U.S. v. Tatum

• Decision Date: 26 July 1989
• Docket Number: No. 86-2305,86-2305
• Citation: 880 F.2d 1324
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America Plaintiff-Appellee, v. James L. TATUM, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1324

880 F.2d 1324

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America Plaintiff-Appellee, v. James L. TATUM, Defendant-Appellant.

No. 86-2305.

United States Court of Appeals, Ninth Circuit Argued and Submitted March 13, 1989.

Decided July 26, 1989.

Before POOLE, FERGUSON and WIGGINS, Circuit Judges.

MEMORANDUM ^*

Appellant James Tatum appeals the district court's denial of his two 28 U.S.C. Sec. 2255 motions for vacation of his sentence and his Fed.R.Crim.P. 36 motion to correct his indictment. While the district court properly dismissed most of Tatum's claims as meritless, the court erred in summarily dismissing that portion of one of his Sec. 2255 motions alleging governmental bribery of a witness to secure false testimony.

I.

In June 1978, a fire of suspicious origin destroyed the Chicken Ranch brothel in Pahrump, Nevada. A federal grand jury was empaneled in 1979 to investigate the fire. The chief witness for the government, Elbert Easley, testified before the grand jury that the owner of a competing brothel had hired Easley, Tatum, and one other person to destroy the Chicken Ranch. Easley further testified that they had intentionally destroyed the Chicken Ranch by igniting a brothel couch saturated with flammable liquids. Tatum, in his testimony before the grand jury, denied any knowledge of the Chicken Ranch fire. The grand jury returned a seven-count indictment, including charges against Tatum for violations of 18 U.S.C. Sec. 844(i) (malicious destruction of property by means of an explosive), 18 U.S.C. Sec. 371 (conspiracy), and 18 U.S.C. Sec. 1623 (false declarations before a grand jury).

Tatum was subsequently convicted in March 1982 on one count of giving false declarations before the grand jury, the other charges having been dismissed at the close of the government's case pursuant to Fed.R.Crim.P. 29(a). The district court sentenced Tatum to five years' imprisonment. As Tatum was then serving an eight-year parole term for a prior counterfeiting conviction, the five-year perjury sentence was to be served consecutive to the remainder of the counterfeiting sentence. Tatum's perjury conviction was affirmed by this court on direct appeal by memorandum disposition. See United States v. Tatum, No. 82-1164 (9th Cir. Dec. 1, 1982). Tatum's subsequent motions for new trial and reduction of sentence were also dismissed by the district court and affirmed by this court on appeal. See Fed.R.Crim.P. 33 (new trial); Fed.R.Crim.P. 35 (reduction of sentence).

Tatum has subsequently filed three pro se Sec. 2255 petitions collaterally attacking his perjury conviction, two of which are relevant to this appeal. On July 1, 1985, Tatum petitioned the district court for post-conviction relief [hereinafter First Sec. 2255 Petition], claiming that the district court lacked jurisdiction to prosecute him for perjury since the grand jury itself had no authority to investigate destruction of the Chicken Ranch by means other than an "explosive" within the meaning of 18 U.S.C. Sec. 844(i). The district court referred the petition to a magistrate, who recommended that the petition be dismissed because Tatum's co-defendants had already unsuccessfully litigated this jurisdictional issue, and, alternatively, because Tatum was procedurally barred from collaterally attacking his conviction on this issue.

On November 7, 1985, Tatum filed another Sec. 2255 petition [hereinafter Second Sec. 2255 Petition] collaterally attacking his perjury conviction on the grounds that the government: (1) failed to produce exculpatory statements and grand jury testimony of Billie Ross, a man whom Easley had allegedly also linked to the Chicken Ranch fire; and (2) induced Easley to fabricate his previous Chicken Ranch testimony through bribery in the form of pre-paid counsel for his then-pending death penalty appeal. ¹ The magistrate took no action on this petition other than submitting it to the district court "pursuant to the Findings and Recommendations ... [previously filed with respect to Tatum's First Sec. 2255 Petition] for such other and further action as the court deems appropriate."

Before the district court had taken any action with respect to either of Tatum's Sec. 2255 petitions, Tatum filed a motion to correct his indictment pursuant to Fed.R.Crim.P. 36. Tatum claimed that, as a result of clerical mistake or oversight, his record did not accurately reflect the fact that he had been acquitted of the counts of the indictment charging him with malicious destruction of property and conspiracy.

By minute order dated June 25, 1986, the district court summarily denied both Tatum's Sec. 2255 petitions and his Rule 36 motion for correction without granting an evidentiary hearing, requiring responsive pleadings by the government, or explaining its decision. ² In his consolidated appeal, Tatum now challenges this order. This court has granted Tatum's motion for leave to appeal in forma pauperis pursuant to Fed.R.App.P. 24. We undertake de novo review of the district court's denial of Tatum's Sec. 2255 petitions, see, e.g., United States v. Freeny, 841 F.2d 1000, 1001 (9th Cir.1988), while we review the court's denial of his Rule 36 motion for correction of sentence under a "clearly erroneous" standard, United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir.1985).

II.

A.

Section 2255 provides that an evidentiary hearing "shall" be granted "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." In Baumann v. United States, 692 F.2d 565, 581 (9th Cir.1982), this circuit read this language as mandating a hearing whenever a petitioner makes "specific factual allegations" which, if true, would entitle him to relief. Summary dismissal under Sec. 2255 is reserved for those petitions that fail to state a claim for relief, or raise "palpably incredible" or "patently frivolous or false" claims. Id.; see also Blackledge v. Allison, 431 U.S. 63, 76 (1977); Machibroda v. United States, 368 U.S. 487, 495-96 (1962); United States v. Hearst, 638 F.2d 1190, 1194-95 (9th Cir.1980), cert. denied, 451 U.S. 938 (1981); Rules Governing Sec. 2255 Proceedings in the United States District Courts, Rule 4(b).

Before addressing the merits of Tatum's Sec. 2255 claims, we also note that we have jurisdiction to entertain these petitions since Tatum was in the custody of federal prison authorities for his perjury conviction when filing each of these petitions. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 238-39 (1968) (jurisdictional "in custody" requirement for habeas relief determined by status of petitioner when petition filed); Cook v. Maleng, 847 F.2d 616, 618 (9th Cir.1988), aff'd, 109 S.Ct. 1923 (1989); Port v. Heard, 764 F.2d 423, 426 (5th Cir.1985); Sevier v. Turner, 742 F.2d 262, 268-69 (6th Cir.1984). Moreover, Tatum's release from federal prison in October 1988 to parole does not relieve this court of jurisdiction since Tatum's aggregated parole term encompasses both his counterfeiting and perjury convictions. See Wright v. United States, 732 F.2d 1048, 1050 n. 1 (2nd Cir.1984) (petitioner's subsequent release to parole did not relieve court of jurisdiction to hear Sec. 2255 appeal); see also Hensley v. Municipal Court, 411 U.S. 345, 349 (1973) (parole term satisfies "in custody" requirement for federal habeas relief); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (same). We thus turn to a consideration of the merits of Tatum's two Sec. 2255 petitions.

1.

Tatum initially challenges the district court's summary denial of his First Sec. 2255 petition alleging jurisdictional defects in his perjury conviction. Tatum claims that since federal authorities knew, prior to the empanelment of the Chicken Ranch grand jury, that the brothel had been destroyed by flammable liquids ignited by a match, and that use of such fire accelerants does not constitute an "explosive" within the meaning of 18 U.S.C. Sec. 844(i), the grand jury had no authority to investigate and return federal indictments concerning the Chicken Ranch fire.

Tatum's jurisdictional attack clearly lacks merit. Federal case law interpreting the term "explosive" in Sec. 844(i) was sufficiently open at the time of the Chicken Ranch fire in 1978 to raise the possibility that uncontained flammable liquids ignited by a match could, under certain circumstances, constitute an explosive material within the meaning of this section. Since the grand jury was thus investigating conduct which might have been a federal crime, it had the jurisdiction to call witnesses who could shed light on the brothel fire and return related indictments. See, e.g., United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir.1979), cert. denied, 445 U.S. 962 (1980); United States v. Sisack, 527 F.2d 917, 920 (9th Cir.1976) ("The mere possibility that violations of federal law have occurred is sufficient authority for a grand jury investigation."); see generally Branzburg v. Hayes, 408 U.S. 665, 686-88 (1972) (investigative powers of grand jury "necessarily broad").

2.

Tatum next challenges the district court's summary denial of his Second Sec. 2255 petition alleging knowing use of Easley's fabricated testimony by the government to secure his perjury conviction, and government suppression of requested exculpatory materials. Each of these grounds for collateral relief will be discussed in turn below.

In order to state a claim for relief under Sec. 2255 based on perjured testimony, the petitioner bears the burden of demonstrating that (1) the challenged testimony was actually false, and that (2) the government knowingly used this false testimony. See, e.g., United States v. Conzemius, 611 F.2d 695, 697 (8th Cir.1...