Waterman, Friendly and Kaufman, Circuit Judges.
IRVING R. KAUFMAN, Circuit Judge:
The determination of guilt or innocence without trial has received increasing attention in recent years. This appeal raises yet another question of the circumstances in which a defendant will be bound by his plea of guilty in open court.
Appellant Adrian Rosa is now serving a sentence of imprisonment of from 7 1/2 to 10 years under a judgment of conviction entered in Supreme Court, Bronx County, Gellinoff, J., on his plea of guilty to robbery in the second degree. Having exhausted available state remedies, he applied for a writ of habeas corpus which was denied by Chief Judge Sugarman without a hearing. Appellant now advances two grounds why the writ should have issued: he contends that his plea was not "voluntary" because induced by the promise of the trial judge to impose a particular sentence and that he should have been permitted to withdraw his guilty plea and reinstate his earlier plea of not guilty of first degree robbery. Our review of the record convinces us that Rosa was not deprived of any right cognizable on federal habeas corpus and we therefore affirm.
The basic facts can be briefly stated. In 1960 Rosa and two others were convicted after a trial by jury of robbery in the first degree. Rosa was sentenced to from 15 to 22 years' imprisonment but his conviction, along with that of one of his co-defendants, Colon, was reversed by the Appellate Division because of prejudicial remarks made by the prosecutor during his summation. People v. Rosa, 14 A.D.2d 741, 220 N.Y.S.2d 138, 139 (1st Dept. 1961) (court specifically noting that proof of guilt was "persuasive"). Accordingly, Rosa and Colon were scheduled to be retried under the original indictment before Judge Gellinoff.
Represented by able counsel and undoubtedly aware of the probable result if they again went before a jury, both men entered into plea negotiations with the prosecution. These ended in the apparent satisfaction -- at least at the time -- of all concerned and on September 28, 1962, Rosa and Colon moved, through their respective counsel, to change their pleas from not guilty of robbery in the first degree to guilty of robbery in the second degree. Judge Gellinoff, obviously aware of the need for "a penetrating and comprehensive examination of the circumstances under which [a guilty] plea is tendered," Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S. Ct. 316, 323, 92 L. Ed. 309 (1948), stated that he would accept the pleas only if the defendants were in fact guilty and that he would "put on the record the sentence that [he was] going to impose." The prosecutor then described the prior proceedings in the case, the details of the alleged robbery, and what had transpired during the negotiations:*fn1
The Assistant District Attorney: I have been in consultation with Mr. Guff of the Legal Aid Society on behalf of Colon, and with Mrs. Steinbock, on behalf of Rosa, and I have made an offer to those defendants to which they have just pleaded. [Sic]
I further told Mrs. Steinbock that I would recommend to the Court the sentences of seven and a half to ten years. * * *
The Court: Seven and a half for each?
The Assistant District Attorney: Yes.
The Court: Is robbery in the second degree the kind of conviction where I can sentence for so little, seven and a half to ten?
The Assistant District Attorney: Yes, Judge.
Rosa and Colon confirmed the prosecutor's account and admitted their participation in the crime as charged. Upon this record, Judge Gellinoff proceeded to inform both men that he would accept the prosecutor's recommendations -- he would sentence them to imprisonment of from 7 1/2 to 10 years on their pleas of guilty to the lesser offense of second degree robbery.*fn2 Thus, after the trial judge was satisfied that both men were acting voluntarily, the formal pleas were taken, the defendants sworn and their pedigrees recorded. Sentencing was set for October 5, 1962.
Given a full week to contemplate his fate, Rosa lost the enthusiasm for a plea of guilty he had so clearly shown earlier and accordingly asked his attorney to withdraw his plea of guilty. In accordance with Rosa's instructions, when the ...