Gardiner v. United States, 21654.
| Decision Date | 23 February 1965 |
| Docket Number | No. 21654.,21654. |
| Citation | 341 F.2d 896 |
| Parties | Hunilda Balbas GARDINER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Robert R. Slaughter, New York City, Joyce Cox, Fountain, Cox & Gaines, Houston, Tex., Paskus, Gordon & Hyman, New York City, for appellant.
William A. Jackson, James R. Gough, Asst. U. S. Attys., Woodrow Seals, U. S. Atty., William B. Butler, Asst. U. S. Atty., Houston, Tex., for appellee United States of America.
Before BROWN and BELL, Circuit Judges, and HUNTER, District Judge.
Hunilda Balbas Gardiner appeals from the denial by Judge Connally of the Southern District of Texas, after a plenary hearing under § 2255, of her motion to vacate sentence and for a new trial. At a joint trial she and her husband and others were convicted of conspiracy to violate the Narcotics Laws. The convictions of both were affirmed by this Court, Gardiner v. United States, 5 Cir., 1963, 321 F.2d 159, cert. denied, 375 U.S. 953, 84 S.Ct. 445, 11 L.Ed.2d 314, as was true of the convictions of several of their co-conspirators. Curtis v. United States, 5 Cir., 1961, 297 F.2d 639, cert. denied, 1962, 369 U.S. 838, 82 S.Ct. 867, 7 L.Ed. 2d 842; Meyers v. United States, 5 Cir., 1962, 310 F.2d 801.
Her complaint is that she was denied effective assistance of counsel in violation of the 6th Amendment in that the same lawyer defended both her and her husband in a situation where the best interests of each defendant presented irreconcilable conflicts. As instances of such conflict, she emphasizes that putting her on the stand when her testimony could only benefit her husband and harm her, attacking a Government witness' credibility when it could only help her husband and hurt her, and the decision not to accept the offer to her of a dismissal and a plea to a lesser offense subordinated her interests to those of her husband. But nothing in this record compels a holding that she was not adequately advised of her rights both as to independent counsel and the intrinsic merits of each of these tactical-strategic trial decisions. In proceedings before the trial, the Trial Judge inquired as to any possible conflict, and none was indicated by counsel. None was thereafter made to appear on the trial.
At the § 2255 hearing, Appellant presented only her own verified pleading plus the affidavits of her husband and his mother who paid the fees of the lawyer who defended them. Although the attorney was a...
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State v. Selgado
...different if different trial tactics and strategy had been employed. Gardiner v. United States, 237 F.Supp. 692 (S.D.Tex.1964), aff'd 5 Cir., 341 F.2d 896. Here, the petitioner agrees that he discussed a change of venue with his attorney because of certain publicity, and that after consider......