Cheek v. U.S., 87-2066

• Decision Date: 11 October 1988
• Docket Number: No. 87-2066,87-2066
• Citation: 858 F.2d 1330
• Parties: Ozzie K. CHEEK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1330

858 F.2d 1330

Ozzie K. CHEEK, Appellant, v. UNITED STATES of America, Appellee.

No. 87-2066.

United States Court of Appeals,

Eighth Circuit.

Submitted March 14, 1988.

Decided Oct. 11, 1988.

William J. Genego, Los Angeles, Cal., for appellant.

Robert E. Larsen, Kansas City, Mo., for appellee.

Before FAGG, Circuit Judge, WRIGHT, Senior Circuit Judge, ^* and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Ozzie K. Cheek appeals the District Court's ¹ denial of his 28 U.S.C. Sec. 2255 motion for habeas corpus relief. We affirm.

I.

On January 31, 1984, a seven-count indictment was returned against Cheek and his co-defendant Belle Underhill (a/k/a Belle U. Greathouse) charging each with one count of conspiracy to distribute cocaine and six counts of distribution of cocaine. ² Cheek retained attorney Willard Bunch to represent him at trial, posted bond, and was released into the custody of James Sandifar, an associate in Bunch's law firm.

The first trial ended in a mistrial (because of a hung jury) and a second trial was scheduled. In the period between the trials, Bunch requested that he be allowed to withdraw as counsel for Cheek and enter his appearance as counsel for Underhill. The trial court denied Bunch's requests. The court ruled that a conflict of interest would arise if Bunch were allowed to represent Underhill in the second trial when he had represented Cheek in the first and that before the court would allow him to withdraw as counsel for Cheek "a suitable [alternative] counsel must enter his appearance, with the consent of the defendant." D.R. at 82. No other counsel entered an appearance as counsel for Cheek, and Bunch continued to represent him.

In the second trial the jury returned guilty verdicts against both defendants on all seven counts. After his conviction but before his sentencing, Cheek and Assistant United States Attorney Robert Larsen made an agreement. Cheek agreed to forego his right of direct appeal and to provide information regarding various drug investigations. In return, the Government agreed to bring Cheek's cooperation to the attention of the sentencing court and parole commission.

On June 15, 1984, the trial court sentenced Cheek to thirty years in prison and imposed a $175,000 fine and ten-year special parole term. Pursuant to his agreement with the Government, Cheek testified before a grand jury and allowed himself to be debriefed by FBI agents. Subsequently, he filed a motion for a reduction of his sentence and the Government responded by submitting a letter detailing his cooperation and urging that his motion be given serious consideration. After considering the motion and the Government's supporting letter, the trial court, while not granting all that Cheek requested, ³ reduced his prison sentence to twenty years and, sometime thereafter, modified the sentence to one under 18 U.S.C. Sec. 4205(b)(2), making Cheek immediately eligible for parole. The fine and special parole term were not modified. The Government, meanwhile, also informed the parole commission of Cheek's cooperation.

On January 8, 1985, Cheek filed a motion for an extension of time within which to file a notice of appeal from his conviction. He contended that he should be allowed to file a direct appeal because the Government had breached its agreement with him and because he had received ineffective assistance of counsel. The motion was denied as untimely and this Court affirmed that decision. United States v. Cheek, 761 F.2d 461 (8th Cir.1985).

In February of 1987, Cheek filed the present motion under 28 U.S.C. Sec. 2255 to vacate his conviction. The District Court, without an evidentiary hearing, rejected each of Cheek's claims ⁴ and denied the motion. Cheek appeals.

II.

Cheek claims that the District Court erred in denying him an evidentiary hearing on his Sec. 2255 claims. An evidentiary hearing in a Sec. 2255 case is not required, however, where the files and records of the case conclusively show that the petitioner is entitled to no relief. United States v. Gann, 807 F.2d 134, 135 (8th Cir.1986); United States v. Walker, 638 F.2d 1147, 1150 (8th Cir.1981). Each of the claims Cheek presents in support of his motion is capable of resolution from the record and our review of the record convinces us that Cheek is not entitled to relief. The District Court's dismissal of Cheek's Sec. 2255 petition without an evidentiary hearing was not improper.

III.

Cheek asserts that he was denied his Sixth Amendment right to be represented by the attorney of his choice. As noted above, Cheek retained Willard Bunch as his lawyer and was released into the pretrial custody of Bunch's associate James Sandifar. According to Cheek, when after the first trial Bunch attempted to withdraw his representation of Cheek in order to represent Underhill, Cheek no longer wanted to be represented by Bunch or his associate Sandifar but was told by Bunch that retaining other counsel would violate the terms of his pretrial release. Cheek now argues that he was denied the right to retain counsel of his choice because the terms of his pretrial release enabled Bunch to "[take] advantage of [Sandifar's] custodial role [and] prevent Mr. Cheek from exercising his independent judgment to obtain new counsel." Brief for Cheek at 16.

Assuming that the facts are as Cheek alleges, we nevertheless find Cheek's argument meritless. As it pertains to this issue, the Sixth Amendment only requires that a defendant be given a fair and reasonable opportunity to retain counsel of his choice. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 58, 77 L.Ed. 158 (1932); United States v. Lewis, 759 F.2d 1316, 1326 (8th Cir.), cert. denied, 474 U.S. 994, 106 S.Ct. 406, 88 L.Ed.2d 357 (1985). The right to counsel of choice is not an absolute but a qualified right, counterbalanced by " 'the public's interest in the orderly administration of justice.' " Lewis, 759 F.2d at 1326 (quoting United States v. Burton, 584 F.2d 485, 489 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979)).

Based on our review of the record, we are satisfied that Cheek had a fair and reasonable opportunity to retain counsel of his choice. Cheek freely chose to retain Bunch and then allowed Bunch to represent him in two trials. Although Cheek claims that the conditions of his pretrial release forced him to accept representation by Bunch at the second trial, in fact Cheek was given ample opportunity to inform the court of any objection he may have had regarding Bunch's continued representation; for example, Cheek could have requested that the terms of his release be amended, as he did several times for travel purposes, he could have raised the issue at the hearing on Bunch's request to withdraw, or he could have informed the court at trial. The trial court even invited Cheek to propose representation by alternative counsel, saying it would allow Bunch to withdraw from the case if "suitable counsel" acceptable to Cheek would enter his appearance. But Cheek never indicated to the trial court that Bunch was not the counsel of his choice or that other counsel would be willing to take his case. ⁵ The constitutional right to choice of counsel "is satisfied so long as the accused is afforded a fair or reasonable opportunity to obtain particular counsel, and so long as there is no arbitrary action prohibiting the effective use of such counsel." United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir.1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970). Accord Birt v. Montgomery, 725 F.2d 587, 593 (11th Cir.), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984); Gandy v. Alabama, 569 F.2d 1318, 1323 (5th Cir.1978). We hold that Cheek was not denied his Sixth Amendment right to retain counsel of his choice.

IV.

Cheek next claims that the trial court violated his Sixth Amendment right of confrontation and denied him a fair trial in violation of his Fifth Amendment right to due process by admitting certain hearsay evidence and giving improper instructions. ⁶ The trial errors Cheek alleges are claims ordinarily brought on direct appeal. Cheek's failure to directly appeal his conviction raises the possibility that these claims may not be brought in this collateral action. Although failure to appeal a conviction does not unconditionally waive the right to later raise a constitutional defect in the conviction, a "Sec. 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal." Kaufman v. United States, 394 U.S. 217, 227, n. 8, 89 S.Ct. 1068, 1074 N. 8, 22 L.Ed.2d 227 (1969). Accord Widgery v. United States, 796 F.2d 223, 225 (8th Cir.1986); United States v. Little, 608 F.2d 296, 300 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1053, 62 L.Ed.2d 777 (1980). See also Fay v. Noia, 372 U.S. 391, 835 S.Ct. 822, 9 L.Ed.2d 837 (1963) (a state prisoner case enunciating the deliberate bypass standard). ⁷

The critical inquiry here is whether the bypass was deliberate. A decision voluntarily and understandingly made for strategic or tactical advantage is "deliberate." See Widgery, 796 F.2d at 229 (Heaney, J., dissenting). If Cheek's decision was deliberate, his failure to directly appeal his conviction will operate as a waiver of his right to challenge the conviction through a Sec. 2255 proceeding. See Widgery, 796 F.2d at 225; Little, 608 F.2d at 300.

Cheek contends that he did not deliberately bypass the direct appeal process. He says that either Bunch misrepresented to him the Government's part of the agreement to cooperate or that the Government did not keep its part of the bargain. ⁸ In either case, he argues, his agreement not to pursue a direct appeal cannot be deemed deliberate.

The District Court found that Cheek's "waiver of appeal was deliberate, and that he understood and voluntarily...