Dorminey v. United States

• Decision Date: 26 August 1982
• Docket Number: Civ. A. No. 80-84-ALB.
• Parties: Jerry D. DORMINEY, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Middle District of Georgia

546 F. Supp. 702

Jerry D. DORMINEY, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 80-84-ALB.

United States District Court, M. D. Georgia, Albany Division.

August 26, 1982.

Oteri & Weinberg, Boston, Mass., for petitioner.

Samuel A. Wilson, Macon, Ga., for respondent.

ORDER

OWENS, Chief Judge.

Petitioner Jerry D. Dorminey moved this court, pursuant to 28 U.S.C. § 2255, on September 17, 1980, to vacate and set aside the sentence of imprisonment now being served that was imposed upon him by this court on October 10, 1978, and affirmed upon appeal by the Fifth Circuit Court of Appeals. United States v. Herring and Dorminey, 602 F.2d 1220 (5th Cir. 1979). The motion is based upon the following grounds:

A. Denial of effective assistance of counsel.

B. Denial of rights to fair trial by an impartial jury and to confront and cross-examine witnesses, in violation of Fifth and Sixth Amendments to the United States Constitution.

C. Denial of right to fair trial in violation of Fifth and Sixth Amendments because of appearance of lack of impartiality by court.

In support of ground B petitioner Dorminey set forth the following facts:

"... On September 27, 1978, the third day of my trial, some of the jurors in the case were brought from the courtroom to the first floor of the courthouse. As they alighted from the elevator they passed by two U.S. Marshals assigned to my trial. Juror William L. Rushing, Jr. heard one Marshal say to the other: `The judge says they I and co-defendant Herring are both guilty. One is as guilty as the other.' Rushing's affidavit is appended hereto and marked `J'."

The affidavit of William L. Rushing, Jr. stated:

"Now comes William L. Rushing Jr. who deposes and says the following: _________________________ My name is William L. Rushing Jr., I am married, have two children and reside at 12 Lauren St. Richmond Hills, Georgia. ________________________ On the dates of Sept. 25, 1978 through Sept. 30, 1978, I was a member of the jury hearing the case of United States vs. Jerry Dorminey and Robert L. Herring. _____________________________________ During the week long trial, I became aware of, and familiar with people in the court house by observing them on a day to day basis. ______________________ I recall that on Wednesday Sept. 27, 1978, myself and other jurors were taken on the elevator to the first floor of the court house. As we were getting out of the elevator, I observed two males dressed in plain clothes. I recognized them as U. S. Marshalls that I had seen performing their regular duties in the courtroom. I am unable to identify either marshall by name. Upon getting out of the elevator, I heard one U. S. Marshall say to the other, `The judge says they are both guilty, one is as guilty as the other.'--------------------------- I give this affidavit freely and voluntarily, without reward or compulsion from any persons whomsoever. This affidavit is being given to Arthur P. MacDonald whom I know to be an investigator employed by the law firm of Oteri & Weinber.------------------------

/s/ Arthur P. MacDonald /s/ William L. Rushing, Jr. June 20, 1980 6-20-80 Witness Affiant" Petitioner's motion was also supported by a memorandum of law prepared by his habeas attorneys Oteri and Weinberg of Boston, Massachusetts.

By order dated October 21, 1980, the court disposed of petitioner's contention that his trial was unlawfully moved to Savannah, Georgia and presided over by this trial judge and directed the United States to respond to all remaining contentions. Following the government's response of December 18, 1980, the court, by order of January 15, 1981, directed:

"At 9:30 A.M., February 20, 1981, in the courtroom of the United States District Court for the Southern District of Georgia at Savannah, Georgia, this court will hold an evidentiary hearing to investigate petitioner's 28 U.S.C. § 2255 claim that the jury which convicted him was impermissibly influenced by remarks allegedly made in the hall of the courthouse by a Deputy United States Marshal.

"Each juror who served and participated in arriving at a verdict is ordered to appear and testify separately under oath in response to questions to be asked of each juror by the trial judge. Before and during questioning each counsel in writing may submit suggested questions to be asked by the court; counsel will not be permitted to interrogate the jurors."

On January 22, 1981, petitioner moved to expand the scope of the February 20, 1981, hearing to include inquiry into petitioner's claim of ineffective assistance of counsel and the court on January 26, 1981, denied that motion because "those contentions can be determined fully and fairly from the files and records ..."

On February 20, 1981, an evidentiary hearing was held in Savannah, Georgia. During that hearing every trial juror and alternate juror testified separately in chambers in response to questions asked by the court. Counsel for petitioner and the government were present and permitted to suggest questions to be asked.

On October 23, 1981, and June 9, 1982,¹ additional evidentiary hearings were held in Savannah. All evidence having been heard and considered, it is now the court's responsibility to decide petitioner's motion.

Federal Habeas Statute

The federal habeas statute, 28 U.S.C. § 2255, provides:

"A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution of laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

"A motion for such relief may be made at any time.

"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. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

"A court may entertain and determine such motion without requiring the production of the prisoner at the hearing."

* * * * * *

Pursuant to that statute and the Federal Rules Governing Section 2255 proceedings, the evidentiary hearings that have been held were ordered and limited to the issue of whether or not petitioner's jury was impermissibly influenced by remarks of a Deputy United States Marshal overheard during the trial. In refusing an evidentiary hearing on other issues the court was mindful that evidentiary hearings must be held to resolve bona fide factual issues that are possibly relevant to the issues set forth in petitioner's motion. See, Stokes v. United States, 652 F.2d 1 (7th Cir. 1981) and Dugan v. United States, 521 F.2d 231 (5th Cir. 1975).

As the Second Circuit Court of Appeals said in Dalli v. United States, 491 F.2d 758, 760:

"... Section 2255 requires a hearing to resolve disputed issues of fact `unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' See Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973). In making that threshold determination the court looks primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief. Mere generalities or hearsay statements will not normally entitle the applicant to a hearing, D'Ercole v. United States, 361 F.2d 211, 212 (2d Cir.), cert. denied, 385 U.S. 995, 87 S.Ct. 610, 17 L.Ed.2d 454 (1966), rehearing denied, 385 U.S. 1032, 87 S.Ct. 758, 17 L.Ed.2d 680 (1967); United States v. Catalano, 281 F.2d 184 (2d Cir.), cert. denied, 364 U.S. 845, 81 S.Ct. 88, 5 L.Ed.2d 69 (1960); Paroutian v. United States, 395 F.2d 673, 674 (2d Cir. 1968), cert. denied, 393 U.S. 1058, 89 S.Ct. 700, 21 L.Ed.2d 700 (1979); Holland v. United States, 406 F.2d 213, 216 (5th Cir. 1969); Barnett v. United States, 439 F.2d 801, 802 (6th Cir. 1971), since such hearsay would be inadmissible at the hearing itself. United States v. Pisciotta, 199 F.2d 603, 607 (2d Cir. 1952); Brady v. United States, 404 F.2d 601, 602 (10th Cir. 1968), aff'd, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). The petitioner must set forth specific facts which he is in a position to establish by competent evidence. Machibroda v. United States, 368 U.S. 487, 495-496, 82 S.Ct. 510 514, 7 L.Ed.2d 473 (1962)...."

Ineffective Assistance of Counsel

Petitioner in his motion and personal affidavit contends that he was denied his constitutional right to "counsel reasonably likely to render and rendering reasonably effective assistance." Mackenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960), modified, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961)." United States v. Hughes, 635 F.2d 449, 451 (5th Cir. 1981).

Factually he asserts that he retained Peter Zack Geer to represent him; that Mr. Geer met with him only three times before trial; that Mr. Geer failed to interview witnesses Danny Hatcher, Frank Harris and Kenneth Hopkins; that Mr. Geer drank too much before and during the trial; and that Mr. MacDougald, Mr. Geer's...