U.S. v. Drummond, 89-6121
| Decision Date | 05 September 1990 |
| Docket Number | No. 89-6121,89-6121 |
| Citation | 910 F.2d 284 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jose Gilberto DRUMMOND, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jose Gilberto Drummond, Rochester, Minn., pro se.
Appeal from the United States District Court for the Southern District of Texas.
Before THORNBERRY, GEE, and SMITH, Circuit Judges.
Today, we decide whether a district court may properly deny a federal prisoner's motion pursuant to 28 U.S.C. Sec. 2255 to vacate sentence without a hearing, even though the record contains no direct evidence or explicit findings on the matter raised by the prisoner.
The petitioner, Drummond, currently is serving a 90-month sentence for distributing cocaine and conspiracy to distribute cocaine. He appeals to us from the district court's denial, without a hearing, of his Sec. 2255 motion. We affirm.
Drummond pled guilty to the first two counts of a four count indictment and, following a trial, was convicted on the last two counts. The court sentenced him to 90 months in prison and four years of supervised release. In an unpublished opinion, United States v. Drummond, 866 F.2d 1419 (5th Cir.1989), we affirmed his conviction and sentence on counts three and four. Drummond then filed this Sec. 2255 motion, claiming that as a result of earlier head injuries he was mentally incompetent to plead, to stand trial or to be sentenced, and arguing further that he had understood the trial judge to say that, as a result of his guilty plea on the first two counts, "no trial" would be held on any of the four counts. The district court concluded that the record, which contains no direct discussion of Drummond's competence, conclusively shows that Drummond is not entitled to relief.
Nothing in Sec. 2255 requires direct evidence before a court can forego a hearing. Section 2255 permits the district court to dispense with a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief ... (emphasis added)" We have already indirectly addressed the meaning of the phrase, "conclusively show": In Franklin v. United States, 589 F.2d 192 (5th Cir.), cert. denied, 441 U.S. 950, 99 S.Ct. 2177, 60 L.Ed.2d 1055 (1979), we held that the language requires only conclusive evidence. There, as here, a prisoner had challenged his conviction and sentence, claiming mental incompetence at the time at which he entered his plea. There, as here, the district court denied the prisoner's motion without a hearing. Based solely upon the record and the files, we affirmed the district court's denial:
The transcripts of the suppression hearing and plea proceedings show that Franklin was alert, coherent, and fully competent to stand trial ... The District Court did not err in failing to order a competency hearing, because there was nothing in Franklin's behavior to suggest to the court that such a hearing was...
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...records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); see also United States v. Drummond, 910 F.2d 284, 285 (5th Cir. 1990) ("Faced squarely with the question, we now confirm that § 2255 requires only conclusive evidence—and not necessarily ......