Rennie Johnson v. Walter T. Fogg, and the Attorney General of the State of New York, Robert Abrams

I respectfully dissent. In my view the proper disposition of this appeal is to remand the case for an evidentiary hearing to determine whether Johnson pleaded guilty under the mistaken impression that he faced a maximum sentence of 7 years and, if so, whether he would have pleaded not guilty if he realized that he in fact faced a maximum of 15 years. See Williams v. Smith, 591 F.2d 169 (2d Cir.), cert. denied, 442 U.S. 920, 99 S.Ct. 2845, 61 L.Ed.2d 289 (1979);1 Kelleher v. Henderson, 531 F.2d 78 (2d Cir. 1976); Jones v. United States, 440 F.2d 466 (2d Cir. 1971).

The issue is not resolved by…