Edward J. Dillon v. United States

307 F.2d 445, 1962 U.S. App. LEXIS 4255

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 22, 1962
• Docket: 17692_1
• Status: Published

Opinions

BROWNING, Circuit Judge.

Appellant was charged with the armed robbery of a federally insured bank in violation of 18 U.S.C. § 2113(a). He pleaded guilty and was sentenced. A motion to vacate sentence was filed under 28 U.S.C. § 2255, alleging in substance that appellant’s plea was induced by the misrepresentations of an Assistant United States Attorney. The District Court ordered a hearing, at which appellant requested the court to appoint counsel to assist him. The request was denied. We hold that, in the circumstances of this case, denial of appellant’s request for counsel was error.

I

The mandatory requirement of the Sixth Amendment regarding right to counsel¹ does not apply to indigent movants under 28 U.S.C. § 2255. This is the general view,² it seems soundly based on the underlying purposes of the Amendment.³

As this court has pointed out, the appointment of counsel may sometimes be mandatory even in those areas in which the Sixth Amendment does not apply. This is true when the circumstances of a defendant or the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel. Compliance with the due process clause of the Fifth Amendment⁴ then requires that counsel be appointed.⁵

In the absence of such circumstances, a request for counsel in proceedings under Section 2255 is addressed to the sound discretion of the court. This is true at both the trial⁶ and appellate⁷ levels. The standard to be applied by the trial court in the exercise of this discretion has not been clearly established. There is ease authority indicating that counsel should be appointed in collateral attack proceedings whenever it appears probable that any substantial issue,⁸ or at least a substantial issue of fact⁹ will be presented. The same standard has been applied by Courts of Appeals in determining whether to appoint counsel in appeals from this type of proceeding¹⁰ except, of course, that substantial issues at the appellate level are more likely to be issues of law.¹¹

We need not go so far. For purposes of this case it is enough to agree with the recent suggestion of the Court of Appeals for the Second Circuit that “where a petition for the writ [of habeas corpus] presents a triable issue of fact the clear presentation of which requires an ability to organize factual data or to call witnesses and elicit testimony in a logical fashion it is much the better practice to assign counsel.” ¹² There is no reason for applying a different standard in proceedings under Section 2255. Measured by this standard, we are satisfied that a proper exercise of discretion by the District Court required that appellant’s request for counsel be granted; we therefore need-not inquire whether in the circumstances of this case due process compelled the appointment of counsel.

We recognize, as the Court of Appeals for the Sixth Circuit recently said, “that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” ¹³ We are of the firm conviction that such an error occurred here.

II

Appellant and Lovelace were jointly indicted for the robbery of a federally insured bank. The maximum prison sentence for the offense was twenty years. The government’s case against appellant was strong; its case against Lovelace was weak. Various conferences were had between the parties, their lawyers, and the Assistant United States Attorney in charge of the prosecution. As a result, both defendants decided to plead guilty. Appellant asserts in the present motion that he did so on the basis of his understanding that he would receive a maximum sentence of ten years, and defendant Lovelace a maximum of five years. The sentences imposed were eighteen years and eight years, respectively.

Shortly after sentencing, trial counsel filed a motion to reduce sentence under Rule 35 of the Federal Rules of Criminal Procedure 18 U.S.C., which was denied. The trial judge presided at the hearing on that motion as well as at the hearing on the present motion.

At the opening of the hearing on the present motion, appellant requested a continuance, and asked that an attorney be appointed to assist him. The motion was denied.

Appellant was then advised that if he wished to take the stand and give testimony the court would hear him. Accordingly, he was sworn. Expressing ignorance as to how to proceed, appellant simply reasserted the truth of his allegation that he had been promised a ten-year sentence. He made no attempt to support his position by testifying as to his version of the incidents involved. He was cross-examined at length by an Assistant United States Attorney.

Appellant called and attempted to examine a number of witnesses regarding the incidents leading up to his plea of guilty, particularly the negotiations that occurred during the six weeks that elapsed between indictment and plea. The witnesses included the attorneys who had represented appellant and Lovelace at the trial (present at this hearing only as witnesses), Lovelace, the Assistant United States Attorney in charge of the prosecution of appellant and Lovelace, three men who apparently were deputy marshals at the pertinent time, and, finally, the sentencing judge. Appellant abandoned an initial purpose to call other witnesses, including two FBI agents. The principal witnesses called were cross-examined by an Assistant United States Attorney. Transcripts of proceedings at the time of sentence, and in connection with the subsequent motion to reduce sentence under Rule 35, were marked for identification and used in the course of the hearing.

At the opening of the second day of the hearing defendant renewed his request for counsel. It was again denied.

There was no evidence that appellant had been promised a maximum sentence ■of ten years, and the court so found. However, it did appear that the Assistant United States Attorney had agreed to recommend a maximum sentence of ten years for appellant. Appellant’s version was that the Assistant United States Attorney was to make this recommendation to the judge at the time of sentencing, and also in the pre-sentence report. The Assistant United States Attorney’s version was that he was to make the recommendation if asked by the court at the time of sentencing, and that appellant was aware of the fact that the court might not ask. The court did not ask; hence the government contended that failure to make the recommendation at the time of sentencing did not violate the understanding.

The hearing centered upon the issue thus presented. The court found that there was no absolute promise that a recommendation would be made, and that appellant knew a recommendation might not be requested.

But there is a difficulty in this approach to the problem which may have been critical. In the course of the hearing on the earlier Rule 35 motion for reduction of sentence, this exchange occurred :

“COUNSEL FOR APPELLANT : The U. S. Attorney, in our conversations, advised me that he could in no case make any sort of guarantee of sentencing; that he would make no recommendation, but if the Court were to ask for a recommendation that he would then recommend that Dillon be sentenced to a period of ten years and that Lovelace be sentenced to a period of five years.

“THE COURT: That’s rather strange. In three years I have never asked the District Attorney for any such recommendation.”

Because he was not asked, we cannot be sure that the Assistant United States Attorney knew in advance who the sentencing judge was to be, although it seems a fair assumption that he did, since the record indicates that appellant’s counsel knew. Because he was not asked, we do not know whether the Assistant United States Attorney was aware that the sentencing judge had not requested a recommendation as to sentence from the government during the preceding three years, although it would seem unlikely that an Assistant United States Attorney would be unaware of the consistent and long continued practice of the district judge in a matter of such importance.

In any event, these lines of inquiry should have been explored. Affirmative answers might have provided a new and substantial basis for appellant’s motion. If the Assistant United States Attorney knew that the judge who was to sentence appellant had not asked for a recommendation in three years, the representation by the Assistant United States Attorney that he would recommend a maximum of ten years at the time of sentencing “if asked” would have been wholly illusory. Since the representation was made in circumstances indicating that it was intended to and did serve as an inducement, it could only be concluded that appellant “was deceived * * * by the prosecutor into entering a guilty plea.”¹⁴ A plea induced by promises not intended to be kept would violate due process; a sentence based upon such a plea could not stand.¹⁵

If these were the circumstances, the matters which concerned the court and which preoccupied its findings would have been largely irrelevant. It would have made no difference that the promise was conditional, if the condition itself was in essence a misrepresentation. It would have made no difference that appellant’s counsel knew and told appellant that the judge might not request a recommendation, unless it also appeared that they were aware that the judge had not asked for such a recommendation in three years. No one suggests that they had such knowledge, and the serious reliance which they placed upon the Assistant United States Attorney’s promise demonstrates that they could not have known.

As we have seen, the matter was not pursued in the Section 2255 hearing. Appellant had not been present at the earlier Rule 35 hearing at which the judge disclosed his practice with respect to requesting recommendations. Although appellant was given a copy of the transcript of the Rule 35 hearing during the course of the Section 2255 hearing, the significance of the judge’s disclosure apparently did not occur to appellant until the close of the hearing.

It will be recalled that it was also appellant’s understanding that the recommendation concerning his sentence was to be included in the pre-sentence report. The Assistant United States Attorney testified that he may have said that the recommendation for a ten-year sentence would be given to the Probation Officer, but, again, only “if the Probation Officer asked.” Thus it became important to determine whether this representation was illusory. It was important to know whether the Probation Officer customarily obtained specific recommendations from the United States Attorney’s office and included them in pre-sentence reports, whether he did so in this instance, and, if so, what the recommendation was.

These questions were not effectively pursued when the Assistant United States Attorney in charge of the prosecution was on the stand. The appellant did not call the Probation Officer. He finally inquired of the judge whether such a recommendation appeared in the pre-sentence report. The judge sustained the government’s objection to the question, and it was not answered.

Appellant repeatedly asserted his inability to cope with the problems facing him. It seems reasonably clear that lack of the assistance of counsel may have prevented the discovery, investigation, preparation, and adequate presentation of a substantial basis for appellant’s motion.

The question is how badly the prisoner needed help; the seriousness of the problem must be judged from his point of view. “That which is simple, orderly and necessary to the lawyer,” as the Supreme Court has pointed out, “to the untrained layman may appear intricate, complex and mysterious.”¹⁶ Even judged by a lawyer’s standards, the issue presented here was not uncomplicated. Moreover, its resolution required the development of evidence relating to the judge’s practice and that of the Probation Officer, the knowledge and understanding of the principals, and what actually transpired at a series of conferences held over a period of six weeks or more involving possibly a dozen persons, most of whom were lawyers or officials.

It is unlikely that a layman could properly investigate the problems presented by appellant’s motion, even if he were not confined to prison or constantly under guard. And it is clear that a layman could not organize and present the evidence on such issues in a courtroom, particularly when he himself had to be a principal witness.

It was reasonably evident at the outset that appellant’s motion presented an issue that the court could not try — and certainly could not investigate — without the aid of counsel. A subtle and difficult issue of fact was involved. If the full extent of the need for counsel was not apparent at the opening of the hearing, we think it was clear when appellant renewed his motion at the opening of the second day. On the whole record we are left with a firm conviction that it was clear error to refuse appellant’s request for a lawyer.

Other grounds urged for reversal by the appellant are unlikely to arise at a second hearing prepared and conducted by an attorney, and are not considered.

The judgment is vacated and the cause remanded for further proceedings.

1 . “In all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defense.” U.S.Const. amend. VI.

2 . See, e.g., Tubbs v. United States, 249 F.2d 37 (10th Cir. 1957) ; Crowe v. United States, 175 F.2d 799, 801 (4th Cir. 1949) ; Green v. United States, 158 F.Supp. 804, 807-08 (D.Mass.1958). Cf. Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958); Matter of Dinerstein, 258 F.2d 609 (9th Cir. 1958); United States v. Caufield, 207 F.2d 278, 280 (7th Cir. 1953); Fellman, The Constitutional Right to Counsel in Federal Courts, 30 Neb.L.Rev. 559, 595 (1951).

3 . By interpreting the Amendment as conferring a right to counsel through direct appeal of the original conviction to the Court of Appeals [Johnson v. United States, 352 U.S. 565, 77 S.Ct. 550, 1 L.Ed.2d 593 (1957); Ellis v. United States, 356 U.S. 674, 78 S.Ct. 974, 2 L.Ed.2d 1060 (1958)], the accused is assured of representation by counsel throughout those proceedings in which guilt is finally determined and reviewed as of right. The same need for counsel is not invariably present where post-conviction remedies like motions under § 2255 are involved. They follow original criminal proceedings at every stage of which counsel has been provided [45 Minn.L.Rev. 783, 799 (1961)]; they are not a part of the basic processes for determining guilt [United States v. Hayman, 342 U.S. 205, 222-23, 72 S.Ct. 263, 96 L.Ed. 232 (1952); Matter of Dinerstein, 258 F.2d 609, 611 (9th Cir. 1958) ]; they may be resubmitted [Hodge v. Huff, 78 U.S.App.D.C. 329, 140 F.2d 686, 689 (1944) ]; and they are frequently frivolous [United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960); Machibroda v. United States, 368 U.S. 487, 497 n. 2, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (dissent) ; 45 Minn.L.Rev. at 799-800], These reasons, rather than a classification of § 2255 proceedings as “civil” or “criminal,” support the rule. As Mr. Justice Clark recently said of habeas corpus, another “civil” action, “the availability of a procedure to regain liberty lost through criminal process cannot be made contingent upon a choice of labels.” [Smith v. Bennett, 365 U.S. 708, 712, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961). See also Daugharty v. Gladden, 257 F.2d 750, 759 n. 16 (9th Cir. 1958).] Realistically, a proceeding which may result in vacating a criminal judgment is, at least, not purely civil. It may be that for some purposes a motion under § 2255 should be treated as criminal. See Green v. United States, 158 F.Supp. 804, 807 (D.Mass. 1958).

4 . “No person shall * * * be deprived of life, liberty, or property, without due process of law * * *.” U.S.Const. amend. V.

5 . Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958). See also Green v. United States, 158 F.Supp. 804, 807-08 (D.Mass.1958).

6 . Richardson v. United States, 199 F.2d 333, 335 (10th Cir. 1952); Hayes v. United States, 194 F.Supp. 807 (D.Colo. 1960); United States v. Pruitt, 121 F.Supp. 15 (S.D.Tex.1954). Cf. Fellman, supra note 2, at 595.

7 . Herrell v. United States, 234 F.2d 814 (6th Cir. 1956); United States v. Cau-field, 207 F.2d 278 (7th Cir. 1953). Cf. Anderson v. Heinze, 258 F.2d 479, 481 (9th Cir. 1958).

8 . Vinson v. United States, 235 F.2d 120 (6th Cir. 1956). If the test were “equal treatment for every litigant before the bar” [Coppedge v. United States, 369 U.S. 438, 447, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962)], it seems clear that appointment of counsel would be required in all such cases; a solvent defendant with a substantial issue to present would not appear pro se.

9 . United States ex rel. Dennis v. Murphy, 265 F.2d 57, 58 (2d Cir. 1959); Thomas v. United States, 217 F.2d 494 (6th Cir. 1954); United States v. Paglia, 190 F.2d 445, 448 (2d Cir. 1951); Ex parte Rosier, 76 U.S.App.D.C. 214, 133 F.2d 316, 333 (1942) (issue not affected by Dorsey v. Gill, 80 U.S.App.D.C. 9, 148 F.2d 857 (1945)). See also Green v. United States, 158 F.Supp. 804, 807-08 (D.Mass.1958).

10 . Edwards v. United States, 286 F.2d 704 (9th Cir. 1961); Anderson v. Heinze, 258 F.2d 479, 482 (9th Cir. 1958); Schlette v. King, 258 F.2d 561 (9th Cir. 1958); Matter of Dinerstein, 258 F.2d 609. 611 (9th Cir. 1958); United States v. Caufield, 207 F.2d 278 (7th Cir. 1953).

11 . Herrell v. United States, 234 F.2d 814 (6th Cir. 1956).

12 . United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 715 (2d Cir. 1960).

13 . McBee v. Bomar, 296 F.2d 235, 237 (6th Cir. 1961). See also Beck v. Wings Field, Inc., 122 F.2d 114, 116 (3d Cir. 1941).

14 . Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830 (1941).

15 . See Walker v. Johnston, 312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830 (1941); United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 712 (2d Cir. 1960), and cases cited. See also Shelton v. United States, 292 F.2d 346, 347 (7th Cir. 1961). Compare Machibroda v. United States, 368 U.S. 487, 493, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962); Smith v. O'Grady, 312 U.S. 329, 61 S.Ct. 572, 85 L.Ed. 859 (1941); McGuire v. United States, 289 F.2d 405 (9th Cir. 1961); Heideman v. United States, 281 F.2d 805 (8th Cir. 1960).

16 . Johnson v. Zerbst, 304 U.S. 458, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).