Efran Vizcarra-Delgadillo v. United States

395 F.2d 70, 1968 U.S. App. LEXIS 7182

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 1968
• Docket: 21571_1
• Status: Published

Opinions

KOELSCH, Circuit Judge.

Efran Vizearra-Delgadillo, convicted on his plea of guilty to a charge of aiding and abetting the alteration and possession of a false immigration document [18 U.S.C. §§ 1546 and 2], commenced this proceeding, pursuant to 28 U.S.C. § 2255, to set aside the judgment.¹ His contention was that he did not have the effective assistance of counsel: in particular, that his court-appointed attorney did not make an independent investigation of the case sufficient to give appellant an “informed opinion” on the question of what plea to enter. Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 92 L.Ed 309 (1948). The district court, following an evidentiary hearing, denied him relief. We affirm.

Prior to appellant’s entry of plea, appellant’s attorney (hereinafter “counsel”) consulted with appellant on at least two occasions; he also discussed the case with the district attorney in charge of the prosecution and the immigration officer; and he reviewed their files, to which he was permitted free access. He did not interview any prospective prosecution witnesses. He frankly acknowledged that his investigation consisted of what he learned from appellant plus the information secured from the prosecution.

But we cannot conclude on this record that counsel’s failure to make a more extended investigation “made the proceedings a farce and a mockery of justice, shocking to the conscience of the court.” Cofield v. United States, 263 F.2d 686, 689 (9th Cir. 1959).

Counsel was no novice in defending those accused of the commission of criminal offenses; in fact, he had previously represented a person charged with the same crime as appellant. And his discussion of the matter with appellant revealed facts that conclusively pointed to guilt. However, being deeply concerned that appellant, a young Mexican national, would surely be deported if convicted, counsel carefully explained appellant’s rights, the government’s burden and the punishment if guilt was established. Appellant, nevertheless, stated that he wanted “to get it over with.”

Included in the prosecution’s files were a confession signed by appellant and the written statement of Victorian Alzaga-Hernandez, the person for whom appellant had procured the forged immigration card.² It is clear that counsel inquired into the circumstance under which the confession was made and that the answers satisfied him that this confession would be admissible, for he testified: “I asked the defendant the questions, the normal questions in this regard, and I got back answers which indicated to me that it [i. e., the arrest] was legal. I also got the answers back which indicated to me that he had been questioned properly and he had fully and readily admitted all these things.” Particularly significant is counsel’s collateral testimony: “Well, it would be at this time that I would have been interviewing the defendant [i. e., August 9, 1966] that this [problem of admissibility] would be the foremost thing in my mind, because I had just finished a supplemental brief to the California Supreme Court applying the Miranda decision [Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (June 13, 1966)] to a case I had pending which was finished on the first of August.” ³ Counsel further testified in substance that he inquired as to the interval between the arrest and arraignment before the Commissioner and that he believed it did not constitute unnecessary delay. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 136, 1 L.Ed.2d 1479 (1957). And we note that the court below found that the officers took appellant before a commissioner at “the earliest appointment they could get. * * ”

In sum, the record reveals counsel as an experienced and conscientious trial lawyer possessed of facts secured directly from a client that showed the latter’s guilt; he also knew that the prosecution had a confession and the statement of another person (then in custody) which implicated his client; questioning of his client revealed no facts or circumstances suggestive of coercion, overreaching or other official misconduct that would render the confession inadmissible upon trial.

The extent and nature of the factual investigation necessary to an “informed opinion” essential to the rendition of “effective assistance of counsel” obviously will vary from case to case. Counsel must of course be inquisitive but he need not be omniscient. In this case counsel cannot be faulted for relying in large measure upon his client, particularly when the latter’s inculpatory admissions freely aired to the prosecution, were corroborated by the statement of another and echoed the ring of truth. We cannot conclude that appellant did not receive effective legal counsel.

The judgment is affirmed.

1 . The document was a “Form 1-151 Alien Border Crossing Card” issued by the Immigration Service.

2 . Counsel learned that Alzaga-Hernandez was presently detained.

3 . The court below made findings, supported by substantial evidence, that appellant, at the time of his arrest and again immediately before making his confession and yet a third time when he was brought before the United States Commissioner, was fully advised of his rights as required by the Supreme Court’s decision in Miranda.