Unpublished Disposition, 880 F.2d 1324 (9th Cir. 1986)

MEMORANDUM^* 

Appellant James Tatum appeals the district court's denial of his two 28 U.S.C. § 2255 motions for vacation of his sentence and his Fed. R. Crim. P. 36 motion to correct his indictment. While the district court properly dismissed most of Tatum's claims as meritless, the court erred in summarily dismissing that portion of one of his Sec. 2255 motions alleging governmental bribery of a witness to secure false testimony.

In June 1978, a fire of suspicious origin destroyed the Chicken Ranch brothel in Pahrump, Nevada. A federal grand jury was empaneled in 1979 to investigate the fire. The chief witness for the government, Elbert Easley, testified before the grand jury that the owner of a competing brothel had hired Easley, Tatum, and one other person to destroy the Chicken Ranch. Easley further testified that they had intentionally destroyed the Chicken Ranch by igniting a brothel couch saturated with flammable liquids. Tatum, in his testimony before the grand jury, denied any knowledge of the Chicken Ranch fire. The grand jury returned a seven-count indictment, including charges against Tatum for violations of 18 U.S.C. § 844(i) (malicious destruction of property by means of an explosive), 18 U.S.C. § 371 (conspiracy), and 18 U.S.C. § 1623 (false declarations before a grand jury).

Tatum was subsequently convicted in March 1982 on one count of giving false declarations before the grand jury, the other charges having been dismissed at the close of the government's case pursuant to Fed. R. Crim. P. 29(a). The district court sentenced Tatum to five years' imprisonment. As Tatum was then serving an eight-year parole term for a prior counterfeiting conviction, the five-year perjury sentence was to be served consecutive to the remainder of the counterfeiting sentence. Tatum's perjury conviction was affirmed by this court on direct appeal by memorandum disposition. See United States v. Tatum, No. 82-1164 (9th Cir. Dec. 1, 1982). Tatum's subsequent motions for new trial and reduction of sentence were also dismissed by the district court and affirmed by this court on appeal. See Fed. R. Crim. P. 33 (new trial); Fed. R. Crim. P. 35 (reduction of sentence).

Tatum has subsequently filed three pro se Sec. 2255 petitions collaterally attacking his perjury conviction, two of which are relevant to this appeal. On July 1, 1985, Tatum petitioned the district court for post-conviction relief [hereinafter First Sec. 2255 Petition], claiming that the district court lacked jurisdiction to prosecute him for perjury since the grand jury itself had no authority to investigate destruction of the Chicken Ranch by means other than an "explosive" within the meaning of 18 U.S.C. § 844(i). The district court referred the petition to a magistrate, who recommended that the petition be dismissed because Tatum's co-defendants had already unsuccessfully litigated this jurisdictional issue, and, alternatively, because Tatum was procedurally barred from collaterally attacking his conviction on this issue.

On November 7, 1985, Tatum filed another Sec. 2255 petition [hereinafter Second Sec. 2255 Petition] collaterally attacking his perjury conviction on the grounds that the government: (1) failed to produce exculpatory statements and grand jury testimony of Billie Ross, a man whom Easley had allegedly also linked to the Chicken Ranch fire; and (2) induced Easley to fabricate his previous Chicken Ranch testimony through bribery in the form of pre-paid counsel for his then-pending death penalty appeal.¹  The magistrate took no action on this petition other than submitting it to the district court "pursuant to the Findings and Recommendations ... [previously filed with respect to Tatum's First Sec. 2255 Petition] for such other and further action as the court deems appropriate."

Before the district court had taken any action with respect to either of Tatum's Sec. 2255 petitions, Tatum filed a motion to correct his indictment pursuant to Fed. R. Crim. P. 36. Tatum claimed that, as a result of clerical mistake or oversight, his record did not accurately reflect the fact that he had been acquitted of the counts of the indictment charging him with malicious destruction of property and conspiracy.

By minute order dated June 25, 1986, the district court summarily denied both Tatum's Sec. 2255 petitions and his Rule 36 motion for correction without granting an evidentiary hearing, requiring responsive pleadings by the government, or explaining its decision.²  In his consolidated appeal, Tatum now challenges this order. This court has granted Tatum's motion for leave to appeal in forma pauperis pursuant to Fed. R. App. P. 24. We undertake de novo review of the district court's denial of Tatum's Sec. 2255 petitions, see, e.g., United States v. Freeny, 841 F.2d 1000, 1001 (9th Cir. 1988), while we review the court's denial of his Rule 36 motion for correction of sentence under a "clearly erroneous" standard, United States v. Dickie, 752 F.2d 1398, 1400 (9th Cir. 1985).

Section 2255 provides that an evidentiary hearing "shall" be granted " [u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." In Baumann v. United States, 692 F.2d 565, 581 (9th Cir. 1982), this circuit read this language as mandating a hearing whenever a petitioner makes "specific factual allegations" which, if true, would entitle him to relief. Summary dismissal under Sec. 2255 is reserved for those petitions that fail to state a claim for relief, or raise "palpably incredible" or "patently frivolous or false" claims. Id.; see also Blackledge v. Allison, 431 U.S. 63, 76 (1977); Machibroda v. United States, 368 U.S. 487, 495-96 (1962); United States v. Hearst, 638 F.2d 1190, 1194-95 (9th Cir. 1980), cert. denied, 451 U.S. 938 (1981); Rules Governing Sec. 2255 Proceedings in the United States District Courts, Rule 4(b).

Before addressing the merits of Tatum's Sec. 2255 claims, we also note that we have jurisdiction to entertain these petitions since Tatum was in the custody of federal prison authorities for his perjury conviction when filing each of these petitions. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 238-39 (1968) (jurisdictional "in custody" requirement for habeas relief determined by status of petitioner when petition filed); Cook v. Maleng, 847 F.2d 616, 618 (9th Cir. 1988), aff'd, 109 S. Ct. 1923 (1989); Port v. Heard, 764 F.2d 423, 426 (5th Cir. 1985); Sevier v. Turner, 742 F.2d 262, 268-69 (6th Cir. 1984). Moreover, Tatum's release from federal prison in October 1988 to parole does not relieve this court of jurisdiction since Tatum's aggregated parole term encompasses both his counterfeiting and perjury convictions. See Wright v. United States, 732 F.2d 1048, 1050 n. 1 (2nd Cir. 1984) (petitioner's subsequent release to parole did not relieve court of jurisdiction to hear Sec. 2255 appeal); see also Hensley v. Municipal Court, 411 U.S. 345, 349 (1973) (parole term satisfies "in custody" requirement for federal habeas relief); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (same). We thus turn to a consideration of the merits of Tatum's two Sec. 2255 petitions.

Tatum initially challenges the district court's summary denial of his First Sec. 2255 petition alleging jurisdictional defects in his perjury conviction. Tatum claims that since federal authorities knew, prior to the empanelment of the Chicken Ranch grand jury, that the brothel had been destroyed by flammable liquids ignited by a match, and that use of such fire accelerants does not constitute an "explosive" within the meaning of 18 U.S.C. § 844(i), the grand jury had no authority to investigate and return federal indictments concerning the Chicken Ranch fire.

Tatum's jurisdictional attack clearly lacks merit. Federal case law interpreting the term "explosive" in Sec. 844(i) was sufficiently open at the time of the Chicken Ranch fire in 1978 to raise the possibility that uncontained flammable liquids ignited by a match could, under certain circumstances, constitute an explosive material within the meaning of this section. Since the grand jury was thus investigating conduct which might have been a federal crime, it had the jurisdiction to call witnesses who could shed light on the brothel fire and return related indictments. See, e.g., United States v. McInnis, 601 F.2d 1319, 1327 (5th Cir. 1979), cert. denied, 445 U.S. 962 (1980); United States v. Sisack, 527 F.2d 917, 920 (9th Cir. 1976) ("The mere possibility that violations of federal law have occurred is sufficient authority for a grand jury investigation."); see generally Branzburg v. Hayes, 408 U.S. 665, 686-88 (1972) (investigative powers of grand jury "necessarily broad").

Tatum next challenges the district court's summary denial of his Second Sec. 2255 petition alleging knowing use of Easley's fabricated testimony by the government to secure his perjury conviction, and government suppression of requested exculpatory materials. Each of these grounds for collateral relief will be discussed in turn below.

In order to state a claim for relief under Sec. 2255 based on perjured testimony, the petitioner bears the burden of demonstrating that (1) the challenged testimony was actually false, and that (2) the government knowingly used this false testimony. See, e.g., United States v. Conzemius, 611 F.2d 695, 697 (8th Cir. 1979); Hart v. United States, 565 F.2d 361, 362 (5th Cir. 1978); United States v. Green, 532 F. Supp. 381, 382 (D. Nev. 1981).

To demonstrate the government's knowing use of Easley's false testimony, Tatum primarily relies on affidavits memorializing Easley's 1982 jailhouse interviews with John Adams, investigator for the Nye County District Attorney's office, and Paul Hastings, former counsel for Tatum. Tatum alleges that these affidavits demonstrate that Easley fabricated his grand jury and trial testimony at the behest of certain state and federal officials who promised (and paid for) counsel for Easley's death penalty appeal. Specifically, Tatum alleges that Walter Plankinton, owner of the Chicken Ranch brothel, along with some law enforcement officials, visited Easley on death row seeking information connecting certain high-ranking Nye County officials and the owner of a competing brothel to the Chicken Ranch fire. After being promised $30,000 for appellate counsel, Easley was told what to say in a signed statement concerning the Chicken Ranch fire.

Against this background, the district court erred in concluding that Tatum's Sec. 2255 petition, together with the accompanying affidavits and records in this case, conclusively showed that under no circumstances would Tatum be entitled to relief. Tatum has made detailed and specific allegations which, if true, establish that the government induced Easley's false testimony through bribery in order to secure his (Tatum's) perjury conviction. See, e.g., Machibroda, 368 U.S. at 495-96 (reversible error for district court to dismiss petitioner's "detailed and specific" allegations without hearing); Morgan v. United States, 696 F.2d 1239, 1241 (9th Cir. 1983); Baumann, 692 F.2d at 572-73. Evidentiary hearings are particularly appropriate to the adjudication of Sec. 2255 petitions in which, as here, a petitioner's claims concern matters occurring outside the record. Machibroda, 368 U.S. at 494-95; United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988); Marrow v. United States, 772 F.2d 525, 526-27 (9th Cir. 1985); Hearst, 638 F.2d at 1195. Whatever may have been the district court's assessment of the strength of Easley's credibility, final judgment as to the truth of his statements should be made following an evidentiary hearing. See United States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980) (evidentiary hearing required when petition raised factual questions concerning attorney-client relationship); Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979) (contested factual issues in Sec. 2255 case require evidentiary hearings). What the Supreme Court said in Machibroda concerning the need for evidentiary hearings in Sec. 2255 proceedings applies equally to this case:

There will always be marginal cases, and this case is not far from the line. But the specific and detailed factual assertions of this petitioner, while improbable, cannot at this juncture be said to be incredible. If the allegations are true, the petitioner is clearly entitled to relief. Accordingly, we think the function of 28 U.S.C. § 2255 can be served in this case only by affording the hearing which its provisions require.

368 U.S. at 496; see also Hearst, 638 F.2d at 1195. Accordingly, the district court erred in failing to grant an evidentiary hearing on that portion of Tatum's Second Sec. 2255 petition based on specific factual allegations that the government induced Easley to testify falsely with respect to the Chicken Ranch fire through bribery.

As his final claim in support of his Second Sec. 2255 petition to vacate his perjury sentence, Tatum contends that the government violated Brady v. Maryland, 373 U.S. 83 (1963), and the Jencks Act, 18 U.S.C. § 3500, by intentionally and prejudicially withholding exculpatory evidence from his defense. Specifically, Tatum contends that the government prosecutors possessed certain statements and grand jury testimony of Billie Ross, the brother of Easley's girlfriend, as well as that of Mrs. Ross, that would have established Billie Ross' involvement in the Chicken Ranch fire.³ 

Because the record conclusively shows that Tatum is not entitled to relief on either his Brady or Jencks Act claims, the district court committed no error in dismissing these claims without granting an evidentiary hearing. Tatum's factual allegations in his petition, even if accepted as true, simply do not reveal any Brady or Jencks Act violations. See United States v. Bagley, 473 U.S. 667, 682 (1985) (undisclosed information material for Brady purposes only if there is a "reasonable probability" that the outcome of the trial would have been different had the challenged information been disclosed to the defense); see also Brady, 373 U.S. at 87. At most, evidence that Billie Ross assisted in the brothel fire indicates that more persons participated in the fire than Tatum and his three co-defendants; it negates neither Tatum's participation in the fire nor his failure to testify truthfully before the grand jury. Accordingly, while the Rosses' statements and testimony may have proved of some use as impeachment evidence to attack Easley's credibility, their nondisclosure would not appear to have altered the outcome of the trial. See, e.g., United States v. Page, 828 F.2d 1476, 1479 (10th Cir.), cert. denied, 108 S. Ct. 510 (1987); Magoon v. United States, 787 F.2d 412, 414 (8th Cir. 1986).

In addition, the Government did not violate the Jencks Act by denying Tatum access to the Rosses' grand jury testimony. The Jencks Act only mandates disclosure of a witness' grand jury testimony once that witness has given direct testimony at trial. See United States v. Liuzzo, 739 F.2d 541, 543-44 (11th Cir. 1984) (collecting cases). Since neither of the Rosses testified at Tatum's trial, the Jencks Act has no applicability to this appeal.

The final aspect of Tatum's consolidated appeal concerns his attempt, pursuant to Fed. R. Crim. P. 36, to correct the apparent "clerical mistake" in his record. Tatum contends that his record does not reflect the fact that the charges against him for violations of 18 U.S.C. § 844(i) (malicious destruction of property) and 18 U.S.C. § 371 (conspiracy) had been dismissed at the close of the government's case.

A review of the clerk's record in this case reveals no mistake in the district court's judgment. Tatum's conviction and sentence related solely to his perjury conviction. The misunderstanding as to the accuracy of Tatum's sentence apparently stems from a letter Tatum received from the Deputy Clerk for the Nevada District Court. Responding to a letter inquiry from Tatum in September 1982, the deputy clerk stated that "you were convicted of Malicious Destruction of Property ... and Conspiracy and False Declaration Before a Grand Jury." It would appear that the only "clerical mistake" in this case was the misinformation given Tatum by the deputy clerk. Accordingly the district court did not clearly error when dismissing Tatum's request for correction of his indictment pursuant to Rule 36. See United States v. Kaye, 739 F.2d 488, 490 (9th Cir. 1984) ("A change made under Fed. R. Crim. P. 36 can do no more than conform the sentence to the term which the record indicates was intended.").

Because the record conclusively shows that Tatum's Fed. R. Civ. P. 36 motion and his Sec. 2255 claims alleging jurisdictional defects and government suppression of exculpatory materials entitle him to no relief, we affirm the district court's summary dismissal of these claims. We cannot say, however, that Tatum's detailed and specific allegations of government bribery of a witness would not entitle him to relief. Therefore, we reverse the court's summary denial of this portion of the Tatum's Second Sec. 2255 petition and remand for responsive briefing and an evidentiary hearing.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.