Unpublished Disposition, 884 F.2d 582 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 884 F.2d 582 (9th Cir. 1989)

Harold J. SMITH, aka: Ross Eugene Fields, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.

No. 88-5538.

United States Court of Appeals, Ninth Circuit.

Submitted May 18, 1989.* Decided Aug. 25, 1989.

Before FERGUSON, CYNTHIA HOLCOMB HALL and KOZINSKI, Circuit Judges.


MEMORANDUM** 

Harold Smith appeals the district court's summary denial of his motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (1982).

Smith was convicted on charges stemming from the embezzlement of more than $21.3 million from the Wells Fargo Bank. After his conviction was upheld on appeal, United States v. Marshall, Nos. CA 82-1340 & 82-1379 (mem.) (9th Cir. May 18, 1983), Smith filed a section 2255 motion alleging that his conviction for embezzlement was the result of ineffective assistance of counsel and prosecutorial misconduct. The district court denied the motion without conducting an evidentiary hearing.

* Smith first contends that the district court is precluded from denying him an evidentiary hearing under Rule 4(b), 28 U.S.C. foll. Sec. 2255 (1982). This rule states in part:

If it plainly appears from the face of the motion ... that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. Otherwise, the judge shall order the United States Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate.

After Smith filed his motion, the government moved for an enlargement of time in which to file a response. The district court granted the government's motion, but then summarily denied Smith's section 2255 motion before a response was filed. According to Smith, by granting additional time to the government, the district court acknowledged that it was not clear on the face of Smith's motion that he was not entitled to relief.

This argument is meritless. First, the district court never ordered the government to respond to Smith's motion: granting a motion to enlarge time is not equivalent to ordering a response. Furthermore, even had the district court ordered the government to respond, there is nothing in Rule 4 that would preclude the district court from subsequently denying the section 2255 motion as meritless.

II

Smith also alleges that he was entitled to an evidentiary hearing on his ineffective assistance of counsel and prosecutorial misconduct claims. Section 2255 requires the district court to hold a hearing " [u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The petitioner "need not detail his evidence, but must only make specific factual allegations which, if true, would entitle him to relief." Baumann v. United States, 692 F.2d 565, 571 (9th Cir. 1982). We review the district court's decision to deny such a hearing for an abuse of discretion. Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988).

A. To overturn a conviction because of ineffective assistance of counsel, a defendant must prove that his attorney's performance was "outside the wide range of professionally competent assistance," Strickland v. Washington, 466 U.S. 668, 690 (1984), and that this incompetence was prejudicial. Id. at 691-93; United States v. Burrows, No. 86-4264, slip op. 4021, 4026 (9th Cir. Apr. 18, 1989) (per curiam). Failure to make either required showing defeats defendant's claim. Strickland, 466 U.S. at 700. Here, Smith fails to allege any facts which demonstrate prejudice. Accordingly, it is unnecessary to consider whether he alleges sufficient facts to demonstrate his counsel's ineffectiveness.1  Id. at 697.

B. Smith also contends that he is entitled to an evidentiary hearing on his claim of prosecutorial misconduct. "Alleged prosecutorial misconduct must be viewed, to the fullest extent possible, in the context of its occurrence." United States v. Ford, 632 F.2d 1354, 1381 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981). We may reverse a conviction for prosecutorial misconduct only when it denied the defendant a fair trial. United States v. Ochoa-Sanchez, 676 F.2d 1283, 1289 (9th Cir.), cert. denied, 459 U.S. 911 (1982).

As the first example of misconduct, Smith alleges that the prosecutor deprived him of Jencks Act material by using hearsay testimony before the grand jury.2  Because this claim was raised and rejected in Smith's direct appeal, United States v. Marshall, Nos. CA 82-1340 & 82-1379, mem. at 4 (9th Cir. May 18, 1983), we may not review it here. See United States v. Currie, 589 F.2d 993, 995 (9th Cir. 1979).

Second, Smith claims that the prosecutor misbehaved by failing to call two witnesses, Peters and Gene Kawakimi, both of whom allegedly would have provided exculpatory testimony at trial, and by suppressing Peters' evidence. A prosecutor has a constitutional obligation to disclose material exculpatory evidence to the defendant. See United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83 (1963). However, " ' [w]here defendants ... had within their knowledge the information by which they could have ascertained the supposed Brady material [i.e., exculpatory evidence in the possession of the prosecutor], there is no suppression by the government.' " United States v. Dupuy, 760 F.2d 1492, 1501 n. 5 (9th Cir. 1985), quoting United States v. Griggs, 713 F.2d 672, 674 (11th Cir. 1983). Here Smith admits that his counsel was aware of both witnesses: He knew of Peters' attempted testimony before the grand jury, and he called Kawakami as a witness for the defense. As these witnesses' exculpatory testimony was available to the defendant, the government's behavior does not amount to misconduct. Therefore, the district court also did not abuse its discretion in failing to hold a hearing on Smith's claim of prosecutorial misconduct.3 

AFFIRMED.

FERGUSON, Circuit Judge, dissenting:

Because I believe Smith's allegation that his attorney refused to discuss his case with him prior to trial is sufficient to entitle Smith to an evidentiary hearing, I dissent.

In Cronic v. United States, 466 U.S. 648 (1984), the Supreme Court held that in evaluating an attorney's conduct pursuant to an ineffective assistance of counsel claim, there may be some circumstances that are so likely to prejudice the accused that a Sixth Amendment violation may be found without resorting to an individualized prejudice inquiry. Id. at 659. In so holding, the Court carved out a narrow exception to the two-pronged standard established in Strickland v. Washington, 466 U.S. 668, 690-93 (1984), which is, of course, generally applicable to ineffective assistance of counsel claims. See id., 466 U.S. at 692 (in certain Sixth Amendment contexts, such as the " [a]ctual or constructive denial of the assistance of counsel altogether," prejudice is presumed).

In Cronic, the Court noted that the most obvious circumstance in which prejudice should be presumed is the complete denial of counsel. "The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical state of his trial." Id. at 660. In support of this proposition, the Court cited several cases in which it had found constitutional error, without any showing of prejudice, where a legislative enactment or judicial ruling denied a defendant assistance of counsel at a critical point in the criminal proceedings. Id. at 660 n. 25; see, e.g., Geders v. United States, 425 U.S. 80 (1976) (trial court order directing defendant not to consult his attorney during an overnight recess violated defendant's Sixth Amendment right to assistance of counsel); Herring v. New York, 422 U.S. 853 (1975) (denial of defense counsel's opportunity for summation in nonjury criminal trial violated defendant's right to effective assistance of counsel); Hamilton v. Alabama, 368 U.S. 52, 55 (1961) (absence of counsel at time of arraignment violated defendant's rights under Due Process Clause of Fourteenth Amendment where arraignment critical stage of state criminal proceedings).

From Cronic it clearly follows that Smith need not allege how he was prejudiced by his attorney's misconduct in order to be entitled to an evidentiary hearing. Like the cases relied upon by Cronic, Smith's allegation that his attorney never consulted with him prior to trial, if true, constitutes a complete absence of counsel at an extremely critical stage of the criminal proceedings.1  While a distinction does exist between Smith's allegation and the cases cited in Cronic--the former involves attorney misconduct while the latter involves court misconduct or legislative action--such a distinction in no way undermines Cronic's applicability to Smith's petition. Indeed, viewed from the defendant's perspective, the appropriate focal point when construing the criminal defendant's right to effective assistance of counsel, it is a distinction without a difference. Whether lack of access to counsel is the result of attorney misconduct or trial court misconduct, the defendant suffers identical harm--deprivation of counsel during a critical stage of a criminal proceeding.

Moreover, the fact that Cronic itself did not expressly confine its presumed prejudice exception to only those cases involving judicial or legislative action speaks loudly that a showing of an absence of counsel during a critical period as a result of attorney incompetence also falls within the scope of the Cronic exception. Accordingly, Smith need not allege facts showing prejudice in order to be entitled to an evidentiary hearing.

Additionally, the district court's summary dismissal of Smith's lack of consultation claim cannot be upheld on the ground that Smith's claim is palpably incredible or patently frivolous. There is naturally nothing in the record which belies Smith's claim. Indeed, Smith's claim involves conduct that by definition occurred outside the courtroom, and thus outside the record. When faced with a claim that involves facts totally outside the record, a district court judge cannot summarily dismiss the claim on the ground that the record or his personal recollection demonstrates that the defendant is entitled to no relief. Marchibroda v. United States, 368 U.S. 487, 494-95 (1962); 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); Baumann v. United States, 692 F.2d 565, 581 (9th Cir. 1982). Consequently, I believe Smith is entitled to an evidentiary hearing on his lack of consultation claim, and therefore dissent.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

 1

We are not unsympathetic to the dissent's argument that, from the defendant's perspective, being denied access to counsel because of attorney misconduct is no less harmful than being denied access to counsel by a court order. Dissent at 3. The Supreme Court, however, drew a distinction between these two situations in Strickland and held that allegations of ineffective assistance of counsel require a showing of actual prejudice. 466 U.S. at 686, 691-96. The Court specifically distinguished Cronic v. United States, 466 U.S. 648 (1984), and Geders v. United States, 425 U.S. 80 (1976), on which the dissent relies. Id. at 686, 692. Under Strickland, prejudice will be presumed to arise from ineffective assistance of counsel only in two limited circumstances: (1) where assistance of counsel is denied altogether; or (2) where counsel has an actual conflict of interest. Id. at 692-93. As Smith's claim falls into neither of these narrow exceptions, we must reject the dissent's argument

 2

Under the Jencks Act, 18 U.S.C. § 3500(b) (1982), the prosecutor must give the defendant transcripts of any government witness's statement after the witness testifies on direct examination at trial

 3

Because Smith has satisfactorily explained his failure to notify the court in a timely manner of his intent not to designate transcripts on appeal, we discharge the order to show cause why Smith should not be sanctioned

 1

Indeed, if anything, the absence of counsel alleged by Smith is arguably even more serious than some of the circumstances found constitutionally deficient by the Court in the past. For example, a defendant's total lack of access to his attorney prior to trial would appear more egregious than a defendant's inability to consult with his attorney during an overnight recess called while he is on the stand. See Geders v. United States, 425 U.S. 80 (1976)