Kelton v. United States, Civ. A. No. 74CV229-W-3.

• Decision Date: 07 January 1975
• Docket Number: Civ. A. No. 74CV229-W-3.
• Court: U.S. District Court — Western District of Missouri
• Parties: Hilton Jerry KELTON, Petitioner, v. UNITED STATES of America, Respondent.

394 F. Supp. 173

Hilton Jerry KELTON, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 74CV229-W-3.

United States District Court, W. D. Missouri, W. D.

January 7, 1975.

COPYRIGHT MATERIAL OMITTED

Bruce C. Houdek, Kansas City, Mo., for petitioner.

J. Whitfield Moody, Kansas City, Mo., First Asst. U. S. Atty., for respondent.

ORDER GRANTING PETITIONER LEAVE TO PROCEED IN FORMA PAUPERIS AND FINAL JUDGMENT DENYING PETITIONER'S MOTION UNDER SECTION 2255, TITLE 28, UNITED STATES CODE

WILLIAM H. BECKER, Chief Judge.

This is a motion under Section 2255, Title 28, United States Code, to vacate and set aside three judgments of convictions and sentences by a federal prisoner presently in custody under the challenged sentences at the United States Penitentiary at Leavenworth, Kansas. Movant seeks an adjudication that the challenged judgments of conviction and sentences were illegally secured and imposed upon him in violation of his federal constitutional and statutory rights. Movant requests leave to proceed in forma pauperis. Leave to proceed in forma pauperis will be granted.

A plenary evidentiary hearing has been granted to movant who was provided able new counsel other than counsel at his trial because of complaints of movant about adequacy of assistance of trial counsel.

Movant states that the consolidated criminal actions designated as Criminal Actions Nos. 23824-3-V (indictment in one count) and 23918-1-3-V (indictment in two counts) were tried before the Honorable Bruce M. Van Sickle, a visiting United States District Judge in this District by designation at that time; that he was convicted upon findings of guilty by a jury on all three counts of the two indictments charging separate violations of Section 841(a)(1), Title 21, United States Code; that he was sentenced by Judge Van Sickle on August 9, 1973, to a term of eight years imprisonment and a special parole term of three years in Criminal Action No. 23824-3-V; that he was also sentenced on August 9, 1973, to a term of eight years imprisonment on each of the two counts in Criminal Action No. 23918-1-3-V, and a special parole term of three years; that each of the eight-year terms of imprisonment in No. 23918-1-3-V were expressly made to run concurrently to each other and concurrent with the eight-year sentence imposed in Criminal Action No. 23824-3; that he appealed from each of the judgments of conviction and the imposition of sentences to the United States Court of Appeals for the Eighth Circuit, which affirmed the convictions in an unpublished per curiam opinion filed on April 19, 1974; that movant has not filed any previous motions under Section 2255, or any other applications, petitions or motions with respect to the challenged convictions; and that he was represented by counsel at his arraignments, trial, sentencing and on appeal.

In support of his challenge to the convictions and sentences under review, movant states the following grounds:

"(a) Petitioner was denied due process, equal protection and a fair trial and a fair and impartial jury.

"(b) The Court gave erroneous, confusing and incomplete instructions and form of verdict to the jury, thus denying the Petitioner a fair trial, due process and the trial court thus committed plain error resulting in a miscarriage of justice.

"(c) Petitioner's court-appointed counsel was incompetent, inadequate and ineffective, thus denying Petitioner assistance of counsel for his defense."

In support of the above grounds, movant states the following as facts:

"(a) Mrs. Naomi L. Burkett, a member of the jury which found Petitioner guilty, failed to reveal to the Court on voir dire examination that she was acquainted with Petitioner and his family.

"(b) 1) The court failed to instruct the jury concerning the lesser included offense of possession of heroin on Counts I and II in Criminal No. 23918-1.

"2) the court failed to fully instruct the jury concerning the lesser included offense of possession of heroin in Criminal No. 23824-3.

"3) The court failed to include in the verdict form which was delivered to the jury a form of verdict permitting the jury to find Petitioner guilty of the lesser included offense of possession of heroin on all counts in the consolidated cases.

"4) The court in its oral instructions to the jury recited a form of verdict which permitted the jury to find Petitioner guilty of the lesser included offense of possession of heroin in Criminal No. 23824-3 but failed to include a form providing for such a finding in the form of verdict given to the jury at the time it retired to deliberate, confusing the jury and thus misleading trial counsel concerning the form of verdict the jury should consider.

"(c) 1) Petitioner during the selection of the jury advised his trial counsel that he and his family were personally acquainted with Mrs. Naomi L. Burkett who was on the panel of prospective jurors. Mrs. Burkett on examination by the trial court failed to reveal this fact to the court. Contrary to Petitioner's requests Petitioner's trial counsel failed to bring the matter to the attention of the trial court and also failed to cause her to be excluded from the trial jury.

"2) Petitioner's trial counsel failed to raise on Petitioner's appeal, although he had promised Petitioner he would do so, the issue of the failure on voir dire of Mrs. Burkett to reveal her acquaintanceship with Petitioner's family and the issue of his failure to cause her to be excluded from the jury panel.

"3) Petitioner's trial counsel failed to request proper instructions to the jury as detailed in paragraph (b) supra, failed to object to the trial court's erroneous, incomplete and misleading instructions as detailed in paragraph (b) supra, and failed to review the verdict form submitted to the jury to determine whether or not it properly and fully submitted to the jury forms providing for all possible verdicts it could return."

The motion under consideration was filed on May 8, 1974. On May 22, 1974, counsel for respondent filed herein suggestions in opposition to the motion. Thereafter, on September 9, 1974, an order was entered appointing new counsel for movant. On November 7, 1974, counsel for movant filed herein, with the consent of the respondent, an amended motion under Section 2255. Following the setting of a hearing on petitioner's motion by order dated November 11, 1974, a hearing was held on November 20, 1974. Counsel for movant filed herein on November 22, 1974, further suggestions in support of the motion. On November 26, 1974, counsel for respondent filed further suggestions in opposition to the motion, and on November 27, 1974, movant filed his reply suggestions.

I

In his first ground for relief, movant contends that he was denied a fair trial by an impartial jury because Mrs. Naomi L. Burkett, a member of the jury which found movant guilty, failed to reveal to the Court on voir dire examination that she was acquainted with petitioner and his family. This contention is without factual or legal merit.

It is a cardinal principle of federal jurisprudence that, where a defendant asserts essential unfairness to vitiate his trial, the burden must be sustained by a preponderance of the evidence, not as a matter of speculation, but as a demonstrable reality. Darcy v. Handy, 351 U.S. 454, 76 S.Ct. 965, 100 L.Ed. 1331 (1956). This principle applies when an attack is made upon the integrity of a trial by reason of any alleged misconduct on the part of a juror in failing to disclose pertinent information which might cause a juror to be prejudiced against a defendant. See, United States v. Sockel, 478 F.2d 1134, 1137 (8th Cir. 1973); Kleven v. United States, 240 F.2d 270 (8th Cir. 1967).

The evidentiary hearing held in the case at bar disclosed that, although movant and his Mother claimed a personal acquaintanceship with Mrs. Burkett, that acquaintance was very remote in time and dated back to a time when the movant was a tender child of ten or twelve years of age. There was further testimony that the movant had been advised by his trial counsel that the latter had interviewed Mrs. Burkett after the trial, and that Mrs. Burkett stated to trial counsel that she had no knowledge of the defendant.

During the voir dire examination, the jurors were jointly asked the following question:

"Are any of you personally acquainted with any of the defendants — or this defendant — related to him by blood or marriage or do you have any family connection with the defendant?"

Neither Mrs. Burkett or any other panel member responded.

There was no showing that Mrs. Burkett knowingly withheld any information required to be disclosed on voir dire examination. The record conclusively shows that the movant was aware of the alleged acquaintanceship, if it existed, and its remoteness in time. Trial counsel definitely informed the movant of a post-trial interview with Mrs. Burkett, who denied any knowledge of the alleged acquaintanceship at the time of trial. Under these circumstances, trial counsel did not have and could not honestly make any proof of a knowing false answer on voir dire by Mrs. Burkett.

It is abundantly clear from the record presented to this Court that the movant made no effort personally and directly to bring this matter to the attention of the Court. In fact, it is possible that movant might have consciously failed to do so in the hope of becoming the beneficiary of possibly favorable bias. The record of this cause, including the pro se letter motions and complaints of the movant, show that he is an intelligent and experienced criminal litigant who neither advised the Court of the remote acquaintanceship or caused Mrs. Burkett to be challenged peremptorily.

In this Circuit, the per se theory of implied bias has been rejected. United States v. Williams, 484 F.2d 176, 177-178 (8th Cir. 1973); Johnson v. United States, 484 F.2d 309, 310 (8th Cir. 1973). One must show actual prejudice. United...