author: MEDINA, Circuit Judge: OAKES, Circuit Judge

text:
    UNITED STATES of America, Appellee, v. Rosa ORTIZ, Defendant-Appellant.
    No. 760, Docket 73-2523.
    United States Court of Appeals, Second Circuit.
    Submitted Feb. 14, 1974.
    Decided May 6, 1974.

      Richard Wile, Asst. U. S. Atty., New York City (Paul J. Curran, U. S. Atty., for the S. D. N. Y., and S. Andrew Schaffer, Asst. U. S. Atty., New York City, on the brief), for appellee.
    Jay Gold, New York City, for defendant-appellant.
    Before MEDINA, MANSFIELD and OAKES, Circuit Judges.
   MEDINA, Circuit Judge:

Having been convicted by Judge Gurfein, sitting without a jury, of the crime of conspiracy to distribute a narcotic drug in violation of 21 U.S.C., Section 846, Rosa Ortiz appeals. The claim that she was merely a “procuring agent” is precluded by our recent decision in United States v. Masullo, 489 F.2d 217 (2d Cir. 1973).

Ortiz testified in her own defense and there was at the trial a direct conflict of credibility between her testimony and that of the witnesses for the prosecution. As the trier of the issues of fact, Judge Gurfein did not believe Ortiz and he found as a fact beyond a reasonable doubt that Ortiz and her co-defendant had demonstrated “a willingness and predisposition to committing the crime.” This disposed of the claim that entrapment was established as a defense as a matter of law.

It is of no more than peripheral significance that it was by mere chance that the narcotics agents spoke with Ortiz when they came to the apartment to talk with the husband, who was suspected of dealing in narcotics. And the same is true of the time interval between the first interview with Ortiz and the ultimate transaction for the purchase of an amount of heroin much larger than the one originally mentioned by the government agent.

We quote Judge Gurfein’s detailed findings of fact on the question of entrapment:

“When Thomas Kinsey first brought Agent Franklin to Ortiz’s apartment under the pretense of setting up a narcotics sale with one Manny Macia, Ortiz offered no objections. And when Franklin asked Ortiz whether she could sell him an ounce of heroin, Ortiz replied without hesitation that she could. When asked about supplying an eighth of a kilo, she replied “I would have to ask my husband or Manny Macia. If you would like, you could return this evening to buy the ounce.” Finding Ortiz so willing to supply the heroin, Franklin chose not to buy the ounce, but to wait until she procured a larger quantity. Thus, over the next five weeks he called her a total of five times inquiring whether Ortiz had contacted her supplier. On December 1, Ortiz informed Franklin, in the course of one of these phone calls, that the heroin would be available.

In the interim, Carmen Torres had come to live with Ortiz. Ortiz testified that a few days after Torres had started living there, she informed Torres about Franklin’s request for heroin. Initially Torres “just let it drop” but afterwards “Carmen [Torres] said that she was going to see if she could find somebody.” Torres’ willingness to become involved occurred prior to any contact Torres had with Agent Franklin. On December 2, when Franklin called Ortiz’s apartment Torres answered the phone, identified herself as “Gloria” and told Franklin “we haven’t heard -from our guy yet but I’m going to see him tonight.” Subsequently Oritz’s phone was disconnected.

On December 4 Franklin appeared in person at Ortiz’s apartment, but left after only a brief discussion with Ortiz because Ortiz’s sister-in-law was present. When Franklin returned two days later, he brought along Agent Rottinger. Franklin and Rottinger proceeded to drive defendants Torres and Ortiz to their supplier, with Torres directing the route. The defendants descended the car and left the Agents’ view. It was Ortiz’s testimony that she had never met the supplier before and that it was Torres who knew him to be a narcotics dealer. After a few minutes the defendants returned, quoting a price of $1,600 for three ounces. After they returned to the apartment, Franklin advised Torres that he would not have the money until the next day.' Torres then asked to be driven back to make new arrangements. After driving her back to the same place, Torres descended and returned with the report that Franklin could have three ounces of heroin for $1,600 and an eighth of a kilo of cocaine for an additional $2,000. Franklin agreed. They drove back to Ortiz’s, apartment.

The following day, December 9, Franklin returned to the apartment. Torres asked for the money and Franklin asked to see “the stuff.” Torres retrieved a sample of heroin. Franklin thereupon left the apartment, went downstairs and returned with $4,000 and Special Agent Reilly. One Nelson Garcia then emerged from the bedroom with a glassine envelope in one hand and a white paper bag in the other. The defendants were then placed under arrest.”

We see no basis whatever for rejecting any of these findings.

Affirmed.

OAKES, Circuit Judge

(dissenting):

With due respect to my brethren and the trial judge, I believe that the Government has failed to meet its burden of proving beyond a reasonable doubt that appellant Ortiz was predisposed to commit the crime which the Government induced her to commit. Accordingly, I would reverse.

In this circuit entrapment is a bifurcated defense, requiring a defendant to demonstrate that he has been induced to commit the crime by the Government; if he does, then the Government is required to prove beyond a reasonable doubt that the defendant was predisposed to commit the crime. United States v. Rosner, 485 F.2d 1213, 1221-1222 (2d Cir. 1973), petition for cert. filed, 42 U.S.L.W. 3474 (U.S. Jan. 7, 1974) (No. 74-1062); United States v. Riley, 363 F.2d 955, 957-958 (2d Cir. 1966); United States v. Sherman, 200 F.2d 880, 882-883 (2d Cir. 1952) (L. Hand, J.). See also United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The defendant’s burden of demonstrating inducement by the Government does not require a showing of trickery or fraud or even the degree of pressure exerted, see United States v. Riley, 363 F.2d at 958, but rather includes the showing of mere “soliciting, proposing, initiating, broaching or suggesting the commission of the offence [sic] charged” by the Government. United States v. Sherman, 200 F.2d at 883. Here the offer by the Government agent to buy narcotics is sufficient evidence of inducement to shift the burden to the Government to prove beyond a reasonable doubt that Ortiz was predisposed to sell narcotics.

The evidence of such predisposition or propensity will generally be circumstantial of necessity, and there is no magic formula for deciding when predisposition was present and when not. In each case that conclusion, normally made by the jury but here by the judge in a trial without jury, must rest upon all the facts in the case. There is, perhaps, no better guide to the weighing of those facts than the language of Chief Justice Hughes in Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 216, 77 L.Ed. 413 (1932):

the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whem the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials.

In this ease, accepting the Government’s evidence as true, only one fact supports at all the proposition that Ortiz was predisposed to sell narcotics, while all the other evidence, either presented by the Government or uncontradicted by it, supports the opposite conclusion: that Ortiz was an innocent person without criminal motivation or intent until the Government agent first offered temptation and then repeatedly presumed upon her to become involved in a criminal enterprise which never would have existed without the Government’s creative and active force. But, as pointed out, the burden was on the Government to prove beyond a reasonable doubt that Ortiz had such a criminal predisposition.

The only evidence supporting the Government’s position was testimony by the agent that when he asked Ortiz if she could sell him an ounce of heroin, she said she “could” if he came back that night. Failure to demonstrate any reluctance may indeed be evidence of predisposition, but it can hardly be treated as conclusive. See United States v. Sherman, 200 F.2d at 882.

The evidence to the contrary is substantial. First, there is no evidence whatever that Ortiz had any previous criminal dealings in drugs, or even that the agent thought she had. Rather the agent, who had gone to the apartment to meet a certain Manny Macia or Ortiz’ husband, after waiting a half hour for them, only then asked Ortiz a mother of two on welfare, if she could sell him an ounce of heroin. She did not even say she could supply the ounce immediately; rather, she asked the agent to return that evening. When asked about an eighth of a kilo (4.4 ounces), she could only say, “I don’t know. I would have to ask my husband or Manny Macia.” During the next five weeks the agent, trying to set up a sale made five or six calls to Ortiz, all of which were unsuccessful. Indeed, Ortiz herself was not able to find anyone to sell her the heroin. Rather it was her subsequent roommate, Carmen Torres, to whom she had confided the agent’s offer, who set out to find and did finally find a source for the requested heroin. In December, with no sale yet set up, Ortiz’ phone was disconnected, hardly a sign of the affluence of a heroin dealer, but the agent was not disheartened; he went to Ortiz’ home. Still nothing was finalized. Only when the agent returned two days later did Ortiz and Torres have him drive them to another part of the Bronx for “firm negotiations.” The “deal” was set for five o’clock that day, but when the agents could not get the $1,600 for the three ounces ultimately agreed upon, it was Torres alone who drove with them to the Bronx again to arrange for a new deal, and it was with Torres alone that the agent arranged for an eighth of an ounce of cocaine to be added to the deal. Finally, the next day, the agents came to Ortiz’ and Torres’ apartment, where Torres answered the door, asked them if they had the money, and then showed them some of the narcotics. Ortiz was in the apartment and arrested along with Torres and two men, who with Torres had brought the narcotics to the apartment.

Upon these facts the Government, it seems to me, has failed to prove beyond a reasonable doubt that it had not corrupted an innocent person who had no propensity or predisposition to commit the crime. In Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L. Ed.2d 848 (1958), the Supreme Court overturned a guilty verdict because on the facts proved by the Government it had failed to satisfy that burden, so that as a matter of law the defendant was entitled to a verdict of not guilty. Sherman too involved heroin sales, but in Sherman the defendant made a number of sales over a time to the informer. Here there was one sale, and that not a large one. In Sherman the informer had no reason to suspect the defendant, but rather chose him because of his situation as an apparent addict to try to involve him in a narcotics sale. Here the agent had no reason to suspect Ortiz, but rather, after waiting in vain for those he did suspect, chose to try to involve Ortiz merely because she was there. In Sherman the informer capitalized upon the defendant’s known weaknesses and sympathies to overcome any resistance to making the sale. Here Ortiz’ position as a destitute mother of two who, because her husband was in jail, was forced to exist, on her $62.50 per week welfare check, would obviously provide little resistance to the temptation of an offer of big money for coming up with a little heroin. In Sherman the informer was forced to prevail on the defendant over a period of time to effect a sale; here the agent for five weeks was unable to make even a relatively small purchase from Ortiz despite repeated entreaties. In Sherman there was evidence of the defendant’s prior sale and possession of narcotics. Here there was none; at most, she said she “could” supply the agent with an ounce. In Sherman the defendant acted on his own without aid; here Ortiz was unable on her own to find a source, indicating a lack of experience, knowledge or motivation, and Torres, not Ortiz, played the major role in the actual transaction which finally did take place with the agents.

In short, the evidence did not indicate that Ortiz was a heroin dealer from whom the agents merely made a purchase ; rather it indicates that the agent provided the idea to a poor mother, whose husband was in jail, how to make a large — to her — sum of money by selling something that probably anyone in her neighborhood could find if he tried. Or, in the words of Sherman v. United States, 356 U.S. at 372, Ortiz was not an “unwary criminal” but an “unwary innocent,” and “Congress could not have intended that its statutes were to be enforced by tempting innocent persons into violations.” The words of Circuit Judge Sanborn in the case of Butts v. United States, 273 F. 35, 38 (8th Cir. 1921), quoted with approval by the Court in Sorrells, 287 U.S. at 444-445, are, to my mind, directly applicable here:

The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Here the evidence strongly tends to prove, if it does not conclusively do so, that their first and chief endeavor was to cause, to create, crime in order to punish it, and it is unconscionable, contrary to public policy, and to the established law of the land to punish a man for the commission of an offense of the like of which he had never been guilty, either in thought or in deed, and evidently never would have been guilty of if the officers of the law had not inspired, incited, persuaded, and lured him to attempt to commit it.

      . References to the trial transcript are omitted.

      . We are bound to view the evidence in the light most favorable to the Government, United States v. Smalls, 363 F.2d 417, 418 (2d Cir. 1966), cert. denied, 385 U.S. 1027, 87 S.Ct. 755, 17 L.Ed.2d 675 (1967), but it must be noted that Ortiz denies that she agreed to supply the agent with any heroin, and it is a fact that the agent did not return that night, but rather spent five weeks telephoning Ortiz, importuning her to provide him with narcotics.

      . It may also be evidence of lack of experience in the narcotics trade, in which, from this judge’s experience in dealing with these cases, it seems unusual for a seller readily to admit his capacity to a complete stranger. In this case, to be sure, a heroin dealer, Kinsey, brought the federal agent the first time to the Ortiz apartment but for the purpose of meeting one Macia or Alberto Ortiz, appellant’s husband. A half hour after arriving at the Ortiz’ Bronx apartment, Kinsey left the apartment to move the Ortiz car. During Kinsey’s absence the conversation took place in the course of which the agent asked Ortiz if site could sell him an ounce of heroin and, according to the agent, she replied that she could.

      . Neither the Government nor the majority opinion suggests that the fact that Ortiz’ husband was apparently in the drug trade, or in jail as a result of being in it, is circumstantial evidence of her predisposition.


source: Caselaw Access Project

author: JAMESON, Senior District Judge.

license: Public Domain

text:
    Frank GRAYSON, Plaintiff-Appellant, v. CORDIAL SHIPPING CO., Defendant-Appellee. and CORDIAL SHIPPING CO., Third Party Plaintiff-Appellant, v. FEDERAL MARINE TERMINALS, INC., Third Party Defendant-Appellee.
    Nos. 73-1534, 73-1557 and 73-1659.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 22, 1974.
    Decided May 8, 1974.

      Joseph V. McGovern, Michael A. Snyder, Chicago, Ill., for Cordial Shipping.
    John W. Hough, Robert A. Creamer, Francis P. Smith, Martin J. Healy, Jr., Chicago, Ill., for Grayson, and Federal Marine Terminals.
    Before KILEY, Senior Circuit Judge, SPRECHER, Circuit Judge, and JAMESON, Senior District Judge.

       Senior District Judge William J. Jameson of tin ¡ District of Montana is sitting by designation.

   JAMESON, Senior District Judge.

Frank Grayson, a longshoreman employed by Federal Marine Terminals, Inc. (Federal), a stevedore, brought suit against Cordial Shipping Co. (Cordial) for personal injuries sustained while working on a vessel owned by Cordial. In turn Cordial brought a third-party action against Federal seeking indemnity for fees and expenses, claiming a breach of the stevedore’s warranty of workmanlike service. Following a non-jury trial the district court entered findings of fact and conclusions of law denying recovery to Grayson on his personal injury claim against Cordial and also denying recovery to Cordial on its indemnity claim against Federal. Grayson has appealed from that portion of the judgment denying him relief against Cordial, and Cordial has appealed from the portion of the judgment denying it relief against Federal.

Statement of Facts

At about 1:00 P.M. on September 24, 1969, Federal, a stevedore and terminal operator, hired two gangs of longshoremen to discharge cargo from the No. 2 and 4 holds of one of Cordial’s vessels, the M/V Konstantis Yemelos, which was docked at Federal's terminal in the Port of Chicago.

Grayson, one of the longshoremen hired, was assigned with eight other men to work on the ’tween deck of the No. 2 hold. His longshore gang was led aboard the vessel by Federal’s ship foreman, Jerry Ross, who directed them to a small deckhouse at the port side of the forward end of the vessel.

Inside the deckhouse, which is six to seven feet wide, there are two identical, unmarked manholes three to four feet apart. These manholes provide access to the ’tween decks of the No. 1 and 2 holds, which, though adjacent, are separated internally by a watertight steel bulkhead. When entering the deckhouse through its single entrace door the manhole for the No. 1 hold is on the left and that for the No. 2 hold is on the right.

The manholes were fitted with metal covers, and the district court found that both covers were closed at the time Grayson and his work crew boarded the vessel. Ross opened the manhole leading to the No. 2 ’tween deck. The court found further that “The main deck hatch cover over the vessel’s No. 2 hold was open the entire afternoon, permitting daylight into the No. 2 ’tween deck area.” The “No. 1 main deck hatch cover was completely closed at the time [Grayson] began working”.

After the gang entered the No. 2 hold it was discovered that the cargo was damaged. Work was delayed while a marine surveyor was called. William Woods, a union steward, also came aboard the vessel to inspect the cargo. Woods testified that when he entered the deckhouse the covers on both manholes were open. He descended the ladder to the ’tween deck of the No. 1 hold, but upon reaching the deck he “noticed it was pitch black” and realized that he was in the wrong hold. He climbed the ladder and entered the No. 2 hold.

While Woods was on the No. 2 ’tween deck Grayson left the hold to go to washroom facilities ashore. At trial Grayson could only remember proceeding 20 to 40 feet from the deckhouse. He was unable to recall whether he actually went to the washroom, and his next recollection was returning to the deckhouse to resume work.

For reasons unknown Grayson entered the No. 1 manhole. He did not look into the manhole before entering it and, though not his usual custom, he stepped into the manhole without looking “where [his] feet were going”. Grayson took “several steps down through the manhole”, and the next thing he remembers he was “yelling for help”.

Robert Leonard, a longshoreman working with Grayson, left the No. 2 hold about 25 minutes after Grayson. He testified that as he was coming out of the No. 2 manhole he heard Grayson yelling for help from the No. 1 hold. Leonard entered the No. 1 hold to attempt to locate Grayson, but after descending half-way down the ladder to the ’tween deck he returned to the surface on account of the darkness. He located a flashlight and entered the No. 1 hold, but even with the flashlight he was unable to see clearly and so again returned to the surface and summoned aid.

Shortly thereafter, at approximately 3:00 P.M., the main deck hatch to the No. 1 hold was opened, and Grayson was found lying on the deck of the lower hold, which is 22 to 23 feet below the No. 1 ’tween deck. A ladder connects the ’tween deck and lower hold, but the ’tween deck also has a large hatch opening in its floor, located approximately eight to 12 feet from the base of the 16 foot ladder leading to the manhole. The distance from the ’tween deck to the deckhouse floor is approximately 12 feet.

No one, including Grayson, knows how he came to be in the lower hold. Ross testified that in his opinion a man could not have fallen or jumped directly from the manhole ladder through the ’tween deck hatch and into the lower hold. Woods, who entered the No. 1 ’tween deck shortly after Grayson was discovered, testified that there was dunnage and debris scattered about the ’tween deck near the base of the manhole ladder, that the ’tween deck hatch was open, and that there were no guardrails or safety nets around the hatch opening. Woods’ testimony was corroborated by several photographs of the ’tween deck area taken the day after Grayson’s accident and introduced on his behalf at trial.

The district court found that “When the main deck hatch cover over the No. 1 hold is in a closed position, as it was before [Grayson] was found in the No. 1 lower hold, a person looking into the manhole leading to the No. 1 ’tween deck would observe total darkness. On the afternoon in question, the No. 2 main deck hatch cover was completely open, and a person looking into the manhole leading to the No. 2 ’tween deck would observe daylight and could see the bottom of the ladder, the cargo stowed in the ’tween deck, and the deck itself.”

At the trial Grayson and Charles Benifield, another longshoreman, testified that manholes leading to holds that are not being loaded or unloaded are customarily closed. However, Ross O’Connor and Dossie Bond, a Federal ship foreman, testified that there is no custom that dictates when manholes are to be opened or closed, and that manholes are at times left open “in places where they are not being worked”. On the basis of this conflicting testimony the district court found that “There was no custom or practice in use among longshoremen or stevedores in the Port of Chicago in September 1969 with respect to scuttles or manholes leading to or providing access to holds where no longshoremen were at work and where no longshoremen were assigned to work.”

Conclusions of District Court

The court recognized that Grayson’s right of recovery depended upon a showing that his injuries were proximately caused by Cordial’s negligence or the unseaworthiness of Cordial’s vessel. The court concluded, and Grayson conceded, that no negligence had been established on the part of Cordial.

With respect to the claim of unseaworthiness, the district court held that the duty of the shipowner to provide longshoremen “with a seaworthy or reasonably safe place to work is confined to those areas of the vessel where longshoremen may reasonably be expected to go in the course of their duties”. The court concluded that Cordial “had no reason to expect” that Grayson would enter the No. 1 hold, and that Cordial therefore “had no duty to make that space seaworthy for [his] benefit”. In addition the court found that “there is no evidence that any unseaworthy condition proximately caused or contributed to cause [Grayson’s] injury.”

With respect to Cordial’s claim against Federal, the district court concluded that “No evidence was presented” that the stevedore, Federal, “breached its implied warranty of workmanlike service”, and that in the absence of such evidence the shipowner, Cordial, was “not entitled to recover indemnity”.

Contentions on Appeal

Grayson contends that (1) Cordial owed him a duty of maintaining the No. 1 hold in a seaworthy condition, (2) the conditions in the No. 1 hold at the time of his accident were unseaworthy, arid (3) the unseaworthy conditions were a proximate cause of his accident. Cordial argues that (1) Grayson was contributorily negligent as a matter of law and this was the sole cause of his accident, (2) Grayson’s negligence is imputable to his employer, with the legal effect that his negligence constitutes a breach by Federal of its implied warranty of workmanlike service, and (3) Federal’s breach of its implied warranty entitles Cordial to indemnity for the expenses incurred in defending Grayson’s claim.

Grayson’s Appeal

As noted supra, the district court denied recovery to Grayson primarily on the ground that Cordial had no duty to maintain the No. 1 hold in a seaworthy condition since it had no reason to foresee that Grayson would enter the No. 1 hold. Grayson argues that the concept of foreseeability employed by the district court is not a defense in an action based upon unseaworthiness, and that in any event it was foreseeable that he might enter the No. 1 hold.

We agree with the district court that the duty of a shipowner to provide a longshoreman “with a seaworthy or reasonably safe place to work is confined to those areas of the vessel where longshoremen may reasonably be expected to go in the course of their duties”. See Calderola v. Cunard Steamship Company, 279 F.2d 475, 477 (2 Cir. 1960), cert. denied, 364 U.S. 884, 81 S.Ct. 172, 5 L.Ed.2d 104 (1960), and Barnes v. Rederi A/B Fredrika, 350 F.2d 865, 867 (4 Cir. 1965), cert. denied, 383 U.S. 910, 86 S.Ct. 895, 15 L.Ed.2d 665 (1966). This court in Crass v. M/V Manitou, 325 F.2d 129, 132 (1963), cert. denied, 376 U. 5. 970, 84 S.Ct. 1137, 12 L.Ed.2d 85 (1964), affirmed a judgment denying recovery against a barge owner for injuries sustained by a crew member who fell through an open hatch, where the district court found that the barge owner “could not have reasonably anticipated the hatch covers would be used as work areas”.

It is true, as Grayson contends, that the Supreme Court has said that a shipowner’s duty to provide a seaworthy vessel and a reasonably safe place to work is not “limited by conceptions of negligence”. Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S. Ct. 926, 932, 4 L.Ed.2d 941 (I960). This does not mean, however, that the concept of foreseeability is irrelevant in defining the extent of a shipowner’s duty to provide a seaworthy vessel for longshoremen. It is simply an expression of the well settled rule that the shipowner’s duty is “absolute and completely independent of his duty under the Jones Act to exercise reasonable care”. Mitchell, supra at 549. We agree with the statement in Barnes, supra at 866-867, that:

“No mistake is perceived in the Court’s submission of the issue of unseaworthiness. Confining the duty of maintaining a seaworthy vessel to the reasonable scope of the longshoreman’s activity is logical and correct in principle. Fully acknowledged as an obligee of the ship’s duty, nevertheless the longshoreman’s due should not exceed the need for his protection as measured by his function on the vessel. He is not subject to momentary orders, as is a crewman, to any part of the vessel whatsoever, and his presence at a location unconnected with his task is not to be anticipated.”

Grayson alternatively argues that it was foreseeable that he might enter the No. 1 hold. Although the district court set forth its contrary holding as a “conclusion of law”, our opinion in Crass, supra at 132, makes it clear that such a determination is a finding of fact which may not be set aside unless clearly erroneous. See McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 99 L.Ed. 20 (1954).

Grayson’s contention that it was foreseeable that he might enter the No. 1 hold finds support in the proximity of the two manholes, the fact that they are identical in appearance, and Woods’ mistaken entry of the No. 1 hold. On the other hand, Grayson, unlike Woods, had been led to the No. 2 manhole by Federal’s ship foreman, was instructed that his work was to be performed in the No. 2 hold, and had in fact been in that hold.

It is stipulated that no one was assigned to work in the No. 1 hold. Because its deck hatch was closed, one who looked into the manhole would encounter almost total darkness. The deck hatch of the No. 2 hold had been removed and the hold was well lighted — a fact apparent to anyone who looked into the No. 2 manhole. When entering the deckhouse through its single doorway, the No. 2 manhole is on the right and the No. 1 manhole is on the left.

Although conflicting inferences may be drawn from the testimony, there is substantial evidence to support the finding of the district court that Cordial had no reason to expect that Grayson would go into the No. 1 ’tween deck. We cannot say that this finding of the district court is clearly erroneous.

Cordial’s Appeal

Seeking indemnity “for expenses and attorney fees incurred in the defense of Grayson’s claim and in opposing his appeal”, Cordial argues that Grayson was contributorily negligent as a matter of law and that his negligence is imputable to Federal and constitutes a breach of Federal’s implied warranty of workmanlike service.

It is well settled that every stevedoring contract contains an implied warranty to the shipowner that the stevedoring operations will be performed in a safe and workmanlike manner. See Ryan Co. v. Pan-Atlantic Corp., 350 U.S. 124, 133-135, 76 S.Ct. 232, 100 L.Ed. 133 (1956) and Bagrowski v. American Export Isbrandtsen Lines, Inc., 440 F.2d 502, 504-505 (7 Cir. 1971). “The stevedore company’s duty under its warranty includes, the duty to provide longshoremen who will exercise reasonable care for their own safety * * *. Failure of a longshoreman to safely perform his duties constitutes a breach of the stevedore’s warranty rendering the stevedore company liable for all harm to the shipowner resulting from the breach.” Arista Cia. DeVapores, S. A. v. Howard Terminal, 372 F.2d 152, 154 (9 Cir. 1967). The damages recoverable by the shipowner include attorneys’ fees and reasonable disbursements connected with the defense of a longshoreman’s action against the shipowner. See DeGioia v. United States Lines Company, 304 F.2d 421, 426 (2 Cir. 1962).

The Second, Fourth, and Ninth Circuits have held that the longshoreman’s negligence constitutes a breach of the stevedore’s warranty as a matter of law. The Third and Fifth Circuits have held that the longshoreman’s negligence is only “a factor to be taken into consideration on the issue of breach of the * * * . [stevedore’s] implied warranty.” It is unnecessary to decide which of these rules should be followed in this circuit.

The crucial question for determination is whether it was established that Gray-son was guilty of contributory negligence and that his negligence was the sole proximate cause of his accident. The district court concluded that “No evidence was presented that [Federal] * * * breached its implied warranty of workmanlike service.” Although it is true, as Cordial contends, that the court did not explicitly find an absence of contributory negligence on the part of Grayson, we think that such a finding is implicit in the court’s ultimate conclusion that there was no evidence of a breach of warranty by Federal. Moreover, as will be discussed infra, the district court’s conclusion is supported by its finding that Grayson “does not know how he came to be in the No. 1 lower hold”.

It is well settled in this circuit that a district court’s findings with respect to negligence or the lack thereof are to be tested by the “clearly erroneous” standard. See Leatherman v. Gateway Transportation Co., 331 F.2d 241, 244 (7 Cir. 1964). Cordial contends that the conclusion of the district court that no evidence was presented that Federal breached its implied warranty of workmanlike service is “clearly erroneous” and that Grayson’s negligence and Federal’s breach of its warranty of workmanlike service were established as a matter of law. We do not agree.

Contributory negligence becomes a question of law only “when it can be said that all reasonable minds would reach the-conclusion, under the particular factual situation, that the facts did not establish due care and caution on the part of the person charged therewith”. Albers v. Continental Grain Company, 220 F.2d 847, 849 (7 Cir. 1955). Judged by this standard, we cannot say that the evidence established as a matter of law that Grayson was negligent and that his negligence was the sole cause of the accident.

While the district court did not make any explicit findings with respect to Grayson’s negligence, it is clear from the record that this issue was presented to the court. A post-trial memorandum filed by Cordial recites the filing of a memorandum by Federal “wherein it states that the shipowner presented no evidence that the stevedore breached its warranty of workmanlike service”. Cordial then referred to the evidence from which it contended that the “contributory negligence of Grayson was established beyond doubt” and that “taking all the evidence * * * as a whole, it was manifest that the injury to Grayson was solely the result of his own negligence”.

Cordial first argues that the mere fact that Grayson entered the No. 1 manhole without looking constitutes contributory negligence since the testimony was uncontradicted that “one looking down the manhole leading to No. 1 would have observed nothing but darkness; while one looking down the manhole leading to No. 2 would have seen daylight, the ’tween deck, and the activity there”. It is true that the trial court could properly have drawn an inference of contributory negligence from this evidence. On the other hand, as noted supra, the No. 1 and 2 manholes were close together, identical in appearance and unmarked. We cannot say, under all the evidence, that Grayson’s failure to look into the manhole before entering it was so unreasonable as to constitute contributory negligence as a matter of law.

Cordial next contends that the evidence established that Grayson took “intentional affirmative action to leave [the] ladder and proceed in total darkness toward the open hatch” on the ’tween deck and, presumably, that he fell through the open hatch to the lower hold. However, as the district court recognized in its findings, no one, including Grayson, knows “how he came to be in the No. 1 lower hold”.

It is true, as Cordial argues, that Ross testified that in his opinion one could not fall or jump directly from the manhole ladder through the open ’tween deck hatch “due to the [approximately] 10' horizontal distance from the ladder to the closest point of the hatch opening”. This, however, does not establish that Grayson “left the ladder and proceeded in total darkness toward the open hatch”. It is conceivable that Grayson fell from the ladder before discovering that he was in the wrong hold, stumbled upon the dunnage and debris scattered about at its base, and, before regaining his balance, fell through the open hold.

There is substantial evidence to support the findings of the district court that Grayson himself did not know how he came to be in the No. 1 lower hold and that he “completely lost his memory as he started down the ladder”. In the absence of clear evidence to support Cordial’s theory of how the accident occurred, it cannot be said that the findings of the district court are clearly erroneous and that Grayson was eontributorily negligent as a matter of law.

Affirmed.

      . Grayson testified that when he was hired by Federal’s ship foreman, Jerry Ross, he was told he would be working in the No. 1 hold. Ross denied this and testified that Grayson was assigned to the No. 2 hold. It was stipulated that no work was being conducted in the No. 1 hold. Grayson’s witness, Robert Leonard, a longshoreman hired to work with Grayson, corroborated Ross, and Grayson’s testimony on this point was impeached by his prior deposition, in which he testified that he “was employed to work in hold No. 2, in ’tween deck”.

      . An orthopedic surgeon testified that Gray-son’s memory lapses were due to retrograde amnesia resulting from the shock of the injuries sustained in the No. 1 hold.

      . Grayson’s injuries included fractures of the left wrist, left elbow, left femur and several pelvic bones.

      . Michael O’Connor, Federal’s operations manager, testified that he spoke with Gray-son just after he had been removed from the No. 1 hold. O’Connor asked Grayson “what happened”, and Grayson replied “I don’t know.”

      . The court also denied recovery for fees and expenses incurred by Cordial “in the absence of evidence as to the amount of such expenses”. Cordial states in its opening brief on appeal that this “resulted from a misunderstanding between counsel” and that the problem has been cured by a stipulation that Cordial “incurred reasonable expenses and attorneys’ fees of $7,726.60 in the defense of Grayson’s claim against the ship”. Cordial contends that “This case should be remanded to the District Court with instructions to enter judgment in favor of [Cordial] and against [Federal] in the stipulated sum of $7,726.60 in addition to the amount of expenses and fees found by the District Court as having been reasonably incurred in the defense of Grayson’s appeal.”

      . See also Seas Shipping Co. v. Sieracki, 328 U.S. 85, 94, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), where the Court held that “the shipowner’s obligation of seaworthiness extends to longshoremen injured while doing the ship’s work aboard but employed by an independent stevedoring contractor whom the owner has hired to load or unload the ship.” Id. at 89.

      . As the Fifth Circuit aptly stated in Marshall v. Ove Skou Rederi A/S, 378 F.2d 193, 197 (1967), cert. denied, 389 U.S. 828, 88 S.Ct. 86, 19 L.Ed.2d 84 (1967) : “Articulating criteria to determine seaworthiness requires use of the language of negligence.” See also the discussion in Marshall at 197, n. 6.

      . Barnes was similar factually to this case. Barnes was a longshoreman, and his gang had been ordered to reload some cargo upon the ’tween deck, just forward of the No. 4 bold. He was found lying at the foot of a ladder in the lower part of the No. 5 hold approximately 40 feet from where his gang had been working. His work did not require access to or use of the No. 5 hold, which was dark and unlighted. It was contended that the absence of hatch boards constituted unseaworthiness as a matter of law. The court held that this was a factual issue, as were the questions of whether this caused his fall and “within what space longshoreman Barnes was warranted seaworthiness”.

      . These rules apply even where, as here, “the shipowner is exonerated from fault or unseaworthiness”. Guarracino v. Luckenbach Steamship Company, 333 F.2d 646, 648 (2 Cir. 1964), cert. denied, 379 U.S. 946, 85 S.Ct. 439, 13 L.Ed.2d 543 (1964).

      . See McLaughlin v. Trelleborgs Angfartygs A/B, 408 F.2d 1334, 1336 (2 Cir. 1969), cert. denied, 395 U.S. 946, 89 S.Ct. 2020, 23 L.Ed.2d 464 (1969); Chinese Maritime Trust, Ltd. v. Carolina Shipping Co., 456 F.2d 192, 193 (4 Cir. 1972); and Arista Cia. DeVapores, S.A. v. Howard Terminal, supra.

        . Shaw v. Lauritzen, 428 F.2d 247, 250 (3 Cir. 1970) and Julian v. Mitsui O.S.K. Lines, Ltd., 479 F.2d 432, 433 (5 Cir. 1973).

      . Moreovei-, as pointed out in Julian, supra at 434, such a decision would, in any event, be of limited effect, since “Congress has removed the underlying basis for the decisions.” The 1972 amendments to the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., provide that a longshoreman’s personal injury action against a shipowner is limited to claims based upon negligence and that the “liability of the vessel * * * shall not be based upon the warranty of seaworthiness or a breach thereof”. 33 U.S.C. § 905(b). As the court observed in Julian, “The effect of limiting the shipowner’s liability to his own negligence is to obviate the need for indemnity from the stevedore. Consequently the amendments [in § 905(b)] provide that the stevedore employer shall not be held liable to a shipowner for damages paid by the shipowner to longshoremen and any warranties to the contrary shall be void.” The amendments became effective in November, 1972. The claims sued upon in this case are based upon events which occurred on September 24, 1969.

      . Cordial states in its reply brief that “The trial court was urged in the shipowner’s proposed Findings of Fact and Conclusions of Law to find Grayson negligent, to impute Grayson’s negligence to the stevedore in accordance with the law, and to enter judgment in favor of the shipowner against the stevedore for its attorney fees and expenses.” Moreover, Cordial does not seek a remand for more specific findings with respect to contributory negligence, but simply requests that this court “review this issue with reference to the evidence on record”.

      . Cordial relies upon the minority view of three other circuits. See Wright & Miller, Federal Practice and Procedure: Civil § 2590, where it is stated that: “Eight of eleven circuits follow the view that findings of negligence cannot be disturbed unless ‘clearly erroneous’ while the position is not wholly clearcut in the three circuits that seem to take a contrary position. The only Supreme Court decision in point supports the view of the great majority of the circuits. So does sound policy.”

      . Cordial relies upon cases where the plaintiff had failed to use reasonable care to discover the condition or instrumentality which obviously caused the harm. See e. g., Kwarta v. United States Lines, Inc., 314 F.Supp. 112, 114 (D.Md.1970), vacated, 444 F.2d 26 (4 Cir. 1971), where the plaintiff was injured when he tripped over coiled heaving line which he would have observed had he been looking where he was going; and Merrill v. The S.S. Cuaco, 189 F.Supp. 321, 325 (D.Ore.1960), where boards on which a longshoreman had been walking collapsed, and the trial court found that any reasonable lookout would have disclosed defective lumber.


author: OAKES, Circuit Judge: HAYS, Circuit Judge

text:
    UNITED STATES ex rel. Sheldon LEESON, Appellant, v. Daniel E. DAMON, Superintendent of Elmira Reformatory, Appellee.
    No. 670, Docket 73-2597.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 22, 1974.
    Decided April 1, 1974.
    As Amended on Rehearing May 13, 1974.

      Gretchen White Oberman, New York City, for appellant.
    Arlene Silverman, Asst. Atty. Gen., (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., of counsel), for appellee.
    Before HAYS, MANSFIELD and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

Appellant appeals from the denial of a writ of habeas corpus under 28 U.S.C. § 2254. As a state prisoner, he was convicted in Supreme Court, New York County, on September 19, 1967, upon a plea of guilty to the crime of attempted grand larceny in the second degree. His maximum punishment for attempted grand larceny, second degree, was a term of 1.3 to 2.6 years’ imprisonment. NYPL §§ 261, 1297. Unbeknownst to appellant at the time the plea was entered, as a first offender who was under 30 years of age he was also subject to the indefinite five-year reformatory term at Elmira provided for in Penal Law § 2185. On November 30, 1967, before sentence was imposed, appellant wrote to the judge, Justice Mitchell D. Schweitzer, who had accepted the plea, asking to withdraw it. He stated in the letter that his attorney “forgot how young I am” and had informed him “that my maximum sentence would be 1.3-2.6 years.” Appellant stated that he was not guilty of the crime and that “I only took the plea because [my attorney] promised that all my cases would be thrown into the att. Grand 2 [sic] sentence,” that is to say, the sentence for attempted grand larceny in the second degree. The letter was treated by Justice Schweitzer as a pro se motion to withdraw the plea and a hearing was held.

At this time in the New York criminal procedure, it should be noted, there was no obligation on the part of the judge accepting a plea similar to the obligation imposed upon federal judges by virtue of Fed.R.Crim.P. 11 to make sure that the person pleading guilty does so “with understanding of the eonsequenc.es of the plea.” Rather, as the State has conceded on argument, the sole obligation for advising the person pleading guilty as to the consequences of his plea rested on his attorney. Accordingly, there is nothing in the record to show that in any way the court accepting the plea advised the appellant as to its consequences. The state court hearing on the motion to withdraw the plea of guilty, then, turned on what the appellant’s attorney had told him prior to the entry of the plea; the only evidence in the hearing was that the attorney had told him that he was facing at most a one year and three months minimum and two years and six months maximum, and that he had not advised Leeson that —indeed, that he had overlooked the fact that — appellant was of an age where he could “get Elmira,” i. e., receive the indefinite five-year reformatory sentence to Elmira. Again, on cross-examination by the assistant district attorney, appellant stated that the only sentencing alternatives that he was told about by his attorney were that he “could get completely cut loose, I could get put on probation, I could get one month’s term, or one-three to two-six.” He also denied his guilt and said that he pleaded guilty to a crime which he did not commit to get everything over and done with. The sentencing judge denied relief on the basis that “[t)he defendant's insistence that he was advised incorrectly by his own lawyer as to the sentence that he believed the court would impose can in no way bind the court in the absence of a showing that the court joined in such promises.” The sentencing judge thus conceived this— erroneously, we feel — as a case of an unwarranted assurance by counsel, rather than a case of lack of knowledge of the consequences of the plea.

Appellant appealed to the Appellate Division and then secured leave to appeal to the New York Court of Appeals, the basis for his argument being, as the briefs show, that the plea should be vacated because it was made in ignorance of the direct consequences of the conviction and that it was therefore not voluntarily entered in the constitutional sense. Both state appellate courts affirmed the conviction without opinion, so that there is no question but that appellant has exhausted his state remedies. District Judge Brieant below misconstrued this issue, probably because the briefs which were submitted to the Appellate Division and the Court of Appeals were not submitted to him at the time of the filing of the petition for habeas corpus. Thus, he incorrectly held that the constitutional issue as now tendered had not been determined by the state courts, relying on United States ex rel. Figueroa v. McMann, 411 F.2d 915, 916 (2d Cir. 1969), and he denied the petition.

The substantive facts, however, were called to the attention of the state trial court, and the issue was raised there though perhaps not as precisely as it was subsequently on appeal. On review the Appellate Division has the duty of reviewing the appellate record in determining whether errors had been preserved so as to warrant reversal “upon the facts” or “in the interests of justice,” see NYCPL § 470.15, and the question was raised in the brief there. Finally, the issue was spelled out plainly on page 5 of the appellant’s brief before the Court of Appeals: “It is our contention on this appeal that appellant’s plea, entered as it was out of ignorance of its direct consequences, cannot be considered voluntary in the constitutional sense [Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 71 L.Ed. 1009]. . . .’’As our cases evince,, where the record shows that a state prisoner has raised an issue on appeal, then a proper exhaustion of state remedies has taken place, irrespective of whether an appellate opinion has been written indicating this fact. United States ex rel. Ross v. LaVallee, 448 F.2d 552, 554 (2d Cir. 1971); United States ex rel. Cardaio v. Casscles, 446 F.2d 632 (2d Cir. 1971); United States ex rel. Williams v. Zelker, 445 F.2d 451, 454-455 (2d Cir. 1971).

All that is required by Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct. 509, 30 L.Ed.2d 438, 455 (1971), is that the state courts must have had a “fair opportunity” to consider a constitutional claim before federal habeas is available under the exhaustion doctrine. Here clearly both the Appellate Division and the Court of Appeals had such an opportunity.

Moreover, no state collateral remedy would be available in the event he were held not to have raised the question on appeal since under the New York Criminal Procedure Law, § 440.10, subd. 2(c), a motion to vacate a judgment must be denied where sufficient facts appear in the record to have permitted adequate appellate review of an issue where the issue was not raised on appeal.

On the merits, this is not the kind of case that apparently the sentencing judge thought it was, that is to say, where a guilty plea was based on an erroneous prediction about sentence given by counsel. See, e. g., United States ex rel. Bullock v. Warden, Westfield State Farm for Women, 408 F.2d 1326, 1330 (2d Cir. 1969), cert. denied, 396 U.S. 1043, 90 S.Ct. 688, 24 L.Ed.2d 686 (1970). Rather it is a case where the undisputed proof before the trial judge is that the defendant entered his plea in ignorance of what the maximum possible sentence was, believing it to be substantially less than that which the court was authorized to impose and which, indeed, it did impose.

It is settled law that a defendant who pleads guilty to a charge must do so “with full understanding of the consequences.” Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). See also McMann v. Richardson, 397 U.S. 759, 766, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). As was explained in McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418 (1969) (emphasis added; footnotes omitted):

A defendant who enters such a plea simultaneously waives several constitutional rights, including his privilege against compulsory self-incrimination, his right to trial by jury, and his right to confront his accusers. For this waiver to be valid under the Due Process Clause, it must be “an intentional relinquishment or abandonment of a known right or privilege.” Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L.Ed. 1461 (1938). Consequently, if a defendant’s guilty plea is not equally voluntary and knowing, it has been obtained in violation of due process and is therefore void. Moreover, because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in relation to the facts.

Upon the facts in this case, appellant’s plea was not knowing and was without an understanding of the law inasmuch as he did not know the maximum possible sentence he might receive. It is thus a plea entered in ignorance of its direct consequences, and it is therefore invalid. See Marvel v. United States, 380 U.S. 262, 85 S.Ct. 953, 13 L.Ed.2d 960 (1965) (per curiam); Wells v. United States, 452 F.2d 1001, 1003 (5th Cir. 1971); Wade v. Wainwright, 420 F.2d 898 (5th Cir. 1969); Kotz v. United States, 353 F.2d 312, 314 (8th Cir. 1965); Matthews v. United States, 308 F.Supp. 456 (S.D.N.Y.1969); McCullough v. United States, 231 F.Supp. 740 (N.D.Fla.1964). Kotz, Matthews and McCullough are particularly pertinent to the case at bar for they involved instances, albeit under federal law, where the defendants could be sentenced under the Youth Corrections Act to terms longer than if sentenced as adults, and where they alleged they were not aware of this possibility prior to their plea. These courts held that if the defendants did not know of their possible sentences under the Youth Corrections Act, then the acceptance of the pleas would be a violation of the due process clause.

It is unnecessary to remand this case for a hearing to determine whether appellant did not know his maximum possible sentence, for the appellant’s contentions as to his ignorance are not disputed by the State. Moreover, appellant’s original counsel has submitted an affidavit which supports appellant’s own version of the facts with which, indeed, as we view it, the sentencing judge did not disagree.

Before the sentencing judge the State urged that the plea should not be allowed to be withdrawn because the State would be prejudiced by reason of its dismissal of a codefendant’s indictment after the plea. Whatever weight this argument might have when addressed to a court’s discretion, it has none when the issue is whether a waiver of a constitutional right has been made unknowingly, which is a question of law, not a balancing of equities. Cf. United States v. Pisacano, 459 F.2d 259, 262 (2d Cir. 1972). See also ABA Standards Relating to Guilty Pleas, Approved Draft (1968) § 2.1 and commentary, pp. 57-58. It is also of no moment that the appellant is no longer confined “actually or constructively” since the writ was filed while he was still being detained on parole by the State pursuant to the state court judgment and his unconditional release thereafter did not render his case moot. Carafas v. LaVallee, 391 U.S. 234, 237-240, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). See also United States ex rel. Lawrence v. Woods, 432 F.2d 1072 (7th Cir. 1970), cert. denied, 402 U.S. 983, 91 S.Ct. 1658, 29 L.Ed.2d 148 (1971).

We leave to the district court on remand the task of fashioning relief appropriate under all of the facts and circumstances. Granting the writ would, of course, permit appellant to withdraw his plea of guilty and to plead not guilty, but the State would presumably be able to bring him to trial on the offense charged, even though he has already served time in the Elmira Reformatory therefor. Alternatively, this may be another case like Mosher v. Lavallee, 491 F.2d 1346 (2d Cir. 1974), where the district court might grant the option of requiring that appellant be given the sentence he thought was the maximum, 1.3-2.6 years’ imprisonment. A hearing may be appropriate to make this detei’mination.

Reversed and remanded for proceedings consistent with this opinion.

HAYS, Circuit Judge

(dissenting):

I dissent.

The conduct of Leeson’s counsel was not so ineffective as to raise a constitutional issue. The circumstances of Lee-son’s conviction and sentence are not such “as to shock the conscience of the Court and make the proceedings a farce and mockery of justice,” the standard applied by this court in determining whether the assistance of counsel was constitutionally defective. United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S. Ct. 478, 94 L.Ed. 586 (1950); United States v. Gonzalez, 321 F.2d 638, 639 (2d Cir. 1963); United States v. Miller, 254 F.2d 523, 524 (2d Cir.), cert. denied, 358 U.S. 868, 79 S.Ct. 100, 3 L.Ed.2d 100 (1958). Leeson’s attorney’s advice as to maximum sentence was not so “ ‘horribly inept’ as to amount to a ‘breach of his legal duty faithfully to represent his client’s interest’ . . . ” United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2d Cir. 1970), cert. denied, 402 U.S. 909, 91 S.Ct. 1385, 28 L.Ed.2d 651 (1971) , quoting United States ex rel. Maselli v. Reincke, 383 F.2d 129, 132 (2d Cir. 1967).

“[E]rroneous advice by defense counsel as to sentence does not support attack under § 2255 unless it amounts to ‘ineffective assistance of counsel’ .” United States v. Horton, 334 F.2d 153, 155 (2d Cir. 1964). See United States ex rel. LaFay v. Fritz, 455 F.2d 297 (2d Cir.), cert. denied, 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809 (1972); United States ex rel. Bullock v. Warden, 408 F.2d 1326 (2d Cir. 1969), cert. denied, 396 U.S. 1043, 90 S.Ct. 688, 24 L.Ed.2d 686 (1970).

The disappointment of an expectation fostered by an attorney’s inadvertence in advising or failing to advise a defendant as to a legal consequence of a guilty plea does not make the plea involuntary. United States ex rel. Scott v. Mancusi, supra; United States v. Caruso, 280 F.Supp. 371 (S.D.N.Y.1967), aff’d sub nom. United States v. Mauro, 399 F.2d 158 (2d Cir. 1968) (per curiam), cert. denied, 394 U.S. 904, 89 S.Ct. 1010, 22 L.Ed.2d 215 (1969); United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. denied, 348 U.S. 840, 75 S.Ct. 46, 99 L. Ed. 663 (1954). When a defendant enters a guilty plea he waives his right to trial and “assumes the risk of ordinary error in either his or his attorney’s assessment of the law and facts.” McMann v. Richardson, 397 U.S. 759, 774, 90 S.Ct. 1441, 1450, 25 L.Ed.2d 763 (1970).

Section 2254 relief should be denied.

      . This case arose before the revised New York Penal Law in 1967 took effect. While the conviction and sentencing occurred after the new Penal Law took effect, they were governed by the old law. NYPL § 5.05, subd. 3 (1967). Thus, the statutory references herein are to the New York Penal Law of 1909. PL § 1297 set the term of imprisonment for grand larceny, second degree, at a maximum of five years. PL § 261 specified that one convicted of an attempt must be sentenced to a maximum of “not more than one-half” of the largest sentence prescribed on conviction for the offense attempted. Under PL § 2189 the court was empowered to set a minimum term of no greater than one-lialf of the prescribed maximum or in this case no greater than one year and three months. Under the present law appellant’s maximum imprisonment would have been one year. NYPL §§ 70.15, subd. 1, 110.05, subd. 5, 155.30.

      . Appellant had been indicted on three counts of forgery in the third degree, and three counts of grand larceny in the first degree. 1-Iis guilty plea to grand larceny in the second degree was to cover all charges. In addition, appellant had been indicted in Nassau County for another crime; he subsequently went to trial on the Nassau County indictment and the case against him was dismissed.

      . The value of the federal rule, in making sure that the record contains a defendant’s statement showing his knowledge of the circumstances, is self-evident, in the light of this case.

      . On page 10 of appellant’s brief to the Appellate Division, First Department, it was stated: “appellant should have been allowed to withdraw his plea as not having been voluntarily entered in the constitutional sense. Machibroda v. United States, 368 U.S. 487, [82 S.Ct. 510, 7 L.Ed.2d 473] (1962).”