Beasley v. United States, 73-1351.

• Citation: 491 F.2d 687
• Decision Date: 01 February 1974
• Docket Number: No. 73-1351.,73-1351.
• Parties: Millard Robert BEASLEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

491 F.2d 687 (1974)

Millard Robert BEASLEY, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 73-1351.

United States Court of Appeals, Sixth Circuit.

Argued October 15, 1973.

Decided February 1, 1974.

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Edward M. Keller, Detroit, Mich. (Court-appointed), for petitioner-appellant.

Barry Blyveis, Dept. of Justice, Washington, D.C., for respondent-appellee; Ralph B. Guy, Jr., U.S. Atty., Dept. of Justice, Washington, D.C., Fred M. Mester, Asst. U.S. Atty., Chief, Civil Div., Detroit, Mich., on brief.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

In a non-jury trial of February 20, 1969, a Federal District Court convicted Petitioner of attempted armed bank robbery. A direct appeal raising numerous points was dismissed by this Court without oral hearing. United States v. Beasley, 438 F.2d 1279 (6th Cir.1971). A petition for rehearing was denied. Petitioner then filed a Motion to Vacate Sentence and Judgment in the District Court, claiming ineffective assistance of his appointed counsel before and during trial and on appeal. He further contended unlawful government withholding of evidence at trial. The District Court held that Petitioner had not been denied the Sixth Amendment right to the effective assistance of counsel before and during trial because his attorney's performance had not rendered the trial a "farce and a mockery, shocking to the Court," although it found that Petitioner had been afforded "incompetent and ineffective representation."¹ The District Court held that Petitioner had been denied the Sixth Amendment's protection on his direct appeal, because his attorney had failed to cite an important recent case which Petitioner himself had brought to his attorney's attention. It did not grant relief, however, because it was unsure whether this Court would have granted Petitioner's direct appeal if it had been apprised of the citation in question at that time. Finally, the District Court held that although the Government had improperly withheld certain evidence from the defense at trial, the evidence was not material.

Petitioner appeals on all three points. On the third point, the District Court's conclusion that the improperly withheld evidence was not material is not clearly erroneous. While we reaffirm our conclusion in United States v. Young, 426 F.2d 93, 94 (6th Cir.1970), that "knowing suppression by the prosecution of exonerating evidence renders a conviction constitutionally infirm," and condemn the Government's failure to make the withheld evidence available to the defense, we cannot say that the withholding of evidence in this case renders Petitioner's conviction constitutionally defective. The evidence was not exonerating.

Petitioner's basic argument is that he was denied the effective assistance of counsel, before and during trial and on appeal. If Petitioner was convicted without the effective assistance of counsel required under the Sixth Amendment as interpreted by the courts, he is entitled to relief under 28 U.S.C. § 2255.² The Sixth Amendment claim must, of course, stand on its own merits. It should not be a mere disguise for questions disposed of on direct appeal. Van Buskirk v. United States, 343 F.2d 158 (6th Cir.1965).

In arguing that he was denied the effective assistance of counsel on appeal, Petitioner is, in essence, rearguing the sufficiency of identification evidence. In deciding his direct appeal, we wrote:

The Appellant was identified as the holdup man by his latent palm print, which was discovered on the note he passed into the teller\'s window, and by the stylized lettering of the note, which could have been stenciled with a lettering guide ruler to which the Appellant had access. This evidence was sufficient to establish his identity beyond a reasonable doubt. United States v. Beasley, 438 F.2d 1279, 1281 (6th Cir.1971).

We might have added that one res gestae witness testified that Petitioner "resembled" the attempted robber and that no rebuttal evidence was presented as to identification. The additional evidence and the fact that Petitioner's fingerprints could not plausibly have been placed on the demand notes in an innocent manner distinguish this case from United States v. Collon, the case defense counsel failed to cite in his appellate brief. In United States v. Collon, 426 F.2d 939 (6th Cir.1970), fingerprint evidence was the sole reliable evidence linking one defendant to the crime, and the fingerprints could have been innocently placed on the document in question in many plausible ways. Though the Collon case might have helped Petitioner's appeal, it is clearly distinguishable. We find no prejudicially ineffective assistance of counsel because of its absence.

Turning finally to the claim of ineffective assistance of counsel before and during trial, the question we are faced with is how ineffective and incompetent an attorney's representation of a criminal defendant must be before an accused's Sixth Amendment right is violated. The District Court found that Petitioner's attorney had been incompetent and ineffective in several respects.

First, Counsel called as the sole defense witness (except for Petitioner) an FBI agent described by the District Court as:

"a man whom petitioner has advised counsel, prior to trial, is `out to get me;\' a man who is not a res gestae witness; a man who is employed by the opposing party to the suit, and was not an agent on the case; a man whose only knowledge of petitioner\'s modus operandi came from information supplied by petitioner himself, a man whom the attorney, himself, has called a liar and perjurer on the witness stand only two months before trial; a man who is called as a witness without having been interviewed by counsel to discover what testimony he could give; a man who has interviewed petitioner and taken a statement, damaging to petitioner, which counsel has just read before calling this witness."³

Calling this witness made sense only in the context of a bizarre defense strategy which the District Court characterized as "highly implausible." Defense counsel's only conceivable rationale for calling this antagonistic witness was to embarrass the Government by showing how zealous this FBI agent had been and to support the theory that a "pro" like Petitioner would not have pulled an amateurish operation like the attempted robbery in this case. The trial judge gave no credence to this strange defense reasoning. Calling the FBI agent, furthermore, allowed the prosecution to introduce damaging evidence of a past criminal record. The witness was called over Petitioner's protests to his attorney. His testimony did nothing but support Petitioner's guilt and criticize his character. The witness testified without advance questioning by defense counsel as to what he might say. The District Court found that it was "incompetency" to call this witness.

Second, the District Court found defense counsel incompetent not to have informed Petitioner that the trial judge had read a prejudicial statement about him that could not have been introduced at trial. Counsel advised Petitioner to waive a jury trial because he had expert fingerprint testimony that a jury would not understand and because he was too ill to withstand the rigors of a jury trial. Petitioner thus waived his right to a jury in ignorance of the fact that the judge who would hear his case had read a damaging FBI report.

Third, although the trial judge ordered the Government to pay for an independent test of the fingerprint evidence, counsel never requested one. Evidence not disclosed until October 11, 1972, indicates that an independent test would have revealed a defect in the Government's crucial fingerprint evidence. At trial the Government introduced a corner of one of the two demand notes the attempted robber had handed to the bank teller, which contained six prints identified as Petitioner's. A Detroit Police expert testified on October 11, 1972, that tests run one day after the attempted robbery disclosed only two partial prints, neither of which was Petitioner's. Another print, not Petitioner's, was found on the fake "bomb" used in the attempted robbery. This evidence, never disclosed to Petitioner, would have tended to rebut the Government's fingerprint evidence. The man who could have disclosed this was called to the courtroom by defense counsel but was never called to the stand. Thus, although counsel had urged Petitioner to waive a jury trial because of complicated fingerprint testimony, he never used the favorable rebuttal evidence available and left the Government's identification of Petitioner unchallenged.

Fourth, there were several res gestae witnesses who were never called to testify, though they would have testified that they could not identify petitioner as the attempted robber. Because their testimony would not have aided the prosecution, the Government did not summon them. Defense counsel did not call them because he was under the mistaken belief that it was the Government's responsibility to subpoena all res gestae witnesses, the practice in Michigan state courts but not in federal courts.

Fifth, defense counsel was "suffering from pain shortly before the trial," which the District Court cited as an additional circumstance to consider.

Sixth, defense counsel failed to interview any res gestae witnesses before trial other than the one who gave mildly favorable testimony for the prosecution.⁴

Seventh, counsel conducted "no more than a cursory investigation of the facts prior to trial."⁵ An alibi witness whom Petitioner had asked counsel to interview died before trial and without having been contacted by counsel, thus depriving Petitioner of his testimony in any form.

In concluding that despite these instances of incompetence and ineffectiveness Petitioner was not deprived of his Sixth Amendment right to the effective assistance of counsel, the...