Atkinson v. United States, No. 9936.

Docket NºNo. 9936.
Citation366 A.2d 450
Case DateDecember 08, 1976
CourtCourt of Appeals of Columbia District

Page 450

366 A.2d 450
Reginald W. ATKINSON, Appellant,
v.
UNITED STATES, Appellee.
No. 9936.
District of Columbia Court of Appeals.
Argued March 16, 1976.
Decided December 8, 1976.

Page 451

Edward W. Sauer, Washington, D. C., appointed by the court, with whom Philip B. Brown, Washington, D. C., also appointed by the court, was on brief, for appellant.

Stephen R. Spivack, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Stuart M. Gerson and James N. Owens, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY and FICKLING, Associate Judges, and PAIR, Associate Judge, Retired.

PAIR, Associate Judge, Retired:


This appeal is from an order denying, without a hearing, a motion for relief from sentences imposed after convictions of armed robbery,1 assault with a dangerous weapon,2 and carrying a pistol without a license.3

We affirmed, on July 19, 1974, those judgments of conviction but reversed a conviction of receiving stolen property4 because the government's proof failed to establish the corporate ownership of the property involved.5

Thereafter, appellant moved to vacate the sentences imposed and for his immediate release, urging that such sentences "cannot be shown to conform with fundamental requirements of law." D.C.Code 1973, § 23-110 permits a prisoner in custody to move the trial court to vacate, set aside or correct a sentence upon a showing that the ". . . sentence was imposed in violation of the Constitution of the United States" or "the sentence is otherwise subject to collateral attack. . . ."

In an attempt to make the showing required by that Code provision, appellant first reviewed the circumstances surrounding his arrest and the evidence upon which the convictions were based raising in substance the same issues of ultimate fact which were resolved at the trial by entry of the judgments of conviction which we affirmed. Atkinson v. United States, D. C.App., 322 A.2d 587 (1974). Specifically, appellant denied again that he committed the offenses and insisted as he did at the trial that the in-court identification should have been suppressed because the pretrial lineup procedures were impermissibly suggestive.6 Appellant then represented and for the first time that . . . minutes prior to trial [he] informed counsel that the security guard pointed [appellant] out to Ms. Fisher in the courtroom."7 It was in this context that appellant made,

Page 452

and also for the first time, the constitutional argument that he was denied his Sixth Amendment right to effective assistance of counsel.8 He claims in this connection that trial counsel did not (1) properly investigate the criminal complaints, (2) subpoena important records, (3) challenge at the trial and on appeal the sufficiency of the government's evidence to support and sustain the convictions, (4) cross-examine Ms. Fisher and the security guard in regard to the alleged courtroom incident, and (5) did not properly cross-examine other government witnesses. The trial court, without granting a hearing, denied as frivolous the motion to vacate and this appeal followed.

The sole issue of substance is whether the trial court acted properly in denying without a hearing the motion to vacate. Finding no error, we affirm.

D.C.Code 1973, § 23-110(c) mandates that a hearing be held on any motion to vacate or otherwise alter a sentence

[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief . . .

Consequently, if upon examination of such materials in this case it appears that the motion does not state a claim, which if established would require the vacation or alteration of the sentences, no hearing was required. Cf. Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473, (1962); White v. United States, D.C.App., 358 A.2d 645 (1976); Bettis v. United States, D.C.App., 325 A.2d 190, 196-97 (1974).

Put another way, our law permits relief from a sentence only if there were

. . . constitutional or jurisdictional errors or serious defects in the trial either not correctible on direct appeal or where exceptional circumstances justify . . .

appellant's failure to make an appropriate claim on his direct appeal. United States v. McCord, 166 U.S.App.D.C. 1, 8, 509 F.2d 334, 341 (1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975); cf. Bettis v. United States, supra.

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17 practice notes
  • Poole v. US, No. 90-CF-1523
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 26, 1993
    ...appealed the denial of their § 23-110 claim. We doubt therefore that the issue is properly before us. See Atkinson v. United States, 366 A.2d 450, 453 (D.C.1976). In any event, the additional evidence that Showell claims her counsel might have presented goes primarily to the question whethe......
  • Curry v. United States, No. 84-317.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 9, 1985
    ...the kind of investigation counsel might have conducted. Williams v. United States, 421 A.2d 19, 25 (D.C.1980); Atkinson v. United States, 366 A.2d 450, 453 (D.C.1976). Instead, appellant must show the allegedly ineffective assistance prejudiced the defense to the point where the trial was n......
  • Shepard v. United States, No. 85-606.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 2, 1987
    ...on direct appeal or which appellant was prevented by exceptional circumstances from raising on direct appeal. Atkinson v. United States, 366 A.2d 450, 452 (D.C. 1976) (citations omitted). Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may......
  • Garris v. Lindsay, No. 84-5528
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 1, 1986
    ...in the States"). 9 Motion for Certification of Probable Cause, supra note 8, at 2 (endorsement on motion). 10 Atkinson v. United States, 366 A.2d 450, 452-453 (D.C.1976); see D.C.Code Ann. Sec. 23-110 (1981), quoted infra note 11 See D.C.Code Ann. Sec. 23-110(g) (1981), quoted infra note 19......
  • Request a trial to view additional results
17 cases
  • Poole v. US, No. 90-CF-1523
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 26, 1993
    ...appealed the denial of their § 23-110 claim. We doubt therefore that the issue is properly before us. See Atkinson v. United States, 366 A.2d 450, 453 (D.C.1976). In any event, the additional evidence that Showell claims her counsel might have presented goes primarily to the question whethe......
  • Curry v. United States, No. 84-317.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • September 9, 1985
    ...the kind of investigation counsel might have conducted. Williams v. United States, 421 A.2d 19, 25 (D.C.1980); Atkinson v. United States, 366 A.2d 450, 453 (D.C.1976). Instead, appellant must show the allegedly ineffective assistance prejudiced the defense to the point where the trial was n......
  • Shepard v. United States, No. 85-606.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 2, 1987
    ...on direct appeal or which appellant was prevented by exceptional circumstances from raising on direct appeal. Atkinson v. United States, 366 A.2d 450, 452 (D.C. 1976) (citations omitted). Where a defendant has failed to raise an available challenge to his conviction on direct appeal, he may......
  • Garris v. Lindsay, No. 84-5528
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • July 1, 1986
    ...in the States"). 9 Motion for Certification of Probable Cause, supra note 8, at 2 (endorsement on motion). 10 Atkinson v. United States, 366 A.2d 450, 452-453 (D.C.1976); see D.C.Code Ann. Sec. 23-110 (1981), quoted infra note 11 See D.C.Code Ann. Sec. 23-110(g) (1981), quoted infra note 19......
  • Request a trial to view additional results

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