Government of Virgin Islands v. Bradshaw

• Decision Date: 28 February 1984
• Docket Number: No. 83-3222,83-3222
• Citation: 726 F.2d 115
• Parties: GOVERNMENT OF the VIRGIN ISLANDS v. BRADSHAW, Henry C. * Appeal of Henry C. BRADSHAW.
• Court: U.S. Court of Appeals — Third Circuit

Page 115

726 F.2d 115

GOVERNMENT OF the VIRGIN ISLANDS v. BRADSHAW, Henry C. ^*

Appeal of Henry C. BRADSHAW.

No. 83-3222.

United States Court of Appeals, Third Circuit.

Argued Dec. 7, 1983.

Decided Feb. 2, 1984.

Rehearing and Rehearing In Banc Denied Feb. 28, 1984.

Ronald C. Travis (argued), Murphy, Mussina, Harris, Travis, Rieders & Humphrey, Williamsport, Pa., for appellant.

Douglas L. Capdeville, Asst. U.S. Atty. (argued), James W. Diehm, U.S. Atty., Christiansted, St. Croix, U.S.V.I., for appellee.

Before HUNTER, WEIS and ROSENN, Circuit Judges.

OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge:

On March 3, 1977, appellant Henry C. Bradshaw was convicted of first degree murder and sentenced to life imprisonment following a jury trial in the United States District Court of the Virgin Islands. This court upheld that conviction on direct review. Government of the Virgin Islands v. Bradshaw, 569 F.2d 777 (3d Cir.), cert. denied, 436 U.S. 956, 98 S.Ct. 3070, 57 L.Ed.2d 1121 (1978). Bradshaw then moved in the district court, pursuant to 28 U.S.C. Sec. 2255 (1976), to set aside his conviction. His motion alleged that his trial attorney had failed to render effective legal assistance. The district court determined that Bradshaw's motion could be resolved on the basis of the allegations in the motion and the materials already on file in the district court. Bradshaw's motion to set aside the conviction was denied, and this appeal followed. For the reasons set forth below, we will affirm the order of the district court denying Bradshaw's motion.

I.

Ineffective assistance of counsel is the only ground that Bradshaw advances for setting aside his conviction. His motion asserts three separate allegations in support of his claim of ineffective assistance:

(1) His attorney refused to locate and interview two alibi witnesses whose proposed testimony is described in Bradshaw's motion.

(2) His attorney failed to suggest appropriate questions for voir dire, as a result of which the fiancee of the officer who arrested him was empaneled on the jury.

(3) His attorney waived the right to exercise an additional five peremptory challenges, as a result of his mistaken view of the state of the law at the time of trial.

Bradshaw urges that his conviction should be set aside on the basis of matters already contained in the record, but he argues in the alternative that it was error for the district court to refuse to order an evidentiary hearing to develop the facts underlying his ineffective assistance claim. See United States v. Baynes, 622 F.2d 66, 68 (3d Cir.1980) (review of refusal to grant an evidentiary hearing).

We recognize at the outset that Bradshaw bears the burden of proving his claim of ineffective assistance of counsel. Id. at 69. Bradshaw must demonstrate that the representation he received at trial was "constitutionally inadequate," United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976), and that he was prejudiced by his attorney's inadequacies, United States v. Swinehart, 617 F.2d 336, 340 (3d Cir.1980). The constitutional right to effective assistance of counsel demands that the defendant's attorney exercise "the customary skill and knowledge which normally prevails at the time and place" of trial. Johnson, 531 F.2d at 174 (quoting Moore v. United States, 432 F.2d 730, 736 (3d Cir.1970)).

The question whether to order an evidentiary hearing is committed to the sound discretion of the district court. Page v. United States, 462 F.2d 932, 933 (3d Cir.1972). In exercising that discretion, however, the district court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. United States v. Williams, 615 F.2d 585, 591 (3d Cir.1980). Further, the court must order an evidentiary hearing to determine the facts "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id.; see 28 U.S.C. Sec. 2255 (1976).

These requirements do not mean that an evidentiary hearing must be held whenever the movant's ineffective assistance claim presents a close question. The district court need only supplement the factual record when the merits of the section 2255 motion may turn on the truth of a non-frivolous allegation. In this case, we strictly adhere to our prior case law and evaluate Bradshaw's motion under the assumption that all his allegations are factually correct. Under that standard we find, for the reasons set forth below, that Bradshaw has not made out a claim of ineffective assistance of counsel.

II.

A. Bradshaw's Proffered Alibi Witnesses

Bradshaw asserts that he informed his attorney of two potential alibi witnesses. The first, a woman with whom Bradshaw claims to have spent part of the evening of the murder but whose name he cannot now recall, would have testified that Bradshaw was in Puerto Rico as of 7:00 p.m. that night. The second witness described by Bradshaw was a Puerto Rican switchboard operator who would have testified that Bradshaw spoke to her at 5:45 p.m. on the day of the murder and claimed to be at the St. Thomas airport destined for Puerto Rico.

The fatal flaw in Bradshaw's argument is that the proposed testimony set forth in his motion is simply irrelevant to the proofs upon which he was convicted or the alibi that he offered at trial. Witnesses testified that they heard a gunshot from the vicinity of the victim's hotel room at 4:15 p.m. [Transcript at 50-51; 61-64]. The government attempted to prove that Bradshaw could have been present in the hotel room at that time; independent evidence, including Bradshaw's testimony, demonstrated that Bradshaw was in the hotel room at some time on the afternoon of the murder. [Transcript at 752-54]; see Bradshaw, 569 F.2d at 779, 780. Bradshaw and another witness testified at trial that Bradshaw was at the seaplane terminal at 3:45 p.m.; two government witnesses placed him there between 4:30 p.m. and 5:00 p.m. Id. at 780. Neither story is inconsistent with the proffered testimony of the unnamed switchboard operator that Bradshaw claimed to be at the airport at approximately 5:45 p.m. or the proposed testimony that Bradshaw was in Puerto Rico as of 7:00 p.m.

It is thus clear that the testimony described in Bradshaw's motion is devoid of probative value--it neither advances his cause nor discredits the government's case. See Johnson, 531 F.2d at 178 (proposed testimony not "helpful" and had little "probative force"); United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir.1970) (burden on defendant to prove that proffered evidence would be helpful). In addition, because these two witnesses had no contact with Bradshaw while he was in the Virgin Islands, there is little possibility that they would have supplied counsel with additional information about Bradshaw's whereabouts at the time of the murder. Further, Bradshaw's attorney did locate several alibi witnesses and skillfully developed their testimony at trial. Thus, Bradshaw's allegations on this score do not support the grant of an evidentiary hearing and cannot aid his claim of ineffective assistance of counsel.

B. Failure to Suggest Appropriate Questions for Voir Dire

Bradshaw alleges that one of the jurors at his trial was the fiancee of the arresting officer and the mother of at least one child by the officer as of the time she sat as a juror. The arresting officer testified at trial. Bradshaw claims that the officer's fiancee was empaneled as a result of counsel's failure to request voir dire questions concerning the relationship of potential jurors to government witnesses and police officers.

We need not decide whether the alleged failure would constitute ineffective assistance of counsel. Even taking as true Bradshaw's allegations regarding the relationship of one juror to the arresting officer, it is clear from the record that the voir dire conducted by the court did in fact address potential jurors' relationships with attorneys, witnesses and police officers. [Transcript of Proceedings at 1, 11]. Therefore, Bradshaw's claims under this head must be rejected.

C. Failure to Exercise Five Additional Peremptory Challenges Due to Mistake of Law

Bradshaw contends finally that his representation at trial was constitutionally deficient because his attorney mistakenly believed that he was entitled to five peremptory challenges rather than ten. We believe that this contention, while troublesome, can be resolved without ordering an evidentiary hearing, and we hold on the specific facts of this case that counsel's mistake with respect to the law then in effect did not deprive Bradshaw of effective assistance of counsel. ¹

We have previously chronicled the circumstances that resulted in the waiver by Bradshaw's trial counsel of half his allotted peremptory challenges. See Bradshaw, 569 F.2d at 781. Bradshaw's trial commenced on February 28, 1977. At that time, as now, a defendant faced with the prospect of imprisonment for more than one year was entitled to challenge ten jurors without cause. Fed.R.Crim.P. 24(b). On April 26, 1976, the Chief Justice of the United States transmitted an amended Rule 24(b) to Congress that would have limited a criminal defendant tried alone to five peremptory challenges in a case of this sort. The amendment was scheduled to go into effect on August 11, 1976, seven months before the date of Bradshaw's trial. On July 8, 1976, however, Congress postponed the effective date of the amendment until August 1, 1977. On July 30, 1977, the proposed amendment was rejected. See Bradshaw, 569 F.2d at 781. Thus, the proposed amended rule 24(b) was not in effect at the time of Bradshaw's trial and, in fact, never went into effect.

The judge who presided over Bradshaw's trial was unaware of the history of the amendment to rule 24(b) after it was proposed by...