O'Murchu v. United States

Opinion

USCA1 Opinion

September 27, 1993

                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 92-2327

NOEL O'MURCHU,

                                Petitioner, Appellant,

                                          v.

                              UNITED STATES OF AMERICA,

                                     Respondent.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                 [Hon. Andrew A. Caffrey, Senior U.S. District Judge]
                                          __________________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                           Selya and Stahl, Circuit Judges.
                                            ______________

                                 ___________________

               Noel O'Murchu on brief pro se.
               _____________
               A.  John Pappalardo,  United States  Attorney, and  Tobin N.
               ___________________                                 ________
          Harvey, Assistant United States Attorney, on brief for appellee. 
          ______

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                                _____________________

Per  Curiam.    Noel  O'Murchu   was  convicted  of
                      ___________

            conspiring  to  export arms  to  Northern  Ireland without  a

            license, conspiring  to violate the  domestic firearms  laws,

            and  unlawful  dealing in  firearms.    His convictions  were

            affirmed  on direct appeal.  See United States v. Murphy, 852
                                         ___ _____________    ______

            F.2d 1 (1st Cir.  1988), cert. denied, 489 U.S.  1022 (1989).
                                     _____ ______

            Thereafter,  O'Murchu filed a motion to vacate his conviction

            and sentence under 28 U.S.C.  2255, raising a host of claims.

            This court vacated the  district court's summary dismissal of

            two of those claims and remanded them to a different district

            judge  for further factual development.  See Murchu v. United
                                                     ___ ______    ______

            States, 926 F.2d 50,  56-59 (1st Cir.), cert. denied,  112 S.
            ______                                  _____ ______

            Ct. 99 (1991).   The  remanded claims alleged  that: (1)  the

            trial judge violated Fed.  R. Crim P. 11(e) by  attempting to

            coerce  O'Murchu  into pleading  guilty,  and  (2) O'Murchu's

            defense  attorney  rendered  him  ineffective  assistance  by

            failing  to object  to the  trial judge's  alleged misconduct

            both at trial and on O'Murchu's direct appeal.   

                 On  remand,  O'Murchu   and  the  government   submitted

            additional affidavits on the  judicial misconduct claim.  The

            district  court  conducted  a  partial  evidentiary  hearing.

            O'Murchu was also  permitted to take  the depositions of  the

            trial  attorneys   who   allegedly  witnessed   the   judge's

            impropriety.   After  surveying  the evidence,  the  district

            court concluded that O'Murchu's judicial misconduct claim was

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wholly lacking  in supporting facts and  that his ineffective

            assistance claim  was  consequently groundless.    The  court

            dismissed both claims. O'Murchu again appeals.  We affirm.

                 The  evidence  developed  on  remand  makes  clear  that

            O'Murchu's judicial misconduct claim  arises from the  events

            that occurred  following  the  close  of the  second  day  of

            O'Murchu's  trial.  O'Murchu averred  that he heard the trial

            judge instruct counsel not to leave the courtroom that day as

            there  was a matter  he wished to discuss  with them.  Thirty

            minutes  later, O'Murchu  and  his co-defendant  (Hughes) met

            together  with their  respective attorneys in  the marshall's

            cellblock.   O'Murchu swore that his  attorney (McGinty) then

            told him  that, "Robert (or Bob) and I just left a discussion

            with  Judge Mazzone  where he  indicated that  you would  not

            receive  more than five years  for a guilty  plea."  O'Murchu

            further  averred that Hughes's  attorney, Robert  Canty, told

            Hughes that, "Judge Mazzone said  that he would sentence  you

            to not more than four years for a guilty plea."  O'Murchu and

            McGinty  then  proceeded  to discuss  an  entrapment defense.

            O'Murchu maintained  that he would not  plead guilty because,

            in his view, he had been entrapped by the F.B.I.

                 The three attorneys  who allegedly  witnessed the  trial

            judge   make  the   aforementioned  statements   described  a

            significantly  different chain  of  events.   The  prosecutor

            (Stearns)  testified  that  the  only discussion  of  a  plea

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involving the trial judge occurred at a scheduling conference

            before the trial began.   The judge simply asked  whether the

            case could be resolved.   Counsel informed the judge  that it

            could not in view of O'Murchu's determination to proceed with

            trial.    Stearns  maintained   that  there  was  no  further

            discussion  of a  possible  plea with  the trial  judge. (Tr.

            3).1  

                 All counsel acknowledged that the trial judge engaged in

            a  discussion with them  at the  close of  the second  day of

            trial.   According  to attorney  McGinty, the  discussion was

            "terse"  and "focused" on the defendants' entrapment defense.

            McGinty had  little present  recollection of the  discussion.

            However, his notes of the events of that day, which were made

            shortly after  the events occurred, indicated  that the judge

            made it  clear that the evidence thus  far did not warrant an

            entrapment  instruction.    The  judge  emphasized  that  the

            defendants  had  better  be  aware  of  this.     After  this

            discussion,  which   McGinty  placed  in   chambers,  counsel

            proceeded to the hallway.  There, outside the presence of the

            trial judge,  Stearns indicated that he  would recommend five

            years  for O'Murchu  and four  years for  his codefendant  if

____________________

            1.  Attorney  Canty recalled  that  this pretrial  scheduling
            conference occurred  in the judge's chambers.   He emphasized
            that  the purpose of this conference was to establish a trial
            date  and the  number  of  days  needed  for  trial.    Canty
            maintained that this conference,  "was not a plea negotiation
            involving the court."  (Tr. 5-9). 

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there  was  a  plea at  that  point.  (Tr.  44-45).   McGinty

            indicated that  the plea discussion with  Stearns happened in

            the trial judge's  absence, for had the  case been otherwise,

            (i.e., had  the trial  judge  been present  and endorsed  the
             ____

            government's recommendation),  McGinty would have made a note

            of it.  (Tr. 50-52).  McGinty  had no recollection of telling

            O'Murchu that the  judge would  not give him  more than  five

            years  for a  guilty  plea.    (Tr.  48).    Rather,  McGinty

            testified  that he would have  told O'Murchu that  it was the

            trial  judge's frequent  policy  not to  exceed a  government

            recommendation, and as the government recommendation was five

            years,  one could generally be secure that one would not face

            more than that upon  pleading guilty.  (Tr. 68-69).   McGinty

            flatly  denied  telling O'Murchu  that  the  trial judge  had

            participated in a plea discussion.  (Tr. 68).

                 Attorneys  Stearns  and  Canty   generally  corroborated

            McGinty's  version of the events of the second day of trial.2

Canty  emphatically  testified  that   there  were  no   plea

            negotiations  with the  trial judge  in  his presence  at any

            time.  (Tr. 13).  He specifically recalled that the five year

            and  four  year terms  that  Stearns had  offered  were never

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            2.  However, Canty  recalled  that the  discussion  with  the
            trial judge  occurred at sidebar,  not in chambers,  and that
            the ensuing discussion  with Stearns occurred at the  back of
            the courtroom, as opposed to in the hallway.

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uttered in the  trial judge's  presence. (Tr.  42).   Stearns

            agreed that the plea  discussion occurred after the attorneys

            had left the judge's lobby.  (Tr. 37).

                 In  short, the  only  witnesses to  the judge's  alleged

            efforts  to  coerce a  guilty  plea  affirmed that  the  plea

            discussion  occurred solely  among  counsel  and outside  the

            presence of the trial judge.  This is a far cry from the quid
                                                                     ____

            pro  quo  O'Murchu  posited  in  his  allegations.    Indeed,
            ___  ___

            O'Murchu's  claim   appears  to  have  been   based  on  rife

            speculation that stands conclusively refuted.3

                 "An  evidentiary   hearing   is  unnecessary   where   a

            petitioner  lacks   sufficient  evidence  to   establish  his

            claims."   Porcaro v. United  States, 832 F.2d  208, 212 (1st
                       _______    ______________

            Cir. 1987)(per curiam).  The proceedings on remand have shown

            that   O'Murchu's   judicial   misconduct   and   ineffective

            assistance claims are groundless.  Accordingly,  the judgment

            of the district court is affirmed.4  
                                     ________

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            3.  On appeal,  O'Murchu argues that the  pretrial scheduling
            conference   which  Stearns  and   Canty  described  actually
            occurred  on the third day  of trial.   O'Murchu says that we
            should  infer this  because  the trial  judge  was trying  to
            ascertain  whether  his  attempt  to  coerce   O'Murchu  into
            pleading  guilty on the previous day had been successful.  No
            rational  decisionmaker  could  adopt  such  a  view  of  the
            evidence.  O'Murchu has wholly failed to prove that the judge
            attempted to coerce  him.  Moreover,  both Canty and  Stearns
            were  quite  clear that  the  scheduling  conference occurred
            before the trial began.

            4.  O'Murchu's  motions for  oral  argument  are denied.  His
            motion  for an  order  concerning his  deportation is  hereby
            rendered moot.

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