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SMART v. SCULLY

No. 117, Docket 85-2137.

787 F.2d 816 (1986)

Russell G. SMART, Petitioner-Appellant, v. Charles J. SCULLY, Superintendent, Green Haven Correctional Facility, and Executive Director, New York State Division of Parole, Respondents-Appellees.

United States Court of Appeals, Second Circuit.

Decided April 7, 1986.

Attorney(s) appearing for the Case

R. Nils Olsen, Jr., Buffalo, N.Y. (State University of New York at Buffalo-Faculty of Law), for petitioner-appellant.

Peter Schiff, Buffalo, N.Y., Asst. Atty. Gen., State of N.Y., for respondents-appellees.

Before MANSFIELD, PIERCE and PRATT, Circuit Judges.

PIERCE, Circuit Judge:

On August 20, 1982, appellant Smart moved pro se in Erie County Court, State of New York, to withdraw a plea of guilty he had entered on June 9, 1980, to a charge of grand larceny. He moved pursuant to New York Criminal Procedure Law § 440.10 (McKinney 1983) (NYCPL) alleging that his incompetence at the time of the plea rendered it involuntary and, therefore, unconstitutional. On September 17, 1982, the state judge denied the motion...

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