thurgood Marshall: Well isn't that a difference?
Robert S. Hammer: Of course in McMann, the Court reserved the precise question that we have at bar today. Nevertheless, towards the end of the opinion, the Court set forth and I would submit fairly sweeping in absolute terms that the plea of guilty is final whether there be a right to appeal a suppression motion or not. If there are any doubt, I submit it's been resolved Tollett and by Blackledge.
Thurgood Marshall: That even where the state changes its whole procedure the state could not by any means create a situation where you could get a discord.
Robert S. Hammer: Well, of course, Your Honor that the states --
Thurgood Marshall: It didn't go that far?
Robert S. Hammer: But the state's procedure, I would submit is not relevant. This is not a waiver case. The defendant didn't waive, we don't say that the defendant waived his right to federal habeas corpus in a sense of he knowingly gave it up. He never had a right to federal habeas corpus once he pleaded guilty. We're not speaking of knowing waiver.
Thurgood Marshall: What case do you have for that?
Robert S. Hammer: Well, we have Tollett. This is -- Tollett points out that there is the break in the chain of events.
Thurgood Marshall: Tollett didn't have this type of statute?
Robert S. Hammer: That maybe so, Your Honor.
Thurgood Marshall: That's my point is that did the statute create a difference -- that's all (Inaudible).
Robert S. Hammer: All the statute created Your Honor was a right to a state appeal. It did not in our submission extend and could not possibly extend a federal remedy.
Thurgood Marshall: If you therefore say that this conviction is not in and of itself not appealable, it said just the opposite. It said it was appealable?
Robert S. Hammer: That's correct Your Honor, not withstanding the plea of guilty appealable in the state courts.
Thurgood Marshall: Yeah.
William H. Rehnquist: I take at your point is that McMann and Tollett didn’t turn on anybody voluntarily giving up a claim to habeas corpus, but rather on a fact that after you pleaded guilty and admitted the substantive developments of the offense, as a matter of federal law you're not entitled to raise afterwards certain claims on habeas?
Robert S. Hammer: This is precisely our contention, Mr. Justice Rehnquist.
William H. Rehnquist: So, it has nothing to do with whether New York grants appeals by statute?
Robert S. Hammer: Precisely, the state legislature never considered the problem and indeed they could not by its own legislative action, possibly effective. This is the problems of Congress and this Court in interpreting the mandates of Congress.
Byron R. White: But I take it you're saying that the state's position is that sustaining the position you urge today would not subvert the legislative aims in New York in providing this appeal of suppression motion?
Robert S. Hammer: Absolutely, the legislative aims of New York are merely to grant a state appeal. No more, no less. This is precisely what the state gives.
Potter Stewart: And I suppose the policy ground underlying that or at least one of them is to eliminate a lot of not guilty pleas that are unnecessary and a lot of trials that are unnecessary?
Robert S. Hammer: That's correct.
Potter Stewart: The person's only defense in other words his basic only defense is the Fourth Amendment claim. That can be put to one side and he can plead guilty to everything else, is that it?
Robert S. Hammer: That's correct Mr. Justice Stewart.
Potter Stewart: And your view is I know that our agreeing with you in this case wouldn't subvert that policy, although it's arguable that it would, wouldn't it because it would cause more arguably -- it went to cause more not guilty pleas in the state system?
Robert S. Hammer: I suggest Your Honor that there is absolutely no evidence in the record that this would be the case.
Potter Stewart: Well, I wouldn't. There's not -- not a matter of evidence and you don't know the answer and I don't either, but I wouldn't do a guess and speculate?
Robert S. Hammer: I think Your Honor if we have to speculate, the answer has to be in the negative. I don't think that most defendants speculate about the possibility of a federal habeas corpus proceedings several years hence. I think it can be shown statistically although I don't have the studies at my finger tips that there are more, much more state defendants who appeal through the state system whether they plead guilty of not guilty than those seeking federal habeas corpus.
Thurgood Marshall: It wasn't the real reason for the plea bargaining, wasn't it?
Robert S. Hammer: Precisely.
Thurgood Marshall: That's what you said, I thought.
Robert S. Hammer: In this instance I know it can be --
Thurgood Marshall: I mean for the statute itself.
Robert S. Hammer: It can be demonstrated that it was provident, the plea was provident because the man reduced his exposure to imprisonment from one year to three months.
Potter Stewart: And then the state would save the expense and trouble of a trial?
Robert S. Hammer: Precisely.
Byron R. White: Whose views are we suppose to take this as to the legislative purpose or expectations, yours or the Court of Appeals for the Second Circuit? Court of Appeals for the Second Circuit as I understand it believes that to stuff out federal habeas in these situations without would subvert the legislative aim of the statue? Wouldn't it, is it not his position?
Robert S. Hammer: That is the essentially the gist of the opinion below I would submit however --
Byron R. White: It frequently happens at federal that you -- that federal court has to decide what it believes the statute means and it isn't necessarily bound by the views of the Attorney General of New York?
Robert S. Hammer: No Your Honor we don't --
Byron R. White: How about us? Don't we -- what you're really asking is to review here is a -- in a part of it any way is a -- what does the state statute mean or what's behind it?
Robert S. Hammer: The legislative intent of course we contend will not affect the jurisdiction of the District Court since the legislature couldn’t do it, but I would suggest Your Honor that the whole purpose of these statues was to provide a statutory remedy to enforce the mandate of this Court in cases such as Jackson against Denno with respect to confessions, Mapp against Ohio with respect to suppression of physical evidence and the way Gilbert and Stovall with respect to identifications. No -- under the circumstances, the legislature had no concern with either extending or conscripting the federal habeas corpus remedy. It was none of their business just with all respect --
William J. Brennan, Jr.: Well that to say the inquiry is to what that purpose was is irrelevant to the issue here --
Robert S. Hammer: Absolutely Mr. Justice Brennan.
William J. Brennan, Jr.: -- that the issue here is if our Tollett and are we ready to suggest or not, the plea of guilty foreclosed on the search and seizure issue any resort to federal habeas?
Robert S. Hammer: Precisely.
William J. Brennan, Jr.: While there never may have been the case and whatever the reason the New York legislation want to do it that that if the -- one plead guilty wants to do it he may take the suppression issue on appeal with the appellate court, is that it?
Robert S. Hammer: Precisely Your Honor.
Warren E. Burger: Did you want to answer Mr. Justice Brennan further?
Robert S. Hammer: I answered him Mr. Chief Justice.
Warren E. Burger: Is there -- so far as New York is concerned and the prosecution problem, if fallacy question that this statute gives the prosecutor greater flexibility to deal for example with first offenders or less offensive cases by this device of attempted possession?
Robert S. Hammer: I think in practical terms this is the net effect.
Warren E. Burger: And if you wouldn't to be likely to do this with a man that three prior convictions for possession of heroin as much you would a 20-year old fellow who is up on first offense?
Robert S. Hammer: I should think not Your Honor, but then this would be in the particular discretion of the individual district attorney, there might be other mitigating factors.
Warren E. Burger: I find this that there is a fallacy factor possibly working here to give the prosecutor this greater discretion?
Robert S. Hammer: Such a view I think is perfectly consistent with the statue. We submit Your Honors, that --
William J. Brennan, Jr.: I gather, am I right that after this case I guess it was judge -- then Judge Bartle, denial leave to appeal, was isn't it from --
Robert S. Hammer: That's correct.
William J. Brennan, Jr.: And then after that the Berck case cases was decided, wasn't it?
Robert S. Hammer: That's correct.
William J. Brennan, Jr.: It declared the loitering statue unconstitutional on federal constitutional grounds, wasn't it?
Robert S. Hammer: That's correct Your Honor.
William J. Brennan, Jr.: And by that time he was out of lucky. He couldn't -- he had no way getting corum nobus --
Robert S. Hammer: No, Your Honor. Corum nobus would not be available because although --
William J. Brennan, Jr.: So he has no resort in taking advantage of Berck at all, does he?
Robert S. Hammer: I should think so, because we are dealing had even convicted of loitering, the State Court of Appeals decision in People against Tenenbaum would have required a retroactive application of the substantive law. However, in this instance we are dealing not with substantive law but with an issue of suppression of evidence and the effect of --
William J. Brennan, Jr.: Well anyway the loitering conviction on a different ground was set aside?
Robert S. Hammer: That's correct Your Honor.
William J. Brennan, Jr.: Yeah.
Byron R. White: What about this, suppose there is an appeal for the suppression, motion that has been denied and only appeal then [Voice Overlap] in the state as the New York law permits, and it's decided one way or another in the supreme -- in the Court of Appeals in New York, let's assume that, does petition for cert lie here?
Robert S. Hammer: Of course it's under Section 1257.
Byron R. White: Well, assume the denial of the suppression issue is affirmed and the -- and you think the defendant at that point get the petition for cert here?
Robert S. Hammer: Of course, because of this Court's jurisdiction to review the decisions of the highest state court in which the issue could be heard.
Byron R. White: We would take jurisdiction to that case although we would say a District Court would not?
Robert S. Hammer: That's correct because the statute gives this Court the right to hear the case whereas it is our submission that the statue denies the District Court the right to hear it on collateral attack, simply because the plea of guilty eliminates any case or controversy within the jurisdiction of that court. I don't know if I have any time remaining Mr. Chief Justice.
Warren E. Burger: Yes, you have a few minutes if you wish to reserve it.
Robert S. Hammer: With the permission of the Court I should.
Warren E. Burger: Very well, Mr. Hammer. Mr. Neustadter.
Stanley Neustadter: Mr. Chief Justice and may it please the Court. I hope you won't think it overly blunt for me to state something or rather firmly at the outset, I think a reversal here would require this Court to put a revolutionary gloss on a very stagy concept of waiver. The petitioner, although he hasn't used the magic word waiver is essentially asking you to find a waiver in unprecedented context, a context unlike all other cases where there has been some sort of default, some sort of lapse, some sort of relinquishment. Petitioner is asking you to find a waiver of a constitutional claim in this case and the opportunity to vindicate that claim under the habeas corpus statute. Even though he has fully litigated that claim in perfect and timely accord with every inch and paragraph of the state statue and it seems to me rather anomalous that they could achieve that result. The petitioner attributes this waiver of habeas corpus vindication to a plea. Automatically, he is saying the guilty plea dispatches with federal habeas remedies and this is the same guilty plea that does not waive under the state law. State appellate review of the pre-plea order denying the motion to suppress. It is the same guilty plea which petitioner conceded to page 13 of his brief and just reiterate the concessions from Mr. Justice White, does not waive certiorari prerogative, yet we're told that the same plea waives the mandatory statute -- statutory relief provided by Congress in the habeas corpus statue.
Warren E. Burger: You don't agree with Mr. Hammer then that the states maybe more generous without suffering any penalty for it?
Stanley Neustadter: No, the states can always be more generous, in terms of defining the perimeters of constitutional rights as I'll say under the aegis of state constitutions. The Second Circuit and the federal court in the Second Circuit jurisdiction has not extended or enlarged federal jurisdiction or the ambit of habeas corpus solely for New York petitioners. That's the suggestion in petitioner's brief reiterated again here. The constant for habeas corpus relief is simply that the constitutional claim be presented to state court and by whatever procedure that the state court is erected for that purpose. Having done so if he is unsuccessful and if he finds himself in custody claiming and – a violation of his constitutional rights which led to the conviction, he has met the threshold jurisdictional requirements of habeas corpus such as the posture of my client when he came in the federal court.
William H. Rehnquist: Well what if in McMann, there had been a pretrial suppression motion that had been denied, the present New York statue not being in existence?
Stanley Neustadter: Correct.
William H. Rehnquist: And then a guilty plea?
Stanley Neustadter: Well that have would put in exactly posture of this case. If Mr. -- as the defendants in Richardson had appeal, in other words had 813-c existed for the defendants in Richardson at the time that they entered they plea, had they litigated their confession issue in the pretrial procedure under 813-c, had they then pleaded guilty, pursue their appellate remedies as allowed by 813-c.
William H. Rehnquist: Yeah, but my question is prior to 813-c, what if they litigated in the trial court lost and then pleaded guilty?
Stanley Neustadter: And pleaded during the trial under state law at that time state appellate review of that confession claim would have been thought.
William H. Rehnquist: The question is would federal habeas has been --
Stanley Neustadter: Yes.
William H. Rehnquist: Well then, but then that's in direct contrary to McMann?
Stanley Neustadter: No, perhaps I misunderstood your question.
William H. Rehnquist: Well let me repeat my question if I may. Prior to the enactment of 813-c, a New York State court defendant moves to suppress evidence in the superior -- the trial court, motion denied, pleads guilty, that's the end of the proceedings in the state court. Does he have access to federal habeas?
Stanley Neustadter: No, he does not. He does not because in order to preserve the issue in pre 813-c cases such as McMann he would have to litigate that issue at trial. If he pleads he's foregoing the possible remedy of that constitutional claim because trial in a none 813-c context, trial is the only way to litigate that issue and if you forgo the trial, you haven't preserved, there's a threshold issue. You therefore can't seek to vindicate it on appeal within state court and you therefore bypass the orderly procedures which the state has erected for the vindication of that claim and you'll no longer have or you have dispensed with your prerogative to invoke habeas corpus vindication.
William H. Rehnquist: You see McMann until that then is turning on a notion waiver within the state system?
Stanley Neustadter: That is correct, within in the context of the state procedural rule which setup the requirements for litigating constitutional claims. There's nothing in the habeas corpus statue that requires a particular format of procedures. Whatever procedures a state erects, as a matter of fact in McMann, it was the hardest case possible because under Jackson v. Denno, the procedures that were allowed were held to be unconstitutional and yet in McMann it was still required that they pursue whatever procedures were available at the time of vindicating that confession plan.
Byron R. White: I suppose if the Congress did not pass the statute, and said that federal habeas will not be available in circumstances which is described that would fit the New York statute, there's no question that then federal habeas wouldn't be available?
Stanley Neustadter: No, of course not.
Byron R. White: And so you're -- what you really are saying that in this particular case, this person didn't think he was waiving his federal habeas right?
Stanley Neustadter: Well not only that, but there's nothing in the habeas corpus statute to suggest that a trial as opposed to a plea if the only way of preserving the issue for subsequent habeas corpus review.
Byron R. White: Well, I suppose habeas corpus still turns on whether there has been denial of some federal right?
Stanley Neustadter: Yes, but what I'm saying is that --
Byron R. White: It may have been some denial state rights but their --
Stanley Neustadter: No, no. That's perfectly true, that would be the sine qua non of any habeas petition is an allegation that constitutional violation had resulted in conviction. The only point I'm making with respect to the habeas corpus statute at this time is that the other basic of habeas corpus is that you present the issue to state court for possible remedy there, that's a matter of comity.
William J. Brennan, Jr.: I suppose you are saying Mr. Neustater that pre-813, the only way of state procedures you could preserve this constitutional Fourth Amendment claim is by going through trial?
Stanley Neustadter: Correct.
William J. Brennan, Jr.: And then you go away as far as you could go --
Stanley Neustadter: Pursue your appeal.
William J. Brennan, Jr.: Then you can come in to federal habeas?
Stanley Neustadter: That is correct.
William J. Brennan, Jr.: Now New York said no, there is another way you can preserve.
Stanley Neustadter: Correct, exactly.
William J. Brennan, Jr.: You can plea guilty and take a prior appellate route?
William H. Rehnquist: But is that entirely true as to the pre 813-c practice in New York, you certainly had a motion to suppress in the trial court before 813-c was enacted?
Stanley Neustadter: Oh, yes. Well it wasn't done at a pretrial, in other words it was done within the trial itself with the jury sitting there, that was precisely the defect, that was noted in Jackson v. Denno. You had to do it in the corpus of the trial itself and you would litigate the voluntariness of the confession right within the body of the trial which is why if you pleaded and did not go to trial, you're obviously abandoning your claim of coerced confessions because that was the only way to litigate it, was at a trial.
William H. Rehnquist: Was that true as to Fourth Amendment claims too, there is no --
Stanley Neustadter: Well there was never really that bind with Fourth Amendment claims for the simple reasons that almost immediately after Mapp came down, the state enacted 813-c. So you never had a time lag, however there was a --
William H. Rehnquist: Well then it was 813-c in existence at the time that McMann was decided?
Stanley Neustadter: Yes, but it did not extent to confessions, it only extended to physical evidence sought to be suppressed on Fourth Amendment ground.
Byron R. White: Of course McMann didn't say the result would be different under the New York procedures?
Stanley Neustadter: No, of course not. I mean that's -- I presume why we are all here today to resolve that footnote in McMann saying we do not pass upon that issue. I would lie and I suppose it's somewhat peculiar to have both petitioner and respondent here invoking and support the identical cases. We both really relying on McMann and Tollet although for rather different propositions. I read McMann and Tollet as basing habeas corpus availability upon the preceding context of state procedures and weather or not the claim, which must be presented in the first instance the state court as a matter of comity whether that claim has been presented in accord with state statutory procedures. In McMann, the only way to do it was at trial. The plea obviously eliminated trial. The defendants in McMann did not present their claim at the court with state statutory procedures in McMann, and they could not thereafter seek to overturn the tables on the state by way habeas corpus. They did not give the state the opportunity to correct their own errors and habeas corpus will not lie. I think that a few other things really bear mention here. Yes?
Thurgood Marshall: I should have asked Mr. Hammer, how did the attorney general get into it as product, where, is goes straight?
Stanley Neustadter: No, he got in at the appellate term level in this case, appellate term being one of the intermediate appellate courts that determines misdemeanor appeals. Under -- I forget the precise statutory section, I think it's 71 of the executive law anytime a constitutionally of a state statue is involved in a case that the attorney general must be served with the papers and at his election may intervene and of course at no point in the state proceedings although he was intervener, we give him the slightest wisp of a signal that we would have the trap door slam shot on us if we marched into federal court, not the slightest hint. Which by the way is another theme that I'd like to pursue on this case because there's really a basic unfairness here, parallel to the unfairness that I think annoyed this court in cases like Tollet and McMann. Here you have -- in Tollet and McMann you had a defendant in both cases who pleaded guilty who thereby bypassed state remedies for raising various constitutional claims, in Tollet of course it was the grand jury selection and in McMann it was the voluntariness of the confession and they were perfectly delighted with their pleas at the time and presumably these were knowing in-counsel pleas of voluntary in all respects counsel at their side advising them presumably as to the fact that if they plea, they cannot litigate anything further because of state procedures in Tennessee and in New York at the time. And then 20 years after the event, they come marching into federal court after the state has a justifiable expectation that the book has been closed by my case defendants having fail to litigate the claim at all in state court.
Byron R. White: Do you think it was clear in those cases if they ever were advised that they would be giving up habeas as well as the state remedies?
Stanley Neustadter: The neither opinion addresses itself to that.
Byron R. White: When you should suggest as they did, maybe they are now quite the opposite?
Stanley Neustadter: No, of course it was also as I recall one of the closing portions of Mr. Justice Rehnquist's opinion in Tollet was that if that the defendant was -- as a matter of fact in your opinion as well in McMann, if the defendant was somehow mis-advised as to the forum which he should first present the claim, he might have another habeas petition with competence of counsel. But it strikes me as rather unfair in this case for the state to sit by and allow the defendants to litigate under the aegis of the statute and a very alluring aegis it is, not only for the benefit of the defendant but for the benefit of the state. They avoid, it's an additional inducement to avoid unnecessary trials and I certainly don't have to explain to you what the trial backlog situation is in New York, to allow under this alluring aegis of the statute a guilty plea under the promise, essentially that the plea does not terminate litigation of the Fourth Amendment claim without specifying when it does and when it doesn’t, it just simply leaves it open. Go ahead and plead, we do not care. We're not going to stop you from litigating the Fourth Amendment claim which you have litigated in accordance with our statute before the plea. Go ahead and plea and we don't consider litigation of this claim terminated by your plea, that is the suggestion of 813-c and then when things get though in federal court --
Byron R. White: Another topic, you want to go and waiver? The defendant in this case, what expectations had he ever had in getting into federal habeas corpus?
Stanley Neustadter: Well for the record doesn't demonstrate a particular -- articulate expectations of habeas corpus.
Byron R. White: Assume he had one. Give me some federal basis for his expectations?
Stanley Neustadter: Well of course the Second Circuit -- the extent Second Circuit law at the time.
Byron R. White: Well -- at the time he pleaded McMann was decided?
Stanley Neustadter: No, No. At the time he pleaded McMann had been decided. I think it had just had been decided at the time he pleaded.
Byron R. White: If you read the case, so the question was open? He had no legitimate expectations about out this issue.
Stanley Neustadter: Well --
Byron R. White: And there's never been anything else indicated here?
Stanley Neustadter: No, well I think --
Byron R. White: Well isn't that so, well you disagreed said that McMann said the question was open?
Stanley Neustadter: Yes, that is true.
Byron R. White: Well what the legitimate expectation did he have about federal habeas?
Stanley Neustadter: That the state would not say it's foreclosed to him.
Byron R. White: Alright, that the state wasn't but how about ultimate federal law?
William H. Rehnquist: All the state promised him in 813-c was he has right to take that thing to whether the appellate term or The Court of The Appeals, they certainly didn't promise and that they would not oppose the federal habeas.
Stanley Neustadter: No but isn't that -- rather is it that statute rather pregnant with the suggestion that we have no expectation that your plea has terminated litigation of the claim.
Byron R. White: It is a not a state law question, that's a federal law question and if you met McMann, you would know the question is open?
Stanley Neustadter: Well I'd like to get into that now. The question of -- whether federal law controls waiver and so forth really there are two things, two aspects of that problem.
Byron R. White: You are suggesting that it doesn’t?
Stanley Neustadter: No, not for a minute. I'm suggesting that the -- let us put it this way. Assume that there has been some default because that is what generally what we are talking about, we're talking about a waiver, this is some lapse, some failure to pursue a remedy, that some kind of default in state court, some failure to raise or preserve a claim in a court, a constitutional claim in accordance with state procedures. Now it's a matter of federal Law as to whether that defect or that default I should say is going to be binding on the defendant to it. Is it voluntary, knowing and so forth? What the default waives is a matter of state procedure or preferences, that is the distinction to be drawn.
Byron R. White: Well within the state system but it certainly doesn't determine what federal --
Stanley Neustadter: This is true but the entire federal habeas corpus statute is tied into state procedures.
Byron R. White: Would you concede that if McMann footnote had said in further more even in New York the plea of guilty waives any resort here, you wouldn't be here?
Stanley Neustadter: Absolutely not.
Byron R. White: Well McMann didn't say that, it said it's open?
Stanley Neustadter: Yes, yes.
Potter Stewart: The law of your circuit was clear, it wasn’t open?
Stanley Neustadter: It was very clear in the law of the circuit, certainly.
Potter Stewart: How many other States have --
Stanley Neustadter: Well, right now Wisconsin has an identical statute. There's a proposed code of Indiana that has adopted. Both of those state by the way specifically referring to the New York procedure. It is all that New York procedure has also been recommended by the ABA standards and very recently just last August by the uniform commission of the -- the people who have drafted the uniform code of criminal procedures.
Thurgood Marshall: Washington too though?
Stanley Neustadter: Excuse me?
Thurgood Marshall: Washington, the state of Washington?
Stanley Neustadter: Is it in Washington? Yes I believe also Washington.
Potter Stewart: And California has --
Stanley Neustadter: California has something like -- that's a slightly different arrangement.
Potter Stewart: And what have the federal habeas corpus courts held with respect to those state statues --
Stanley Neustadter: Well, there's a case right now I believe pending in the Seventh Circuit with respect to a Wisconsin defendant --
Potter Stewart: And you say that's McMann --
Stanley Neustadter: And that's being held in abeyance pending the outcome of this case.
Potter Stewart: Any other litigation?
Stanley Neustadter: Well in the Ninth Circuit case --.
Potter Stewart: I mean any other circuit is really what I'm asking?
Stanley Neustadter: In the Ninth Circuit Van B. Smith about I guess it's about a year ago now, held the other way although there is quite a distinction in the state procedure. It is not really exactly --
Potter Stewart: That is at all the California ones?
Stanley Neustadter: That is correct.
Warren E. Burger: You speak Mr. Neustadter of this being an alluring matter for the defendant if the state is -- the implication I got at least was the state is alluring in and then springs the trap, I think you used that term but as one of the justices has pointed out that this is a very alluring sort of thing for him to get off on three months instead of a year plus what he might have got.
Stanley Neustadter: The same would hold true in non 813-c context. Any plea bargaining concept, there's a deal for both sides. The state avoids a trial, the defendant avoids presumably longer sentence.
Warren E. Burger: Well but in ordinary plea negotiations, you do not have the element of this statute intervening.
Stanley Neustadter: No but what that suggests is that the state wants that plea so badly that they are going to give another little goody to the defendant not only do you get a break in terms of the length of the sentence, but we're going to allow you to appeal any pre-plea motions you've litigated, that’s how badly New York wants those guilty pleas.
Warren E. Burger: Well you see it I suppose from that view naturally the state sees it from other views?
Stanley Neustadter: I haven't heard the other view expressed but presumably Mr. Hammer have something to say --.
William J. Brennan, Jr.: Mr. Neustadter you haven't yet come at it, maybe I just was interested that the state's attorney general says that this plea of guilty in the face of that statute forecloses you ever getting to federal habeas corpus. It doesn't foreclose you coming here on certiorari.
Stanley Neustadter: I know, that seems to --
William J. Brennan, Jr.: Then you get in a federal forum, I do not understand that.
Stanley Neustadter: Well neither do I.
William J. Brennan, Jr.: If it keeps you out of a federal court.
Stanley Neustadter: I can explain that anomalous position it seems to me that if you concede as the petitioner has that certiorari review, it remains open not withstanding the plea, and by the way that the New York procedure on a cert case here, on a motion is suppress in Sibron commended itself to a footnote in Sibron, you know the Court was perfectly aware that they were taking a case on cert notwithstanding a plea. And I can explain the anomaly as to why one aspect of federal jurisdiction to which this Court on direct review should have the power to vindicate this constitutional claim, but for some magical reason another federal court, the District Court was somehow divested of that power, this I simply can understand and I've heard nothing from petitioner to explain it.
William J. Brennan, Jr.: Well on the contrary, he hasn't tried to. He just says 1257 allows us to review constitutional decisions of highest state court?
Stanley Neustadter: And 2254 says the same thing with respect to habeas corpus but I don't think we can ignore the fact that the touchstone of habeas corpus in 2254 (d) are state procedures. After all what are we talking about when we are talking about exhaustion? We're talking about presenting an issue to state court under whatever state procedures are available to present that claim. That is what is required of the defendant before he can come in and invoke federal habeas protection. Now what has happened in this case? The state has set forth a series of procedures which the defendant has followed chapter and verse. He presented his claim precisely the way the state court has allowed him to do. The claim has certainly of constitutional dimensions, there is no custody problem, he has exhausted his state remedies, he has not bypassed any of them, he has ostensibly met every requirement of the habeas corpus statute and for some magical reason we are told that the plea simply erases the print on the habeas statute books.
Warren E. Burger: Well going back to this alluring prospect again, if you prevail, the prospect certainly will not any longer be so alluring because it will mean that the state must having made this bargain as you put it, then the defendant having had his cake now can go into the Federal District Court and the Court of Appeals and then come up here. That's not much of an inducement for any state to avoid a lot of litigation, is it?
Stanley Neustadter: I think New York State has found for the contrary because in 1970, 813-c, when the whole criminal code of New York was redrafted, reenacted 813-c in the face of those three Second Circuit decisions which had already allowed habeas relief. In other words, when the legislature reenacted 813-c, the new code of criminal procedure, they did it right in the teeth of those three Second Circuit opinions and I can't believe that they would have done that, had they thought that those decisions somehow affected their plea bargaining process.
Potter Stewart: You have 813-c and then you have an analog for -- to test the voluntariness of the --.
Stanley Neustadter: That is correct.
Potter Stewart: Any thing else?
Stanley Neustadter: I.D., identification cases, Wade-Gilbert problems.
Potter Stewart: So you --
Stanley Neustadter: That can be litigated pretrial plead, appeal and so on, that is correct. Wiretap problems also.
Potter Stewart: And all of those reenacted in 1970?
Stanley Neustadter: Yes --
Potter Stewart: In the light of the second --
Stanley Neustadter: As a matter of fact I think before 1970 before this new statute, you could not plea, you could not litigate a way Gilbert issue plead and then appeal, that you have to go to trial for.
Potter Stewart: That is was added in 1970?
Stanley Neustadter: That was added. That is a new one.
William H. Rehnquist: McMann itself wasn't decided until May 4, 1970, so whatever the New York legislature may have had in mind in 1970 in view of Second Circuit cases, It wouldn’t be Second Circuit cases that had been considered in the light of McMann, would it?
Stanley Neustadter: Four years have past since McMann and not creature is stirring in the legislature with respect with the changing statute.
William H. Rehnquist: Well you said a moment ago that the New York legislature in the teeth of these three Second Circuit cases nonetheless chose to reaffirm or re-enact it but if they didn't know about McMann at the that time that that isn’t the quite the same thing.
Stanley Neustadter: Well in the four years that have elapsed since McMann, they could have modified their view accordingly.
William H. Rehnquist: Well true but the consideration they gave it in 1970 sounds to me a little -- ought to be a little bit different factually than you intimated a moment ago?
Stanley Neustadter: Well I can't point to legislative documents to say what they considered and what they don't, I’m simply drawing an inference from the existence of very clear pronouncements by the Second Circuit with respect to New York statutes and I'm drawing the further inference that state legislatures that was made up 60% of lawyers at least a few of them were aware of this decisions.
Potter Stewart: They have reenacted --
Stanley Neustadter: And reenacted in anyway.
Potter Stewart: Because of the Second Circuit law.
Stanley Neustadter: No.
Potter Stewart: In spite of the Second Circuit law.
Stanley Neustadter: Yes that's precisely the point.
Potter Stewart: That’s the point. So McMann wouldn’t have -disturbed it.
Stanley Neustadter: Yes. I really have said just about everything I want to say with really two small exceptions which I’m going to close with. I like to repeat two things and really that’s all I hope you remember when you’re go into confront this case and that is that the consequences of a plea of guilty or waiver call it what you may within the context of habeas corpus problems simply cannot be determined in an abstract vacuum. You have to take a look at the entire state procedural context and that’s because the entire habeas corpus statute is geared in towards state procedures. What did the state give him? What did he -- what would the state in term of remedies allow him to use? Did he avail himself of the remedies the state gave him? Everything is keyed in to what the state remedial context is and does not proscribe that only state trials preserve an issue for Habeas Corpus review, whatever state procedures are available. And finally if there is a waiver in this case, it is the petitioner’s waiver, it is the state’s waiver by enacting Section 813-c essentially which I presume was a voluntary and counseled and knowing and intelligent act. The state has abandoned its expectation of the plea of guilty terminated litigation of this constitutional claim. Thank you.
Warren E. Burger: Thank you Mr. Neustadter. You have about six minutes left Mr. Hammer.
Lewis F. Powell, Jr.: Mr. Hammer --
Robert S. Hammer: Yes sir.
Lewis F. Powell, Jr.: -- before you start with you reply, I was interested in the fact that counsel for correspondents spent a good deal of his time arguing the benefits to the state of New York this statute in that it encourages guilty pleas. You are here representing the Attorney General of New York, what do you have to say to that?
Robert S. Hammer: I would submit Your Honor that the while the statute thus confer reciprocal benefits upon both the people and the defendant, however, the considerations underlying the enactment of such a statute are in view completely immaterial to the legal question at bar and that is what is the jurisdiction of the Federal District Court? And it’s our contention that the state legislature regardless of the considerations has absolutely nothing to do with establishing or amending or creating jurisdiction in the District Court, it can’t. Only Congress and with this Court interpreting the statutes of Congress can affect the District Court's jurisdiction. I would like to re-emphasize that waiver is not an issue in this case. The plea of guilty forms the independent basis for the conviction. In fact McMann itself is not a waiver case since it dealt with the substantive law on when a guilty plea may be impeached. The decision of this Court in Boykin doesn't -- has nothing to say about that a guilty plea will be overturned if the defendant isn't advised that he has or has not the right to go into the District Court for federal habeas corpus ultimately. In the case of Man against Smith, although the procedure in California is slightly different than that in New York, the operative fact here is the guilty plea. The -- the respondent's attorney made much of the fact that the alleged anomaly in this court's -- this court's certiorari jurisdiction direct from the state courts and our contention that the District Court lacks jurisdiction. The statutes are clear. 2254 (d) has nothing to do with this case. The question is whether there is a violation of a federal right under 22-41 (c) 3. Of course since this Court on certiorari considers only cases of national significance, the overall intrusive effect onto state criminal law process will be much less than if there is original jurisdiction in the District Courts. Counsel spoke of springing the trap because we never talked about the Second Circuit's ruling in Rogers in the state courts, simple answer is we had no occasion to that was not known at the time and couldn't possibly be known what the defendants intentions were in the event his state appeals went against him. As for the expectations of the state, the expectation is very simple, to give the defendant a state appeal. All that -- that's all the state intended, that's all the defendant could possibly expect, could reasonably expect in the light of the state statute and of course the reenactment of these statute in the light of the alleged light of the Second Circuit rulings, we would regard as being not material. It's our view Your Honors that the logic of the McMann case, of Tollet, of Blackledge requires a reversal in this action and we respectfully so submit. Thank you Your Honors.
Warren E. Burger: Thank you gentlemen. The case is submitted.