Alford v. U.S.

• Decision Date: 15 July 1983
• Docket Number: No. 82-4228,82-4228
• Citation: 709 F.2d 418
• Parties: George ALFORD and Lise Marie Alford, a/k/a Lise Geronimo, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 418

709 F.2d 418

George ALFORD and Lise Marie Alford, a/k/a Lise Geronimo, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 82-4228.

United States Court of Appeals, Fifth Circuit.

July 15, 1983.

Frank J. Petrella, Atlanta, Ga., for plaintiffs-appellants.

Glen H. Davidson, Oxford, Miss., Alfred E. Moreton, III, Asst. U.S. Atty., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Mississippi.

Before WISDOM, TATE and GARWOOD, Circuit Judges.

TATE, Circuit Judge:

Contending that their guilty pleas were involuntary because of misadvice by retained defense counsel, George and Lise Alford petitioned, by pro se motions following their incarceration, to have their respective seventeen and seven year sentences vacated and to withdraw their pleas. The matter was set for hearing by the district court, and the Alfords advised thereof three weeks in advance, sought to obtain counsel to represent them at the hearing. An attorney agreed to accept their case, but concluded that additional time would be necessary to prepare adequately. The attorney's request for a two week continuance of the hearing, to which the government had no objection, was denied, and the hearing held with the petitioners appearing pro se. The district court concluded there was no merit to the Alfords' allegations against their original defense counsel, and denied their petitions to vacate sentences and withdraw pleas. On appeal, the Alfords contend that they were improperly denied representation by counsel at the evidentiary hearing by the district court's abuse of its discretion in denying their motion for a two week continuance. We agree and remand for a new hearing.

I.

On March 18, 1981, Greenville, Mississippi police arrested George and Lise Alford, on various serious federal charges. Shortly thereafter, the Alfords retained a respected Greenville law firm, to defend them for a fee of $17,500. On May 15, 1981, a few days before a motion to suppress hearing was to be held in federal district court, and after extended consultation with their counsel, the Alfords each decided to enter guilty pleas, pursuant to a written plea agreement, to two of the five (Lise) and six (George) counts with which each had been respectively charged in the original federal indictment. On June 10, 1981, Lise Alford received a sentence of seven years, and George Alford a sentence of seventeen years.

Subsequent to their incarceration, the Alfords sought to withdraw their guilty pleas, alleging serious misfeasance on the part of the Greenville firm in the handling of their case. Principally, the Alfords contend that these lawyers had convinced them (i) that they had almost no chance of prevailing at trial on charges for which each might be sentenced to more than fifty years imprisonment and fined more than $100,000, and (ii) that a sub rosa plea bargain had been struck whereby Lise was assured of probation and George a sentence of about seven years, but only if both pled guilty prior to the motion to suppress hearing scheduled a few days later, and only if both denied the existence of such an agreement in the course of their Fed.R.Crim.P. 11 change of plea proceeding. The Alfords specifically alleged, in the pleading, that the secretary to the Greenville law firm could support the allegations of the false plea promises, although she would not sign an affidavit for fear of being fired. Because they relied on this faulty and/or false advice of counsel, the Alfords who had never before been criminally prosecuted allege that their guilty pleas were involuntary.

The Alfords' efforts to obtain redress pro se began toward the end of September 1981. A motion for leave to proceed in forma pauperis, an affidavit of poverty, and a motion to vacate sentence pursuant to 28 U.S.C. Sec. 2255 (dated September 28, 1981, and received by the United States Attorney October 7th) were filed with the clerk of the district court on October 28th. The motions were signed only by George Alford (incarcerated in a correctional facility different from that of his wife), but intended to be on behalf of both of them. On November 4th, the district court, after concluding the petition had sufficient merit to preclude summary dismissal, pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. Sec. 2255, ordered, "the United States Attorney to respond to petitioners' motion to proceed in forma pauperis and motion to vacate sentence within 20 days ...." ¹ The government answered, denying the merits of the Alfords' motion to vacate sentence, but no answer was made to the Alfords' motion to proceed as paupers. ²

Meanwhile, on November 18th, a motion to withdraw the guilty plea was filed, based on the factual allegations of the previous motions, and on November 23rd a discovery motion was filed whereby the Alfords sought all of their attorneys' files and notes pertaining to the plea bargain in particular and their case in general. ³ The Alfords then moved for transcripts and the record of the proceedings below at government expense, in December. This was granted in part (the plea and sentencing proceedings were transcribed and furnished to George Alford). Meanwhile, George Alford prepared a traverse to the government's response, to which various affidavits (including three from relatives of Lise Alford representing that the affiant had been told by the Greenville law partners that Lise would receive probation, and George a sentence of approximately seven years) and documents (including letters purportedly written by George Alford to relatives in late May 1981, recounting a similar bargain) were appended. The Alfords subsequently sought reconsideration of the partial denial of their discovery requests, and on February 1, 1982, the district court ordered a copy of the remaining portion of the record (except for certain untranscribed hearings held before a magistrate, thought to be irrelevant) be provided.

On March 22nd, the Alfords made an additional request for discovery, to which the district court responded on May 19th, with an order setting an evidentiary hearing for June 9th:

Upon consideration of the motions of petitioners, George Edward and Lise Marie Alford, the court is of the opinion that the issues to be decided in the motion to vacate sentence under 28 USC Sec. 2255, and to withdraw guilty plea under Rule 32(d), F.R.Crim.P., may best be resolved after evidentiary hearing. ⁴

No determination was made whether the Alfords' averments of proverty fulfilled the requisites of 18 U.S.C. 3006A(g) ⁵, and no appointment of counsel was made. However, the Alfords upon receiving a delayed notice of the hearing immediately attempted to retain counsel, allegedly with funds borrowed from relatives. For reasons concededly beyond his control, Alford was unable to contact his prospective counsel until June 1st, although he had mailed the attorney a copy of the court order on May 21, immediately after receiving it. In the telephone conversation of June 1st, the attorney, Frank Petrella (who had been contacted earlier as to his availability to represent the Alfords if an evidentiary hearing was ordered), was willing to accept employment as the Alford's hearing counsel, after discussing the matter with George Alford, and obtaining the United States Attorney's consent to a two week continuance to permit adequate preparation. However, Petrella's request to the court on June 2nd for a two week continuance was refused, and therefore the attorney declined to represent the Alfords because he felt he had inadequate time to prepare for the hearing scheduled on June 9th, just a week away. Despite the Alfords continued, albeit muddled, requests for counsel and for the brief continuance necessary to obtain counsel (up to and including the hearing date), the hearing was held as scheduled, on June 9th, with the Alfords appearing pro se.

At the hearing, the Alfords attempted to show, primarily by oral examination of their former trial counsel, the Greenville attorneys, and their own testimony, that despite the payment of a substantial fee, the retained Greenville lawyers performed poorly. The Alfords claimed that their counsel made only meager efforts to investigate the facts of their case, inadequately researched potential defense strategies, exaggerated the Alfords' potential exposure to fines and imprisonment following a trial (if held), and finally deceived them with promises of probation for Lise Alford, and a moderate sentence for George Alford to induce them to plead guilty.

The Greenville law-partners vigorously denied these claims, maintaining that no pressure was placed on the Alfords to plead guilty, that the case had been exhaustively prepared and the firm ready for trial, that the firm enjoyed trying cases and would have tried this one well, that an unusually great number of hours had been spent on preparing the case and conferring with the clients, that George Alford was among the brightest clients they had ever had and had participated significantly in discussions of defense strategies, and finally that the plea bargain reached had been the product of vigorous arm's length negotiations with the United States Attorney. The Greenville law partners emphasized that they were careful to make no predictions concerning possible sentences despite the Alfords' continual requests.

However, this testimony was at least somewhat undercut by testimony of the Greenville law partners' secretary who was called by the government to refute the Alfords' contentions, but who on her cross-examination by Alford admitted that she recalled an occasion when visiting the Alfords in jail, they were quite excited and began telling her that they thought it a "very good possibility that Mrs. Alford would get probation," and that they said one of the law-partners had told them that. (However, on re-direct examination by the...