U.S. v. Payne

• Citation: 741 F.2d 887
• Decision Date: 13 August 1984
• Docket Number: No. 83-1834,83-1834
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Orville Leon PAYNE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 887

741 F.2d 887

39 Fed.R.Serv.2d 858

UNITED STATES of America, Plaintiff-Appellee, v. Orville Leon PAYNE, Defendant-Appellant.

No. 83-1834.

United States Court of Appeals Seventh Circuit.

Argued Feb. 15, 1984.

Decided July 16, 1984.

Rehearing and Rehearing In Banc Denied Aug. 13, 1984.

Kennard P. Foster, Asst. U.S. Atty., Sarah Evans Barker, U.S. Atty., Indianapolis, Ind., for plaintiff-appellee.

Orville Leon Payne, pro se.

Before CUMMINGS, Chief Judge, FLAUM, Circuit Judge, and PARSONS, Senior District Judge. ^*

PER CURIAM.

Orville Payne was convicted in the United States District Court for the Southern District of Indiana, New Albany Division, of one count of conspiracy under 18 U.S.C. Sec. 371. That conviction was affirmed by this Court in United States v. Payne, 635 F.2d 643 (7th Cir.1980), rehearing and rehearing en banc denied (1981), certiorari denied, 451 U.S. 972, 101 S.Ct. 2050, 68 L.Ed.2d 351. Payne now appeals the district court's denial of his motion, pursuant to 28 U.S.C. Sec. 2255, attacking the sentence imposed in that conviction.

The case comes before this Court in a confusing and complicated procedural posture. Payne filed his Section 2255 motion on November 1, 1982, near the end of his conspiracy sentence, while he was completing the last days of his parole term. ¹ On February 10, 1982, the district court issued an order sustaining a government motion to dismiss Payne's Section 2255 motion. Payne then filed a Fed.R.Civ.P. 60(b)(3) motion for relief from the order, claiming that he had never received the motion to dismiss. Before ruling on this motion, the district court issued an order on March 9, 1982, and a memorandum order on March 15, 1982 (both docketed on March 18, 1982) denying Payne's original Section 2255 motion and dismissing his cause of action. Several days later the government moved to dismiss Payne's earlier Rule 60(b)(3) motion and on April 26, 1983, the district court denied Payne's motion and ordered it dismissed. Payne now appeals the denial and dismissal of both his Section 2255 motion and his Rule 60(b)(3) motion. We affirm the district court's orders, but to some extent for different reasons than given by that court.

A. Section 2255 motion

Section 2255 provides for collateral review of the sentences of convicts in federal custody. Payne's Section 2255 motion challenged his federal sentence on the following grounds: (1) he was not guilty of the federal crime "presented by way of the indictment to the jury thru [sic ] instructions"; (2) the incompetency and inadequacy of his counsel "resulted in a conviction and sentence based upon erroneous, unfounded conclusions"; and (3) "the indictment * * * as presented to the jury, is defective." (Motion Attacking Sentence, p 9). Relying on Hanson v. Circuit Court of First Judicial Circuit, 591 F.2d 404, 406 (7th Cir.1979), certiorari denied, 444 U.S. 907, 100 S.Ct. 220, 62 L.Ed.2d 143, the district court decided that the conditions of Payne's parole were not restrictive enough to amount to custody and denied Payne's motion on the basis of lack of jurisdiction. The court also determined that Payne's substantive allegations were "insufficient grounds to warrant relief" (App. 4).

The district court's determination that it lacked jurisdiction was erroneous. It is well settled that even if a convict is not actually incarcerated, Section 2255's "in custody" requirement is satisfied so long as he is subject to significant restraints on his freedom at the time he files for relief. United States v. Condit, 621 F.2d 1096, 1098 (10th Cir.1980) (citing Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 377, 9 L.Ed.2d 285); Hanson, 591 F.2d at 406 (citing Jones, supra). The conditions of Payne's parole, like those of the movant in Jones (see 371 U.S. at 242, 83 S.Ct. at 376), were sufficiently restrictive to establish that he was "in custody" for Section 2255 purposes. For instance, Payne was required to notify his probation officer of changes in residence or employment, to report to the officer at the officer's direction and at least monthly, and to obtain the officer's written permission before leaving the parole district or possessing firearms (Govt. Ex.B). Also, Payne's associational rights were limited severely (Id., paragraphs 7, 10). These conditions were significantly more restrictive than the consequences of a "fine-only" conviction in Hanson which were held insufficiently limiting to amount to custody. Thus the district court's reliance on Hanson was misplaced. ²

With regard to the merits of the Section 2255 motion, the district court characterized Payne's claim that his guilt was not established as a sufficiency of the evidence claim and determined that this non-constitutional claim was barred in this collateral review proceeding because it had not been raised on direct appeal (App. 5-6). Payne's ineffective assistance of counsel claim was rejected on the basis that he had not shown that his attorney's conduct fell below minimum standards of professional representation (App. 6). Finally, the court dismissed Payne's claim that the indictment was insufficient by citing case law which indicated that such a claim is not properly raised in a Section 2255 proceeding (App. 6).

Payne continues to press on appeal only his ineffective assistance of counsel claim, apparently conceding the correctness of the district court's rulings on his other claims. Consequently, we review only the ineffective assistance claim. In light of the standards just recently elucidated by the Supreme Court in Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ³ this Court holds that Payne has not made the showings required to establish that his counsel's ineffectiveness denied him a fair trial and the district court correctly denied his Section 2255 motion and properly dismissed his cause.

In Strickland, the Court makes clear that ineffective assistance claims must be evaluated in light of the purpose of the Sixth Amendment's right to counsel, which is "to ensure a fair trial." Id. at ----, 104 S.Ct. at 2064. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To establish that his counsel's conduct was constitutionally defective, a defendant now is required to show both that the conduct was deficient and that this deficiency prejudiced the result. ⁴ Id.

The Court established guidelines for determining whether a defendant has satisfied the requirements under each of these prongs. To establish that counsel's conduct was deficient, the defendant must show counsel's specific acts or omissions which, viewed from the perspective of counsel at the time of the trial, fell below the standard of reasonable professional assistance. Id. at ----, 104 S.Ct. at 2065. In making such a showing, defendant must overcome the presumptions that counsel's conduct amounted to sound trial strategy (Id.; see also United States v. Weston, 708 F.2d 302, 306 (7th Cir.1983), certiorari denied, --- U.S. ----, 104 S.Ct. 397, 78 L.Ed.2d 340), and that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." --- U.S. at ----, 104 S.Ct. at 2066. To satisfy the second prong, that counsel's deficient conduct was prejudicial, defendant must establish "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at ----, 104 S.Ct. at 2068.

In light of these guidelines, we evaluate the important specific acts or omissions identified by Payne as showing deficient and prejudicial conduct.

1. Failure to Object to Impeachment

Alva Lucas was called by Payne's counsel as a defense character witness. In answer to counsel's questions, Lucas testified to Payne's reputation as a truthful person and law-abiding citizen. On cross-examination the government questioned Lucas about whether he knew of Payne's prior misdemeanor conviction for unlawfully selling a motor vehicle, the original identification of which had been removed. ⁵ Payne contends now that counsel was ineffective in failing to object that Lucas' answer was prejudicial.

However, Payne fails to make the showing required for either prong of the Strickland test. First, he does not overcome the presumption that counsel's failure to object amounted to sound trial strategy. Strickland, --- U.S. at ----, 104 S.Ct. at 2065; Weston, 708 F.2d at 306. A competent trial attorney might well eschew objecting to such a cross-examination technique in order to minimize jury attention to the damaging material. Furthermore, Payne has also failed to establish that counsel's conduct was prejudicial. At the conclusion of trial, the district judge cautioned the jury not to consider evidence of other offenses in determining Payne's guilt or innocence of the conspiracy charge for which he was tried. 635 F.2d at 647. Payne has not shown that the jury disregarded these instructions. Especially in light of Strickland's directive that the jury is presumed to have "acted according to the law" and "reasonably, conscientiously, and impartially appl[ied] the standards that govern the decision" (--- U.S. at ----, 104 S.Ct. at 2068), this claim of ineffectiveness must be rejected.

2. Failure to Move for a Mistrial

Next, Payne claims his counsel ineffectively failed to move for a mistrial when Payne's several co-defendants pleaded guilty after the entire multi-count indictment was read to the jury. Payne claims that although the jury was not informed explicitly of the guilty plea, they must have inferred from the co-defendants' sudden absence from the trial that "the co-defendants plead [sic ] guilty and that the defendant was holding out but was really guilty" (Br. at 21). This claim is without merit. Even...