Blanton v. U.S.
| Decision Date | 01 October 1996 |
| Docket Number | No. 95-6141,95-6141 |
| Parties | Leonard Ray BLANTON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Russell C. Winston (briefed), Mike Roberts (argued and briefed), Memphis, TN, for Petitioner-Appellant.
Robert C. Watson, Asst. U.S. Attorney (argued and briefed), Office of the U.S. Agency, Nashville, TN, for Respondent-Appellee.
Before: KENNEDY and MOORE, Circuit Judges; WELLS, District Judge. *
Petitioner-Appellant Leonard Ray Blanton appeals the district court's order denying his petition for a writ of error coram nobis to vacate his convictions for violations of 18 U.S.C. §§ 371 and 1951. Blanton asserts that he is entitled to the writ because his counsel at trial was not properly licensed to practice law in Tennessee, and thus provided ineffective assistance of counsel per se. For the reasons that follow, we affirm the judgment of the district court.
Blanton was the governor of Tennessee from 1975 to 1979. In 1980, Blanton and two of his aides were indicted for their parts in a scheme to provide liquor licenses to persons who would agree to pay Blanton a portion of their profits from the liquor licenses. Blanton was indicted on nine counts of mail fraud in violation of 18 U.S.C. § 1341; one count of violating the Hobbs Act, 18 U.S.C. § 1951, which prohibits the use of violence or threats of violence to interfere with interstate commerce; and one count of conspiracy in violation of 18 U.S.C. § 371.
All of the district judges in the Middle District of Tennessee recused themselves from Blanton's case, so this court designated Circuit Judge Peck to preside over the trial. After the trial had begun, Circuit Judge Brown replaced Judge Peck as trial judge. Blanton's lead trial attorney was John S. McLellan Jr. ("McLellan"), who was assisted by his son John S. McLellan III, and Neal P. Rutledge. At the trial, the jury found Blanton guilty of all of the charges against him, and found his co-defendants guilty of mail fraud and conspiracy. Blanton was sentenced to three years of imprisonment and fined $11,000.
Blanton's convictions were affirmed on direct appeal. Although a panel of this court initially reversed the convictions because of the way in which the district court conducted the voir dire, United States v. Blanton, 700 F.2d 298 (6th Cir.1983), that decision was vacated by the court's decision to rehear the case en banc. The en banc court affirmed Blanton's convictions, and the Supreme Court denied review. United States v. Blanton, 719 F.2d 815 (6th Cir.1983), cert. denied, 465 U.S. 1099, 104 S.Ct. 1592, 80 L.Ed.2d 125 (1984). This court also affirmed the district court's denial of Blanton's motion for a new trial based on newly discovered evidence. United States v. Allen, 748 F.2d 334 (6th Cir.1984). Blanton then filed a § 2255 motion, which the district court denied. This court affirmed the denial of Blanton's § 2255 motion because it simply reiterated issues already decided on direct appeal. Blanton v. United States, 1987 WL 44443 (6th Cir. September 23, 1987) (unpublished).
In 1987, the Supreme Court decided McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), which eliminated the use of the intangible rights theory of mail fraud, under which Blanton and his co-defendants had been convicted. Blanton and his co-defendants moved to have their convictions set aside, apparently pursuant to 28 U.S.C. § 2255. The district court granted Blanton's motion to vacate his mail fraud convictions, but left standing the Hobbs Act and conspiracy convictions. In October 1988, Blanton's appeal of that order was dismissed by agreement of the parties. McLellan, assisted by other attorneys, represented Blanton on direct appeal and in both of the § 2255 proceedings.
In 1991, Blanton filed his petition for a writ of error coram nobis, alleging various incidents in which his trial counsel, McLellan, was ineffective. Blanton alleged that McLellan was ineffective because, among other things, McLellan allegedly allowed Blanton to testify on cross-examination while Blanton was intoxicated, McLellan failed to call an expert to testify as to the value of some stock involved in the illegal transactions, and McLellan allegedly failed to consult Blanton before dismissing the appeal of Blanton's second § 2255 motion. In February 1992, Blanton amended his coram nobis petition to add his claim that McLellan was improperly licensed.
Blanton alleged that McLellan was not licensed to practice law by the state of Tennessee, and thus provided ineffective assistance of counsel per se. McLellan apparently had failed the bar exam in 1944, but had been admitted to the Tennessee Supreme Court bar in 1953. Report of Investigative Committee Appointed By Chief Justice, Tennessee Supreme Court ("Investigative Committee Report"), J.A. at 1061, 1068. McLellan had practiced for more than 30 years, was a prominent labor lawyer, and had held office in several bar associations. Id. at 1061-63. In 1975, the Tennessee Supreme Court received a complaint alleging that McLellan was not properly licensed. Letter of 3/27/75 from Chief Justice Fones to McLellan, J.A. at 1052. The Tennessee Supreme Court appointed a committee to investigate the charges, and the committee concluded that "there is strong reason to believe [McLellan] has [held himself out as a lawyer] without passing the bar exam and without receiving a license," and that McLellan should be enjoined from holding himself out as a lawyer. Investigative Committee Report, J.A. at 1070-71. The Tennessee Supreme Court referred the matter to the Tennessee Bar Association so that, in accordance with Tennessee Supreme Court procedure at the time, the bar association could bring suit against McLellan. After its own investigation, the bar association declined to take any action against McLellan. Letter of 8/29/77 from Robert L. McMurray to Chief Justice Cooper, J.A. at 1092 (). In 1978, the Chief Justice of the Tennessee Supreme Court sent McLellan a letter, which stated that the bar association "will take no further action in connection with your license to practice law in this state," and that no further action was contemplated. Letter of 6/1/78 from Chief Justice Henry to McLellan, J.A. at 1093. After the investigation concluded, the Tennessee Supreme Court and its licensing bodies treated McLellan as if he were licensed. McLellan practiced in Tennessee courts and paid bar membership dues that were accepted by the proper authorities. In 1994, the Tennessee Supreme Court granted a joint request by McLellan and Disciplinary Counsel of the Board of Professional Responsibility of the Supreme Court of Tennessee that McLellan's "law license be transferred to disability inactive status." May 9, 1994 Order of the Tennessee Supreme Court, J.A. at 1197.
The district court dismissed the ineffective assistance claims in Blanton's petition, except for the licensing allegation, in an August 1992 order. After additional discovery and briefing, the district court dismissed Blanton's claim regarding the status of McLellan's law license in an August 1995 opinion and order. Blanton v. United States, 896 F.Supp. 1451, 1455 (M.D.Tenn.1995). The district court held that Blanton had failed to prove that he suffered from an ongoing civil disability, and thus he could not petition for a coram nobis writ. Id. at 1457. The district court also held that it had no power to determine whether McLellan was licensed to practice law, id. at 1466-67, and that McLellan's representation, even if he were not licensed, would not be ineffective assistance of counsel per se. Id. at 1464. Blanton then appealed from the August 1995 order to this court.
We review de novo the district court's determination of legal issues in its denial of Blanton's petition for a writ of error coram nobis. See Hirabayashi v. United States, 828 F.2d 591, 594 (9th Cir.1987). However, we must uphold the district court's findings of fact unless they are clearly erroneous. Id.
The writ of error coram nobis is used to vacate a federal sentence or conviction when a § 2255 motion is unavailable--generally, when the petitioner has served his sentence completely and thus is no longer "in custody" as required for § 2255 relief. A federal court's power to issue a coram nobis writ comes from the All Writs Act, 28 U.S.C. § 1651. 1 See United States v. Morgan, 346 U.S. 502, 506, 74 S.Ct. 247, 250, 98 L.Ed. 248 (1954) (). The Supreme Court resurrected the writ in the Morgan decision, but limited its use to "circumstances compelling such action to achieve justice." Morgan, 346 U.S. at 511, 74 S.Ct. at 252.
Coram nobis may be used only to review errors "of the most fundamental character, that is, such as rendered the proceeding itself invalid." Flippins v. United States, 747 F.2d 1089, 1091 (6th Cir.1984) (per curiam) (quoting United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914)), cert. denied, 481 U.S. 1056, 107 S.Ct. 2197, 95 L.Ed.2d 852 (1987). The Flippins court stated that a coram nobis petition will be granted only when the petitioner demonstrates:
(3) of a fundamentally unjust character which probably would have altered the outcome of the challenged proceeding if it had been known.
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