Diamond v. United States

• Decision Date: 18 September 1970
• Docket Number: No. 23865.,23865.
• Citation: 432 F.2d 35
• Parties: Jerry Spencer DIAMOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

432 F.2d 35 (1970)

Jerry Spencer DIAMOND, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 23865.

United States Court of Appeals, Ninth Circuit.

September 18, 1970.

Jerry S. Diamond, pro. per.

Michael A. Heuer, Asst. U. S. Atty., Robert L. Borsio, Asst. U. S. Atty., Wm. Matthew Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, CARTER and WRIGHT, Circuit Judges.

BARNES, Circuit Judge:

Petitioner Diamond was charged with two counts of violating the Mann Act. On a compromise plea, on the advice of his appointed counsel (an experienced criminal trial lawyer), he entered his plea of guilty to the second count. Count One was dismissed.

Diamond now appeals from the denial of his motion for relief under 28 U.S.C. § 2255. The grounds urged are: first, that his appointed counsel refused to contact witnesses and otherwise prepare a defense, and that his attorney (in collusion with the prosecution) made threats and promises which induced petitioner to plead guilty; second, that petitioner at the same time was coerced to plead guilty because of abuse and beatings administered by law enforcement officers.

The district court, while denying the petition, did not hold an evidentiary hearing. The bases for denial were as follows: (1) petitioner's statements at arraignment (under questioning in compliance with Rule 11 of the Federal Rules of Criminal Procedure by the same judge who heard the petition) denying any coercion or inducement to plead guilty and agreeing that counsel for petitioner's services had been competent and effective; (2) the court's observation of petitioner at arraignment; and (3) the affidavit of petitioner's attorney, filed by the Government in response to the petition, denying petitioner's allegations as to the attorney's conduct.

Section 2255 of Title 28 of the United States Code provides:

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto."

The primary legal question presented by this appeal is whether the district court erred in denying the 2255 motion without holding an evidentiary hearing — i. e., in the language of section 2255, was the district court correct in concluding that "* * * the files and records of the case conclusively show that the petitioner is entitled to no relief?" An examination of recent case law both in the Ninth Circuit and in the Supreme Court, requires us to hold that the district court was in error in not granting an evidentiary hearing on the issue of whether petitioner involuntarily pleaded guilty because of coercion by county law enforcement officers.

I.

We consider first petitioner's allegations concerning the conduct of his attorney.

It is well established that a 2255 or habeas corpus¹ petitioner does not have a right to an evidentiary hearing unless his allegations specifically delineate the factual basis for his claim. Meeks v. United States, 427 F.2d 881 (9th Cir. 1970); United States v. Mills, 423 F.2d 688 (9th Cir. 1970); Macon v. United States, 414 F.2d 1290 (9th Cir. 1969); Richerson v. United States, 411 F.2d 656 (9th Cir. 1969); Earley v. United States, 381 F.2d 715 (9th Cir. 1967). Not fully adjudicated, however, are the issues of just how specific such allegations must be, and when the trial or preliminary hearing record will be "conclusive" against petitioner even where his allegations are specific.

The Supreme Court in McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) teaches that a criminal defendant may not later complain, as a grounds for collaterally attacking his conviction, that his attorney committed an "ordinary error" in his assessment of the law and facts. Id. at 774, 90 S.Ct. 1441.

"Richardson alleged that he was beaten into confessing his crime, that his assigned attorney conferred with him only 10 minutes prior to the day the plea of guilty was taken, that he advised his attorney that he did not want to plead guilty to something he did not do and that his attorney advised him to plead guilty to avoid the electric chair, saying that `this was not the proper time to bring up the confession\' and that Richardson `could later explain by a writ of habeas corpus how my confession had been beaten out of me.\'" (Id. at 763, 90 S.Ct. at 1445).

The Court held that because the decision as to how to plead "frequently involves the making of difficult judgments" (Id. at 769, 90 S.Ct. at 1448), including the judgment as to whether a confession will be admissible (an issue upon which "courts and judges continue to have serious differences among themselves," id. at 770, 90 S.Ct. at 1448),

"* * * a defendant\'s plea of guilty based on reasonably competent advice is an intelligent plea not open to attack on the grounds that counsel may have misjudged the admissibility of the defendant\'s confession. (Id.)

The judgment of the Second Circuit ordering an evidentiary hearing was vacated, and the case was remanded for reconsideration of the issue, inter alia, as to whether Richardson's allegations indicate that his attorney did not give him "reasonably competent advice." Id. at 774-775, 90 S.Ct. 1441.

Ninth Circuit cases, most of them decided before McMann, indicate a general conformance with the McMann reasoning: An evidentiary hearing is required only where counsel's competence or loyalty is placed in question by substantial allegations of fact.

Thus, in Hill v. Nelson, 423 F.2d 167 (9th Cir., 1970) (habeas corpus), where competence was at issue, the court decided that a "* * * failure to object to admission of a coerced confession is no basis for a claim that the attorney was incompetent." Similarly, it was held in Aguilar v. Field, 423 F.2d 271 (9th Cir., 1970) (habeas corpus), that a petitioner cannot claim inadequate representation merely because of lack of assertion of a possible defense where the petitioner himself had full knowledge of the defense and accepted his attorney's advice to plead guilty. On the other hand, where a petitioner alleged incompetence because his attorney failed to subpoena an important witness, United States v. Eaton, 416 F.2d 22 (9th Cir. 1969), a hearing was ordered. Hill and Aguilar are distinguishable from Eaton since they concern matters where the attorney had to make a difficult tactical judgment, whereas the failure to subpoena an "important" witness in Eaton was, a fortiori, unless mitigating circumstances were proved, a grave tactical mistake. See McMann v. Richardson, supra.

A case also in need of discussion is Dennis v. People, 414 F.2d 424 (9th Cir. 1969) (habeas corpus). Dennis alleged that he was encouraged to plead guilty by his attorney's erroneous advice that he would have a chance at parole if he did so. The court however, rejected his appeal for an evidentiary hearing because his allegations did not seriously call into question his attorney's undivided loyalty — i. e., petitioner did not allege any "deal" between his attorney and the court or the prosecution — and because he was informed by the court before he pleaded guilty that he would have no right to parole. Dennis holds that when one claims he was counseled to plead guilty based on erroneous law as to his parole rights, he is entitled to an evidentiary hearing only where the alleged facts indicate either that the alleged erroneous advice was not adequately cured by the court before plea acceptance, or that petitioner's attorney had some motivation for being disloyal to his client. See also Portillo v. United States, 427 F.2d 173 (9th Cir., 1970) (record conclusive re an alleged inadequate representation issue where it showed that attorney, when his client pleaded guilty at arraignment, made a conscientious effort before the judge to explain the consequences of such a plea, and made a successful effort, over the Government's initial objection, to have a more lenient charge substituted) and Aguilar v. Field, supra.

In the present case petitioner alleges that his appointed attorney refused to contact witnesses and otherwise prepare a defense after petitioner related his view of the facts to the attorney, and that the attorney in collusion with the prosecutor made threats and promises which induced petitioner to plead guilty. The primary threat alleged was that petitioner's attorney told him that the prosecution had stated that he might be taken to Texas to be tried because his wife was there; the primary promise alleged was that if petitioner pleaded guilty to Count Two, Count One would be dismissed and he would get probation or an extremely light sentence, and Texas would drop its charges.

We think the district judge was correct in holding that these allegations do not require an evidentiary hearing. Neither the competency nor the loyalty of Diamond's attorney is seriously called into question. The fact that the attorney, upon hearing petitioner's admittedly long and detailed story, did nothing but advise him to plead guilty indicates, at worst, that the attorney erred in making the often difficult judgment of whether or not to advise his client to plead guilty. As we have stated, that is not, without more, grounds for an evidentiary hearing. See McMann v. Richardson, supra; Aguilar v. Field, supra. Furthermore, assuming the truth of the allegation respecting a "threat" of the possibility of a trial in Texas, it is unreasonable to believe that said "threat" was anything more than a common message from the prosecutor relayed to petitioner through his attorney (hardly a basis supporting the general allegation of petitioner that his attorney was in collusion with the federal prosecution, to wrongly coerce the petitioner to plead guilty), and, therefore, not grounds for an evidentiary hearing,...