Hanson v. Phillips

442 F.3d 789

Paul HANSON, Petitioner-Appellant, v. Francis PHILLIPS, II, Respondent-Appellee.

Docket No. 04-0940-PR.

United States Court of Appeals, Second Circuit.

Argued: January 18, 2005.

Decided: March 30, 2006.

Kerry A. Lawrence, Briccetti, Calhoun & Lawrence, LLP, White Plains, NY, for Petitioner-Appellant.

Andrew R. Kass, Assistant District Attorney for Orange County, New York (Francis D. Phillips, II, District Attorney, on the brief), Goshen, NY, for Respondent-Appellee.

Before: LEVAL, STRAUB, and KATZMANN, Circuit Judges.

STRAUB, Circuit Judge:

Petitioner-Appellant Paul Hanson ("Hanson") appeals from a judgment of the United States District Court for the Southern District of New York (Colleen McMahon, Judge) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This appeal presents two issues. The first issue is whether we should dismiss this appeal pursuant to the fugitive disentitlement doctrine because Hanson was a fugitive from justice for two months. As Hanson has been apprehended and prosecuted for bail jumping, we conclude that there are no legitimate justifications for dismissing this appeal. The second issue presented is whether the state appellate court unreasonably applied Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), in determining that Hanson entered his plea of guilty intelligently and voluntarily. Because the record does not affirmatively disclose that Hanson intelligently and voluntarily pleaded guilty, as required under Boykin, we reverse and remand for issuance of the writ.

I. BACKGROUND

A. Facts and Procedural History

The basic facts underlying this appeal are undisputed. On March 7, 2002, Hanson appeared with counsel before the Hon. Michael Schwartz, City Court Judge for the City of Middletown, N.Y., on two counts of Aggravated Harassment in the Second Degree and two counts of Criminal Contempt arising from alleged violations of an order of protection then in effect against him. After a series of case calls, conferences, and side-bar discussions, defense counsel and the prosecutor reached a plea arrangement, allowing Hanson to plead guilty to one count of Criminal Contempt in the Second Degree in satisfaction of all the outstanding charges.

The plea colloquy was brief and, as it is central to our decision today, we reproduce the transcript of that hearing in its entirety:

Court: Lisa Sugarman is standing next to you as your attorney. For the record, you are Paul Hanson?

Hanson: Yes.

Court: Understand that after a conference with me and the Assistant District Attorney—

Hanson: Yes.

Court: —a disposition of this matter has been agreed to. They have agreed to a disposition of this matter.

Hanson: Yes.

Court: As I understand it, you have agreed that to cover all of the outstanding charges, Mr. Hanson, you will plead guilty to one Count of Criminal Contempt in the 2nd Degree, which is a Class A Misdemeanor; and understand that I am not putting any sentence limits on this. I will read the [probation] report and based on that probation report, I will determine what sentence you will get, and that can be anything up to one year in Orange County Jail. In addition to that, be advised that any further violation of the Order of Probation that is outstanding will result in a Willfulness Hearing on this, and if, if I feel that you willfully violated the Order of this Court, I have the right to—

Hanson: Yes.

Court: — which will not affect the sentence that will be imposed on anything else. Do you understand that?

Hanson: Yes, sir, your Honor.

Court: Therefore, I suggest that before we do anything else, understand that you are not to go near Maryanne Quirke [sic] anymore. You are not to telephone her. You are not to stay on the same side of the street that she is on. You are not to communicate with her by any means whatsoever. Don't even have a friend talk to her in your behalf. Stay away from her, because if she makes any other reports, and they turn to me with grounds, you will immediately, summarily go to jail for a long time. It is all in your hands. Your attorney has raised certain issues with regard to the sentence, and I told her I am not closing my eyes to any of that stuff. It will all be made available. I just want you to know I am not limiting anything. You can go to jail for up to one year in Orange County Jail. You have to understand that. Your attorney has also advised me that you intend to waive your rights to appeal as part of the plea bargain; is that true?

Hanson: I, I guess I have no choice.

Court: You have a choice. You can go to trial, and we can go forward with the contempt hearing that I told your attorney I was willing to do, which I told her I would do tomorrow morning or tomorrow afternoon. You're—you frustrate me —

Hanson: Yes, your Honor.

Court: —I told you many times, you don't have to be a nice guy, but you have to follow the law.

Hanson: I do, your Honor.

Court: Well, you didn't.

Hanson: I have—

Court: You will now, or the law will follow you. If you don't follow the law, the law will follow you. Be advised of—

Hanson: Yes.

Court: — based on conversations with you, and your conversation with your attorney, on the 14th day of February 2002, were you aware that there was an order of protection in effect, on behalf of Maryanne Quirk signed by this Court? Were you aware of it on that day?

Hanson: Yes, your Honor.

Court: And with that knowledge in violation of that order, did you call Maryanne Quirk on the telephone?

Hanson: Yes.

Court: Knowing that the order of protection directed that you not call her on the telephone?

Hanson: Yes.

Court: All right. I find you guilty of Criminal Contempt in the 2nd Degree, which is an A misdemeanor; Criminal Contempt in the 2nd Degree to cover all of the outstanding charges. I will fix bail pending sentence in the amount of $5,000.00 cash, $50,000.00 bond. I will ROR you on the 00316 of 2002.

Hanson: Yes.

Court: And I will admonish you: Any further violation of the temporary order will result in an immediate Willfulness Hearing, which, as I said, can result in up to 90 days in jail, immediately, which will have nothing to do with any sentence I impose on this.

Hanson: Yes.

Court: I am directing that the District Attorney, if any further violations are filed, will be prepared to make arrangements to go forward with that Willfulness Hearing. Mr. Hanson, do you understand that I don't want anymore communication between you and the lady; all right?

Hanson: Yes.

Court: You are free to go, if you post the bond.

Sugarman: Judge, can we just set a sentence date?

Court: What do you need, two months.

Sugarman: Well, I would say—

Court: He can get less if he's not going to make bail.

Sugarman: No, he will make bail.

Court: That's what I figured. Thursday, May 9th—let's be safe. Do you want to do it in June?

Sugarman: Sure, Judge.

Court: Thursday, June 6, at 1:30. Mr. Hanson, I hope not to see you in Small Claims next week.

Hanson: That's not this side of the Court; that's the other side of Court.

Court: Mr. Hanson, I hope not to see you on this side of the Court.

Hanson also executed a written waiver of his right to appeal.¹

Before sentencing, Hanson sought to withdraw his guilty plea, claiming that at the prior hearing he did not understand either the nature of the proceedings or the consequences of his plea. Hanson also claimed that he suffered from a mental impairment caused by a then two-years-old injury sustained in a motorcycle accident. Hanson's motion to withdraw his plea was denied by Judge Schwartz in an unpublished written decision dated June 27, 2002. Judge Schwartz held that given the totality of the circumstances, Hanson's guilty plea was "knowing, voluntary, and intelligent."

Hanson was subsequently sentenced to fifteen days' incarceration to be followed by three years' probation.² He appealed his conviction and sentence to the New York State Supreme Court, Appellate Term arguing that his guilty plea was involuntary. The Appellate Term rejected Hanson's claim and unanimously held that "[d]espite defendant's contention to the contrary, we are of the opinion that defendant's plea of guilty was made knowingly, voluntarily and intelligently." People v. Hanson, No.2002-1043 OR CR, 2003 WL 21730001 (N.Y.App. Term June 5, 2003) (citing People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 (1983)). New York State Court of Appeals denied Hanson's application for leave to appeal. People v. Hanson, 100 N.Y.2d 582, 764 N.Y.S.2d 392, 796 N.E.2d 484 (2003).

Having exhausted his final state appeal but prior to serving his sentence, Hanson filed a petition for habeas corpus relief in the Southern District of New York under 28 U.S.C. § 2254. The matter was assigned to Judge McMahon, who, in turn, entered an order referring the matter to Magistrate Judge Lisa Margaret Smith. The District Court also stayed Hanson's sentence pending its resolution of the petition.

In a Report and Recommendation dated November 4, 2003, the Magistrate Judge recommended that the writ be granted because the record underlying Hanson's plea was silent as to Hanson's complete, knowing, and voluntary waiver of essential constitutional rights. The respondent filed timely objections to this recommendation and, in an order dated February 13, 2004, the District Court accepted the report but rejected the recommendation before denying the petition and dissolving the stay. Hanson now appeals the District Court's judgment.³

B. Circumstances Regarding Hanson's Failure to Appear

After oral argument, respondent filed a motion to dismiss the appeal and revoke our stay of Hanson's state sentence based on the fugitive disentitlement doctrine. Hanson had failed to appear and answer state criminal charges unrelated to those underlying the present appeal. Hanson, through counsel, filed papers in opposition on February 9, 2005, requesting that the case be decided on the...