187 F.2d 456 (9th Cir. 1950), 12297, Hayman v. United States

Docket Nº:12297.
Citation:187 F.2d 456
Case Date:October 27, 1950
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 456

187 F.2d 456 (9th Cir. 1950)




No. 12297.

United States Court of Appeals, Ninth Circuit.

October 27, 1950

Rehearing Denied Feb. 26, 1951

As Amended in Succeeding Opinion of Feb. 27, 1951.

Page 457

Herman Hayman, In pro. per.

Ernest A. Tolin, U.S. Atty., Norman W. Neukom, Jack E. Hildreth, Ray H. Kinninson, and Robert J. Kelleher, Asst. U. S. Atty., all of Los Angeles, Cal., for appellee.

Before DENMAN, Chief Judge, and STEPHENS and POPE, Circuit Judges.

DENMAN, Chief Judge.

This is an appeal from an order denying appellant's motion to set aside the district court's sentence of twenty years' imprisonment on findings of guilt on six counts of an indictment. The order appealed from was made in a proceeding under 28 U.S.C.A. § 2255. Appellant is confined in the federal prison at McNeil Island, Washington. His motion was filed with the clerk of the district court in Los Angeles, California.

Appellant's motion tendered three issues. One required a trial of facts dehors the record of the trial on which he was convicted. As to the other two, I am in agreement with Judge Pope's opinion disposing of them as without merit, as conclusively shown from the files and records of the case. Section 2255, par. 3.

The extended consideration of this opinion deals with two questions:

(A) Whether the motion and the proceedings thereunder show that an issue was tendered respecting the denial to the appellant of the effective assistance of counsel, in that his counsel, without appellant's knowledge and consent, was attorney for prosecution's witness, who was convicted of a crime and waiting sentence thereon, [*] and

(B) whether the motion of Section 2255 made in a court of a district other than that in which the moving prisoner is confined

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is an 'inadequate or ineffective' remedy for the proof of facts dehors the record, showing a wrong done him in his conviction for a crime in a trial in which he did not 'enjoy' the effective assistance of counsel of the Sixth Amendment of the Constitution, or which was not accorded him the due process of the Fifth Amendment.

Such an extended consideration is necessary. Since under (A) it appears that such an issue was tendered and under (B) that the Section 2255 motion is inadequate and ineffective, for this court to affirm the judgment appealed from would require us to ignore the claimed infringement of a fundamental constitutional right. A reversal would return his case to a court which, as later shown, had not the power to give due process in the consideration of the issue tendered, nor the prompt consideration necessary in the proceeding in the nature of a habeas corpus. Hence dismissal is the proper remedy to free him to apply for his writ of habeas corpus.

It is not questioned that the appellant is a layman, not versed in the law here involved. Appellant did not appear and had no counsel either here or below. The question of 'inadequacy and ineffectiveness' of the remedy he invoked was not appreciated by him and it was raised by this court sua sponte at the hearing before it, and there argued. Where error of a fundamental nature in concerned, this court may properly notice it even though not assigned. Sibbach v. Wilson, 312 U.S. 1, 16, 61 S.Ct. 422, 85 L.Ed. 479. This is true a fortiori in litigation involving Section 2255, an attempted substitute for a habeas corpus proceeding.

This opinion does no more than construe that statute. It does not determine its constitutionality. However, were we to hold it to violate the Constitution, it is within our power, and we should exercise it in this case involving a man's liberty. This proceeding, brought by such a layman, differs from cases involving mere property rights such as those discussed in Ashwander v. T.V.A., 297 U.S. 288, 348, 56 S.Ct. 466, 80 L.Ed. 688, where the Supreme Court, although recognizing its power to do so, refused to consider the constitutionality of a statute which had been invoked in favor of the party later challenging it.

A. The motion properly tendered the issue that appellant was convicted in a trial in which he did not enjoy the effective assistance of counsel.

The pertinent portion of the motion reads: 'The defendant further claims that he was deprived of the right to have the assistance of counsel for his defense, in that the defendant was not adequately represented by competent counsel, to-wit: On introduction in evidence of one Juanita Jackson, codefendant statements incriminating defendant, attorney for defendant was also attorney for codefendant 'Juanita Jackson, ' attorney * * * (for defendant) did not tell defendant that he was also defending Juanita Jackson, and defendant had no way of knowing until after his trial was over. Juanita Jackson, codefendant, and government witness, accused defendant of guilt, thus creating conflict of interest, is not 'qualified' to give efficient representation to any of such clients, as affecting constitutional right of qualified counsel for accused. U.S.C.A. Const. Amends. 5, 6. Johnson v. Zerbst, 304 U.S. 458, 461, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 A.L.R. 357. Wright v. Johnston, D.C., 77 F.Supp. 687.'

The motion also sought a writ of habeas corpus to bring appellant from McNeil Island, Washington, to Los Angeles, California, for the trial.

With no more before it than the motion, the district court, following the proceeding of the third paragraph of Section 2255, 1

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notified the United States Attorney of a hearing thereon, without advising appellant of its date or even that there was to be a hearing, and appointing no counsel to to represent him. It was admitted by the government's attorney at the hearing here that the court, in an extended hearing before it, taking three trial days, received the evidence of the government witnesses who testified to the court, among them the United States Attorney and appellant's attorney. In considering the motion and taking evidence thereon, the court recognized the rule that in such a proceeding a layman's pleading should be liberally construed. Holiday v. Johnston, 313 U.S. 342, 350, 61 S.Ct. 1015, 85 L.Ed. 1392.

On consideration of the evidence adduced at the three-day trial, the court found that on December 9, 1946, Juanita Jackson, though not a defendant with appellant, had pleaded guilty before a different judge to violating the same statute as appellant, and was awaiting sentence thereon when appellant was tried on the succeeding January 7, 1947; that while so awaiting sentence Juanita Jackson was represented by the same attorney who represented appellant at his trial, and that the government offered her as a witness against this attorney's other client, the appellant. Appellant was found guilty on January 7, 1947, and on January 20, 1947, sentences were imposed on both Juanita Jackson and appellant.

The transcript of the trial upon which appellant was convicted was before the lower court and is before us in the appeal taken here. Hayman v. United States, 9 Cir., 163 F.2d 1018, Kelly v. Johnston, 9 Cir., 111 F.2d 613, 614; Criscuolo v. Atlas Co., 9 Cir., 84 F.2d 273, 275. It appears that the prosecution in its opening statement disclosed that it proposed to offer Juanita Jackson as a witness against appellant. Appellant's attorney thus knew before any testimony was offered that his client Juanita Jackson, so convicted and awaiting sentence, was to be a witness against his client the appellant.

The transcript further shows that in appellant's attorney's cross-examination of Juanita Jackson he failed to ask her whether she, a government witness, had been recently convicted and was awaiting sentence, and this fact was nowhere disclosed on the trial either by the prosecution or by appellant's attorney, though he was careful to do so with another woman witness for the prosecution. Appellant's attorney put appellant on the stand and his questioning brought a denial by appellant of substantially all the statements of Juanita Jackson and another woman adverse to him. In effect, his testimony is that he was framed by Jackson and others. [1a] As in Wright v. Johnston, D.C., 77 Supp. 687, appellant's attorney was not in a position to argue that 'my convicted client Jackson, for whom I am soon to plead for an amelioration of her sentence, is a monumental liar seeking to convict my honest and innocent client Hayman.'

These facts disclose a conflict of interests similar to that considered in Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457, 86 L.Ed. 680; Wright v. Johnston, supra, and like that in Johnson v. Zerbst, 304 U.S. 458, 461, 58 S.Ct. 1019, 82 L.Ed. 1461. The likely prejudice to his client seems apparent. Were it not so clear, the language

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of the Glasser case, supra, 315 U.S.at page 75, 62 S.Ct.at page 467, 86 L.Ed. 680, is applicable: 'To determine the precise degree of prejudice sustained by Glasser as a result of the court's appointment of Stewart as counsel for Kretske is at once difficult and unnecessary. The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.'

The district court, in the instant proceeding, recognized this inconsistency but made a further finding that appellant's attorney represented his client Jackson 'with the knowledge and consent and at the instance and request of the defendant herein, Herman Hayman.' This finding was made though the absent appellant was an essential witness in the trial of the question of his 'knowledge and consent, ' and should have been given the opportunity to cross-examine the witnesses against him.

In the Glasser case, supra, unlike the present case, the trial judge appointed the attorney representing the adverse interests. However, the Sixth Amendment does not restrict the right to a deprivation by the judge. The Amendment reads: 'In...

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