WHITMAN KNAPP, Senior District Judge.
The petitioner is now — and for about six years has been — serving a twenty year to life sentence resulting from a "buy and bust" arrest for having sold four plastic bags of cocaine to an informer. This was petitioner's first contact with the criminal law. Upon this appeal, he does not challenge the propriety of the trial leading to his conviction. Rather, he asserts that he was deprived of constitutionally adequate representation by counsel when the People offered him a plea bargain which would have resulted in a one to three year sentence, and his attorney allowed him to reject such offer without giving him any advice as to the wisdom of so doing.
This argument was first presented to and rejected by the judge who had presided over the trial. The trial judge's rejection was affirmed by the Appellate Division of the New York Supreme Court, and leave to appeal to the Court of Appeals was denied. Petitioner renewed the claim in the instant Habeas Corpus proceeding, where it was rejected by the District Court in a carefully considered opinion. This appeal followed.
Petitioner was arrested on May 13, 1988, and eleven days later was indicted for a Class A-II felony. Upon arraignment, being represented by one Thomas Murphy, Esq., he pleaded not guilty. On June 10, petitioner's father retained Gary Greenwald, Esq. to represent his son, making an "up front" payment of $8,000.
On August 10, Greenwald advised the court that the petitioner rejected the offer. The District Attorney then put on the record the warning he had previously given Greenwald about the consequences of rejection; and on the following day sent Greenwald a formal notice that the matter was to be presented to a Grand Jury. The threatened indictment was not returned until September 20, 1988. Petitioner was ultimately convicted, and on January 4, 1990, began to serve his sentence.
In 1992, petitioner, represented by a different attorney, moved the trial judge for an order vacating the judgment of conviction on the ground, among others, of constitutionally inadequate representation by counsel. A hearing on such motion, among others, began on February 26 and concluded on March 6.
Greenwald testified at great length at the hearing. He testified that he did not recall any conversation with the District Attorney or anyone in the District Attorney's office regarding the case before August 10. Nothing in his testimony suggests that he had any contact with the District Attorney's office between August 10 and September 20. Indeed, he testified that he could not recall with certainty the name of any assistant district attorney with whom he might at any time have spoken regarding this case. He had at all times exclusively relied on the petitioner for any and all information about the case.
Just before the trial began, Greenwald sought a ruling suppressing two ruinous statements petitioner had made after his arrest. He told the trial judge:
Greenwald Affirmation, 9/25/89.
However, time and again, and in many forms, Greenwald made clear that he had not in any way or at any time discussed with the petitioner the advisability of accepting or rejecting the offered plea. He testified that, after advising petitioner that a rejection of the plea would be final in the sense that the expected superseding indictment would eliminate all possibility of a minimal sentence, he kept discussing with petitioner strategies he planned to follow in defending against the new indictment.
His testimony made clear that, although he never even suggested such a thought to petitioner, it was his own view that his client's decision to reject the plea bargain was suicidal.
Greenwald admitted that he had been aware that his client — like any other person — was capable of changing his mind.
Several questions are presented by the foregoing facts:
1. Under Strickland v. Washington 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)(hereinafter "Strickland"), do the facts establish that Greenwald's conduct did indeed fall short of constitutionally required assistance?
2. Also under Strickland, can it be said that there was a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"?
3. What is the impact upon this case of Strickland's "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance?"
4. Are we precluded from considering these questions by any factual finding that may have been made by a New York State court?
We shall consider each of these questions in turn.
First, to show Strickland ineffectiveness it must appear that, under the totality of circumstances, Greenwald failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances. 466 U.S. at 688, 104 S.Ct. at 2064-65. There seems to be no Second Circuit decision dealing with the precise question of a criminal defense lawyer's duty when a defendant's best interests clearly require that a proffered plea bargain be accepted, but the defendant, professing innocence, refuses to consider the matter. This lack of specific decision undoubtedly arises from the circumstance that such duty is so well understood by lawyers practicing in this Circuit that the question has never been litigated.
While the Second Circuit may not have spoken, the Strickland Court has indicated how the question should be resolved. Just before starting its discussion of the merits, it observed that it had "granted certiorari to consider the standards by which to judge a contention that the Constitution requires that a criminal judgment be overturned because of the actual ineffective assistance of counsel." 466 U.S. at 684, 104 S.Ct. at 2063. Later it pointed to "[p]revailing norms of practice as reflected in American Bar Association standards" as guides "to determining what is reasonable." Id. at 688, 104 S.Ct. at 2065.
The American Bar Association's standard on the precise question before us is simply stated in its Model Code of Professional Responsibility, Ethical Consideration 7-7 (1992):
Anthony G. Amsterdam, in Trial Manual 5 for the Defense of Criminal Cases (1988), observed:
This manual is a joint project of the American College of Trial Lawyers, the National Defender Project of the National Legal Aid and Defender Association, and the ALI-ABA Committee on Continuing Professional Education. The Reporter, Anthony G. Amsterdam, is a distinguished Professor of Law and Director of Clinical Programs and Trial Advocacy at New York University School of Law.
And finally, in United States v. Villar 416 F.Supp. 887, 889 (S.D.N.Y.1976), Judge Motley — in circumstances quite different from those at bar — made the following observation about effective assistance of counsel:
Turning to the facts before us, it would be impossible to imagine a clearer case of a lawyer depriving a client of constitutionally required advice.
The second Strickland question need not long detain us. Had Greenwald — as he "often [told] drug defendants" — advised his two new clients (petitioner's father, who procured and paid him and petitioner, who signed the retainer agreement) of his professional judgment that it was almost impossible for a "buy and bust" defendant to obtain an acquittal in Orange County (see footnote 4, supra), there would have been more than a "reasonable probability" that the father would have organized the family to persuade petitioner not to pursue the suicidal course he seemed bent upon following. Indeed, had Greenwald taken the trouble to learn of the ruinous statements petitioner had made after his arrest,
With respect to the Strickland "strong presumption," the District Judge in explaining his order under appeal gave it serious consideration. He emphasized Greenwald's testimony that he "had frequently discussed the plea offer with [petitioner] during the summer of 1988." This emphasis suggests that the District Judge considered the "strong presumption" as requiring a finding that Greenwald — in the course of these frequent discussions — must have, by implication at least, conveyed to his client his own belief that rejecting the offered plea bargain would be suicidal. However, Greenwald's unequivocal testimony prohibits such a finding. Such testimony did not give much indication of what occurred during these frequent discussions except that Greenwald seems to have kept explaining his planned strategies for winning an acquittal. However, it established beyond peradventure
More importantly, the Strickland Court did not intend its "strong presumption" to apply to a case such as this. It made clear that the purpose of the presumption was to protect lawyers from having strategic decisions judged with "the distorting effects of hindsight." 466 U.S. at 689, 104 S.Ct. at 2065.
The fourth question, whether relief is precluded by any state court finding of fact, requires consideration of several circumstances heretofore irrelevant to this opinion.
No state court ever gave solo consideration to the narrow question addressed in this opinion. On the contrary, the above noted hearing before the trial court, which began on February 26 and concluded on March 6, dealt with an "omnibus" motion presenting an apparently wide variety of claims. Petitioner himself testified, claiming — in a manner typical of distraught defendants — all manner of real and imagined grievances. Among other things, he claimed that he had not been informed of the offered plea bargain until after the superseding indictment had been returned. That claim could be — and was — easily refuted by testimony of several witnesses whose credibility could not be questioned. The District Attorney, apparently treating the omnibus motion as a unit, made an attack on petitioner's credibility, focusing on this particular falsehood. The question of petitioner's reliability might well have been vital to many — if not most — of the questions presented by the omnibus motion. However, it has no bearing on the narrow question with which we are now concerned. See Footnote 1, supra.
When it came to decision, the trial judge was primarily concerned with a question of no present relevance, namely whether petitioner's statement as to the timing of his knowledge of the possibility of a plea bargain was truthful or false. His opinion does not mention petitioner's constitutional right to be advised whether or not the offered bargain "appear[ed] to be desirable." Similarly, the Appellate Division's affirming opinion addressed a host of issues not here relevant. Its sole finding of fact concerning the claimed inadequacy of counsel was that "[the petitioner] was made aware of a plea offer of 1 to 3 years imprisonment, and told his trial counsel to reject it." People v. Boria 612 N.Y.S.2d 80, 81, 204 A.D.2d 652 (2d. Dept. 1994).
Turning to the question of whether we are precluded, we are faced with an Appellate Division finding of fact which has no present relevance, coupled with a conclusion of law that petitioner had been adequately represented by counsel. The District Attorney notes in his brief, at p. 8, citing Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 and Winkler v. Keane 7 F.3d 304, 308 (2d. Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1407, 128 L.Ed.2d 79 (1994), that conclusions of law require de novo review. As we have seen, such review can lead to only one conclusion.
This leaves the question of what remedy should result from our ruling. In denying petitioner's motion to vacate the judgment, the trial judge suggested that the remedy petitioner sought, namely to be put back in a position of being able to plead to
For the above stated reasons, we vacate the order appealed from, and remand to the District Court for entry of an order granting the petition and directing that the petitioner be discharged.