Walters v. Harris, 15286
| Decision Date | 22 May 1972 |
| Docket Number | 71-2055.,No. 15286,71-2054,15286 |
| Citation | 460 F.2d 988 |
| Parties | Jewell Wesley WALTERS, Appellant, v. C. H. HARRIS, Warden, United States Penitentiary, Marion, Illinois, Appellee. Thomas Earl WINSTEAD, Appellant, v. UNITED STATES of America, Appellee. Willie D. WREN, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Fourth Circuit |
James R. Glover, Madison, Wis. (Hauser, Glover & Casey, S. C., Madison, Wis., on the brief) Court-appointed counsel, for appellants Walters, Winstead and Wren.
Ryan C. Shealy, Asst. U. S. Atty. (John K. Grisso, U. S. Atty., on the brief) for appellee C. H. Harris.
Edwin N. Kearns, Asst. U. S. Atty. (Warren H. Coolidge, U. S. Atty., on the brief) for the United States.
Before BRYAN, WINTER and CRAVEN, Circuit Judges.
Willie D. Wren and Thomas Earl Winstead appeal from judgments of the United States District Court for the Eastern District of North Carolina. Jewell Wesley Walters appeals from a judgment of the United States District Court for the District of South Carolina. In each case the district court dismissed the appellant's petition filed pursuant to 28 U.S.C.A. § 2255. Each prisoner argues on appeal that the district court erred by dismissing his petition without an evidentiary hearing in open court with the prisoner present. Section 2255 requires a "hearing" unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."
In Wren's case, we think that an adequate hearing was held and, therefore, affirm. In Winstead's case, the record has been expanded on appeal to include material that might prove to be grounds for relief. We remand his case to provide him the opportunity to request further appropriate proceedings on his expanded petition. In Walters' case, we find that the district court prematurely dismissed the petition without adequate inquiry into the validity of his claims. We remand his case to allow such inquiry. Additionally we order that one of Walters' concurrent sentences be vacated.
Wren and Winstead were codefendants and were represented by the same attorney, Charles H. Kirkman. They claim that the trial judge failed to notify them of their right to appeal in forma pauperis, as required by Rule 32(a) (2) of the Federal Rules of Criminal Procedure. They claim also that they were denied effective assistance of counsel because their attorney failed to inform them that they had a right to appeal and of the method for filing notice of appeal. Because the records in these cases conclusively show that Wren and Winstead are entitled to no relief on the basis of these claims, an evidentiary hearing on these claims is not required. The transcript of sentencing clearly shows that the trial court properly advised them of their right to appeal:
Under the provisions of Rule 32(a) (2) of the Federal Rules of Criminal Procedure, the Court is obligated to state to each of you that you have a right to appeal from this judgment and commitment within ten days and that if you are financially unable to pay the cost of an appeal to the Fourth Circuit Court of Appeals that upon proper application the Government will pay the cost of your appeal, that the clerk will enter your notice of appeal upon your request, which must be done within ten days.
Even if their attorney did not inform them about their right to appeal, they were not thereby denied effective assistance of counsel because they had been sufficiently informed by the above instruction of the trial judge. See Nelson v. Peyton, 415 F.2d 1154, 1156 (4th Cir. 1969).
Wren also claims that he was denied effective assistance of counsel because Kirkman allegedly promised to file a notice of appeal for him and failed and refused to do so. This claim, if true, would entitle him to relief. See Kent v. United States, 423 F.2d 1050 (5th Cir. 1970); Turner v. North Carolina, 412 F.2d 486 (4th Cir. 1969). The district judge, concerned with the alleged default, appointed new counsel to represent Wren in the 2255 proceeding, and entered an order for the deposition of Kirkman. Although Wren's request to be present at the taking of the deposition was denied, his court-appointed counsel cross-examined the witness extensively. We have examined the transcript of the deposition and it appears to be a complete and lucid account by Kirkman of his representation with respect to an appeal. The substance of his testimony is that he had advised Wren that an appeal would be futile, that Wren had agreed, and that Wren had not requested him to file a notice of appeal. The transcript is entirely adequate to support the district judge's findings that Wren, although advised of his right to appeal, did not request an appeal, and that his attorney did not indicate that he would note one.
We hold that the district court conducted a sufficient evidentiary hearing. Despite the fact that the district judge had no opportunity to observe the demeanor of either the prisoner or Kirkman, we think that the issue of credibility was fairly resolved. The court sensibly assumed that if the prisoner were present he would testify as he alleged in his petition, and Wren's former counsel was thoroughly examined and cross-examined. Congress has specifically provided that a court may entertain and determine a Section 2255 motion without the presence of the prisoner at the hearing. In Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962), the Court stated that it did not imply that a prisoner always must be heard in open court and, indeed, called on district judges to exercise their common sense in determining effective procedures to achieve substantial justice.
To hold otherwise would, we think, establish an extremely burdensome and unworkable per se rule: that a simple allegation of a request to counsel to appeal and a failure to do so requires in every case a full-scale evidentiary hearing in open court with the prisoner present. This we decline to do.
Winstead claimed in his original motion that he was deprived of the effective assistance of counsel because "counsel failed to file a notice of appeal in his behalf." Read liberally, as we read all prisoners' pleadings, such an allegation suggests that Winstead may have asked counsel to note his appeal. We have permitted the record in Winstead's case to be expanded on appeal by letters from Winstead and Wren to their present attorney. In these letters Winstead makes clear that he was "under the assumption that Mr. Kirkman had appealed his sentence" and that he had "informed Mr. Kirkman to appeal," and Wren states that both he and Winstead asked Kirkman to file a notice of appeal for them. For purposes of this appeal, we assume, without deciding, that in open court both Wren and Winstead would so testify. Kirkman's deposition, described, supra, contradicts Winstead's allegation as it does Wren's. But counsel was not appointed for Winstead to examine and cross-examine Kirkman. On remand, if pressed by Winstead to do so, the district judge should consider whether to authorize some further deposition of Kirkman on behalf of Winstead or the submission of interrogatories by counsel for Winstead that might shed further light on the disputed conversation between Kirkman and his clients. Since Kirkman has already testified by deposition as to his conversations with both petitioners, further proceedings may possibly be abbreviated.
Walters claims that his guilty plea was induced by an unkept promise. He alleges that through his attorney, Robert Kneece, he made a bargain with an unnamed Assistant United States Attorney to plead guilty in return for a ten-year sentence. He alleges also that the bargain was confirmed in a conversation between him and the Assistant United States Attorney within the hearing of five named persons including Kneece. Walters pleaded guilty and received two twenty-year concurrent sentences. He has been convicted also of threatening by mail the life of the district judge who sentenced him. In explaining his action, Walters stated that he had been told by an FBI agent that the judge had agreed with the "District Attorney" to give him "ten years with an `A' sentence."
If Walters was in fact promised by the Assistant United States Attorney that he would receive a ten-year sentence, he is entitled to relief. Machibroda, supra; United States v. Carter, 454 F.2d 426 (4th Cir. 1972). Sentencing Walters was within the authority of no one but the trial judge. An assurance by another that Walters would receive a particular sentence, therefore, would be a promise that could not be kept. An unkept bargain which has induced a guilty plea is grounds for relief. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
The transcript of the arraignment discloses that the trial judge conscientiously in compliance with Rule 11, Federal Rules of Criminal Procedure, examined Walters to ascertain if his plea was voluntary:
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