U.S. v. Kearney

• Decision Date: 18 June 1982
• Docket Number: No. 81-1043,81-1043
• Citation: 220 U.S. App. D.C. 379,682 F.2d 214
• Parties: UNITED STATES v. Lawrence KEARNEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 214

682 F.2d 214

220 U.S.App.D.C. 379

UNITED STATES v. Lawrence KEARNEY, Appellant.

No. 81-1043.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 18, 1981.

Decided June 18, 1982.

Appeal from the United States District Court for the District of Columbia (Criminal No. 01537-69).

Richard A. Friedman, Washington, D. C. (appointed by this court), for appellant.

Lisa J. Stark, 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 TAMM, MacKINNON and ROBB, Circuit Judges.

Opinion for the Court filed by Circuit Judge MacKINNON.

Opinion concurring in the result filed by Circuit Judge TAMM.

MacKINNON, Circuit Judge.

Lawrence Kearney appeals the denial by the District Court of a 28 U.S.C. § 2255 motion to set aside his 1968 conviction for second degree murder. He now contends, as he did on his first § 2255 motion in 1973, that a key witness' testimony was coerced and perjurious. The judge who had tried the case denied that motion on "the files and record." This, the second § 2255 motion raising the same point, was denied by the District Court without a hearing. No new evidence or contention is offered in support of appellant's motion. Since the facts underlying appellant's claim were decided adversely to appellant in the direct appeal and the 1973 motion, and since both motions were in addition untimely filed, appellant's allegations do not entitle him to relief. We accordingly affirm the judgment of the District Court.

I. FACTS AND PRIOR PROCEEDINGS

At approximately 10:30 p. m. on Thanksgiving Day, November 23, 1967, Officer Silvia of the District of Columbia Metropolitan Police Department was fatally shot while on duty in the vicinity of 16th and Corcoran Streets, N.W. Immediately prior to the shooting, Officer Silvia, while seated in his cruiser at a stop light, noticed a man tampering with the window of a locked car At trial, the only disputed issue was the identity of the murderer. The government introduced strong testimony which established that appellant was the assailant and the jury returned a verdict of guilty. At trial, Detective Crooke testified as to the dying declarations of Officer Silvia made during an interview in the intensive care unit of the hospital before he died, in which Silvia described all the facts that led up to the shooting. He told Crooke that he had observed the killer break into the car parked at the curb. Part III fully discusses Silvia's statement. In addition, Kearney's palm prints were found inside the car on the steering wheel, and blood stains of appellant's blood type were found in the glove compartment. Further evidence indicated that the car did not belong to Kearney and that he had never previously had access to the interior of the car.

parked across the street. He eventually drove up to the car and identified himself as an officer to the man he had previously noticed and who was now the sole occupant of the car, having gained entry thereto by breaking a hole in the door window. The man was seated behind the wheel, but when the officer approached him, he exited the car, and in response to Silvia's request for his identification, the man reached into his pants pocket, pulled out a gun and shot Silvia in the stomach with a .38 caliber revolver. Shortly thereafter Silvia was taken to the hospital. Despite emergency surgery Officer Silvia died two days later from the gunshot wound.

There was also highly corroborative circumstantial evidence of Kearney's guilt. A friend of Kearney's testified that, on the day of the murder, appellant had fired a .38 caliber revolver into a log in his backyard. A firearms identification expert testified that the bullet removed from the log, another .38 caliber slug found in the front door of appellant's house, and the .38 caliber slug removed from Officer Silvia's abdomen were all fired from the same type gun. In addition, an unfired .38 caliber bullet of the same unique type that killed Silvia was recovered from the dresser drawer in Kearney's bedroom. The unfired bullet and the three slugs were all manufactured by the same company and had the same distinctive copper coating. In addition to the scientific evidence, Stanley Warren, an eyewitness to the shooting, and a friend of Kearney's, voluntarily approached Officer Crooke on the street three days after the shooting and offered to tell him what he knew about the shooting. At that time Warren gave a statement and at trial gave testimony that was consistent with his statement, viz., that he was standing within a few feet of where Silvia was shot and he had seen Kearney shoot Silvia.

On August 2, 1968, Kearney was convicted by a jury of second degree murder (22 D.C.Code § 2403) and of carrying a dangerous weapon (22 D.C.Code § 3204). On September 13, 1968, he was sentenced to imprisonment of fifteen years to life on the murder count and to a concurrent sentence of three to ten years on the weapons count.

Kearney appealed his conviction to this court, arguing primarily that the "prejudicial" identification testimony of witness Warren was not credible. This Court in an opinion by Judge Leventhal found Kearney's arguments unpersuasive and affirmed his conviction. United States v. Kearney, 420 F.2d 170 (D.C.Cir.1969). Specifically, we held that the failure of the trial court to allow defendant's counsel to cross-examine witness Warren as to whether or not he was on narcotics at the time he gave a statement to the police was not grounds for a reversal or remand since the possibility of mistaken identity of the defendant was strongly negatived-"if indeed it is not eliminated beyond reasonable doubt-" by other evidence. The conclusive nature of the evidence Judge Leventhal referred to has not changed with the passage of time.

On September 12, 1973, over five years after he was sentenced and four years after the affirmance on appeal, Kearney filed a habeas corpus proceeding claiming (1) newly discovered evidence, (Petition, P 3), (2) "ineffectiveness of counsel," (3) denial of fair trial under the 5th, 6th and 14th Amendments and the Bill of Rights, (4) use Thereafter on November 15, 1973, Kearney filed a section 2255 motion (1) alleging ineffective assistance of counsel, and (2) that his conviction was based on "prefabricated and manufactured evidence" and the "perjured testimony of Stanley Warren." District Court File, 39, p. 2. The principal support for the petition was the Warren affidavit. Id. This petition was considered by the judge who had tried the criminal case and on February 12, 1974, was denied "upon consideration of the files and record of this case and the opinion of the United States Court of Appeals for the District of Columbia Circuit in United States v. Kearney, 136 U.S.App.D.C. 328, 420 F.2d 170 (1969) (rehearing denied)." (emphasis added). The denial was accompanied by a written order, infra, which considered the various elements upon which Kearney based his petition, and recognized that the claim of possible narcotics use was the alleged underpinning for the assertion of perjury which in substance amounted to an attack on the identification testimony :

of pre-fabricated and manufactured testimony of an alcoholic drug-addict, and (5) that relevant issues he raised had not been challenged. The alleged "newly discovered evidence" was set forth in an affidavit by witness Warren. ¹ Warren was 17 at the time of the trial and his affidavit five years later stated that at trial he had testified falsely that he was present and saw his friend Kearney shoot Silvia. Id. This affidavit was not given in support of Kearney's pro se petition until both Warren and Kearney were confined at the Department of Corrections for the District of Columbia, at Lorton, Virginia. Petition P 1. Warren was confined in the Lorton Youth Center. See signature, n.1. The court denied the habeas corpus petition on the ground that a proceeding under 28 U.S.C. § 2255 was required and the government moved that the "petition be treated in the alternative as a motion to vacate under Section 2255."

The subject (limited exploration of possible narcotic influence of Stanley Warren at the time of his written statement) relates to the issue of identity, and the possibility of mistaken identity is strongly negatived-if indeed it is not eliminated beyond reasonable doubt-by the scientific evidence, particularly the palm prints, and the credibility of Warren's testimony as buttressed by the account given by Officer Silvia to Detective Crooke. Such strength of the Government's case is highly material in determining whether the interest of justice may be served by affirmance rather than remanded for refinement of trial procedure. United States v. Kearney, supra, 420 F.2d at 174.

District Court File, 40.

It is clear that the trial court complied with the applicable rule, considered The (§ 2255) motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned. If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified...."

the files and record relating to the judgment of conviction, and properly ruled on the basis of the motion, the annexed exhibits and the prior proceedings that Kearney was not entitled to any relief. The court was therefore authorized by the applicable rule to "make an order for ... summary dismissal (of the motion)." No hearing was required.

Rules Governing Section 2255 proceedings in the United States District Courts, 4(b). Since the court considered...