U.S. v. Capua

• Decision Date: 21 September 1981
• Docket Number: No. 79-3948,79-3948
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CAPUA, Defendant-Appellant. . Unit A
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1033

656 F.2d 1033

UNITED STATES of America, Plaintiff-Appellee, v. Robert E. CAPUA, Defendant-Appellant.

No. 79-3948.

United States Court of Appeals, Fifth Circuit.

Unit A

Sept. 21, 1981.

Barry Abrams, Sewell & Riggs, Houston, Tex., for defendant-appellant.

John M. Potter, Asst. U. S. Atty., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before RUBIN, RANDALL and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

The jury selection procedure formerly employed in the United States District Court for the Southern District of Texas permitted the expiration of a significant length of time between the selection of a jury and the start of the trial of a criminal defendant, and created the possibility that the jurors selected might serve as jurors in similar criminal cases during that interval. Because of the use of that procedure, we have, on direct appeal, reversed a number of convictions. ¹ Now a federal prisoner who objected to the jury selection procedure prior to his trial, but who filed and subsequently withdrew his direct appeal from his conviction, challenges that deficient selection procedure in a collateral attack on the judgment of conviction under 28 U.S.C. § 2255. Because the errors alleged by the petitioner are not of constitutional dimension and because these nonconstitutional claims could have been raised by a direct appeal, we hold that they may not now be asserted in a collateral proceeding, and, therefore, we affirm the district court's judgment denying the petitioner's Section 2255 motion.

Although the petitioner, Robert Capua, initially filed a direct appeal from his judgment of conviction, he later withdrew that appeal, apparently because of his desire to have his sentence on the conviction involved in this case run concurrently with that imposed by a federal court in another district on an unrelated conviction. His actions in the trial court indicate his awareness of the issues relevant to the claims of error recognized in United States v. Mutchler, 559 F.2d 955 (5th Cir. 1977), and United States v. Price, 573 F.2d 356 (5th Cir. 1978), even though those decisions had not been published when Capua made his decision to abandon his direct appeal. Thus, the claims asserted in his habeas petition clearly could have been made in the direct appeal had it been pursued.

Selection of a jury long before the trial date creates many potentials for prejudice to the defendant. In Mutchler we held that service by jurors in other similar criminal cases between the time of their selection and the trial date deprives the defendant of the effective exercise of peremptory challenges, an important procedural element in the selection of a fair and impartial jury. 559 F.2d at 958-59. Indeed, such interim jury service in a similar criminal case may affect the juror's impartiality and entitles the defendant to challenge the juror for cause. United States v. Jefferson, 569 F.2d at 262; United States v. Price, 573 F.2d at 363.

Merely checking the records of the clerk of the district court will not provide defense counsel with all the information regarding interim jury service necessary for the full exercise of the challenges to which the defendant is entitled. United States v. Jefferson, 569 F.2d at 262-63. Even if the clerk's records are available for defendant's review, supplemental voir dire by the district court is required to determine whether the particular interim service will subject the juror to challenge for cause; supplemental voir dire is also essential to the effective exercise of the defendant's peremptory challenges. Id. The district court should not require the defendant to bear the burden of that inquiry by relegating him to a review of the records of the clerk's office to determine whether interim jury service has occurred. Id. at 263.

In Price we held that the expiration of a "significant delay" between jury selection and the commencement of trial requires the trial court to conduct supplemental voir dire regarding not only any interim jury service but also any other events occurring during the delay that "may have caused the formation of preconceptions concerning the case at hand, or of which the attorneys would simply be entitled to be advised in order to effectively exercise peremptory challenges." United States v. Price, 573 F.2d at 364. The failure to conduct supplemental voir dire after such a significant delay between selection and trial requires a new trial even absent interim jury service by selected jurors. Id. at 363-64. A thirty-nine day delay between selection and trial is a "significant delay" for purposes of the Price requirement of supplemental voir dire. United States v. Garza, 574 F.2d 298, 303 (5th Cir. 1978).

If, therefore, the issue is properly preserved for appellate review, the court's failure to conduct supplemental voir dire is reversible error on direct appeal. However, the right is waived unless the defendant raises it in the trial court by urging or reurging it immediately before the commencement of the trial testimony. Only such a request triggers the duty of the trial court to conduct the supplemental voir dire. Id. at 303-04; United States v. Eldridge, 569 F.2d 319 (5th Cir.), cert. denied, 436 U.S. 929, 98 S.Ct. 2827, 56 L.Ed.2d 773 (1978); United States v. Price, 573 F.2d at 363 & n.22.

We assume, for purposes of this opinion, that, at the outset of his trial, Capua adequately alerted the trial judge to his objections to the jury selection procedure, including the possibility of interim jury service and significant delay between selection and trial. ² This brings us to the key issue whether a claim based only on the admittedly deficient jury selection procedures may be raised collaterally by a Section 2255 motion for habeas relief.

"It has, of course, long been settled law that an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment." United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805, 811 (1979). In determining whether a claim of error is cognizable under Section 2255, a distinction is drawn between constitutional or jurisdictional errors on the one hand, and mere errors of law on the other. Id. See Grimes v. United States, 607 F.2d 6, 10-11 (2d Cir. 1979).

Section 2255 does not offer recourse to all who suffer trial errors. United States v. Addonizio, 442 U.S. at 184, 99 S.Ct. at 2240, 60 L.Ed.2d at 811. It is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and, would, if condoned, result in a complete miscarriage of justice. United States v. Decoster, 624 F.2d 196, 207 (D.C.Cir.1979) (en banc). In dictum in Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976), the Supreme Court reiterated the "established rule" regarding the circumstances under which a nonconstitutional claim may be asserted collaterally:

(N)onconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.... Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted " 'a fundamental defect which inherently results in a complete miscarriage of justice,' " (Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 2305, 41 L.Ed.2d 109, 119 (1974)), quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962).

428 U.S. at 477 n.10, 96 S.Ct. at 3044 n.10, 49 L.Ed.2d at 1077 n.10 (emphasis added). See Davis v. United States, 417 U.S. at 345-46 n.15, 94 S.Ct. at 2305 n.15, 41 L.Ed.2d at 118 n.15, stating that Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947), "held that a federal prisoner could not assert a nonconstitutional claim on collateral attack if he had not raised it on appeal." See also United States v. Timmreck, 441 U.S. 780, 783, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634, 638 (1979) (formal violation of Rule 11, Fed.R.Crim.P., could have been raised on direct appeal and no reason exists to allow collateral attack to do service for an appeal).

On the other hand, the failure to appeal directly a constitutional claim of error will not bar habeas relief under Section 2255 absent a deliberate choice not to appeal made by conscious election. Kaufman v. United States, 394 U.S. 217, 220 n.3, 89 S.Ct. 1068, 1070-71 n.3, 22 L.Ed.2d 227, 233-34 n.3 (1969); Buckelew v. United States, 575 F.2d 515, 519 (5th Cir. 1978); Thor v. United States, 574 F.2d 215, 219 (5th Cir. 1978); Sosa v. United States, 550 F.2d 244, 247-48 (5th Cir. 1977). Proof of deliberate bypass usually involves a showing that the petitioner sought to gain a tactical or strategic advantage by foregoing the direct appeal. Buckelew v. United States, 575 F.2d at 519. Unless the record clearly establishes a deliberate bypass of the direct appeal, the issue requires an evidentiary hearing. Buckelew v. United States, 575 F.2d at 519; Coco v. United States, 569 F.2d 367, 370-71 (5th Cir. 1978); McKnight v. United States, 507 F.2d 1034, 1036 (5th Cir. 1975).

The procedural errors that Mutchler and Price recognized as entitling the defendant to a new trial cannot be raised to deprivations of constitutional rights. Both decisions considered the defects in the jury selection procedure to affect the defendant's right to a trial by a fair and impartial jury, United States v. Mutchler, 559 F.2d at 958; United States v. Price, 573 F.2d at 361 & 365. See also United States v. Nell, 526 F.2d 1223, 1229 (5th Cir. 1976) (challenges for cause and peremptory challenges are the principal mechanism by which the right to an impartial jury is implemented); United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977) (the right to a fair trial by impartial...