Myatt v. U.S., 88-1912

• Citation: 875 F.2d 8
• Decision Date: 09 February 1989
• Docket Number: No. 88-1912,88-1912
• Parties: Stephen W. MYATT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

875 F.2d 8

Stephen W. MYATT, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.

No. 88-1912.

United States Court of Appeals, First Circuit.

Heard Feb. 9, 1989.

Decided May 23, 1989.

Robert L. Sheketoff with whom Zalkind, Sheketoff, Homan, Rodriguez & Lunt, Boston, Mass., was on brief for petitioner, appellant.

F. Mark Terison, Asst. U.S. Atty., Portland, Me., with whom Richard S. Cohen, U.S. Atty., Augusta, Me., was on brief for the U.S.

Before CAMPBELL, Chief Judge, TORRUELLA and SELYA, Circuit Judges.

TORRUELLA, Circuit Judge.

Stephen Myatt was convicted by a jury of armed bank robbery and conspiracy, in violation of 18 U.S.C. Secs. 2113(d), 371 and 372. He appeals the district court's denial, without a hearing, of his motion under 28 U.S.C. Sec. 2255 to vacate his conviction and sentence.

A careful recitation of the facts in this case is necessary to its understanding. The government's case against Myatt consisted almost exclusively of the testimony of Richard Bellino ("Richard"), who testified pursuant to a plea agreement with the government. Richard testified that his brother, Joseph Bellino ("Joseph") had informed him that Joseph, Myatt, William Baranow, and two other men known only at that time as Frank and John (they were later identified as Frank Bolduc and John McGrath) were going to rob a local bank. Joseph asked his brother to case the bank on Mondays and Thursdays between 11:00 a.m. and noon, which is when the armored car deliveries to the bank were regularly made. Joseph also told Richard that the other four men had also been casing the bank.

Richard also testified that approximately two weeks before the robbery Baranow had driven a brown Buick Skyhawk to Richard's house and asked if the car could be kept there. Baranow told Richard that the car had been stolen and that it would be used during the bank robbery. At some point, Joseph told Richard that on the morning of the robbery, Baranow, Frank, and John would pick up the car and take it to the bank where Frank and John would commit the actual robbery. They would be wearing disguises and one would be dressed as a woman. Baranow would wait in the car and act as a lookout, while Myatt, who would drive another car to the bank, also would act as a lookout.

On the morning of the robbery, all of the men arrived at Richard's house. Myatt drove up in a Ford Thunderbird. Richard testified that Baranow drove off in the Buick Skyhawk with two other men.

Four bank employees, as well as an employee of a local business, testified as to the robbery itself. At approximately 11:30 a.m., two men entered the bank carrying handguns. Both men were disguised, one as a woman. The men asked where that morning's armored car delivery was located and left with the money as well as two hidden dye packets. They ran out of the bank into a waiting vehicle.

After a few moments, the dye packets exploded, forcing the robbers to abandon the car that they were in: a brown Buick Skyhawk that was later identified as the same car that had been kept at Richard Bellino's house. They were picked up by another car.

A bank employee testified at trial that on the Thursday morning prior to the robbery she had seen a car outside of the bank, whose occupants were carefully observing the bank and its attendant activities. Thinking that the bank was being cased, she wrote down the car's description and license plate. Upon a check of the license plate, it was discovered that it was Myatt's car.

Prior to trial, Myatt requested government disclosure of all information pertaining to his identification. Although the record is unclear, it appears that the government informed Myatt two weeks before the start of the trial that four bank employees were shown photographic lineups, from which they failed to make any identifications. The government also furnished two of the four photographic arrays, which contained pictures of Baranow and Joseph Bellino. Apparently, there had been four photograph lineups compiled by the FBI agent working on the case, containing pictures of McGrath, Bolduc, Baranow, and Bellino. The agent had since passed away and therefore detailed information on these pictures was unavailable, but both parties agree that Myatt's photograph was not used in any of the arrays. No witness at trial identified Myatt from a photograph and Myatt's attorney cross-examined the bank employees about the photograph lineups that they had been shown and about their failure to make any identifications.

Also, the government failed to disclose to Myatt three FBI reports. The reports concerned fingerprints, a palm print, and hair samples that were retrieved in connection with the robbery. These were tested against samples of Baranow, Bolduc, and McGrath and did not match.

Upon appeal before this court, Myatt's convictions were affirmed. United States v. Myatt, 815 F.2d 691 (1st Cir.1987). Approximately six months later, Myatt filed this petition to vacate his conviction and sentence pursuant to 28 U.S.C. Sec. 2255. The district court denied the petition without the benefit of an evidentiary hearing.

Myatt argues that the lower court erred in deciding his motion without a hearing. Therefore, the only relief he seeks from us is a remand for an evidentiary hearing. Petitioners bear the burden of establishing by a preponderance of the evidence before the district court that they are entitled to a hearing. United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir.1978), cert. denied, 439 U.S. 834, 99 S.Ct. 115, 58 L.Ed.2d 129 (1979).

To dismiss a Sec. 2255 motion without a hearing, the allegations set forth by the petitioner "must be accepted as true except to the extent they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." United States v. Mosquera, 845 F.2d 1122, 1124 (1st Cir.1988). According to Rule 4(b) of the Rules Governing Proceedings in U.S. District Courts under 28 U.S.C. Sec. 2255, a hearing need not be held, if, after an examination of the record, transcript, and other relevant papers, "it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief...." Even if a Sec. 2255 motion is facially adequate, a hearing is not necessary before dismissal if the motion is "conclusively refuted as to the alleged facts by the files and records of the case." Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir.1974). Having enunciated the appropriate standards, we will examine in turn each of the grounds upon which Myatt urged vacation of his conviction and sentence.

I. The Photographic Lineups

Myatt first claims that, by nondisclosure of two of the photo arrays as well as details of their use, the government breached its duty under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny, to disclose exculpatory evidence that had been requested from the government. Although the facts concerning the use of these photographic lineups are in dispute, because the record is unclear we take the factual allegations as Myatt has set forth as true.

In his Sec. 2255 motion, Myatt claimed that after he had made a specific request for information concerning these lineups, no array was ever given to him. The record, however, indicates to the contrary that two of the four arrays were disclosed and that the government after reasonable diligence informed Myatt that no further information was available due to the death of the FBI special agent that had prepared the photographs for display. Moreover, Myatt was correctly told that his picture had not been used and that no identifications had been made of the others allegedly involved. Finally, he was given all of this information prior to trial and his counsel was able to completely and competently cross-examine the witnesses who had been shown the lineups about their failure to recognize any of the persons photographed. See United States v. Del Toro Soto, 676 F.2d 13, 19 (1st Cir.1982).

It is well-settled that if the government in good faith does not have or is unable to obtain requested information, it will not be...