Gustave v. U.S.

• Decision Date: 15 July 1980
• Docket Number: No. 78-1918,78-1918
• Parties: Forrest GUSTAVE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. . Re
• Court: U.S. Court of Appeals — Ninth Circuit

Page 901

627 F.2d 901

Forrest GUSTAVE, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 78-1918.

United States Court of Appeals Ninth Circuit.

Resubmitted July 14, 1980.

Decided July 15, 1980.

Forrest Gustave, Sylvia Gustave, pro se.

Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before ELY and SCHROEDER, ^* Circuit Judges, and HOFFMAN, District Judge. ^**

WALTER E. HOFFMAN, District Judge.

This is an appeal from an order denying appellant Gustave's motion under 28 U.S.C. § 2255 to vacate and set aside the sentence entered upon his conviction for bank robbery. Essentially, appellant claims he was denied effective assistance of counsel.

After a three-day jury trial held in April, 1968, petitioner and co-defendant, Winters, were convicted of robbing a national bank. A motion for a new trial was filed by counsel for both defendants. Petitioner, pro se, also filed a motion for a new trial and demanded a new attorney. The motion for a new trial was granted and different attorneys were appointed for each defendant.

Gustave was again convicted by a jury in the second trial in August, 1968. Judge Albert L. Stephens, Jr. imposed a fifteen year sentence. Thereafter, Judge Stephens, at petitioner's request, appointed new counsel for appeal purposes. This court affirmed the conviction. United States v. Gustave, 424 F.2d 539 (9th Cir. 1970).

By a § 2255 proceeding filed in 1971, petitioner raised the question that the jury was unconstitutionally drawn in that blacks were excluded from the jury. This claim was rejected by the court by order dated January 26, 1972. There was no appeal from this order. The instant motion was filed in July, 1974. Judge Stephens dismissed the motion in August, 1974, without ordering a response from the United States or conducting an evidentiary hearing. Denial of a § 2255 motion without an evidentiary hearing is proper only if the motion, files and records of the case conclusively show that the prisoner is entitled to no relief. Dukes v. United States, 492 F.2d 1187, 1188 (9th Cir. 1974). In addition, a judge's recollection of the events at issue may enable him summarily to dismiss a § 2255 motion. Blackledge v. Allison, 431 U.S. 63 fn. 4, 97 S.Ct. 1621 fn. 4, 52 L.Ed.2d 136 (1977). From his own memory of the two trials and a review of the record, Judge Stephens found that Gustave was "well represented by competent counsel who appeared to be well prepared. . . . Defendant was afforded a fair trial with competent counsel." Although petitioner does not specifically contend that Judge Stephens erred in failing to conduct an evidentiary hearing on his claims, under the rule of Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), and its progeny, we will consider his appeal in that light.

I.

This Court's recent en banc decision in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), cert. denied 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793, sets forth the standards for evaluating a claim of ineffective assistance of counsel. The Court held that persons accused of crime must be afforded reasonably competent and effective representation but, where the claim of ineffective assistance is founded upon specific acts or omissions of defense counsel at trial, the accused must establish that counsel's errors prejudiced the defense. Id. at 1338, 1341. Our review of petitioner's shopping list of alleged errors by counsel and the transcript of the second trial, convinces us that petitioner was competently represented throughout the proceedings and therefore hold that the District Court properly dismissed petitioner's motion without an evidentiary hearing.

II.

The bulk of petitioner's claims relate to the services of William C. Miller, his attorney at the second trial. He first complains that Miller did not move to exclude the incourt identifications by five witnesses as based upon impermissibly suggestive pre-trial identification procedures, in particular, procedures prior to the first line-up and an allegedly suggestive display of photographs. A similar motion was denied at the first trial. Furthermore, he contends that Miller did not comply with his request to summon the first trial attorneys, Duncan and Cutler, to testify as to the irregularity of the line-up procedures.

We agree with the District Court that under the circumstances of this case e. g., five witnesses who had ample time and incentive to observe petitioner during the commission of the crime identified him at both trials there was little likelihood that the line-up procedures were suggestive enough to give rise to irreparable mistaken identifications. Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968). We also concur in the dismissal of the allegations concerning the photographic array shown to some witnesses as vague, conclusory and without any facts alleged in support of the claim. See, Neighbors v. United States, 457 F.2d 795 (9th Cir. 1972).

Miller's failure to summon the attorneys from the first trial was a reasonable trial tactic to prevent the jury from learning that there had been a prior trial, a fact both defendants wanted kept from the jury (R.T. 70). Mere criticism of a tactic or strategy is not in itself sufficient to support a charge of inadequate representation. Williams v. Beto, 354 F.2d 698 (5th Cir. 1965). Considering that the same judge denied an identical motion to suppress at the first trial, we do not believe petitioner's case was prejudiced by his attorney's failure to make the requested motion or call the former attorneys to testify.

Petitioner next complains that he requested Miller to "contact, interview and subpoena all persons present at the bank during the time of the robbery." The record reveals that in addition to the government's witnesses, seven other persons present at the bank during the robbery were subpoenaed at the request of petitioner's attorney (R.T. 188). Both petitioner and his attorney interviewed these witnesses (R.T. 196). There is nothing to indicate that any other witnesses were available. In any event, the decision whether to subpoena certain witnesses rests upon the sound professional judgment of the trial lawyer.

As a third point, petitioner contends that his trial should have been severed from that of Winters. However, he does not suggest any plausible ground for severance and with the heavy burden imposed by law in obtaining a severance, particularly in a situation involving co-defendants in a bank robbery charge, (see, United States v. Harris, 542 F.2d 1283, 1312 (7th Cir. 1972) cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779), it is ridiculous to suggest that counsel was ineffective in failing to move for severance.

Petitioner next argues that counsel failed to utilize prior sworn testimony of various witnesses in an effort to destroy their in-court identification with alleged inconsistencies. Although Miller made little use of this prior testimony, this is obviously a matter of trial tactics and falls far short of ineffective counsel.

Allied with the same claim is that petitioner requested his counsel to obtain the grand jury minutes of all witnesses who testified for the government at the first trial. We do not know whether there was any recordation of the grand jury proceedings and doubt that, in 1967, or early 1968, any recording was ever made in a run-of-the-mill bank robbery case presented to a grand jury. Only as recently as August 1, 1979, was Rule 6, F.R.Cr.P., amended to require the recordation of grant jury proceedings. See: Rule 6(e)(1). Even now, there must be a particularized need for disclosure of grand jury minutes except for purposes of Jencks Act material. The petitioner states that his attorney advised that "there were no minutes of the grand jury proceedings and that the government was not required to record those proceedings." In any event, petitioner does not even speculate on how the failure to obtain this information prejudiced his defense.

The fifth issue presented by petitioner is that he requested his attorney "To attempt to obtain a pre-trial discovery hearing in an effort to obtain, examine and investigate all statements, police reports and facts surrounding the crime alleged, and also to attempt to learn if there was a camera operating in the bank at the time of the robbery, recording the crime in progress." This essentially involves Rule 16 as it existed in 1968 and matters involving pretrial discovery were largely in the discretion of the court. Even...