U.S. v. Brooks, 81-1621

• Decision Date: 20 April 1982
• Docket Number: No. 81-1621,81-1621
• Citation: 677 F.2d 907
• Parties: , 10 Fed. R. Evid. Serv. 804 UNITED STATES of America, Appellee, v. Freddie A. BROOKS, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 907

677 F.2d 907

219 U.S.App.D.C. 319, 10 Fed. R. Evid. Serv. 804

UNITED STATES of America, Appellee, v. Freddie A. BROOKS, Appellant.

No. 81-1621.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 25, 1981.

Decided April 20, 1982.

Donald Wheeler Jones, Washington, D. C., for appellant.

Kathleen E. Voelker, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, Washington, D. C., John A. Terry, Michael W. Farrell and Andrea L. Harnett, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before MacKINNON, ROBB and EDWARDS, Circuit Judges.

Opinion PER CURIAM.

PER CURIAM:

Appellant Brooks seeks review under 28 U.S.C. § 2255 (1976) of the district court's dismissal of his petition to vacate his 1968 sentence for first degree murder and unlawful possession of a prohibited weapon. For the reasons set forth below, we affirm the judgment of the district court.

I.

Brooks was convicted by a jury of murder in the first degree in December 1968 and sentenced to life imprisonment. That conviction was affirmed by this court, United States v. Brooks, 449 F.2d 1077 (D.C.Cir.1971), in an opinion by Judge Leventhal. In the 13 years since his conviction, Brooks has filed at least ten petitions under section 2255 seeking to vacate his conviction, all of which were denied.

The instant petition, filed on September 5, 1980, claims that Brooks was denied his right to trial by an impartial jury under the Sixth Amendment. The principal basis of this claim is the affidavit of February 22, 1980 by the foreman of the 1968 jury that convicted Brooks, one James McRoy. This affidavit is set forth in the margin. ¹ It states that McRoy, "in the late spring or early summer of 1968 ... began to see one Freddie A. Brooks who visited my place (of work) during work hours." The affidavit states that McRoy saw Brooks enter and exit McRoy's place of employment, a cleaning establishment, seven or eight times over a period of weeks. Brooks claims that this series of casual observations, which all concede McRoy did not recall at the time of trial, gave rise to at least the possibility that McRoy possessed a subconscious memory of Brooks that may have prejudiced him against Brooks. On this basis Brooks sought an evidentiary hearing in the district court to determine, possibly through the use of hypnosis, whether McRoy was prejudiced when he participated as a juror in Brooks' trial. The district court dismissed Brooks' petition without a hearing, and Brooks appeals.

II.

Before considering Brooks' claim we note the limited content of the McRoy affidavit. First, it contains only the very limited statement that McRoy "saw" and "paid attention" to Brooks. There is no evidence that the two ever met or exchanged words, or that Brooks was even aware of McRoy's existence. Nor is there any indication of a connection between the crimes with which Brooks was charged and the circumstances in which McRoy observed him. Second, the affidavit states that when the jury panel was asked during voir dire whether "any of you know the defendant" (Transcript of Dec. 10, 1968 at 12), McRoy "honestly answered 'No' because I did not recall having ever seen him before at that time" (emphasis added). In any event there is no claim that McRoy ever "knew" Brooks, only that he had, at some distance, seen him casually a few times under circumstances which at the time of trial he did not remember. McRoy states in his 1980 affidavit that he came to the realization that Brooks and the man he had seen enter the cleaning shop were the same person only at some unspecified time "(a)fter the trial was over"-when a co-worker suggested such fact to him. The date between 1968 and 1980 exactly when the co-worker made the suggestion is not stated, nor is her last name known to McRoy or otherwise disclosed in the record.

In order to provide some basis for a claim of possible prejudice on the part of McRoy, Brooks proffered the affidavit of a practicing clinical phychologist. ² This affiant states that in his expert opinion the simple fact that McRoy had seen Brooks prior to trial established that McRoy "retained a subconscious memory of Mr. Brooks even though he did not consciously recall him at any time during the trial." That subconscious memory, the affidavit states, in turn "acted on and influenced to some extent the attitude, deliberative process, thought content and emotional reactions of Mr. McRoy as he regarded Mr. Brooks during his trial." There is no assertion, however, that McRoy's subsconscious memory adversely affected Brooks. The affidavit concludes that the existence and effect of McRoy's "subconscious memory" of Brooks could be ascertained through hypnosis of McRoy, "assuming it can be accomplished."

A third affidavit was executed by Brooks' trial counsel. It stated that counsel, had he been aware of McRoy's sightings of Brooks prior to trial, would have exercised a peremptory challenge to strike McRoy from the jury. There is no claim that he could have been struck for cause.

The district court denied Brooks' petition without conducting an evidentiary hearing. It held that the failure of a juror to disclose information sought on voir dire requires a new trial only where the information was deliberately withheld; since deliberate concealment of a fact is possible only if the concealer is aware of the fact in the first place, that standard was not satisfied by Brooks' allegations. On appeal from that decision, Brooks urges that the petition presented facts sufficient to warrant conducting an evidentiary hearing on the question of prejudice. ³ We disagree.

III.

Section 2255 provides:

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.

28 U.S.C. § 2255 (1976) (emphasis added). Rule 4 of the Rules Governing Proceedings in the United States District Courts under Section 2255 (1976) similarly provides that if on initial consideration by the district court "it plainly appears from the face of the motion and any annexed exhibits ... that the movant is not entitled to relief," a 2255 petition may be summarily dismissed. See also id. Rule 8. It is therefore beyond dispute that section 2255 does not require an evidentiary hearing in every case. Daniels v. United States, 357 F.2d 587 (D.C.Cir.1966). We conclude that the district judge did not abuse her discretion in denying Brooks' petition without an evidentiary hearing.

The suggestion that the court, in a collateral attack on a conviction well over ten years old, was required to take and give credence to evidence that a juror had "subconscious memories" that must be probed years later, is based on an unacceptable extension of the bounds of due process. We hold that a juror's testimony as to nonprejudicial "subconscious memory" that was unrecalled over ten years previously on voir dire cannot constitute a post hoc basis for a hearing to challenge the juror's competency. There is no showing that McRoy's "subconscious memory" indicated any prejudice against Brooks, and we refuse on such fanciful and speculative grounds to require an inquiry into a jury verdict thirteen years after it was returned.

In Daniels v. United States, supra, this court upheld the denial of a new trial motion without a hearing where, although an accurate response to a question on voir dire might have prompted a defense challenge, the likelihood of prejudice was minimal. Generally speaking, the mere allegation of a "possibility" of some undefined prejudice-which is all the petition and the psychologist's affidavit here can amount to-is completely speculative and not sufficient to trigger the right to an evidentiary hearing under section 2255. See, e.g., Eskridge v. United States, 443 F.2d 440, 443 (10th Cir. 1971) (allegation that defense counsel "acted with bias toward" defendant did not require hearing). Allegations of prejudice must be detailed and specific; even then they may be insufficient as a matter of law to require a hearing. Machibroda v. United States, 368 U.S. 487, 495-96, 82 S.Ct. 510, 514, 7 L.Ed.2d 473 (1962). See, e.g., Smith v. United States, 431 F.2d 565 (5th Cir. 1970) (per curiam) (motion based on challenge to jury selection system denied without hearing). This is such a case.

IV.

With respect to the fact that McRoy did not recall his sighting of Brooks until sometime after the trial concluded, and then only at the suggestion of a third party, generally the failure of a juror to disclose facts that might lead to his being challenged will be the basis for the grant of a new trial only if the nondisclosure is deliberate. Ryan v. United States, 191 F.2d 779 (D.C.Cir.1951). See Irving v. Bullock, 549 P.2d 1184, 1188 (Alaska 1976) (juror affidavits excluded "except in cases of fraud, bribery, or other obstruction of justice"). Brooks has not alleged that McRoy deliberately concealed any material fact on voir dire ; indeed, the affidavit relied upon states that McRoy answered all questions "honestly." See n.1 supra. See also Van Zee v. Bayview Hardware Store, 268 Cal.App.2d 351, 74 Cal.Rptr. 21 (1968). Consequently, Brooks does not make a prima facie showing of prejudice and therefore no hearing was required.

Carpenter v. United States, 100 F.2d 716 (D.C.Cir.1938), relied upon by appellant, is not to the contrary. In that case, on facts closely similar to those involved in the present case, but involving an attack on conscious memory rather than sub-conscious memory, the trial court conducted a hearing in which the juror was examined regarding his failure to answer a question on voir dire. This court's opinion affirming the denial of the motion for a new trial...