Slawek v. United States

• Decision Date: 28 July 1969
• Docket Number: No. 19462.,19462.
• Citation: 413 F.2d 957
• Parties: James SLAWEK, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

413 F.2d 957 (1969)

James SLAWEK, Appellant, v. UNITED STATES of America, Appellee.

No. 19462.

United States Court of Appeals Eighth Circuit.

July 28, 1969.

James Slawek, pro se.

Patrick J. Foley, U. S. Atty., and Joseph T. Walbran, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before BLACKMUN, GIBSON and BRIGHT, Circuit Judges.

BLACKMUN, Circuit Judge.

James Slawek appeals from an order entered by Judge Nordbye denying, without a hearing, his 28 U.S.C. § 2255 motion to vacate his sentences. His asserted grounds for relief are (1) his court-appointed attorney's lack of competence; (2) the denial of his right under Rule 17(b), Fed.R.Crim.P., to compulsory process for witnesses in his favor; and (3) prejudice in the receipt of testimony as to his co-defendant's admissions.

Norbert D. Terlikowski, Norbert Derengowski, Edward C. Slawek, and the petitioner were jointly charged in 1966 in a three-count indictment for violations of 18 U.S.C. § 2115 (forcible entry of a post-office building with intent to commit larceny), § 1361 (depredation against government property with damage exceeding $100), and § 371 (conspiracy) in connection with a post-office robbery in Minneapolis in January 1964. Prior to trial the charges against Derengowski and Edward C. Slawek were dismissed. Terlikowski and the petitioner were jointly tried to a jury. The jury convicted both on all three counts. On December 5, 1966, Terlikowski and Slawek each received sentences of 5 years on the burglary count, 10 years on the property count, and 5 years on the conspiracy count; the sentences were to run concurrently.

Terlikowski and Slawek appealed their respective convictions. This court affirmed. Terlikowski v. United States, 379 F.2d 501 (8 Cir.1967). Each petitioned for certiorari. Those petitions were denied. 389 U.S. 1008, 88 S.Ct. 569, 19 L.Ed.2d 604.

On February 21, 1968, Judge Nordbye reduced the sentences on the property count. Slawek's was lowered to 8 years. The court also ordered that he be eligible for parole at the discretion of the parole board. Six months later Slawek instituted his present § 2255 proceeding.

1. Competency of counsel. This point was not raised at the trial or on the appeal from the conviction. It now appears as an afterthought. It is lacking in specificity and borders on the frivolous. In fact, in his reply brief, Slawek "concedes" the issue, whatever that may mean, even though "he believes it has merit." As in so many cases of this type, the petitioner freely equates lack of success in his criminal defense with counsel incompetency, and illogically and irrationally blames his predicament, which is primarily of his own doing, upon the inability of counsel to extricate him. Appointed counsel who devotes his talent and his time in a helpful and not well compensated effort usually deserves better treatment than this.

Slawek's argument here is that he was effectively denied the assistance of counsel because counsel permitted him to join in the preparation of motions, to contribute to the brief, and to outline and make suggestions as to the oral argument. We have taken the trouble to review once again the district court file for the original case and the transcript of that six-day trial. Although Terlikowski's counsel took the laboring oar in the trial, we are fully satisfied, from that review and from our awareness of all that was done by counsel, that Slawek was well represented, that his case was intelligently defended, and that the allegation of incompetency comes with poor grace. We have seen other § 2255 proceedings where petitioners contrastingly complain that counsel failed to permit them to participate enough in the preparation of motions, briefs, and argument. It would thus appear that, when a conviction results, counsel is likely to be criticized for either overcooperation or undercooperation. In the eyes of the convict he has done nothing right.

In Kress v. United States, 411 F.2d 16 (8 Cir. 1969), this court very recently affirmed old and established principles by stating that there is a presumption of competency of court-appointed counsel; that the requirement of the Sixth Amendment is met whenever the accused is supplied with counsel who exercises the judgment expected of one trained in the law and committed to the diligent application of its principles; and that a petitioner will prevail on this issue only if it can be said that what the attorney did or did not do made the proceedings a mockery and shocking to the conscience of the court. Among the cases there cited were Cardarella v. United States, 375 F.2d 222, 230 (8 Cir.1967), cert. denied, 389 U.S. 882, 88 S.Ct. 129, 19 L.Ed.2d 176; Cross v. United States, 392 F.2d 360, 366 (8 Cir.1968); Taylor v. United States, 282 F.2d 16, 20 (8 Cir. 1960); Kilgore v. United States, 323 F. 2d 369, 372-373 (8 Cir.1963), cert. denied, 376 U.S. 922, 74 S.Ct. 681, 11 L. Ed.2d 617. See, also, Shaw v. United States, 403 F.2d 528, 529 (8 Cir.1968).

There is no merit whatsoever in Slawek's claim of counsel incompetency.

2. Compulsory process. This asserted right under Criminal Rule 17(b) relates to Slawek's pretrial request for subpoenas to eight persons, "the farthest one being in Miami, Florida, from where the prosecution brought witnesses" and the nearest in the Hennepin County, Minnesota (Minneapolis), jail. He argues that the prosecution produced 31 witnesses by subpoenas issued in blank, some of them from distant places, with none of its requests being denied, and that the "paying defendant" (Terlikowski) obtained witnesses by subpoenas issued in blank, none of which were challenged, but that seven which he (Slawek) requested were refused. It is said that the testimony of those seven "could have, and would have, been the difference between the guilty and innocent verdict."

This point, also, as was the first point, was "conceded" by Slawek in his reply brief. Nevertheless, out of an abundance of caution, we examine it.

The point is dismissible peremptorily because it was raised by Slawek on his direct appeal to this court and rejected. 379 F.2d at 507-508. We noted there, p. 508, "None of the testimony sought would have been material or relevant to Slawek's defense", and we described the request as one for "a useless and abusive issuance of process at Government expense." The nature of the testimony sought to be proved by these witnesses, and its immaterial and, at best, cumulative character, are set forth in detail by Judge Mehaffy in his opinion on the direct appeal and need not be repeated here.

It is still the law, we take it, that matters so meticulously considered and decided on direct appeal need not be reconsidered and decided again on a § 2255 proceeding. Kaufman v. United States, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) and in particular n. 8, p. 227, 89 S.Ct. p. 1074; Sanders v. United States, 373 U.S. 1, 15-19, 83 S. Ct. 1068, 10 L.Ed.2d 148 (1963); Smith v. United States, 356 F.2d 868, 873 (8 Cir.1966), cert. denied, 385 U.S. 820, 87 S.Ct. 44, 17 L.Ed.2d 58; Evans v. United States, 346 F.2d 512, 513 (8 Cir. 1965), cert. denied, 382 U.S. 881, 86 S. Ct. 170, 15 L.Ed.2d 121; Butler v. United States, 340 F.2d 63, 64 (8 Cir.1965), cert. denied, 382 U.S. 847, 86 S.Ct. 92, 15 L.Ed.2d 87; Baca v. United States, 383 F.2d 154, 156 (10 Cir.1967), cert. denied, 390 U.S. 929, 88 S.Ct. 868, 19 L. Ed.2d 994; Bearden v. United States, 403 F.2d 782, 784 (5 Cir.1968), cert. denied, 393 U.S. 1111, 89 S.Ct. 920, 21 L.Ed.2d 808.

While Slawek concedes that review of this point was made on direct appeal, he says that this "is misleading" and "only partly true." He claims that what was argued and decided on the appeal was the trial court's abuse of discretion, whereas what is now argued is that he was denied compulsory process only because of his poverty, and that there "is a clear and distinct difference" between these two arguments. What this comes down to is an assertion that, had he possessed funds, he could have paid for subpoenas and the witnesses would have been present and that he thus was deprived of rights which a rich defendant possesses. But this, too, was argued on the direct appeal.

In any event, a rich defendant may have the right to waste his money on unnecessary and foolish trial steps, but that does not, in the name of necessary constitutional equality, give the indigent the right to squander government funds merely for the asking. Slawek overlooks the fact that compulsory process under Rule 17(b) is a matter within the area of the trial court's discretion. Feguer v. United States, 302 F.2d 214, 241 (8 Cir.1962) and cases cited, cert. denied, 371 U.S. 872, 83 S.Ct. 123, 9 L. Ed.2d 110; Bandy v. United States, 296 F.2d 882, 892 (8 Cir.1961), cert. denied, 369 U.S. 831, 82 S.Ct. 849, 7 L.Ed.2d 796; Reistroffer v. United States, 258 F.2d 379, 396 (8 Cir.1958), cert. denied, 358 U.S. 927, 79 S.Ct. 313, 3 L.Ed.2d 301. We see no abuse whatsoever of the trial court's discretion here. This issue, too, borders on the frivolous.

3. The codefendant's admissions. This court passed upon the admissions issue on the direct appeal. 379 F.2d at 506. Slawek, however, now seeks to invoke the protection of the rule later enunciated in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and made retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

The Bruton principle is that the admission, in a joint trial, of a codefendant's confession implicating the defendant in the crime may be violative of the defendant's right of cross examination secured by the Confrontation Clause of the Sixth Amendment despite the trial court's instruction to the jury that it should disregard the confession in determining the defendant's guilt or innocence. Bruton overruled Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), where the Court had reached the opposite result by...