Unpublished Disposition, 842 F.2d 335 (9th Cir. 1988)

MEMORANDUM^* 

Defendant-Appellant Jonas P. Leven (Leven) appeals from the denial of his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Leven contends: (1) the court erred in denying his motion without holding an evidentiary hearing; (2) his waiver of the right to jury trial was not knowing and intelligent because it was based on ineffective assistance of counsel; (3) he received ineffective assistance of counsel at trial and on his post-trial motion to reduce his sentence; and (4) he was incompetent at the time of sentencing by reason of medication he had taken. Finally, Leven maintains that the district court erred in denying his motion to relieve appointed counsel after counsel informed him that his Sec. 2255 motion was meritless. We affirm.

I. DID THE DISTRICT COURT ERR IN DENYING LEVEN'S MOTION WITHOUT HOLDING AN EVIDENTIARY HEARING?

The district court is required to hold a hearing on a Sec. 2255 motion " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (1982); see Baumann v. United States, 692 F.2d 565, 570 (9th Cir. 1982). We have construed Sec. 2255 to require the holding of a hearing "unless the movant's allegations, when viewed against the record, do not state a claim for relief or are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984), cert. denied, 470 U.S. 1058 (1985).

Leven argues that the district court improperly relied on the declaration of his trial counsel, Brian Robbins, which was submitted by the Government in opposition to Leven's motion. We need not decide whether the district court relied on the Robbins declaration or, if so, whether such reliance was improper, because even without reference to the declaration, Leven's motion warranted summary disposition. Since the district court reached the correct result, we must affirm. See United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981) (appellate court must affirm if district court reached correct result despite reliance on wrong ground).

A defendant seeking to have his sentence set aside on the ground that he did not receive effective assistance of counsel must allege and prove (1) acts or omissions by his counsel that were "outside the wide range of professionally competent assistance," and (2) prejudice to the defense by reason of the challenged acts or omissions. Strickland v. Washington, 466 U.S. 668, 687, 690, 692 (1984). Leven challenges the following five acts or omissions of his counsel:

1. Counsel "suggested waiving jury trial without explaining the consequences." Leven "depended on the incompetent advice of D.F.P.D. Robbins, who merely informed [Leven] it was not an appropriate case for jury trial." Assuming that these charges are true, Leven nevertheless fails to state a claim for relief under Strickland because he fails to allege that his defense was prejudiced by reason of the incompetent advice. First, Leven alleges no facts to suggest that but for counsel's advice, he would have opted for a jury trial. Cf. Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988) (habeas corpus petition presented no basis for evidentiary hearing re ineffective assistance of counsel where petitioner alleged no facts "which could amount to a showing that but for counsel's errors, he would have insisted on going to trial" rather than pleading nolo contendere).

Second, Leven fails to allege any facts to suggest that the outcome would have been more favorable had his case been tried to a jury rather than to the court. Indeed, given the overwhelming evidence of guilt, Leven would certainly have been convicted by a rational jury.¹ 

2. Counsel failed to cross-examine government witness Rebecca Stanford or to introduce evidence to impeach her credibility. Assuming that counsel's failure to cross-examine Stanford was "outside the wide range of professionally competent assistance," Leven again suffered no prejudice by reason of counsel's default. Leven testified in his own defense and corroborated the critical portions of Stanford's testimony. He acknowledged that he had deposited into his California account two checks drawn on the Massachusetts account into which the stolen NEC checks had shortly before been deposited. Counsel's failure to cross-examine Stanford or to impeach her testimony caused Leven no prejudice.

3. Counsel failed to inform Leven that one possible ground for appeal from his conviction was ineffective assistance of counsel; instead, counsel told Leven that there were no grounds for appeal. Counsel's failure has caused Leven no prejudice for two reasons. First, Leven's claims of ineffective assistance of counsel are now properly before this court. " [C]onstitutional claims may be raised in collateral proceedings even if the defendant failed to pursue them on appeal." Schaflander, 743 F.2d at 717. Second, Leven's underlying claims of ineffective assistance of counsel are meritless. A direct appeal on that basis would have been no more successful than the present appeal.

4. Although counsel was allegedly aware of Leven's claimed incompetency at the time of sentencing, counsel failed to advise the court of Leven's condition. The transcript of the sentencing hearing belies Leven's assertion of incompetency. At that hearing, Leven presented a coherent and reasoned plea for leniency, and cogently sought to allay the court's suspicion that Leven was little more than a "con man." Moreover, Leven advised the court that he was unable to speak loudly because he had "been in the hospital all weekend with this throat." Leven said nothing to the court about having received any medication that might have affected his competency. Leven's claim of ineffective assistance at the sentencing hearing is palpably incredible.

5. Counsel failed to advise Leven that he could appeal the court's denial of his Rule 35 motion for correction or reduction of sentence. Counsel's failure caused Leven no prejudice because an appeal from the court's ruling was not justified.

It is settled that " [s]entencing within statutory guidelines is left to the discretion of the sentencing court, and its decision is reviewable only for an abuse of discretion." Jones v. United States, 783 F.2d 1477, 1479 (9th Cir. 1986). If the sentence falls within the legislative limits, this court's inquiry ends when it determines that the district court actually exercised its discretion, i.e., that the district court considered the particular circumstances of the defendant. See United States v. DeBright, 710 F.2d 1404, 1409 (9th Cir. 1983), aff'd on reh'g, 730 F.2d 1255 (en banc), modified, 742 F.2d 1196 (9th Cir. 1984).

Leven received sentences of six years on each of counts one and three, and five years on each of counts two and four, the sentences to run concurrently. These sentences fell within the legislative limits. See 18 U.S.C. §§ 1702, 2314 (1982). Moreover, the trial court fully considered Leven's circumstances. An appeal from the court's denial of Leven's Rule 35 motion, therefore, would have been unsuccessful.

A criminal defendant may waive his constitutional right to a jury trial if four requirements are satisfied: "(1) the waiver is in writing, Fed. R. Crim. P. 23(a); (2) the government consents, id.; (3) the trial court accepts the waiver, id.; and (4) the waiver is made voluntarily, knowingly and intelligently." United States v. Cochran, 770 F.2d 850, 851 (9th Cir. 1985). In the present case, the first three requirements were clearly satisfied. Leven alleged in his Sec. 2255 motion that his waiver was not made knowingly.

The record contains a written waiver of jury trial signed by Leven. Leven acknowledged in open court that he had signed the waiver with the advice of counsel. The written waiver and Leven's acknowledgment thereof "carry a strong presumption of verity." Blackledge v. Allison, 431 U.S. 63, 74 (1977). To rebut that presumption, Leven had to allege facts detailing how his waiver was made unknowingly. "The ... presentation of conclusory allegations unsupported by specifics is subject to summary dismissal...." Id. (emphasis added); see id. at 75 n. 7 (quoting Advisory Committee Note to Rule 4, Rules Governing Habeas Corpus Cases) (notice pleading not sufficient); Machibroda v. United States, 368 U.S. 487, 495 (1962) (requiring a hearing on defendant's Sec. 2255 motion where "motion and affidavit contain [ed] charges which [were] detailed and specific," and indicating that no hearing would be required where allegations are "vague, conclusory, or palpably incredible").

Leven's motion is not "detailed and specific"; it is "vague" and "conclusory." Leven alleges no facts to support his conclusion that he "did not understand the consequences" of his waiver. He alleges that counsel "merely informed [him] it was not an appropriate case for jury trial" and that the court never inquired whether his waiver was made knowingly. These allegations, even if true, concern the actions of the court and counsel; they do not detail what Leven did or did not understand at the time he made his waiver.

Because Leven's motion alleges no facts sufficient to rebut the presumption created by the written waiver and the in-court acknowledgement, Leven fails to state a claim for relief based on his alleged unknowing waiver of jury trial. The district court's summary dismissal of the claim was not erroneous.

Leven contends that the district court should have ordered an evidentiary hearing under Sec. 2255 before rejecting his claim that his medical condition rendered him incompetent at the time of sentencing. The test for competency at a sentencing hearing is "whether the defendant is able to understand the nature of the proceedings and participate intelligently to the extent participation is called for." Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981).

As discussed in Part I(A) above, the transcript reveals that Leven was fully competent and participated intelligently at his sentencing hearing. The district judge correctly concluded that "the record of proceedings establishes beyond a doubt that Leven was sufficiently competent to comprehend the nature of the proceedings...." The district court did not err in disposing of Leven's claim without ordering a hearing.

II. DID THE DISTRICT COURT ERR IN DENYING LEVEN RELIEF FROM HIS ALLEGEDLY UNKNOWING WAIVER OF HIS RIGHT TO TRIAL BY JURY?

For the reasons discussed in Part I(B) supra, the district court did not err in denying Leven relief from his allegedly unknowing waiver of his right to jury trial.

III. DID LEVEN RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

For the reasons discussed in Part I(A) supra, Leven did not receive ineffective assistance of counsel either at trial or in his post-trial motion under Rule 35.

IV. DID THE DISTRICT COURT DENY LEVEN DUE PROCESS BY SENTENCING HIM WHEN HE WAS INCOMPETENT?

Leven asserts that he was incompetent at the sentencing hearing because he had been "heavily medicated with Tylenol/Codeine" during the weekend preceding his Monday afternoon sentencing. This medication was allegedly administered to Leven in connection with his "Cranial Cellulitis (fluid pressuring the skull)."

As noted above, "the test [of competency at a sentencing hearing] is whether the defendant is able to understand the nature of the proceedings and participate intelligently to the extent participation is called for." Chavez, 656 F.2d at 518. Due process requires that the trial court hold a competency hearing if the judge "entertains or reasonably should entertain a good faith doubt as to the defendant's ability ... to participate intelligently in the proceedings...." Id. at 515. The defendant's actions and demeanor in court may be considered in assessing his competency. Sailer v. Gunn, 548 F.2d 271, 274 n. 4 (9th Cir. 1977).

The trial judge in this case entertained no doubt that Leven was able to participate intelligently in the sentencing hearing, nor should the judge have entertained such a doubt. As discussed in Part I(A) supra, the transcript of the hearing reveals that Leven participated intelligently in the proceedings. In addition, although he mentioned that he had been in the hospital for a throat problem, he said nothing about "cranial cellulitis" or about having received any medication.

Under these circumstances, no competency hearing was necessary. Leven was not denied due process.

V. DID THE DISTRICT COURT ERR IN DENYING LEVEN'S MOTION TO RELIEVE COUNSEL?

We review a trial court's denial of a defendant's motion to substitute counsel for abuse of discretion. United States v. Whaley, 788 F.2d 581, 583 (9th Cir.), cert. denied, 107 S. Ct. 458 (1986). We consider the following factors: "(1) timeliness of the motion; (2) adequacy of the court's inquiry into the defendant's complaint; and (3) whether the attorney-client conflict was so great that it resulted in a total lack of communication preventing an adequate defense." Id.

There is no dispute that Leven's motion to relieve Mr. Amdur was timely. Leven's complaint, at bottom, is that Amdur believed Leven's Sec. 2255 motion to be meritless and so informed Leven. Leven notes that although Amdur filed papers in support of an evidentiary hearing on the motion, Amdur failed to reply to the Government's opposition.

The district court carefully inquired into and considered Leven's complaint, as evidenced by the court's written analysis of Leven's motion to relieve counsel. The court concluded that Amdur's submission in support of a hearing adequately protected Leven's interest. We agree. Since Leven's motion was meritless, Amdur's actions were appropriate. It was Leven, not Amdur, who informed the court that Amdur believed the Sec. 2255 motion to be meritless. The court was well within its discretion in concluding that Amdur's representation of Leven was adequate and in denying Leven's request that Amdur be relieved.

The denial of Leven's Sec. 2255 motion without an evidentiary hearing is AFFIRMED.