Burris v. United States

• Decision Date: 10 September 1970
• Docket Number: No. 17475.,17475.
• Citation: 430 F.2d 399
• Parties: Weldon BURRIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

430 F.2d 399 (1970)

Weldon BURRIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 17475.

United States Court of Appeals, Seventh Circuit.

July 27, 1970.

Rehearing Denied September 10, 1970.

David C. Roston, Chicago, Ill., for petitioner-appellant.

Thomas A. Foran, U. S. Atty., Kenneth R. Siegan, Asst. U. S. Atty., Chicago, Ill., for respondent-appellee; John Peter Lulinski, Jeffrey Cole, Michael B. Cohen, Asst. U. S. Attys., of counsel.

Before SWYGERT, Chief Judge, and CUMMINGS and KERNER, Circuit Judges.

CUMMINGS, Circuit Judge.

In 1966, petitioner was convicted on three counts of an indictment charging him with possession of heroin in violation of 21 U.S.C. § 174.¹ On appeal, his conviction was affirmed. United States v. Burris, 393 F.2d 81 (7th Cir. 1968).

Pursuant to 28 U.S.C. § 2255, Burris filed a motion to vacate his sentence. This motion was assigned to the same judge who had sentenced him. The pertinent factual grounds of the petition presented on this appeal are as follows:

"4. The petitioner would further show that the trial judge deprived the petitioner of a fair and impartial jury by reciting to visitors in the courtroom, in the presence of the jury, a tragic story that concerned a very dear friend of his, whose two children were addicted to narcotics.

"5. The petitioner would further show that he was denied a fair trial in that the judge sent a coerced verbal instruction to the jury by the U.S. Marshal after they had retired for deliberation and after they had been in deliberation for a period of five hours.

`Tell the jury if they can\'t reach a verdict in the next 30 minutes I will be compelled to lock them up for the weekend.\'"

"7. That during the course of the trial, agent Hughes, agent Turnbou and the prosecuting attorney, Mr. Katz, were seen and overheard discussing the case in a corridor adjacent to the courtroom within 4 or 5 feet of three female members of the trial jury who were seated in said corridor."

"9. That during the course of the trial agent Hughes, a principal witness for the prosecution engaged in a private conversation with a member of the trial jury in a restroom adjacent to the courtroom.

"10. That during the course of the trial, agent Turnbou, a principal witness for the prosecution, engaged in a private conversation with a member of the trial jury in a corridor adjacent to the courtroom."

Pursuant to a subsequent motion, leave was granted to file an "addendum" amending the original petition. Thereafter, without requesting a response from the Government or holding an evidentiary hearing, the district court summarily denied the petition. The judge's memorandum and order show that upon review of the petition and record in the original criminal trial, he concluded that the basic allegations contained in the petition were unsupported. Specifically, he stated that the "record does not show that the Judge recited to the jury a story of the children of friends who were addicted to narcotics," or that a verbal instruction was sent coercing the jury to an early verdict. The judge also discounted the allegations concerning improper communications between the prosecution and jurors by stating:

"The allegation that the jurors were permitted in the corridor, where they might hear conversations between the agent and the prosecutor, is untrue, as were the allegations that members of the jury were permitted to use public telephones during the trial in restrooms or corridors adjacent to the Court Room."

Petitioner's principal contention on this appeal² is that the district judge was obligated by Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L. Ed.2d 473, to hold an evidentiary hearing to establish the truth or falsity of the allegations contained in the petition.

In Machibroda, the Court reversed the summary dismissal of a Section 2255 petition whose factual assertions

"while improbable, cannot at this juncture be said to be incredible. If the allegations are true, the petitioner is clearly entitled to relief. Accordingly, we think the function of 28 U. S.C. § 2255, 28 U.S.C.A. § 2255 can be served in this case only by affording the hearing which its provisions require." 368 U.S. at p. 496, 82 S.Ct. at p. 514.³

The opinion carefully pointed out that the "detailed and specific" allegations of the petition, specifically contradicted the Government's response, were not capable of resolution from the motion itself or the "files and records" of the trial court; "nor were the circumstances alleged of a kind that the District Judge could completely resolve by drawing upon his own personal knowledge or recollection." 368 U.S. at p. 495, 82 S.Ct. at p. 514.

In this case, the district judge disposed of the petition without requesting any response or pursuing even a limited inquiry. As to the allegations of improper coercion of the jury and alleged prejudicial speech, the judge's own personal knowledge of his conduct, together with the transcript of proceedings, was sufficient to permit this summary action. Moreover, the alleged coercive weekend lock-up instruction could not have been delivered, formally or informally as suggested by the petition, since the deliberations of the jury commenced on Monday afternoon, May 23, 1966, not before a weekend, and took approximately three hours, not over five as asserted by Burris. There is no record of any prejudicial speech by the judge to visitors in the presence of the jury. Even assuming we were to disbelieve the accuracy of the record, in the absence of any indication as to what was said it is impossible to assume prejudice or harm to defendant sufficient to cause a denial of due process entitling petitioner to relief.

The remaining three allegations present more difficulty in determining the propriety of the district court's summary action. The petition was filed pro se and its allegations, though vague and conclusory, are entitled to a liberal construction. Wilson v. Phend, 417 F.2d 1197, 1199 (7th Cir. 1969). It is difficult, in many instances, to require great specificity and persuasion in a Section 2255 petition. Where, as here, the allegations involve factual matters outside the record and beyond the ready knowledge of the district judge, summary denial of a petition's allegations is questionable. In this case, moreover, the district court dismissed the allegations simply by referring to the fact that the jurors were not permitted access to the areas in question during the trial. We cannot say, however, upon this sparse record, that the district court was incorrect in deciding that these charges of deliberate disregard of court rules and control of jurors were incredible rather than merely improbable or unlikely. Jurors are closely supervised and their access to the corridors adjacent to the courtroom where witnesses and attorneys may be present is sharply limited. No indication of these events was previously brought to the attention of any court, despite the fact that defendant was represented by competent counsel at his trial and on appeal. As the Court in Machibroda observed, "the language of the statute does not strip the district courts of all discretion to exercise their common sense." 368 U.S. at p. 495, 82 S.Ct. at p....