U.S. v. Green, 80-2461

• Decision Date: 21 May 1982
• Docket Number: No. 80-2461,80-2461
• Citation: 220 U.S. App. D.C. 147,680 F.2d 183
• Parties: UNITED STATES of America v. James K. GREEN, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 183

680 F.2d 183

220 U.S.App.D.C. 147

UNITED STATES of America v. James K. GREEN, Appellant.

No. 80-2461.

United States Court of Appeals, District of Columbia Circuit.

Argued June 16, 1981.

Decided May 21, 1982.

Appeal from the United States District Court for the District of Columbia (Criminal No. 00729-68).

Charles G. Cole, Washington, D. C. (appointed by this Court), for appellant.

Susan R. Holmes, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., Washington, D. C., at the time the brief was filed, John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before BAZELON, Senior Circuit Judge, and WILKEY and WALD, Circuit Judges.

Opinion PER CURIAM.

Dissenting opinion filed by Senior Circuit Judge BAZELON.

PER CURIAM:

In this appeal, James Green challenges the district court's denial without a hearing of his motion under the federal habeas corpus statute, 28 U.S.C. § 2255. Green sought modification of the 10-30 year prison sentence imposed after his conviction of armed rape, armed robbery, armed burglary and assault with and possession of a dangerous weapon. Green did not dispute the validity of the underlying convictions which were upheld on appeal in 1970; ¹ the issue before the district court was whether Green had been denied due process or his sixth amendment right to effective assistance of counsel at the sentencing. Section 2255 does not require the district court to hold a hearing on the motion if "the files and records of the case conclusively show that the prisoner is entitled to no relief," and the district court so decided here. We hold that the district court's appraisal of the record was correct and that Green was not entitled to relief. He was neither denied due process at the sentencing stage nor was his sentence tainted by ineffective assistance of counsel under the standards set forth in United States v. Decoster, 624 F.2d 196 (D.C.Cir.) (en banc), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979).

I.

Green was represented at his five-day trial by retained counsel of his choice. On November 6, 1968, the jury found Green guilty of the armed rape and robbery of a Washington, D. C. resident in her home. He was also found guilty of first degree burglary and illegal assault with and possession of a loaded gun. The facts of the crime were recounted by the district court:

The defendant followed Mrs. Lilia Pearce, a 26-year old, white female into her residence on March 27, 1968. He waited until she was leaving again and asked her where the janitor was located. Mrs. Pearce took the defendant downstairs, where he shoved her into a corner, pointed a gun at her head, and threatened to kill her if she would not give him her money. He then pulled her back up the stairs to her apartment. Once inside, he forced her into each room, asking what she had of value. Mrs. Pearce turned over $100.00. The defendant then forced Mrs. Pearce onto the bed where he made her take off her clothes and then had sexual relations with her. When he finished, he tied her hands, gagged her and forced her into a closet, against which he put a duffel bag before leaving.

United States v. Green, No. 729-68 at 1 (Nov. 7, 1980) (memorandum order denying § 2255 motion).

Subsequent to Green's conviction, the probation office for the district court prepared a presentence report, which detailed both the government's and Green's versions of the offense, explained that Green had no previous arrest record (though he was AWOL from the Army at the time of his offense), discussed various aspects of his background, and concluded with an "Evaluative Summary." The evaluative summary contained a review of Green's personal history and attitudes including observations on his propensity to "project responsibility onto others, particularly the police, the Assistant U. S. Attorney, and even his own lawyer." The report summed up with the comment that "(i)n any event, it would seem that the conviction and circumstances of the offense outweigh other considerations. In all likelihood, Green presents a real threat to others in the community, should he again choose to victimize someone." ² The presentence report also included the statement that "Green said he felt his lawyer was incompetent and that, perhaps there was a conspiracy between his lawyer and the Assistant U. S. Attorney," although Green could offer no motivation for such a conspiracy.

Green's sentencing hearing, at which he was represented by trial counsel, was held on January 3, 1969. We quote the hearing transcript virtually in its entirety:

(COUNSEL): In this case, if it please the Court, I am almost in a position where I feel I need counsel, for this defendant, I think I should say for the record, has totally repudiated this humble counsel.

THE COURT: I don't hear you.

(COUNSEL): I say this defendant has totally repudiated this humble counsel and so all I can say is that this is a young man. He is in military service. I think that there must be within him seeds for rehabilitation. The Court has a total probation record on James K. Green, and I am sure the Court remembers the trial for we went through it for several days and in at least this counsel's opinion tried as best we could to give him full and fair representation.

THE COURT: Indeed, it was the Court's opinion that he was afforded the finest of counsel.

(COUNSEL): So we would therefore submit him to the Court and ask the Court to hear him say anything he desires to say.

THE COURT: Mr. Green.

THE DEFENDANT: Your Honor, I would like to ask the Court a couple of questions, if I may.

THE COURT: You just tell us what you have to say. The Court isn't interrogated.

THE DEFENDANT: I have nothing to say.

THE COURT: Nothing to say? ... (T)he Court sentences the defendant James K. Green to be incarcerated for a period of not less than ten years nor more than thirty years in a penal institution to be designated by the Attorney General or his authorized representative. You have ten days in which to note an appeal.

(COUNSEL): Your Honor, I will go down immediately and get the necessary forms and furnish them to the defendant. I feel that this is my duty. And after that I ask the Court that I be relieved in this case.

THE COURT: There is a new rule of the Court that you may be familiar with, that asks that trial counsel stay on to assist counsel who may be appointed in the appellate case.

(COUNSEL): Of course I will be happy to do that. ³

On Green's appeal of his convictions, he was represented by new counsel appointed by this court. The convictions were affirmed by a unanimous panel in an opinion written by then Chief Judge Bazelon. In the course of that appeal, new counsel did not raise any issue regarding error in Green's sentencing nor allege ineffective assistance of counsel at any stage of the proceedings. While the appeal was pending, Green brought a pro se motion for a new trial alleging ineffective assistance by virtue of counsel's failure to file certain pretrial motions, but did not mention any defects in either the trial or the sentencing process. That motion was denied without opinion, and no appeal was taken.

Green served four years of his 10-year sentence and then escaped from prison, remaining free from 1973-1977. Upon his recapture, he was sentenced to an additional year in prison. In January 1982, he was released to the community under parole supervision.

Green had filed his habeas motion pro se on August 7, 1980, some 111/2 years after his conviction, claiming that he was sentenced on the basis of willfully false and prejudicial information in the presentence report, ⁴ and that he was denied effective assistance of counsel at the sentencing hearing ⁵ in that counsel did not disclose to him the contents of the presentence report nor seek to correct purported errors in the report before the sentencing judge. The only reference he made to any conflict or rift between them at the time of sentencing which might have adversely affected her representation of him was his speculation that she was "concerned" about the dissatisfaction with her that he had expressed in the presentence report. In accordance with the rules governing section 2255 proceedings, 28 U.S.C. foll. § 2255 Rule 4(a), Green's motion was referred to the district judge who had originally sentenced him. In opposition to Green's motion, the government filed affidavits by the author of the presentence report and by defendant's trial counsel to show that Green's allegations of errors in the report were either incorrect or immaterial ⁶ and that Green's attorney had given him competent representation. ⁷ Counsel's affidavit stated that she had reviewed the presentence report with Green, and that though Green was unhappy with the report, counsel found it "accurate in all material respects" and "consistent with counsel's impressions of Mr. Green and with the information he had given (counsel) about himself." The affidavit also claims that although Green had asked counsel to correct the report, he did not provide counsel with "any legal or factual basis for these wishes." Furthermore, counsel "believed it would be unwise, tactically, to challenge the report in the manner suggested by the defendant." Counsel did, however, advise Green that he could voice his objections to the court at the sentencing hearing. Finally, the affidavit states: "I knew that Mr. Green was displeased with me in this regard and I so advised the Court, but I did not seek to withdraw because Mr. Green himself asked me to remain in the case."

The record having been thus supplemented, as permitted by the section 2255 rules, 28 U.S.C. foll. § 2255 Rule 7, ⁸ the district court chose to avail itself of those procedures that "enable the judge to dispose of some habeas petitions not dismissed on the pleadings, without the time and expense required for an evidentiary hearing."...