Vick v. U.S.

• Decision Date: 23 April 1984
• Docket Number: No. 83-3573,83-3573
• Parties: Horace Edwin VICK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 707

730 F.2d 707

Horace Edwin VICK, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 83-3573

Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

April 23, 1984.

Robert Augustus Harper, Jr., Tallahassee, Fla., for plaintiff-appellant.

Kenneth Sukhia, Asst. U.S. Atty., Tallahassee, Fla., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Florida.

Before HILL, JOHNSON and HENDERSON, Circuit Judges.

JAMES C. HILL, Circuit Judge:

Horace Edwin Vick appeals to this court from the order of the district court denying his motion to vacate sentence under 28 U.S.C. Sec. 2255. On January 12, 1981, Vick was found guilty of possession of cannabis with intent to distribute and of conspiracy to import a controlled substance, in violation of 21 U.S.C. Secs. 841(a)(1), 952(a) & 953. Vick appealed, and this court affirmed his conviction without opinion. Vick subsequently filed a motion under section 2255, claiming that his trial counsel had rendered ineffective assistance. The district court without holding an evidentiary hearing, denied the motion on August 23, 1983. On appeal, Vick contends both that the district court should have held an evidentiary hearing and that the district court should have granted his motion. We affirm.

Vick recites the following facts in support of his claim of ineffective assistance. His trial counsel, Victor Hulslander, was appointed to represent Vick on March 5, 1981. After a continuance was granted, the trial was scheduled for April 13, 1981. On the morning of the trial, Hulslander moved for a continuance based upon his inability adequately to prepare for the trial for the following reasons. First, Vick's codefendant Pitts had pleaded guilty late in the previous week; Hulslander argued that he had not had sufficient time to prepare cross-examination of Pitts during the weekend. Second, Mr. Hulslander had not learned until late in the preceding week that a government witness, George Kapetanis, had several prior convictions. Hulslander asserted that because he did not actually receive the "rap sheet" on Kapetanis until several hours before trial, he had not had adequate time to prepare for Kapetanis' cross-examination. Third, Hulslander contended that, because he practiced law in Gainesville, Florida, and Vick lived in Okeechobee, Florida, he had not had adequate time to communicate with Vick before trial. Hulslander argued that even though communication was possible over the telephone, this gave rise to a "chilling effect" on his conversations with Vick because of the possibility that the phone might be tapped. Finally, Hulslander noted that during one week of the pretrial period he was forced to leave the state because his father required heart surgery in Milwaukee, Wisconsin. In his section 2255 motion, Vick asserts the same four grounds at issue in the motion for a continuance as support for his contention that his counsel rendered ineffective assistance. Basically, he contends that Hulslander did not have adequate time to prepare for the trial.

We hold that the trial court could properly deny Vick's motion without holding an evidentiary hearing. It is the general rule in this circuit that effective assistance claims will not be addressed on direct appeal from a criminal conviction because an evidentiary hearing, available in a section 2255 proceeding, is often required for development of an adequate record. United States v. Griffin, 699 F.2d 1102 (11th Cir.1983). As we stated in Griffin v. United States, 588 F.2d 521 (5th Cir.1979), however, this rule does not require that the district court hold an evidentiary hearing every time a section 2255 petitioner asserts a claim of ineffective assistance of counsel. Section 2255 provides that, "[u]...