Abatino v. U.S.

• Decision Date: 06 July 1984
• Docket Number: No. 83-4098,83-4098
• Citation: 750 F.2d 1442
• Parties: Victor Nicholas ABATINO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1442

750 F.2d 1442

Victor Nicholas ABATINO, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 83-4098.

United States Court of Appeals, Ninth Circuit.

Submitted July 6, 1984 ^*.

Decided Jan. 10, 1985.

Victor N. Abatino, Ashland, Or., for plaintiff-appellant.

James L. Sutherland, Eugene, Or., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before SNEED and NORRIS, Circuit Judges, and STEPHENS, District Judge ^**.

STEPHENS, District Judge:

This is an appeal from the summary dismissal of a motion made in the District Court pursuant to 28 U.S.C. Sec. 2255. The District Court had jurisdiction pursuant to the provisions of said statute and the Court of Appeals has jurisdiction pursuant to 28 U.S.C. Sec. 1291(c).

Victor Nicholas Abatino and his wife were indicted on three counts of income tax evasion. They were tried by a jury in Medford, Oregon, on March 18, 19 and 20, 1980. They were represented by counsel at the trial. The jury found the defendants guilty on all three counts. The jury was polled, and the clerk recorded that the verdict was unanimous, and the trial judge ordered it filed. The defendants were sentenced. They appealed their convictions and were represented by counsel in the Court of Appeals. The judgment of guilty on Count III was reversed and the judgments on Counts I and II were affirmed.

Thereafter, on September 8, 1982, the Abatinos filed a motion pursuant to 28 U.S.C. Sec. 2255. The District Court denied the motion summarily without asking the government to file a response and without an evidentiary hearing. The Abatinos again appealed with Victor N. Abatino representing himself and his wife without the assistance of counsel.

The foundation for appellants' motion is set forth in an affidavit of Mr. Abatino which is attached to their motion:

"That the Judge gave the jury instructions late on Friday, and among his remarks were that he had another case beginning Monday morning in Eugene, 200 miles away from Medford, and he therefore had to leave, so he wanted this case finished up.

"That I was unable to find these remarks in the transcript.

"That months later I happened to meet the foreman of the jury, Mr. Kyle, at the Justice Building in Medford, and I asked him outright whether any of the jury members had been in my favor.

"That Mr. Kyle replied: 'There were some that grudgingly went for that decision.' "

In their Sec. 2255 motion, the Abatinos contended that the sentence was imposed in violation of the Constitution and the laws of the United States in that they were not accorded a fair trial since the trial judge had given an instruction to the jury which coerced the jury into bringing in a guilty verdict without adequate time for deliberation. The reporter has certified to a complete transcript which does not contain the instruction referred to by appellants (hereafter the "Abatino instruction").

A means to obtain relief by process collateral to direct appeal is available through 28 U.S.C. Sec. 2255 which provides in part:

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."

Rule 4(b) of the Rules Governing Sec. 2255 Proceedings in the United States District Courts expressly provides for summary dismissal such as that which occurred in this case. Rule 4(b) states, in pertinent part:

"If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified."

Rule 4(b) recognizes that summary dismissal of meritless motions under Sec. 2255 is appropriate to relieve the district courts from the heavy burden which an obligation of hearings and findings on these motions would impose. The cases which have considered Rule 4(b) dismissals have been unanimous in their affirmance of the summary dismissal procedure when the record supports such dismissal. ¹

In Baumann v. United States, 692 F.2d 565 (9th Cir., 1982), the Ninth Circuit discussed the considerations involved in a determination of the propriety of Rule 4(b) summary dismissal. The court stated:

"A hearing must be ordered unless, viewing the petition against the record, its allegations do not state a claim for relief or are so palpably incredible or so patently frivolous or false as to warrant summary dismissal. See Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d. 136 (1977) (Sec. 2254 petition); Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514-515, 7 L.Ed.2d. 473 (1962)."

The role of the appellate court in reviewing the denial of a Sec. 2255 motion was explained as follows:

"Our review ... is limited to whether the district court's summary dismissal of Baumann's petition was proper. We must remand for responsive briefing and an evidentiary hearing if the record in this case does not 'conclusively' or 'plainly' show that Baumann was entitled to no relief." Id., 692 F.2d at 571.

In this case the district judge had Abatino's motion, his affidavit, and the record of the proceedings in the trial to consider, as well as his own recollection of the proceedings, to which he may properly refer in a determination of the merits of a Sec. 2255 motion. See Gustave v. United States, 627 F.2d 901 (9th Cir., 1980), citing Blackledge v. Allison, supra. The judge denied the Abatino's motion in an order dated August 10, 1983, and filed August 11, 1983, which stated in part:

"Based upon my review of the motion and defendant's affidavit, IT IS HEREBY ORDERED, that this motion be DENIED."

After Abatino filed his Sec. 2255 motion and his affidavit, the contention of the Abatinos that the Abatino instruction was omitted from the transcript was before the trial judge in the District Court who could have directed sua sponte its insertion into the record had there been such an omission from the transcript. See Federal Rule of Criminal Procedure 36, Federal Rule of Appellate Procedure 10(e). On the contrary, after reviewing the motion and the affidavit, he summarily ordered that the motion be denied. This infers a finding by the district judge, who has the duty of settling the record ², that the Abatinos' motion as supported by the affidavit was "palpably incredible" or "patently frivolous or false" on its face.

This inference finds direct support in the record which is before us. Abatino's Reply Brief points to only one error, the omission from the reporter's transcript of the Abatino instruction, and states at Page 2 that Abatino complained to his attorney who paid no attention to him "and who failed to correct the record." The inherent falsity of this statement appears from the fact that at the time of trial the content of the reporter's transcript could not have been known.

In addition, assuming that the Abatino instruction was given the Abatinos have attempted to excuse their failure to raise this claim on direct appeal by contending that the coercive nature of the instruction was not recognized until months later when Abatino spoke with Mr. Kyle. Obviously, if Abatino did voice an objection to his attorney when the Abatino instruction was given and his objection was not to the content of the reporter's transcript, the reason must have been because the alleged coercive nature of the instruction was recognized by Abatino at that time. The representations made by the Abatinos were inherently contradictory.

The Court of Appeals' review of a District Court's order must be made on the basis of the record on appeal, which comes up from the district court. In this case, the record upon which the trial judge made his decision is the same record that comes to this court, there having been no attempt to correct or supplement the reporter's transcript in the district court or the appellate court. Abatino's affidavit is not an acceptable way to amend the record. See United States v. Mills, 597 F.2d 693, 698 (9th Cir., 1979). The reporter's transcript of a trial is presumed to be accurate. 28 U.S.C. Sec. 753 ³; United States v. Hoffman, 607 F.2d 280, 285-86 (9th Cir., 1979); United States v. Zammiello, 432 F.2d 72, 73 (9th Cir., 1970). The Abatinos were responsible for the record on appeal in support of their position, and they had the burden of proof regarding the accuracy of that record.

The Abatinos seek to obtain relief from what they claim was an erroneous instruction to the jury. An objection to the instruction should have been made in time for the trial judge to take corrective action before submitting the case to the jury. See United States v. Scott, 425 F.2d 55 (9th Cir., en banc, 1970). Had objection been made, the court would have been faced with the necessity of settling the record as to whether the Abatino instruction had or had not been given. No objection was made. See Federal Rules of Criminal Procedure, Rule 30, which reads in pertinent part:

"No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects and the grounds of his objection."

The alleged trial error should have been taken up on direct appeal, but was not. The Abatinos could have taken steps to correct the reporter's transcript, if it indeed needed correction, in time for the Court of Appeals to decide whether to notice the instruction as plain error when the case first came to this court by...