U.S. v. Schaflander

• Decision Date: 25 September 1984
• Docket Number: Nos. 83-5918,83-6001,s. 83-5918
• Citation: 743 F.2d 714
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald M. SCHAFLANDER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Stephen M. WRIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 714

743 F.2d 714

UNITED STATES of America, Plaintiff-Appellee, v. Gerald M. SCHAFLANDER, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Stephen M. WRIGHT, Defendant-Appellant.

Nos. 83-5918, 83-6001.

United States Court of Appeals Ninth Circuit.

Argued and Submitted April 3, 1984.

Decided Sept. 25, 1984.

Gray Feess, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Vana Parker Margolese, Los Angeles, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before ELY, SCHROEDER, and NELSON, Circuit Judges.

PER CURIAM:

Defendants-Appellants Schaflander and Wright appeal the District Court's Order denying their motion ¹ to vacate sentence under 28 U.S.C. Sec. 2255. The Notice of Appeal was timely filed, and we have jurisdiction to consider the appeal under 28 U.S.C. Sec. 1291. We affirm.

FACTS:

After a lengthy trial, the appellants were each convicted of ten counts of mail fraud in violation of 18 U.S.C. Sec. 1341. See United States v. Schaflander, 719 F.2d 1024, 1025 (9th Cir.1983). Thereafter, they moved for a new trial, alleging, inter alia, ineffective assistance of counsel. The District Court denied the motion ² after a hearing. The appellants then appealed their judgments of conviction and the denial of their motion for a new trial. See id. In their direct appeal, the appellants did not challenge the District Court's rejection of their insufficiency of counsel claim. See id. at 1025-27. In November 1983 our Court unanimously affirmed both the denial of the appellants' motion for new trial and the judgments of conviction. See id.

While the direct appeal was pending, the appellants moved to vacate sentence, alleging prosecutorial misconduct, judicial misconduct, and ineffective assistance of counsel. The District Court denied the appellants' motion without an evidentiary hearing and without a response from the Government. The court's Order ³ reads Based on this Court's independent recollection of the events at issue and review of the record, [defendants'] motion to vacate sentence for prosecutorial misconduct, judicial misconduct, and ineffective assistance of counsel is hereby denied, pursuant to Title 28 U.S.C. Sec. 2255. The Court has reviewed the files and records of the case, and has concluded that the defendant[s] [are] not entitled to relief.

In this appeal the appellants challenge the propriety of the District Court's summary denial of their Sec. 2255 motion and contend that the District Court erred in failing to order an evidentiary hearing on their claim of ineffective assistance of counsel.

ISSUES PRESENTED:

1. Did the appellants waive their claim of ineffective assistance of counsel when they failed to raise that claim in their appeal from the denial of their motion for new trial?

2. Did the District Court properly deny the appellants' Sec. 2255 motion without an evidentiary hearing? ⁴

I. WAIVER

The Government contends that the appellants' failure to raise the insufficiency of counsel claim on direct appeal precludes collateral review of that claim. This contention has little merit. First, constitutional claims may be raised in collateral proceedings even if the defendant failed to pursue them on appeal. Davis v. United States, 417 U.S. 333, 345 n. 15, 94 S.Ct. 2298, 2304 n. 15, 41 L.Ed.2d 109 (1974); Marshall v. United States, 576 F.2d 160, 162 (9th Cir.1978). Second, the customary procedure in this Circuit for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack on the conviction under 28 U.S.C. Sec. 2255, United States v. Birges, 723 F.2d 666, 670 (9th Cir.1984), and this Court has been chary of analyzing insufficiency of counsel claims on direct appeal, see id. Thus, the appellants' failure to raise the insufficiency of counsel claim on direct appeal does not preclude collateral review of that claim.

Our next inquiry, then, is whether the record, files, and previous proceedings in the case provide a sufficient basis for the District Court to evaluate the appellants' Sec. 2255 insufficiency of counsel claim. In other words, we must determine whether the District Court erred by denying the appellants' Sec. 2255 motion without first conducting an evidentiary hearing.

II. EVIDENTIARY HEARING

When a Sec. 2255 motion is made, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon." 28 U.S.C. Sec. 2255. The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted. United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981). A hearing must be granted unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal. See Blackledge v. Allison, 431 U.S. 63, 76, 97 S.Ct. 1621, 1630, 52 L.Ed.2d 136 (1977); Baumann v. United States, 692 F.2d 565, 571, 581 (9th Cir.1982).

The Supreme Court has recently enunciated the standards for judging a criminal defendant's contention that the Constitution requires a conviction to be set aside because counsel's assistance at trial was ineffective. See Strickland v. Washington, --- U.S. ----, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at ----, 104 S.Ct. at 2063. To this end the defendant must identify the acts or omissions that are alleged not to have been the result of reasonable professional judgment. Id. at ----, 104 S.Ct. at 2065. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. Second, the defendant must affirmatively prove prejudice. Id. at ----, 104 S.Ct. at 2067. He must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Bearing in mind the above-specified legal standards, we now turn to the contentions made in the appellants' Sec. 2255 motion. In their motion the appellants set forth numerous allegedly prejudicial omissions and errors of counsel:

1. The appellants allege that defense counsel erred by failing to call some twenty-eight defense witnesses who would have presented exculpatory testimony. Our review of the record reveals that this allegation, even if true, does not state a claim for relief. The testimony that the twenty-eight uncalled witnesses would have presented was cumulative to the testimony of the fifteen defense witnesses who were called at trial. Thus, the appellants have failed to show that "prejudice" resulted from the failure to call the witnesses they have identified. See id. at ----, 104 S.Ct. at 2067. Because the appellants' allegation does not state a claim for relief, see id., the District Court did not err in denying the Sec. 2255 motion without an evidentiary hearing on this allegation. See Baumann, 692 F.2d at 571, 581.

2. The appellants allege that defense counsel erred by failing to investigate or object to the admissibility of a certain tape recording of an alleged meeting at which Dr. Schaflander made numerous statements. As we stated in regard to this issue in our disposition of the appellants' direct appeal, "The jury's verdict could not, within the realm of predictable probability, have been affected even if defense counsel had chosen during the trial to present the matters contained in the post-trial motion." United States v. Schaflander, 719 F.2d at 1027. Since the "matters contained" in the Sec. 2255 motion are essentially identical to the "matters contained" in the post-trial motion, the appellants have not satisfied the Strickland test for "prejudice." Their allegation does not state a claim for relief, and the District Court did not err in denying the Sec. 2255 motion without an evidentiary hearing on this issue.

3. The appellants allege that defense counsel erred by failing to introduce additional evidence to refute the Government's "inference" that they had "absconded with corporate funds and cached them in a Swiss bank account for their personal use." This contention has absolutely no merit. Nothing in the record or in the matters contained in the Sec. 2255 motion indicates that defense counsel's actions with regard to this issue were "outside the wide range of professionally competent assistance." See Strickland, --- U.S. at ----, 104 S.Ct. at 2065. The District Court did not err by rejecting this claim without an evidentiary hearing.

4. The appellants allege that defense counsel erred by failing to introduce additional evidence "to refute the authenticity of a prejudicial document with a forged signature, introduced by the Government to impeach ... Schaflander." This contention, too, has no merit. Even assuming that defense counsel's action or omissions were "outside the wide range of professionally competent assistance," the materials in the record and in the Sec. 2255 motion do not show that there is a "reasonable probability that ... the result of the proceeding would have been different" if defense counsel had presented further evidence that tended to show that the document was forged. See id. at ----, 104 S.Ct. at 2067. The record reveals that there were innumerable pieces of inculpatory evidence, and there is no reason to believe that the jury would have tied its verdict to this one piece of evidence or that this one piece of evidence was significant. The District Court did not err with...