Buckelew v. U.S., No. 77-2405

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore MORGAN and GEE; GEE
Citation575 F.2d 515
Decision Date19 June 1978
Docket NumberNo. 77-2405
PartiesRaymond L. BUCKELEW and James Laney Jenkins, Petitioners-Appellants, v. UNITED STATES of America, Respondent-Appellee. Judson Lee DRANE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Page 515

575 F.2d 515
Raymond L. BUCKELEW and James Laney Jenkins, Petitioners-Appellants,
v.
UNITED STATES of America, Respondent-Appellee.
Judson Lee DRANE, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.
No. 77-2405.
United States Court of Appeals,
Fifth Circuit.
June 19, 1978.

Page 517

R. W. Laster, James F. Lane, Little Rock, Ark., for petitioners-appellants.

Edward L. Shaheen, U.S. Atty., Dosite H. Perkins, Jr., First Asst. Atty., Joseph S. Cage, Jr., Asst. U. S. Atty., Shreveport, La., for respondent-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before MORGAN and GEE, Circuit Judges, and KING, * District Judge.

GEE, Circuit Judge:

Appellants Buckelew and Jenkins were convicted under 18 U.S.C. § 1343 of using interstate telephone facilities in carrying out a scheme to defraud certain hotel casinos in Las Vegas, Nevada. They were also convicted of conspiring to violate section 1343, as was Judson Drane, whose appeal has been consolidated with theirs.

All three appellants petitioned the district court to set aside their sentences under 28 U.S.C. § 2255, alleging that the following errors occurred at their trial: (1) the trial judge frequently interrupted defense cross-examination with jokes, stories, and personal reminiscences and made prejudicial comments before the jury; (2) none of the foregoing appears in the record because the trial judge ordered the court reporter to omit it, as well as any objections to the matter or to the incompleteness of the record; (3) the trial judge took the jury into his chambers at one point in the trial to show them what a rotary telephone looked like, that evidence being relevant to the case; (4) the trial judge became ill during the proceedings to the point of falling asleep while instructing the jury; and (5) the jury was rushed into a verdict by both the judge and bailiff. Each of these claims receives support from the bystander's affidavit of one Boydie Morris, who observed the trial but whose identity is not further divulged. Buckelew and Jenkins advance two more claims in their joint motion: first, that the trial judge improperly refused to grant them indigent status during the trial; and, second, that their attorney was incompetent both at trial and on appeal. Both of these claims are supported by an affidavit given by present counsel for Buckelew and Jenkins. In the affidavit counsel states his belief that the section 2255 motion of his clients has merit and that their allegations will be proved by the testimony of various witnesses.

The district court dismissed appellant's section 2255 motions without an evidentiary hearing. This dismissal was clearly correct with respect to the claims that the jury was rushed into a verdict and that Buckelew and Jenkins were improperly denied indigent status. These issues have already been decided by this court in United States v. Scallion, 533 F.2d 903, 919-20 (5th Cir. 1976), cert. denied, 429 U.S. 1079, 97 S.Ct. 824, 50 L.Ed.2d 799 (1977), and a matter

Page 518

need not be reconsidered on a section 2255 motion if it has already been determined on direct appeal, see Vernell v. United States, 559 F.2d 963 (5th Cir. 1977), petition for cert. denied, --- U.S. ----, 98 S.Ct. 1876, 55 L.Ed.2d --- (1978); Fuentes v. United States, 455 F.2d 910, 911 (5th Cir. 1972); Smith v. United States, 420 F.2d 690 (5th Cir. 1970). We likewise affirm the disposition of the claims regarding the trial court's off-record comments and conduct, four of which raise no issue of a constitutional violation and thus are not cognizable for review under section 2255. The remainder were waived by appellants' procedural default in failing to challenge the incompleteness of the record in accordance with Rule 10(e) of the Federal Rules of Appellate Procedure. As to the final claim of attorney ineffectiveness, the district court concluded that it lacked support in the record, and we agree.

I. Unrecorded Judicial Misconduct.

Unless they amount to constitutional violations, prejudicial comments and conduct by a judge in a federal criminal proceeding are not proper subjects of collateral attack, see Kaufman v. United States, 394 U.S. 217, 222-23, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969); Hill v. United States, 368 U.S. 424, 428-29, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), and are waived if not brought up on direct appeal, see Brown v. United States, 480 F.2d 1036, 1038 (5th Cir. 1973). As one court eloquently put the matter:

The fact that a trial court error is prejudicial to (a) defendant does not ipso facto fasten the taint of partiality, in the Sixth Amendment sense, upon a jury . . . . If this were true every injudicious remark from the bench, every erroneous admission or exclusion of evidence, every giving of an incorrect instruction or refusal to give a correct instruction, which could be cause for reversal on a direct appeal, would present a constitutional question which could be raised for the first time in a collateral proceeding years after the conviction.

Nor does the fact that a trial court error is prejudicial to (a) defendant necessarily transform an otherwise fair trial into one which offends Fifth Amendment due process. It does not do so unless it has the effect of converting what was otherwise a fair trial into one which is repugnant to an enlightened system of justice.

Vandergrift v. United States, 313 F.2d 93, 96 (9th Cir. 1963) (footnote omitted). Thus, what we must initially decide is whether the errors alleged by appellants could have rendered their trial fundamentally unfair. See Gissendanner v. Wainwright, 482 F.2d 1293, 1300 (5th Cir. 1973) (appendix to opinion); Young v. Alabama, 443 F.2d 854, 855 (5th Cir. 1971), cert. denied, 405 U.S. 976, 92 S.Ct. 1202, 31 L.Ed.2d 251 (1972); Scalf v. Bennett, 408 F.2d 325, 327 (8th Cir.), cert. denied, 396 U.S. 887, 90 S.Ct. 175, 24 L.Ed.2d 161 (1969). 1

Four claims of judicial misconduct set forth by appellants fail to articulate due-process violations. First, during the trial the judge supposedly told the jury that his bailiff was a sharpshooter and acted as his bodyguard at all times. According to appellants this statement suggested that defendants were dangerous men. Even if the judge did make this statement, we doubt whether the jury interpreted it in the way appellants contend. At any rate, the statement certainly did not render appellants' trial fundamentally unfair. The...

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557 practice notes
  • Jones v. Mcneil, Case No: 07-22890-CIV-ZLOCH
    • United States
    • U.S. District Court — Southern District of Florida
    • March 7, 2011
    ...trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United Page 51 States, 575 F.2d 515, 521 (5th Cir. 1978). Speculation about what witnesses could have said is not enough to establish prejudice. See generally Grisby v. Blodge......
  • Marquez v. United States, EP-18-CV-112-FM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • September 10, 2019
    ...of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978). "Thus, to prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must nam......
  • Henretty v. Jones, Case No.: 3:14cv177/LAC/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 12, 2015
    ...of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978) Petitioner did not proffer to the state court any reliable evidence, in the form of an affidavit or otherwise, that Attorne......
  • Barnette v. United States, 3:12-cv-327
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • March 12, 2021
    ...of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978). "[T]he failure to investigate everyone whose name happens to be mentioned by the defendant does not suggest ineffective ass......
  • Request a trial to view additional results
557 cases
  • Jones v. Mcneil, Case No: 07-22890-CIV-ZLOCH
    • United States
    • U.S. District Court — Southern District of Florida
    • March 7, 2011
    ...trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United Page 51 States, 575 F.2d 515, 521 (5th Cir. 1978). Speculation about what witnesses could have said is not enough to establish prejudice. See generally Grisby v. Blodge......
  • Marquez v. United States, EP-18-CV-112-FM
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • September 10, 2019
    ...of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978). "Thus, to prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must nam......
  • Henretty v. Jones, Case No.: 3:14cv177/LAC/EMT
    • United States
    • United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Florida
    • November 12, 2015
    ...of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir. 1978) Petitioner did not proffer to the state court any reliable evidence, in the form of an affidavit or otherwise, that Attorne......
  • Barnette v. United States, 3:12-cv-327
    • United States
    • United States District Courts. 4th Circuit. Western District of North Carolina
    • March 12, 2021
    ...of trial strategy and because allegations of what a witness would have testified are largely speculative." Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978). "[T]he failure to investigate everyone whose name happens to be mentioned by the defendant does not suggest ineffective ass......
  • Request a trial to view additional results

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