French v. United States
| Decision Date | 15 October 1969 |
| Docket Number | No. 22505.,22505. |
| Citation | 416 F.2d 1149 |
| Parties | Robert Allen FRENCH, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Allen French, in pro. per.
Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., George G. Rayborn, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before BARNES and CARTER, Circuit Judges, and SWEIGERT,* District Judge.
This is an appeal from denial by the district court after an evidentiary hearing, of relief under 28 U.S.C. § 2255.
The appeal presents:
(1) Evidentiary questions and
(2) The question whether failure to answer requests for admissions automatically constitutes an admission which is thereafter completely binding on the defaulting party, or whether the district court may in its discretion, allow additional time to answer the requests for admissions.
The appellant on July 27, 1964, entered pleas of guilty to three counts of a nine count indictment, charging appellant with nine separate bank robberies in violation of 18 U.S.C. § 2113(a). Following plea, appellant was sentenced to imprisonment for 17 years and 300 days on each of the three counts, to run concurrently.
Appellant moved to vacate his sentence, pursuant to 28 U.S.C. § 2255. Following the procedure suggested in "Pre-Trial Suggestions for 2255 Cases, etc.," 32 Fed. Rules Dec., 393-408, counsel was appointed for appellant in the district court, pretrial conferences held and a stipulation and order filed listing the issues to be tried, which were as follows:
(1) Were the pleas of guilty of petitioner in the criminal proceeding voluntarily made and free from coercion and/or wrongful inducement?
a. Was petitioner's right to counsel violated by the interrogation conducted in the Police Administration Building on either July 1 or July 3, 1964, said date being in dispute, and were his pleas of guilty influenced or induced thereby?
b. Were any promises made to petitioner by Special Agent Robert H. Morneau, Jr., which influenced or induced petitioner to plead guilty?
c. Was there a threat made to petitioner at the time of his pleas of guilty by Assistant United States Attorney Michael Balaban, such as to have coerced petitioner to enter pleas of guilty?
d. Was petitioner's right to remain silent violated during interrogation by law enforcement officers while petitioner was in custody? If petitioner's right to remain silent was violated during such interrogation, were the pleas of guilty induced or influenced thereby?
(2) Is the sentence based upon a presentence report which is so erroneous as to render the sentence invalid as being a lack of due process of law?
(3) Was petitioner mentally competent, i. e., able to understand the nature of the proceedings against him and to cooperate with counsel in his defense at all stages of the criminal proceeding?
(4) Was petitioner adequately represented by counsel at all stages of the criminal proceeding?
(5) Were petitioner's pleas of guilty induced by a combination of inducements, or of inducements and coercion, or of inducements, coercion and inability to understand the proceedings against him and to cooperate and assist his counsel, or of all of these and the inadequacy of counsel?
The pretrial stipulation and order further provided that the court would rule on all issues that might affect the validity of the criminal judgment and sentence; that petitioner would have the burden of proof on all of said issues; that in the absence of proof on a particular issue, the district court would find that petitioner had not sustained his burden of proof, and find against the petitioner on the merits of such issue; and that as to issues on which proof was offered, the court would decide them on the merits. The pretrial order further recited, "The purpose of this order is to prevent piece-meal and repetitious petitions for relief, to hear and consider all matters that might affect the validity of the criminal judgment and sentence, and to as far as possible, determine all such issues in one hearing."
Following a hearing, the court made written findings and an order denying the petitioner relief, with a provision that the order should serve as findings of fact and conclusions of law pursuant to Rule 52, F.R.Civ.P.
The petition for relief under section 2255, 28 U.S.C. was filed on April 1, 1966. The appellant was removed from the place of his incarceration to the Central District of California at Los Angeles; the district court judge appointed counsel to represent him and held a number of pretrial conferences with the appellant and his counsel present. These conferences were held in an attempt to classify and list all the possible grounds which might serve as a basis for relief so that they might all be heard and determined in the same action. These pretrial conferences were held on April 20 and August 16, 1966, and January 11 and February 2, 1967.
On March 28, 1967, appellant, acting pro per and without his counsel's name appearing on the document, served fifty-five requests for admissions under Federal Rule of Civil Procedure 36. The United States failed to answer within the time specified by the appellant in his request.1
On May 17, 1967, appellant filed in pro per a motion for summary judgment, which included notice to the United States as to the date the matter would be heard by the district court. The motion urged that since the United States had failed to respond to the request for admissions within the time specified in the request, that all the matters contained therein were deemed automatically admitted by operation of Rule 36, F.R.C.P., and that on the basis of these admitted facts summary judgment should be granted for the appellant.
The court denied the appellant's motion with the entry of a minute order in the record dated May 18, 1967. Appellant's attorney was present. The court went over the requests for admissions, relieved the government of its default, granted it additional time to answer and sustained objections to various of the requests. The court's rulings were included in the pretrial stipulation and order.2
The reporter's transcript shows that appellant's counsel on May 23, 1967, when the pretrial order and stipulation was settled, signed and filed, conceded that the court had made such rulings. Although the rulings were set forth in the pretrial order and stipulation and "stipulated to and approved" by the signature of both appellant and his attorney, the appellant continuously preserved his objection to the court's rulings.
It was not error for the trial court to relieve the United States of its default in failing to answer the request for admissions. A trial judge has discretion to permit a late response to a request for admissions made pursuant to Rule 36 F.R.Civ.P., and thus relieve a party of apparent default. Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686 (2 Cir. 1966), is direct authority for the proposition.
(Id. at 688).
Accord: Sher v. DeHaven, 91 U.S.App. D.C. 257, 199 F.2d 777, 36 A.L.R.2d 937 (1952), cert. denied 345 U.S. 936, 73 S. Ct. 797, 97 L.Ed. 1363 (1953); Bowers v. E. J. Rose Mfg. Co., 149 F.2d 612 (9 Cir. 1945), cert. denied sub nom. Fischer v. Bowers, 326 U.S. 753, 66 S.Ct. 91, 90 L.Ed. 451 (1945); Countee v. United States, 112 F.2d 447 (7 Cir. 1940); Kelly v. Harris, 158 F.Supp. 243 (D. Mont.1958); Jackson v. Kotzebue Oil Sales, 17 F.R.D. 204, 15 Alaska 494 (1955); Hopsdal v. Loewenstein, 7 F. R.D. 263 (N.D.Ill.1945).
Appellant claims he was prejudiced. He contends first that he had been told there would be a two weeks interval between the pretrial and the 2255 hearing itself. The record shows that on February 2, 1967, pretrial was set for April 13, 1967, and the hearing date set for April 25, 1967. Appellant's counsel then requested and obtained additional time for discovery. On April 7, appellant's counsel again obtained an extension of time for pretrial and discovery, and the court at that time fixed May 16, 1967, for the pretrial and May 23, 1967 for the hearing date. Appellant apparently knew of this new date, since when he filed his notice of motion for summary judgment, on May 17, 1967, he noticed it for May 22, 1967, a day before the hearing was to commence. There is nothing in the record to indicate there were any further requests for extension of the date of the actual hearing or any motion for a continuance.
Secondly, appellant claims he was prejudiced by the court's ruling, because the government on May 23, 1967, the date of hearing, had eight prospective witnesses in court and used only three; and that the witnesses summoned were to rebut the matters covered by his requests for admissions.
The trial court afforded appellant an opportunity to confer with counsel before he rested his case. No request for a continuance was made. There is no showing in the record as to the need for any additional witnesses in appellant's behalf, or any request to the court for assistance in obtaining their presence. The record shows neither bad faith on the part of the government nor prejudice to the appellant.
The briefs contain discussion and citations as to the question of the availability of the discovery rules in habeas corpus and 2255 proceedings.3 In view of our disposition of the case we do not reach the question.
The court found that no evidence at all was produced by appellant in support of certain of the...
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