Owens v. U.S.

Decision Date12 April 2007
Docket NumberNo. 05-1785.,No. 05-1784.,05-1784.,05-1785.
PartiesDwayne OWENS, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee.
CourtU.S. Court of Appeals — First Circuit

Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.

TORRUELLA, Circuit Judge.

It has long been true that "[a] defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953). The trial of Dwayne Owens on a variety of racketeering, murder, assault, and drug trafficking charges has tested that proposition. On balance, we find that Owens' trial may have crossed the line from imperfect to unfair.

I. Background

The Government's case against Owens is not particularly relevant to the issues on appeal. To summarize briefly, the Government presented evidence at Owens' trial that Owens played a significant role in an enterprise that sold kilogram quantities of cocaine in Massachusetts and Rhode Island. In order to protect his enterprise, Owens at times resorted to violence. According to testimony, he provided guns to other members of the enterprise who used them to extract "refunds" from cocaine suppliers whose shipments were deemed inadequate. Notably, witnesses also testified that Owens killed Rodney Belle, whom he thought to have double-crossed him during a drug deal.1

Owens was arrested on December 13, 1995, and an indictment was returned against him on December 19, 1995. A superseding indictment was returned on May 14, 1996, charging Owens with the aforementioned crimes, and a host of others. A jury trial for Owens began on February 10, 1997.

On the first day of jury selection, the court wanted to select the jury from a venire of seventy-two potential jurors, but the courtroom in which jury selection was to occur was quite small. The following colloquy took place between the court and the U.S. Marshal:

Court: We're going to get 72 jurors in here. That will mean we'll have a number of jurors. Now, let me ask the marshals. It looks like we're going to need all the rows except for this first row [where the defendants were seated]. Is that going to be sufficient for you?

Marshal: I think so, your Honor. I just spoke to [the courtroom deputy] about it, and I was going, I'll have the officers and myself and the other fellows with me stand off to the right, make sure all the jurors get seated and have whatever spectators leave until there's a sufficient amount of room.

Court: We'll need every seat with 72 people. All right.

Neither party objected at this time. The marshals cleared the courtroom and the potential jurors proceeded to enter. As jurors were dismissed, they left. Despite the growing number of seats vacated by dismissed jurors, according to affidavits submitted in connection with this case, the marshals continued to bar Owens' family from the courtroom for the remainder of jury selection, which lasted an entire day. According to Owens and his trial attorneys, neither Owens nor counsel was aware that Owens' family members were being barred from the courtroom.

One month into Owens' trial, the court held a swearing-in ceremony for a new Assistant U.S. Attorney ("AUSA"), Robert Peabody. Upon learning of the court's plan, defense counsel objected. At sidebar, the judge vowed to "love all lawyers equally . . . [and] love the bar generally." The judge added, "I really don't think you are hurt by this." Defense counsel replied that they were concerned about the impact on the jury of hearing the oath administered. The court promised to issue curative instructions, overruled the objection, and proceeded with the swearing-in ceremony. The court then stated:

Now ladies and gentlemen, we have the happy occasion of administering the oath of office to a new Assistant United States Attorney. Now, let's be very clear, I very much prefer to do this in the middle of whatever trial we have going on.

. . .

Now there is a concern here. The fact that I do this, and I'm proud to admit Mr. Peabody to the company of the Assistant United States Attorneys, we're in no way preferring the prosecutors. Ms. Conrad, for instance, is a member of the Federal Public Defender's Office and she likewise is sworn in as an advocate for people who are accused of a crime, and I would do the same for her. And it's interesting to remark that many distinguished defense counsel have appeared here to see Mr. Peabody sworn in.

Because you see the lawyers, especially those lawyers who are active in so-called criminal cases, know one another and they have the highest respect for each other. They're the closest things that we have to barristers, the English system, the people who actually go to court every day. So while I am especially proud, and I am, Mr. Peabody, to conduct this ceremony, as is my practice, in the middle of a serious trial, I caution the jury that if I had a defender here, I would do exactly the same thing and then caution you that I'm not favoring defenders over someone who's being sworn in as a prosecutor.

An AUSA then read Peabody's curriculum vitae, and moved that he be sworn in. The court asked everybody present in the courtroom to stand, and proceeded to administer the following oath of office:

I, Robert Peabody, do solemnly swear that I will support and defend the Constitution of the United States, against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter, so help me God.

The courtroom burst into applause. According to the Government, the court then stated that it was "an honor and privilege to include [Peabody] among attorneys who share the right to practice within this bar enclosure the vital role of teaching. It's imposed both on those who have the burden of prosecuting and those who have the significant responsibility of defending those in our society." After the swearing-in ceremony, one juror asked the court to "explain the difference between the two types of lawyers."2

The trial continued until March 27, 1997. Owens never testified in his own defense. According to Owens, this is because his attorneys never informed him of his right to testify or consulted him about whether he would like to do so. One of Owens' trial attorneys submitted an affidavit in connection with this case, in which he stated, "I do not remember ever discussing with Dwayne Owens that he had a right to testify and whether he wished to testify." Only once did the court reference a defendant's right to testify, and even then, the reference was oblique: in its pre-trial charge to the jury, the court stated that defendants did not have to testify or call witnesses, but "of course, they can do those things."

The jury returned a verdict finding Owens guilty on nine charges and not guilty on six additional charges. The court sentenced Owens to life terms on five of the charges, and to the maximum statutory term on the remaining charges. We affirmed Owens' conviction on appeal. Owens, 167 F.3d 739. Owens then appealed his conviction to the Supreme Court, which denied certiorari, 528 U.S. 894, 120 S.Ct. 224, 145 L.Ed.2d 188 (1999).

In 2001, Owens filed a petition for habeas corpus with the district court, in which he claimed that he had ineffective assistance of counsel at trial and on appeal, and that a number of errors in the proceedings denied him a fair trial.3 The district court denied Owens' petition for a writ of habeas corpus on all grounds except one,4 which is not the subject of this appeal.5

II. Discussion
A. Standard of Review

Because Owens is in federal custody, his habeas corpus petition is controlled by 28 U.S.C. § 2255. Section 2255 provides that a prisoner may move to vacate his sentence

upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.

A significant bar on habeas corpus relief is imposed when a prisoner did not raise claims at trial or on direct review. In such cases, a court may hear those claims for the first time on habeas corpus review only if the petitioner has "cause" for having procedurally defaulted his claims, and if the petitioner suffered "actual prejudice" from the errors of which he complains.6 United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); Knight v. United States, 37 F.3d 769, 774 (1st Cir.1994).

Once a prisoner requests relief under § 2255, a district court must grant an evidentiary hearing on the prisoner's claims unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. If a district court holds an evidentiary hearing on the claim, we review its factual conclusions for clear error. Awon v. United States, 308 F.3d 133, 140 (1st Cir.2002). If a district court dismisses a § 2255 claim without holding an evidentiary hearing, we take as true the sworn allegations of fact set forth in the petition "unless those allegations are merely conclusory, contradicted by the record, or inherently incredible." Ellis v. United States, 313 F.3d 636, 641 (1st Cir.2002). Finally, we review a district court's denial of a § 2255 petition de novo as to legal conclusions. Awon, 308 F.3d at 140.

B. Ineffective Assistance of Counsel

Owens argues that the district court erred in dismissing without an evidentiary hearing his claim that his attorneys'...

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