Widgery v. U.S.

• Decision Date: 07 July 1986
• Docket Number: No. 84-2544,84-2544
• Citation: 796 F.2d 223
• Parties: William Arthur WIDGERY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 223

796 F.2d 223

William Arthur WIDGERY, Appellant, v. UNITED STATES of America, Appellee.

No. 84-2544.

United States Court of Appeals Eighth Circuit.

Submitted March 10, 1986.

Decided July 7, 1986.

Dennis E. Egan, Kansas City, Mo., for appellant.

Cynthia Clark Campbell, Kansas City, Mo., for appellee.

Before HEANEY and FAGG, Circuit Judges, and WOODS, ^* District Judge.

FAGG, Circuit Judge.

In January 1980, William Arthur Widgery was convicted of ten counts of mail and wire fraud. All but two counts of his conviction were affirmed on appeal. United States v. Widgery, 636 F.2d 200 (8th Cir.1980). Following his direct appeal, Widgery has filed four separate motions for new trial under Rule 33 of the Federal Rules of Criminal Procedure. Each motion has been denied. Widgery unsuccessfully appealed the denial of the first motion for new trial, United States v. Widgery, 674 F.2d 710 (8th Cir.), cert. denied, 459 U.S. 894, 103 S.Ct. 192, 74 L.Ed.2d 155 (1982), but chose not to pursue appeals from the denials of his other three new trial motions.

Instead, after his fourth motion for new trial was denied, Widgery filed this section 2255 motion. See 28 U.S.C. Sec. 2255. In this motion Widgery raised five grounds for relief:

(1) Ineffective assistance of counsel.

(2) Prosecutorial misconduct in allowing false testimony to be knowingly introduced or to go knowingly uncorrected.

(3) Prosecutorial misconduct in knowingly misleading the Court and jury in its opening and closing arguments by making statements and claims the prosecution knew to be false.

(4) Prosecutorial misconduct in that the prosecution knowingly withheld information favorable to the defendant.

(5) Prosecutorial misconduct in that the prosecution willfully concealed an immunity arrangement that it had arranged with the witness who testified at trial.

Appellant's Brief at 17.

The district court denied Widgery's section 2255 motion without holding an evidentiary hearing. In the present appeal Widgery asks that we remand the case to the district court with instructions to hold an evidentiary hearing. Because we find that the district court did not abuse its discretion in denying Widgery's section 2255 motion without a hearing, we affirm the order of the district court.

Section 2255 states that "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the district court shall conduct a hearing on the claims. 28 U.S.C. Sec. 2255. However, the decision as to whether a hearing is necessary to determine factual contentions is committed to the discretion of the district court. United States v. Oldham, 787 F.2d 454, 457 (8th Cir.1986); United States v. Earley, 746 F.2d 412, 417 (8th Cir.1984), cert. denied, --- U.S. ----, 105 S.Ct. 2707, 86 L.Ed.2d 723 (1985).

After reviewing Widgery's section 2255 motion along with the extensive record Widgery has made with respect to his motions for new trial and the various rulings on these motions, the district court found that each claim presented in grounds two through five of Widgery's section 2255 motion had been raised before in one of Widgery's new trial motions. Thus, the district court determined that a hearing on the claims raised in grounds two through five was unnecessary. We find no abuse of discretion in this decision.

Widgery is not entitled to a reconsideration of issues that he raised in his first new trial motion and that were decided against him on appeal from the denial of that motion. See United States v. Sanders, 723 F.2d 34, 36 (8th Cir.1983) (per curiam). Hence, the district court properly denied Widgery a hearing on the claims he had previously raised in his first new trial motion.

In addition, because Widgery did not appeal adverse district court rulings on his second and third motions for new trial, he cannot insist on a rehearing of those same claims in a section 2255 proceeding. United States v. Little, 608 F.2d 296, 300 (8th Cir.1979), cert. denied, 444 U.S. 1089, 100 S.Ct. 1053, 62 L.Ed.2d 777 (1980). Although a failure to appeal adverse district court determinations on new trial motions may not automatically waive the right to pursue these claims in a later collateral attack, "[w]here a trial or appellate court has determined the federal prisoner's claim, discretion may in the proper case be exercised against the grant of a Sec. 2255 hearing * * *." Id. at 300 (quoting Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1074 n. 8, 22 L.Ed.2d 227 (1969)). Thus, it was within the district court's discretion to deny Widgery a hearing on the claims that he had previously raised in his second and third new trial motions and which have been decided against him.

The district court found that Widgery deliberately failed to pursue his appeals from the denials of his second and third motions for new trial. See Kaufman, 394 U.S. at 227 n. 8, 89 S.Ct. 1074 n. 8 ("the Sec. 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided * * * by way of appeal"); see also Little, 608 F.2d at 300. Because of this finding, we need not address whether Widgery must meet the cause and prejudice standard outlined in United States v. Frady, 456 U.S. 152, 167-69, 102 S.Ct. 1584, 1594-95, 71 L.Ed.2d 816 (1982). See Morris v. United States, 687 F.2d 899, 904 (7th Cir.1982) (cause and prejudice standard is applicable in determining whether an issue not raised on direct appeal can be challenged in a 2255 proceeding); see also Earley, 746 F.2d at 415 (circumstances of case render unnecessary a determination of whether the Frady standard applies if defendant fails to raise an issue on direct appeal); United States v. Auerbach, 745 F.2d 1157, 1160 (8th Cir.1984) (issue of whether cause and prejudice standard should apply if defendant fails to raise issue on direct appeal will not be considered because the government did not raise the issue below). But see Diggs v. United States, 740 F.2d 239, 243-45 (3d Cir.1984) (rejecting the Norris application of the cause and prejudice standard to a failure to appeal).

The dissent asserts, however, that we must remand to the district court the question of whether Widgery deliberately bypassed his opportunity to appeal the denial of his third motion for new trial. The third motion for new trial raised the identical issue of the government's failure to divulge an alleged immunity agreement with a witness as Widgery raises in his fifth ground for section 2255 relief.

The dissent argues that a remand is necessary because the district court applied the more rigorous cause and prejudice standard to Widgery's failure to prosecute his appeals. We disagree. Although the district court noted that Widgery had not established cause for his failure to prosecute his appeals, it also found that Widgery "deliberate[ly] fail[ed] to prosecute his appeal[s]." Indeed, the dissent's suggestion that Widgery did not pursue the appeal from the denial of his third new trial motion because he thought he had been instructed to proceed under section 2255 is not supported by the record.

[Widgery] was directed by the District Judge [on the fourth new trial motion--the ineffective assistance of counsel claim] to bring the claim under 28 U.S.C. Sec. 2255. As to [claims two through five of his section 2255 motion], he felt that an appeal would be unsuccessful on new trial grounds, but since he had never raised the 2255 claims per se that he would be better able to present his case under that section.

Appellant's Brief at 42.

Widgery has thus admitted that he did not appeal from the denial of his second and third new trial motions because he believed he would fare better in a section 2255 proceeding. A clearer case of a deliberate bypass of orderly federal procedures cannot be stated. Accordingly, we affirm the district court's denial of a hearing on the claims which were previously decided against Widgery in his second and third new trial motions.

The district court also denied without an evidentiary hearing the ineffective assistance of counsel claim presented in Widgery's section 2255 motion. Widgery had raised an identical claim in his final motion for a new trial. His motion for a new trial based on ineffective assistance of counsel was denied because the district court held that a Rule 33 motion was not a proper proceeding in which to litigate this claim.

Thus, until the denial of the section 2255 motion, no court had ruled on the merits of the ineffective assistance of counsel claim. Of course, the district court may still determine on the basis of the record before it that the claim is without merit. See Earley, 746 F.2d at 417. Here, although the district court noted that Widgery's claim of ineffective assistance of counsel was not new, it also properly evaluated the claim and found it to be without merit. We agree with this evaluation.

The Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), set out a two-prong test for ineffective assistance of counsel. First, Widgery must show counsel's representation was deficient and, second, that the deficiency caused Widgery prejudice. Id. at 687, 104 S.Ct. at 2064-65; Voytik v. United States, 778 F.2d 1306, 1310 (8th Cir.1985). Without detailing each of Widgery's numerous attacks on the effectiveness of his counsel, we find after a thorough review of the record that each of Widgery's claims fails to satisfy one or both prongs of the test.

Accordingly, we affirm the order of the district court denying Widgery's section 2255 motion without an evidentiary hearing.

HEANEY, Circuit Judge, dissenting.

I respectfully dissent. I would remand for a determination of whether Widgery "deliberately bypassed" an appeal in favor of a section 2255 proceeding. Widgery's claim is that the government violated his right to due process as interpreted in Brady v....