Desmond v. United States

• Decision Date: 18 May 1965
• Docket Number: No. 6476-6478.,6476-6478.
• Citation: 345 F.2d 225
• Parties: George C. DESMOND, Defendant and Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

345 F.2d 225 (1965)

George C. DESMOND, Defendant and Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

Nos. 6476-6478.

United States Court of Appeals First Circuit.

Heard May 3, 1965.

Decided May 18, 1965.

Loyd M. Starrett, Boston, Mass., with whom Edwin H. Amidon, Jr., and Foley, Hoag & Eliot, Boston, Mass., were on brief, for appellant.

William J. Koen, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., was on brief, for appellee.

Before ALDRICH, Chief Judge, BREITENSTEIN,^* Circuit Judge, and GIGNOUX, District Judge.

ALDRICH, Chief Judge.

Appellant was convicted, along with a co-defendant, on narcotic charges, and sentenced to the minimum term of five years. Although during trial he had asserted a number of errors he failed to appeal. Subsequently he brought a petition under 28 U.S.C. § 2255. The district court denied the petition on the ground that the matters therein alleged could, and therefore should, have been raised by appeal. Appellant then asserted to the district court that he had been deprived of his appeal through default of his counsel, who had agreed to prosecute an appeal, but did not. The district court rejected this claim. On appeal we held that appellant had raised a question of fact which should have been passed on by the district court, and remanded for further proceedings. Desmond v. United States, 1 Cir., 1964, 333 F.2d 378. Thereafter the district court took evidence and made a finding which, although politely expressed, in substance meant that counsel failed to carry out appellant's instructions to appeal. The effect of this finding should have been to remove the bar to his 2255 assertion of error in his trial. The district court, however, stated that the district judge who had conducted the trial would be "piqued" to have it review his conduct^** and declined to pass upon the merits. Instead, it revoked the original sentence and imposed a new one for five years, (the minimum sentence) to begin as of the date of imposition, so that appellant came under an obligation to serve eight years rather than the original five.

We are entirely satisfied that the court's action was due to some kind of misunderstanding, and that the court had no intention to impose a penalty upon appellant for having brought his petition. However, in a 2255 proceeding a petitioner is entitled to have errors of a district court reviewed in the district court regardless of believed sensitivities of another judge. Appellant was entitled, once the bar of his having failed to raise his points by appeal had been removed, to have them considered. But since the case is now here, and since appellant's remaining questions are solely questions of law we can pass fully upon them. We reach only one, since it is unlikely that the others will reoccur.

At the original trial, in the course of its final argument to the jury the government, referring to the alleged occasion when the two defendants had transferred the heroin to the government agent, said, "Those are the facts, the evidence. Incidentally, may I say to you that the evidence stands unimpeached and uncontradicted." Counsel for appellant immediately objected, stating at the bench that this was a comment upon appellant's failure to testify. The court overruled the objection, saying "Absolutely not," but added that in its charge it would tell the jury that no inference should be drawn against appellant from his failure to take the stand. Subsequently the court did so charge.

Two questions are presented, which we will take in reverse order. If it be assumed that the government's argument constituted...