Dodd v. United States, 18147.

• Citation: 321 F.2d 240
• Decision Date: 29 July 1963
• Docket Number: No. 18147.,18147.
• Parties: W. C. DODD, Appellant, v. UNITED STATES of America, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

321 F.2d 240 (1963)

W. C. DODD, Appellant, v. UNITED STATES of America, Appellee.

No. 18147.

United States Court of Appeals Ninth Circuit.

July 29, 1963.

William J. Adams, San Francisco, Cal., for appellant.

C. A. Muecke, U. S. Atty., and William J. Knudsen, Jr., Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before HAMLIN and DUNIWAY, Circuit Judges, and JAMES M. CARTER, District Judge.

JAMES M. CARTER, District Judge.

This appeal presents the recurring problem of a petition for relief under Title 28, Section 2255, United States Code, by a prisoner in federal custody appearing in pro. per., and the summary denial of relief by the district judge. We consider herein the contention that appellant's appointed attorney failed to file a notice of appeal, although requested to do so.

Appellant (petitioner below) was convicted on two counts of an indictment charging a violation of the Mann Act and sentenced on June 20, 1960, on each count to a term of five years in the custody of the Attorney General; the sentences to run concurrently.

Appellant in pro. per. tendered for filing a motion to vacate and set aside the sentence and judgment pursuant to Title 28, U. S. Code, Section 2255, a motion and application for a writ of habeas corpus ad testificandum, a motion and affidavit to proceed in forma pauperis, and a motion for the appointment of counsel. The documents were filed April 26, 1962.

On the same day a minute order was entered reciting: "* * * it appearing that the said motion and the files and records of this case conclusively show that the defendant is entitled to no relief, IT IS ORDERED that the motion of W. C. Dodd to vacate, set aside and hold for naught the sentence and judgment herein is denied." Within the statutory time a notice of appeal in pro. per. was filed by appellant. Counsel for appellant on appeal was appointed by this court.

The appellant in his papers below made a number of contentions. They are set forth in the margin.¹ Counsel appointed for him on this appeal has selected as those worthy of argument in the appellate brief, the following:

(1) Failure of the district court to grant petitioner's motion for assistance of counsel in the trial court;

(2) Failure by district court to have the motion served on the United States, grant a prompt hearing, determine the issues, and make findings of fact and conclusions of law;

(3) Error by the district court in denying the motion without giving petitioner an opportunity to amend his pleadings to more specifically state the facts relied on;

(4) Error in not requiring the presence of petitioner at a hearing on the merits.

Appellant's attorney specifically relies on two contentions of appellant: (a) the denial of effective assistance of counsel² and (b) that perjured and coerced testimony was knowingly used by the government.³

Counsel for appellant argues that the language of the petitioner concerning "coerced" testimony was in substance an allegation of the knowing use of perjured testimony. The matters contained in the brief on appeal do not add to the allegations in the petition below. The case must turn upon the record as it stood in the trial court. Rivera v. United States, (9 Cir., May 28, 1963) 318 F.2d 606.

Many of the appellant's other contentions are "only bald legal conclusions with no supporting allegations." As to these contentions, the trial court had "the power to deny the motion on this ground * * *, although the better course might have been to direct petitioner to amend his motion * * *. But denial thus based" would not be "on the merits," paraphrasing and quoting from Sanders v. United States, (Apr. 29, 1963) 373 U.S. 1, 83 S.Ct. 1068, 10 L. Ed.2d 148.

The rule is clear that a 2255 proceeding is not a substitute for an appeal; that a sentence may not be collaterally attacked for errors of law at the trial which could have been corrected on appeal, Black v. United States, (9 Cir., 1959) 269 F.2d 38, 41-42, cert. den. 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357, and cases cited therein. Various of appellant's contentions come within this rule.⁴

LACK OF EFFECTIVE ASSISTANCE OF COUNSEL

Many of the grounds often asserted to sustain lack of effective assistance of counsel do not justify a hearing or entitle a petitioner to relief. Of such character are contentions as to the "competence of counsel." See Kennedy v. United States, (5 Cir., 1958) 259 F.2d 883, 886, cert. den. 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982; the "quality of a defense" or matters of "counsel's judgment," Mitchell v. United States, (supra 259 F.2d at 794); "general statements expressing dissatisfaction with trial results," Frand v. United States, (10 Cir., 1961) 289 F.2d 693, 694; or "a matter of trial strategy," McDonald v. United States, (9 Cir., 1960) 282 F.2d 737, 740, 741.

To justify the vacation of a criminal judgment it seems clear that the showing at the hearing must be that the "attorney's conduct was so incompetent that it made the trial a farce," Black v. United States, (9 Cir., 1959) 269 F.2d 38, 42; cert. den. 361 U.S. 938, 80 S.Ct. 379, 4 L.Ed.2d 357; Latimer v. Cranor, (9 Cir., 1954) 214 F.2d 926; (habeas corpus); Mitchell v. United States, (supra). Washington v. United States, (9 Cir., 1962) 297 F.2d 342; cert. den. 370 U.S. 949, 82 S.Ct. 1597, 8 L.Ed.2d 815, requires a showing that the trial was a "farce and mockery of justice, shocking to the conscience of the court." (297 P.2d p. 344); to the same effect Stanley v. United States, (9 Cir., 1957) 239 F.2d 765.⁵

Kennedy v. United States, (5 Cir., 1958) 259 F.2d 883; cert. den. 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982, requires a showing of

"misconduct of his counsel amounting to a breach of his legal duty faithfully to represent his client\'s interests * * *" (259 F.2d p. 886).

But in the case at bar one of appellant's contentions is that his attorney failed to file a timely notice of appeal after being instructed to do so. Failure or refusal of counsel to file notice of appeal has been a frequent contention of petitioners in Section 2255 proceedings. In a recent case, Rivera v. United States, (9 Cir., May 28, 1963) 318 F.2d 606 (footnote 4) we did not reach the problem since it was raised for the first time in the briefs on appeal.

We think Fay v. Noia, (1963) 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 and Rule 37, Rules of Criminal Procedure, have an impact on this problem, but before discussing their effect we review briefly the current case law.

We summarize the cases in the margin.⁶ They demonstrate generally the following principles:

(1) failure to appeal may not be excused by a mere showing of neglect of counsel;

(2) relief will be denied where there was a knowing or calculated decision not to appeal;

(3) in any event there would have to be the additional showing of "plain reversible error at the trial" in order for relief to be granted.

Rule 37, Rules of Criminal Procedure, is pertinent to our problem. The filing of a notice of appeal within ten days after entry of judgment or order appealed from is ordinarily a jurisdictional prerequisite to review. Rule 37(a) (2) of the Federal Rules of Criminal Procedure provides that where after trial the court imposes sentence on a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if the defendant so requests the clerk shall prepare and forthwith file the notice of appeal on behalf of the defendant.⁷

The framers of Rule 37 undoubtedly believed that where the defendant was represented by counsel at the trial, the counsel would advise the defendant of his right to appeal and either prepare the notice for him or advise him that by filing a simple statement in writing stating in substance, "I appeal from the judgment and sentence," he could preserve his right to appellate review. Hence no provision appears in Rule 37 covering the situation where the defendant was represented by counsel at the trial.

We return to Fay v. Noia, (supra). The case involved habeas corpus in the federal court to attack a state conviction. Noia, the petitioner, was aware of his right to appeal but did not do so because he did not wish to saddle his family with expense. Noia's attorney testified that Noia was also motivated by fear of a death penalty on a retrial. An admittedly coerced confession was involved. It was contended that petitioner had not exhausted his state remedies since he had failed to appeal.

The Supreme Court held that only the state remedies available at the time the petitioner seeks federal relief need be exhausted; that under the facts of the case, when the federal proceeding was filed the petitioner had no existing right to appeal. However, "the federal habeas corpus judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." (372 U.S. p. 438, 83 S.Ct. p. 849, 9 L.Ed.2d 837).

"`An intentional relinquishment or abandonment of a known right or privilege' — furnishes the controlling standard. * * * The standard here put forth depends on the considered choice of the petitioner." (citing cases). "A choice made by counsel not participated in by the petitioner does not automatically bar relief." (372 U.S. p. 439, 83 S.Ct. p. 849, 9 L.Ed.2d 837).

Certainly Fay v. Noia, (supra) is not controlling in our case. It involved a state conviction and the myriad problems connected with habeas corpus in the federal court. It involved a coerced confession. We consider it only as an aid in determining what the position of the Supreme Court would be in a problem such as ours. Is the case of the federal prisoner who does not appeal different from that of the state prisoner? Certainly a defendant in a federal criminal proceeding may deliberately forfeit his federal remedy of appeal. Equally as certain is the proposition that the standard as to what constitutes this forfeiture...