Gibson v. United States, No. 12626.

Docket NºNo. 12626.
Citation388 A.2d 1214
Case DateJune 30, 1978
CourtCourt of Appeals of Columbia District
388 A.2d 1214
David W. GIBSON, Appellant,
v.
UNITED STATES, Appellee.
No. 12626.
District of Columbia Court of Appeals.
Argued April 27, 1978.
Decided June 30, 1978.

Frederick G. McKenna, law student counsel (LS # 1811) for appellant, with whom Michael E. Geltner, Washington, D. C., supervising attorney appointed by this court, was on the brief, for appellant. Christopher McMurray, law student counsel (LS # 1794) also entered an appearance for appellant.

Charles L. Hall, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Peter E. George and John W. Polk, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and KERN and YEAGLEY, Associate Judges.

PER CURIAM:


Appellant entered a plea of guilty to a one count indictment charging him with carrying a pistol without a license.1 Subsequent to sentencing, appellant filed pro se, pursuant to D.C. Code 1973, § 23-110,2 a motion to vacate his guilty plea and sentence, salleging that he had been deprived of effective assistance of counsel in derogation of the Sixth Amendment. Specifically, appellant's motion alleged that his court-appointed counsel "failed to pursue or advise [him] of his right to pursue proper remedies for asserting his Fourth Amendment rights in connection with his unlawful arrest [and subsequent search which resulted in the seizure of the pistol]" (emphasis added). This appeal is from the trial court's dismissal of

Page 1215

the motion without a hearing. In its order denying the motion, the trial court ruled: [that the defendant's plea of guilty was voluntary and that] the proceedings, files and records in this matter conclusively show that the defendant is not entitled to the requested relief.

D.C. Code 1973, § 23-110, which is substantially identical to 28 U.S.C. § 2255,3 requires that a hearing be held on a motion to vacate a sentence

[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief . .

The narrow issue before us in the instant case is whether the trial court erred when it denied appellant's motion made under § 23-110 without first granting a hearing. In rejecting the motion, the trial court necessarily concluded that appellant failed to allege circumstances under which a hearing was required by the statute. This conclusion was error:

The Supreme Court has indicated that federal courts, in administering the writ of habeas corpus and its 28 U.S.C. § 2255 counterpart, are to permit post-conviction collateral attacks upon a plea of guilty.4 Moreover, an evidentiary hearing is required on allegations which, if proven, would entitle the prisoner to relief, particularly in a case involving circumstances not adequately reflected in the record. Blackledge v. Allison, 431 U.S. 63, 71, 97 S.Ct. 1621, 1628, 52 L.Ed.2d 136 (1977); Fontaine v. United States, 411 U.S. 213, 214-15, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973); Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).

The Supreme Court, in reviewing a 28 U.S.C § 2255 motion which requires an evidentiary hearing unless the allegations conclusively show the petitioner is entitled to no relief, has noted that summary dismissal is appropriate only where the "contentions that in the face of the record are wholly incredible." Blackledge v. Allison, supra 97 S.Ct. at 1629-30; Machibroda v. United States, supra at 495-96, 82 S.Ct. 510, or where the allegations themselves were so vague or conclusory "as to warrant dismissal for that reason alone." Blackledge v. Allison, supra 97 S.Ct. at 1630; Machibroda v. United States, supra at 495, 82 S.Ct. 510. These decisions of the Supreme Court establish standards which, in our view, are applicable to D.C. Code 1973, § 23-110, the local counterpart of 28 U.S.C. § 2255 (1970), and are completely compatible with the decisions of this court concerning the D.C. statute. Both lines of precedent constitute

Page 1216

judicial recognition of one salient fact; viz., that the statute requires an evidentiary hearing unless the allegations of the motion itself are vague and conclusory, are wholly incredible, or, even if true, would merit no relief.

Where the § 23-110 motion not only satisfies this standard (i.e., the allegations, if true,5 merit relief and are not vague, conclusory, or wholly incredible), but also alleges ineffective assistance of counsel, the necessity for a hearing is increased.6 This is so because the nature of the appellant's complaint; viz., ineffective assistance of counsel which resulted in his plea of guilty, may necessarily involve matters outside the record.7 In Johnson v. United States, D.C. App., 385 A.2d 742 (1978), this court observed in the context of a Section 23-110 motion, that

[w]here . . . an appellant alleges that the representation of his trial counsel was ineffective, the record on direct appeal is ordinarily barren of the evidentiary facts which would either confirm or refute that allegation. In the instant case, for example, nothing in the record on direct appeal would illuminate appellant's contentions that trial counsel failed to consult with him about the various aspects of the trial. . . . [Id. at 743; emphasis added.]

In Session v. United States, D.C.App., 381 A.2d 1, 2 (1977), quoting Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), we further explicated the need for an evidentiary hearing where the § 23-110 motion is based on an ineffectiveness claim:

"The factual allegations

[alleging ineffective assistance of counsel] related primarily to purported occurrences . . ....

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45 practice notes
  • Derrington v. United States, No. 80-166.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 21, 1985
    ...in Derrington's motion to vacate were insufficient to require the trial court to hold a hearing. Unlike Gibson v. United States, 388 A.2d 1214 (D.C.1978), on which Derrington relies, the record before the trial court permitted it to evaluate the likely effect on the jury had Melson's affida......
  • Allen v. United States, No. 82-798.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 19, 1985
    ...Gregg v. United States, 395 A.2d 36, 39 (D.C. 1978); Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978); Gibson v. United States, 388 A.2d 1214, 1215 n. 3 (D.C. 1978); Hurt v. St. Elizabeths Hosp., 366 A.2d 780 (D.C. 1976). See also Swain v. Pressley, 430 U.S. 372, 375, 97 S.Ct. 1224,......
  • Hairston v. U.S., No. 00-CF-1045.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 17, 2006
    ...counsel, the right to a hearing is not automatic. Ready v. United States, 620 A.2d 233, 234 (D.C.1993) (citing Gibson v. United States, 388 A.2d 1214, 1216-17 (D.C.1978)). "Where the existing record provides an adequate basis for disposing of the motion, the trial court may rule on the moti......
  • Junior v. US, No. 88-CF-1577
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 29, 1993
    ...the merits of the § 23-110 claim but erred in ruling, without a hearing, that appellant lacked standing, citing Gibson v. United States, 388 A.2d 1214, 1216 (D.C.1978) (directing "an evidentiary hearing unless the allegations of the motion itself are vague and conclusory, are wholly incredi......
  • Request a trial to view additional results
45 cases
  • Derrington v. United States, No. 80-166.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • February 21, 1985
    ...in Derrington's motion to vacate were insufficient to require the trial court to hold a hearing. Unlike Gibson v. United States, 388 A.2d 1214 (D.C.1978), on which Derrington relies, the record before the trial court permitted it to evaluate the likely effect on the jury had Melson's affida......
  • Allen v. United States, No. 82-798.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • July 19, 1985
    ...Gregg v. United States, 395 A.2d 36, 39 (D.C. 1978); Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978); Gibson v. United States, 388 A.2d 1214, 1215 n. 3 (D.C. 1978); Hurt v. St. Elizabeths Hosp., 366 A.2d 780 (D.C. 1976). See also Swain v. Pressley, 430 U.S. 372, 375, 97 S.Ct. 1224,......
  • Hairston v. U.S., No. 00-CF-1045.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • August 17, 2006
    ...counsel, the right to a hearing is not automatic. Ready v. United States, 620 A.2d 233, 234 (D.C.1993) (citing Gibson v. United States, 388 A.2d 1214, 1216-17 (D.C.1978)). "Where the existing record provides an adequate basis for disposing of the motion, the trial court may rule on the moti......
  • Junior v. US, No. 88-CF-1577
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • November 29, 1993
    ...the merits of the § 23-110 claim but erred in ruling, without a hearing, that appellant lacked standing, citing Gibson v. United States, 388 A.2d 1214, 1216 (D.C.1978) (directing "an evidentiary hearing unless the allegations of the motion itself are vague and conclusory, are wholly incredi......
  • Request a trial to view additional results

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