although a state prisoner’s second-offender sentence did not exceed the maximum penalty for a first offender, possibility that he would receive a shorter sentence if he were granted habeas corpus relief and resentenced as a first offender sufficient to sustain controversy
How later courts described this case
- although a state prisoner’s second-offender sentence did not exceed the maximum penalty for a first offender, possibility that he would receive a shorter sentence if he were granted habeas corpus relief and resentenced as a first offender sufficient to sustain controversy
Written by the judges who cited it.
The opinion
FRIENDLY, Circuit Judge
(concurring) :
If I could regard the issue as still open, I should have supposed there might be a substantial distinction between a state’s forcing an accused who asserts his innocence of a serious crime to defend himself without the assistance of counsel, as in Gideon v. Wainwright, 372 U.S. 335 , 82 S.Ct. 792 , 9 L.Ed.2d 799 (1963), a practice which, in Mr. Justice Cardozo’s great words, is “repugnant to the conscience of mankind” and violative “of a scheme of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 323, 325 , 58 S.Ct. 149, 151, 152 , 82 L.Ed. 288 (1937), and accepting a plea of guilty from a man, often with many previous brushes with the criminal law, caught in the commission of a garden-variety offense or with the means or fruits of its commission upon him. I should have found it hard to believe that due process of law invariably required a state to make certain that such a man had deliberately foregone the aid of counsel before he elected to plead guilty to the charge rather than stand a trial which he knew neither could nor should be won. Even if this should be the rule for the future, the case against its application to guilty pleas of long ago would have seemed formidable, since, as experience tells us, the vast majority of prisoners who would thus be turned loose on society because of the loss of evidence once available (or, as here, because the attack is on a sentence already served and now used as a basis for further punishment) could not have benefited from the aid now asserted to have been unconstitutionally withheld; due process would have seemed to me to require some weighing of the interest of the ordinary law-abiding citizen against the rare case of the prisoner who might have successfully maintained a not guilty plea if properly advised. I should therefore have voted to affirm the orders here-made after hearing with respect to-Durocher and Brown and to remand for a hearing to determine whether fundamental fairness was violated by the acceptance of Moore’s plea, while joining in: the majority’s disposition of Ripple’s very different ease.
However, the two sentence per curiam decision in Doughty v. Maxwell, 376 U.S. 202 , 84 S.Ct. 702 , 11 L.Ed.2d 650 (1964), dealing with a guilty plea four years prior to the Gideon decision, proves tome that the Supreme Court does not regard the distinction I would have-thought significant as even warranting discussion. Although I would like to be-able to construe the decision as limited to guilty pleas of relatively recent vintage, as Chief Judge LUMBARD does, I cannot believe that if this was all the Court meant, it would not have said so. Because of the authority of that decision, I join in the judgment hex-e.