Dillon v. United States

Decision Date22 August 1962
Docket NumberNo. 17692.,17692.
Citation307 F.2d 445
PartiesEdward J. DILLON, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Edward J. Dillon, appellant, in pro. per.

Sidney I. Lezak, Acting U. S. Atty., and William B. Borgeson, Asst. U. S. Atty., Portland, Or., for appellee.

Before POPE, BARNES and BROWNING, Circuit Judges.

BROWNING, Circuit Judge.

Appellant was charged with the armed robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a). He pleaded guilty and was sentenced. A motion to vacate sentence was filed under 28 U.S.C. § 2255, alleging in substance that appellant's plea was induced by the misrepresentations of an Assistant United States Attorney. The District Court ordered a hearing, at which appellant requested the court to appoint counsel to assist him. The request was denied. We hold that, in the circumstances of this case, denial of appellant's request for counsel was error.


The mandatory requirement of the Sixth Amendment regarding right to counsel1 does not apply to indigent movants under 28 U.S.C. § 2255. This is the general view,2 it seems soundly based on the underlying purposes of the Amendment.3

As this court has pointed out, the appointment of counsel may sometimes be mandatory even in those areas in which the Sixth Amendment does not apply. This is true when the circumstances of a defendant or the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel. Compliance with the due process clause of the Fifth Amendment4 then requires that counsel be appointed.5

In the absence of such circumstances, a request for counsel in proceedings under Section 2255 is addressed to the sound discretion of the court. This is true at both the trial6 and appellate7 levels. The standard to be applied by the trial court in the exercise of this discretion has not been clearly established. There is case authority indicating that counsel should be appointed in collateral attack proceedings whenever it appears probable that any substantial issue,8 or at least a substantial issue of fact,9 will be presented. The same standard has been applied by Courts of Appeals in determining whether to appoint counsel in appeals from this type of proceeding10 except, of course, that substantial issues at the appellate level are more likely to be issues of law.11

We need not go so far. For purposes of this case it is enough to agree with the recent suggestion of the Court of Appeals for the Second Circuit that "where a petition for the writ of habeas corpus presents a triable issue of fact the clear presentation of which requires an ability to organize factual data or to call witnesses and elicit testimony in a logical fashion it is much the better practice to assign counsel."12 There is no reason for applying a different standard in proceedings under Section 2255. Measured by this standard, we are satisfied that a proper exercise of discretion by the District Court required that appellant's request for counsel be granted; we therefore need not inquire whether in the circumstances of this case due process compelled the appointment of counsel.

We recognize, as the Court of Appeals for the Sixth Circuit recently said, "that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors."13 We are of the firm conviction that such an error occurred here.


Appellant and Lovelace were jointly indicted for the robbery of a federally insured bank. The maximum prison sentence for the offense was twenty years. The government's case against appellant was strong; its case against Lovelace was weak. Various conferences were had between the parties, their lawyers, and the Assistant United States Attorney in charge of the prosecution. As a result, both defendants decided to plead guilty. Appellant asserts in the present motion that he did so on the basis of his understanding that he would receive a maximum sentence of ten years, and defendant Lovelace a maximum of five years. The sentences imposed were eighteen years and eight years, respectively.

Shortly after sentencing, trial counsel filed a motion to reduce sentence under Rule 35 of the Federal Rules of Criminal Procedure 18 U.S.C., which was denied. The trial judge presided at the hearing on that motion as well as at the hearing on the present motion.

At the opening of the hearing on the present motion, appellant requested a continuance, and asked that an attorney be appointed to assist him. The motion was denied.

Appellant was then advised that if he wished to take the stand and give testimony the court would hear him. Accordingly, he was sworn. Expressing ignorance as to how to proceed, appellant simply reasserted the truth of his allegation that he had been promised a ten-year sentence. He made no attempt to support his position by testifying as to his version of the incidents involved. He was cross-examined at length by an Assistant United States Attorney.

Appellant called and attempted to examine a number of witnesses regarding the incidents leading up to his plea of guilty, particularly the negotiations that occurred during the six weeks that elapsed between indictment and plea. The witnesses included the attorneys who had represented appellant and Lovelace at the trial (present at this hearing only as witnesses), Lovelace, the Assistant United States Attorney in charge of the prosecution of appellant and Lovelace, three men who apparently were deputy marshals at the pertinent time, and, finally, the sentencing judge. Appellant abandoned an initial purpose to call other witnesses, including two FBI agents. The principal witnesses called were cross-examined by an Assistant United States Attorney. Transcripts of proceedings at the time of sentence, and in connection with the subsequent motion to reduce sentence under Rule 35, were marked for identification and used in the course of the hearing.

At the opening of the second day of the hearing defendant renewed his request for counsel. It was again denied.

There was no evidence that appellant had been promised a maximum sentence of ten years, and the court so found. However, it did appear that the Assistant United States Attorney had agreed to recommend a maximum sentence of ten years for appellant. Appellant's version was that the Assistant United States Attorney was to make this recommendation to the judge at the time of sentencing, and also in the pre-sentence report. The Assistant United States Attorney's version was that he was to make the recommendation if asked by the court at the time of sentencing, and that appellant was aware of the fact that the court might not ask. The court did not ask; hence the government contended that failure to make the recommendation at the time of sentencing did not violate the understanding.

The hearing centered upon the issue thus presented. The court found that there was no absolute promise that a recommendation would be made, and that appellant knew a recommendation might not be requested.

But there is a difficulty in this approach to the problem which may have been critical. In the course of the hearing on the earlier Rule 35 motion for reduction of sentence, this exchange occurred:

"COUNSEL FOR APPELLANT: The U. S. Attorney, in our conversations, advised me that he could in no case make any sort of guarantee of sentencing; that he would make no recommendation, but if the Court were to ask for a recommendation that he would then recommend that Dillon be sentenced to a period of ten years and that Lovelace be sentenced to a period of five years.
"THE COURT: That\'s rather strange. In three years I have never asked the District Attorney for any such recommendation."

Because he was not asked, we cannot be sure that the Assistant United States Attorney knew in advance who the sentencing judge was to be, although it seems a fair assumption that he did, since the record indicates that appellant's counsel knew. Because he was not asked, we do not know whether the Assistant United States Attorney was aware that the sentencing judge had not requested a recommendation as to sentence from the government during the preceding three years, although it would seem unlikely that an Assistant United States Attorney would be unaware of the consistent and long continued practice of the district judge in a matter of such importance.

In any event, these lines of inquiry should have been explored. Affirmative answers might have provided a new and substantial basis for appellant's motion. If the Assistant United States Attorney knew that the judge who was to sentence appellant had not asked for a recommendation in three years, the representation by the Assistant United States Attorney that he would recommend a maximum of ten years at the time of sentencing "if asked" would have been wholly illusory. Since the representation was made in circumstances indicating that it was intended to and did serve as an inducement, it could only be concluded that appellant "was deceived * * * by the prosecutor into entering a guilty plea."14 A plea induced by promises not intended to be kept would violate due process; a sentence based upon such a plea could not stand.15

If these were the circumstances, the matters which concerned the court and which preoccupied its findings would have been largely irrelevant. It would have made no difference that the promise was conditional, if the condition itself was in essence a misrepresentation. It would have made no difference that appellant's counsel knew and told appellant that the judge might not request a recommendation, unless it also appeared that they were aware that the judge had not asked for such a...

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