Friedman v. U.S., 78-1663
| Decision Date | 01 February 1979 |
| Docket Number | No. 78-1663,78-1663 |
| Citation | 588 F.2d 1010 |
| Parties | Leroy FRIEDMAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Joel W. Todd, Philadelphia, Pa., for petitioner-appellant.
Jack V. Eskenazi, U. S. Atty., C. Wesley G. Currier, R. Jerome Sanford, Asst. U. S. Attys., Miami, Fla., for respondent-appellee.
Appeal from the United States District Court for the Southern District of Florida.
Before BROWN, Chief Judge, TUTTLE and HILL, Circuit Judges.
As is only natural where a supplicant has little to lose but everything to gain, post-conviction relief motions under 28 U.S.C. § 2255 are as often as not marked by the deceit born of self-interest as by substantial claims of injustice. We sympathize with the problems that our District Courts encounter in attempting to separate the wheat from the chaff in dealing with the daily flow of such motions. Nonetheless, the statute commands the District Courts to grant a prompt hearing on all motions brought pursuant to it "(u)nless the motion and the files and records of the case Conclusively show that the prisoner is entitled to no relief." 1 In this case, the limited hearing conducted by the District Court on petitioner Leroy Friedman's § 2255 motion was not adequate to Conclusively determine his claims that he had been tried and convicted without the reasonably effective assistance of counsel guaranteed him by the Sixth Amendment. We therefore vacate and remand this cause to the District Court to consider it again after having conducted a fuller evidentiary hearing.
In 1973, Friedman was indicted, along with 16 others, on 29 counts of mail fraud, wire fraud, interstate transportation of fraudulently converted securities, and conspiracy. Having claimed indigency, Friedman was appointed counsel under the Criminal Justice Act, 18 U.S.C. § 3006A, and F.R.Crim.P. 44. Represented by this court-appointed attorney, Friedman went to trial together with four other defendants in November 1973. After a complex month-long trial, during which one of the defendants was severed, the jury returned guilty verdicts against three defendants but was unable to reach a verdict concerning Friedman and a mistrial was declared as to him.
Prior to a second trial, Friedman wrote the Trial Judge to request a change of court-appointed counsel. He alleged that his attorney for the first trial had reviewed little or none of the pre-trial discovery material, had not consulted with him prior to trial about the facts and circumstances of the case, had relied in his direct examination almost entirely upon questions independently prepared by Friedman, and had not yet reviewed the transcript or Friedman's detailed notes (prepared at the attorney's instructions) from the first trial. Shortly thereafter, Friedman's court-appointed attorney sought to have co-counsel appointed to assist him in the upcoming second trial on the ground that another protracted trial would make it difficult for him to fulfill his responsibilities to his other clients. The Trial Judge denied both requests. With regard to Friedman's motion for change of court-appointed counsel, the Judge reasoned that Friedman's original attorney was already familiar with the intricacies of the case and, moreover, had obtained a relatively favorable result for Friedman in the first trial. With regard to the attorney's motion, the Judge reasoned that appointment of co-counsel was not necessary since the Government anticipated that the second trial would be much shorter.
Still represented by the same attorney, Friedman was tried again, together with the codefendant who had been severed from the first trial, in November 1974. This time the jury found him guilty on seven counts of the indictment (the Trial Judge having directed verdicts of acquittal as to Friedman on the other 22 counts). Friedman was sentenced to a total of seven years imprisonment and his conviction was affirmed by this Court. 2
Friedman began serving his sentence in May 1976. About one month later, he filed a pro se motion to reduce his sentence under F.R.Crim.P. 35, in which he alleged first that he had not subpoenaed several witnesses at his trial because his court-appointed attorney had not told him that as an indigent he could subpoena witnesses at government expense, and second that he may have been prejudiced by the failure of his attorney to discuss with him the facts and circumstances of his case prior to trial. The District Judge dismissed the motion because it had not been filed within 120 days after issuance of the mandate affirming Friedman's conviction on appeal, as Rule 35 requires.
In February 1977 Friedman filed this petition under § 2255 to vacate, set aside, or correct his sentence. He alleged four grounds upon which he based his claim that he had not been accorded effective representation by his court-appointed counsel: (1) his counsel had misinformed him that defense witnesses could be obtained only at his personal expense; (2) his counsel had not discussed his testimony with him prior to trial; (3) his appointed counsel failed to make various motions during trial; and (4) his court-appointed counsel was unable to render effective assistance in his rather complex criminal case "where the fee is limited to a set amount."
Friedman later filed a supplemental petition, elaborating upon these allegations and adding new ones. In this petition he repeated the charges of inadequate preparation that he had made in his request between trials for a change of attorney. He also provided the names of two character witnesses and eight potential fact witnesses whom his court-appointed counsel had not interviewed and who were not called to testify, presumably because Friedman was unable to afford their production. The petition failed to state, however, what exculpatory testimony these witnesses might have given had they been called, although it did include affidavits from the two character witnesses.
Finally, the supplemental petition alleged that even though Friedman's counsel had been court appointed, he had repeatedly demanded from Friedman an additional fee. According to the petition, the lawyer had told Friedman that he would receive only $1,000 as an appointment fee and he justified his demand for additional money with the comment, "What do you expect for $1,000?" Friedman claimed that he had been able to raise only $400, which he paid to his attorney, and to support this claim Friedman included a photostatic copy of a cancelled personal check for $400, dated Nov. 8, 1973, made payable to his court-appointed attorney.
After receiving this supplemental petition, the District Court ordered Friedman's trial attorney to respond to the allegations contained in the § 2255 petition. In his affidavit filed in response to this order, the attorney contradicted all of Friedman's charges concerning lack of preparation and stated that Friedman had never provided him with the names of any possible defense witnesses. He also explained that prior to and during the first trial, Friedman had made a number of long-distance telephone calls from his law office 3 and that the $400 check represented reimbursement for such personal expenses that he had incurred on behalf of Friedman and for some money that he had advanced Friedman.
A hearing, pursuant to an order of the District Court, was held on Friedman's petition on February 6, 1978. Among those present at this hearing were Friedman, a lawyer whom he had retained to represent him on his petition, and a lawyer representing Friedman's former court-appointed counsel. Although in his order the Judge had not delimited the issues to be heard, at the hearing itself he announced that he would only receive evidence on the issue of whether Friedman had paid his court-appointed counsel $400 for witnesses that ultimately were not called, and, if so, whether the failure to call those witnesses affected the outcome of the trial. The District Judge stated that on the basis of his experience as presiding Judge at Friedman's two trials, he found all of the other allegations in Friedman's petition to be "completely spurious" and "patently frivolous," that Friedman was "clearly guilty" and that the mistrial and hung jury obtained in the first trial "was a masterful stroke on the part of defense counsel." When the Judge was told that Friedman's claim was not that the $400 had been paid to obtain defense witnesses, but rather to satisfy in part the attorney's demand for fees over and above what he would receive from his court appointment, 4 the Judge terminated the hearing and denied the petition for relief, reasoning that Friedman's complaint was essentially a simple civil dispute over $400 and had "nothing to do with the petition for habeas corpus or whether or not he got effective representation. 5 " No evidence was heard on any of Friedman's other allegations.
The portion of 28 U.S.C. § 2255 pertinent to this appeal states that
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. 6
Application of this statutory command to a petition such as Friedman's demands a two-step inquiry:
(1) Does the record in the case, as supplemented by the Trial Judge's "personal knowledge or recollection," 7 conclusively negate the factual predicates asserted in support of the motion for post-conviction relief?
(2) Would the petitioner be entitled to post-conviction relief as a legal matter if those factual allegations which are not conclusively refuted by the record and matters within the Trial Judge's personal knowledge or recollection are in fact true?
If the answer to the first inquiry...
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