Frand v. United States
| Decision Date | 05 March 1962 |
| Docket Number | No. 6855.,6855. |
| Parties | Bernard Herman FRAND, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Richard P. Cullen, Denver, Colo., for appellant.
Robert M. Green, Asst. U. S. Atty., for appellee.
Before BRATTON, HUXMAN and BREITENSTEIN, Circuit Judges.
An indictment was returned in the United States Court for Kansas charging Bernard H. Frand and Byron Leslie McCabe with the offense of transporting in interstate commerce a stolen automobile knowing it to have been stolen. Both of the accused were found guilty and each was sentenced to imprisonment. No appeal was taken. Frand filed a motion under 28 U.S.C. § 2255 to vacate the judgment and sentence imposed upon him. The motion was denied without a hearing. On appeal, the order denying the motion was reversed and the proceeding was remanded with directions to grant a hearing at which Frand might appear and testify. Frand v. United States, 10 Cir., 289 F.2d 693. The hearing thus ordered was had, at which Frand was present but did not testify and did not adduce any evidence. The record indicates that a transcript of the proceedings at the trial of the criminal case was before the court and it is now part of the record on appeal. The motion was denied, and the proceeding is here on appeal from the order of denial.
The single attack upon the order denying the motion is that Frand was deprived of his constitutional right to the effective assistance of counsel at the trial of the criminal case. It is argued that the court appointed attorney who represented Frand and McCabe at the trial of the criminal case was so incompetent that Frand was deprived of his constitutional right to the effective assistance of counsel. This is not an appeal from the judgment and sentence imposed upon Frand in which conventional errors occurring during the trial would be open to review. It is an attack upon the judgment and sentence by motion under § 2255. The statute provides in express language that the grounds of attack which may be presented by motion under its terms are that the sentence was imposed in violation of the Constitution or laws of the United States; that the court was without jurisdiction to impose the sentence; or that the sentence is otherwise open to collateral attack. Lack of effective assistance of counsel in the trial of a criminal case constitutes impingement upon a constitutional right of the accused and lays the judgment and sentence open to collateral attack by motion under the statute. But the constitutional right to the effective assistance of counsel does not vest in the accused the right to the services of an attorney who meets any specified aptitude test in point of professional skill. And common mistakes of judgment on the part of counsel, common mistakes of strategy,...
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