Government of Virgin Islands v. Nicholas

• Decision Date: 07 May 1985
• Docket Number: No. 83-3430,83-3430
• Parties: 17 Fed. R. Evid. Serv. 1054 GOVERNMENT OF the VIRGIN ISLANDS v. NICHOLAS, Connie, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

Page 1073

759 F.2d 1073

17 Fed. R. Evid. Serv. 1054

GOVERNMENT OF the VIRGIN ISLANDS v. NICHOLAS, Connie, Appellant.

No. 83-3430.

United States Court of Appeals, Third Circuit.

Argued April 27, 1984.

Decided March 29, 1985.

Rehearing and Rehearing In Banc Denied May 7, 1985.

Michael A. Joseph (argued), Federal Public Defender, Christiansted, St. Croix, V.I., for appellant.

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

Before SEITZ, Chief Judge, and GARTH and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge:

In this appeal we are asked to determine whether the district court abused its discretion in denying without an evidentiary hearing defendant's motion to vacate, set aside and correct a sentence under 28 U.S.C. Sec. 2255.

Defendant Connie Nicholas ("Nicholas") was convicted of first-degree murder, 14 V.I.C. Secs. 921 and 922(a)(2), assault in the first degree, 14 V.I.C. Sec. 295(1), robbery in the first degree, 14 V.I.C. Sec. 1862(2), grand larceny, 14 V.I.C. Sec. 1083(1), and possession of an unlicensed firearm during the commission of a violent crime, 14 V.I.C. Secs. 2253(a) and 2254. On appeal, the first-degree murder conviction was vacated and the case remanded to the district court for resentencing on the lesser included offense of second-degree murder, Government of the Virgin Islands v. Nicholas, 707 F.2d 1391 (3d Cir.1982). Following resentencing, Nicholas filed a section 2255 motion seeking to vacate and set aside his sentence. As grounds for relief, he alleged, inter alia, that he was denied his constitutional right to a unanimous verdict because of juror incompetence and that he was denied his constitutional right to effective assistance of counsel because trial counsel failed to object to certain testimony. The district court denied the motion without an evidentiary hearing.

In this, his second appeal before this court, Nicholas argues that the district court's denial of his claims without an evidentiary hearing was an abuse of discretion. We will affirm the district court's ruling that the appellant failed to prove that he had a right to an evidentiary hearing on the issue of juror incompetence, but we will remand the case to the district court for an evidentiary hearing on the issue of ineffective assistance of counsel.

I. JUROR INCOMPETENCE

A section 2255 petition is not a substitute for an appeal. United States v A section 2255 motion is addressed to the discretion of the trial judge in the first instance, and where the record affirmatively indicates that the claim for relief is without merit, a refusal to hold a hearing will not be deemed an abuse of such discretion.

Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 1593, 71 L.Ed.2d 816 (1982), nor may it be used to relitigate matters decided adversely on appeal, United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir.1981). The standard for review is clear:

Page v. United States, 462 F.2d 932, 933 (3d Cir.1972). See also Diamond v. United States, 432 F.2d 35, 37, 39 (9th Cir.1970); Brisco v. United States, 368 F.2d 214, 215 (3d Cir.1966).

In the instant case, the primary issue is whether the record "affirmatively indicates that the claim for relief is without merit" and therefore whether the trial judge properly denied appellant an evidentiary hearing on the issue of a juror's alleged inability to hear portions of the trial and on the issue of ineffective assistance of counsel. If the record, supplemented by the trial judge's personal knowledge, conclusively negates the factual predicates asserted by Nicholas in support of his motion for post-conviction relief, and if Nicholas would not be entitled to post-conviction relief as a matter of law, even if those factual allegations were true, the district court did not abuse its discretion in electing not to conduct an evidentiary hearing. Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir.1979). See Smith v. United States, 635 F.2d 693 (8th Cir.1980), cert. denied, 450 U.S. 934, 101 S.Ct. 1397, 67 L.Ed.2d 368 (1981).

We find that (1) the record and the trial judge's personal observations in this case negate an allegation of juror Jeffrey Fleming's inability to hear and that (2) even if the juror was unable to hear portions of the evidence, Nicholas would not be entitled to post-conviction relief as a matter of law because under Fed.R.Evid. 606(b), the juror would be incompetent to so testify.

A. The Factual Setting

To support the allegation of juror incompetence, Nicholas submitted juror Jeffrey Fleming's sworn affidavit dated February 23, 1983 with his section 2255 motion. In the affidavit, Fleming stated that he is partially deaf because of an ear injury. Appendix ("App.") at 12-13. Consequently, he must wear a hearing aid although he can read lips. During the two-day trial, Fleming stated that he removed his hearing aid due to discomfort and was often unable to understand the proceedings when he could not see the lips of the witnesses, attorneys, and judge. Fleming also stated that he had been excused from jury service on two previous occasions due to his hearing impairment and that this was the first time that he was permitted to serve as a juror. Fleming was selected as a juror in the Nicholas case in July of 1981 but did not contact the Federal Public Defender's office and swear out this affidavit until February of 1983--one year and eight months after the verdict was rendered.

Fleming later recanted the contents of his sworn affidavit in the presence of an Assistant U.S. Attorney and a local police officer. Fleming told them that he had understood completely what was said during the trial and stood by his guilty verdict. He further indicated that throughout the trial his hearing aid was in good operating condition and that he removed his hearing aid just briefly during the lawyers' argument to change batteries.

An affidavit was drafted by an Assistant U.S. Attorney and a police officer for Fleming to sign attesting to his ability to hear the trial proceedings, but Fleming refused to sign, wanting first to contact the Federal Public Defenders' Office. However, in a signed handwritten note, Fleming adopted the contents of the prepared draft. The handwritten note, the unsigned affidavit, and the affidavits of those enforcement officials present during the recantation were submitted by the government to the district court as rebuttal evidence.

The district court gave little credence to Fleming's original assertion that he could From the above scenario it is evident that there were only four major sources of evidence for the trial court to review to determine whether there should be an evidentiary hearing: (1) Fleming's affidavit for defense counsel and his separate contradictory statement to the U.S. Attorney, (2) the procedures of the judge during the trial including explicit inquiries made expressly to the jury as to their ability to hear, (3) the observations of the trial judge as to the ability of jurors to hear and respond to his inquiries and the evidence, and (4) Fleming's contradictory statements regarding his prior jury experience. ²

not hear the trial proceedings because "of the glaring inconsistencies" presented by the affidavits, Fleming's handwritten note, and based on its own observation. App. at 43. The district court noted that the prospective jurors were asked twice whether they had difficulty in hearing, first during the jury selection and then again prior to the taking of testimony. No juror indicated any such difficulties. The district court also noted that a loudspeaker was positioned over the jury box and that the jurors had an unobstructed view of the witness stand. App. at 43-44. Throughout the trial, Fleming did not disclose any failure to understand any of the proceedings. Furthermore, the district court pointed to court records demonstrating that Fleming had in fact served as a juror twice before. App. at 43. ¹

The trial court judge understated the conflict when he said that Fleming's two statements were "glaring inconsistencies"; he should have said the documents were totally contradictory. In his statement to the Assistant United States Attorney and Officer Vasquez, Fleming stated that he heard and understood all the evidence in the case except for two times during the lawyers' argument when he took off his hearing aid

                to change the batteries.  He stated that during the times when he changed the batteries, he was able to read the lips of the attorneys, and that he was able to follow all of the evidence.  App. at 42.  To the defense counsel he said that "[d]uring the two-day trial of this case, I often was unable to decipher what was being said because of removal of my hearing aid due to discomfort and my inability to directly see the lips of the witnesses and/or the attorneys and/or the judge and, of course, insufficient volume of voice."    Id. at 41.  The transcript does not indicate that Fleming had any significant difficulty understanding what was being said
                

B. The Burden of Proof

Because contested fact issues in section 2255 cases cannot be resolved on the basis of affidavits alone, Friedman v. United States, 588 F.2d at 1015, we believe that the trial judge properly gave little weight to the inconsistencies in the affidavits. The supposedly new information concerning Fleming's inability to hear was substantially undermined by his later recantation. The affiant certainly repudiated his first sworn statement. See Ostrer v. United States, 577 F.2d 782, 788-89 (2d Cir.1978). Moreover, it was appropriate for the trial judge to draw upon his personal knowledge and recollection in considering the factual allegations in the Nicholas' section 2255 petition that related to events that occurred in his presence. See Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 513-14, 7 L.Ed.2d 473 (1962). See also United States v. Sears, 663 F.2d 896, 900 (...