Harry E. Chard v. United States

578 F.2d 1317, 1978 U.S. App. LEXIS 9920

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 28, 1978
• Docket: 77-3115
• Status: Published

Opinions

RENFREW, District Judge.

Chard asks that we reverse the district court’s refusal to grant him section 2255 relief. He asserts two contentions, neither of which has merit.

Chard first argues that the district court erred in declining to conduct a full evidentiary hearing on the issue of whether he had been adequately informed of his appeal rights following his underlying conviction. See Fed.R.Crim.P. 32(a)(2). The district judge declined to consider this allegation because it had been previously raised and rejected in Chard’s earlier “Motion for Permission to File a Belated Appeal.”

Section 2255 expressly provides that “[t]he sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Although the district court had previously considered Chard’s claim in acting on his motion for permission to file a late appeal rather than an earlier 2255 application, we do not believe this difference to be significant. See Williams v. United States, 466 F.2d 672 (9 Cir. 1972) (previous determination of a motion to withdraw plea).

Pursuant to Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 (1963), the district court was correct in declining to grant a hearing on this issue

“only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application.” 373 U.S. at 15, 83 S.Ct. at 1077 (footnote omitted).

The first two requirements are clearly satisfied. In the earlier motion, Chard’s claim was resolved against him. Moreover, the determination was on the merits in that it was made “on the basis that the files and records conclusively resolved” Chard’s contention. Id. at 16, 83 S.Ct. at 1077.

Turning to the third requirement, we have previously held that even though a 2255 motion presents an identical ground which has previously been resolved on the merits and against the prisoner, a hearing may not be denied “absent a determination that the ends of justice would not be served by permitting the redetermination of the ground raised in the first section 2255 motion.” Brooks v. United States, 457 F.2d 970, 971 (9 Cir. 1972); accord, Tannehill v. Fitzharris, 451 F.2d 1322, 1324 (9 Cir. 1971); see also Gomez v. United States, 396 F.2d 323, 326 (9 Cir. 1968). Although no explicit determination to this effect appears in the record, the views of the district court on this point emerge clearly from the magistrate’s report, which the court adopted. The report sets forth the entire three-part test of Sanders v. United States, supra; states that leave to appeal in forma pauper-is on this claim was previously denied on the ground that it was frivolous; and repeats the court’s prior conclusion that the claim was conclusively foreclosed by documents already on file. On this record, the required “specific finding” that the ends of justice would not be served by reaching the merits, Tannehill v. Fitzharris, supra, 451 F.2d at 1324, may be implied.

Chard’s second contention is that the sentencing court erred in relying upon a presentence memorandum submitted by the FBI. The purpose of the memorandum was to inform the judge of the nature and extent of Chard’s postconviction cooperation with the various law enforcement agencies. Chard argues that the memorandum contained material inaccuracies which he was not given an opportunity to refute.

Even assuming that Chard’s allegations are factually correct, we conclude that the district court correctly refused to hold an evidentiary hearing. In our view, the record clearly indicates that the judge imposed sentence on the basis of the information brought to light during the trial; he simply did not rely on the FBI memorandum. As a result, we find no error in the district judge’s refusal to order a hearing on this contention. See United States v. Yates, 554 F.2d 342, 343 (7 Cir. 1977), cert. denied, 434 U.S. 865, 98 S.Ct. 200, 54 L.Ed.2d 141 (1978); United States v. Allen, 494 F.2d 1216, 1218 (3 Cir.) cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 83 (1974); United States v. Powell, 487 F.2d 325, 328 (4 Cir. 1973).

AFFIRMED.