Unpublished Disposition, 911 F.2d 740 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 911 F.2d 740 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee,v.Larry Dean ROGERS, Defendant-Appellant.

No. 89-55458.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 1989.Decided Aug. 10, 1990.As Amended on Denial of Rehearing Oct. 2, 1990.

Before NELSON, WILLIAM A. NORRIS and O'SCANNLAIN, Circuit Judges.


MEMORANDUM* 

We are asked to decide whether the district court, in denying habeas corpus relief under 28 U.S.C. § 2255, properly concluded that appellant's right to effective assistance of counsel was not violated.

* On March 2, 1984, Larry Dean Rogers was indicted on five counts of armed bank robbery. Michael Treman was appointed to represent Rogers.

After receiving discovery and a request for notice of alibis from the government, Treman met with Rogers at Terminal Island to discuss the case. This was the only one-on-one meeting between the two. There is some dispute regarding the duration of this meeting. Rogers alleges that the meeting lasted five minutes but Treman states that the meeting lasted more than thirty minutes. It is also unclear what transpired at the meeting. Rogers maintains that he explained to Treman that he was innocent, but that Treman pressured him into considering a plea bargaining offer. The government, however, contends that Rogers told Treman that he was guilty of the bank robberies and that he would plead guilty to two counts of the indictments.

Treman subsequently negotiated a plea bargain whereby Rogers would plead guilty to two counts of armed bank robbery and one count of unarmed bank robbery. This plea bargain offer was rejected by Rogers. Thereafter, Treman began preparing for trial.

In a letter dated April 9, 1984, Rogers requested that Treman file certain motions and indicated his desire to discuss his case further. In the same letter, Rogers requested that Treman excuse himself from the case unless Treman was committed to providing a "professional defense." Treman responded in an April 11, 1984 letter that he would not file the requested motions because he believed that they were not valid pretrial motions and suggested that Rogers should advise the judge at their next appearance before the court that Rogers wanted a new counsel.

Pursuant to Treman's suggestion, at the next court appearance (which was also the first day of trial), Rogers told the district court that he was not satisfied with Treman's preparation of his case. He also complained that Treman was "pressuring" him to accept a plea bargain. After a brief inquiry into Treman's preparation for the case, the district court ordered the trial to proceed.

Before the trial began, Treman requested a brief continuance to obtain civilian attire for Rogers. Rogers had been brought from pretrial detention in a khaki jumpsuit that was issued by the prison. The district court denied the request.

After a two-day trial, the jury returned verdicts of guilty on all five counts. The district court sentenced Rogers to two consecutive 25-year terms on Count One and Count Two. The court imposed another 25-year term for Count Three, but suspended execution of the sentence. The court suspended imposition of sentence on Counts Four and Five, placing Rogers on five years' probation. On appeal, we affirmed Rogers' convictions. See United States v. Rogers, 769 F.2d 1418 (9th Cir. 1985).

On December 4, 1987, Rogers filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, claiming that he had discovered new alibi witnesses. Approximately five months later, Rogers also filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, asserting that he had been denied effective assistance of counsel. The motion alleged, among other things, that Treman had not adequately consulted with Rogers regarding his defense and that Treman had failed to object to his client's appearing in prison clothes.

The district court denied Rogers' new trial motion and his section 2255 motion without holding an evidentiary hearing. Rogers now appeals from the district court's order.

II

Rogers contends that the district court erred in concluding that he received effective assistance of counsel under the sixth amendment.1 

Ineffective assistance of counsel claims are considered under a two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under this test, the defendant must demonstrate both that the counsel's performance was objectively deficient and that prejudice resulted from the counsel's deficient performance. Id.

Rogers points to three alleged instances of Treman's failure to act as an effective counsel, resulting in prejudice to Rogers' defense: first, Treman failed to withdraw from the case or to advise the court promptly when Rogers allegedly requested substitution of counsel; second, Treman failed to move to suppress an allegedly prejudicial photospread and eyewitness testimony; third, Treman failed to object when Rogers allegedly was compelled to appear at trial in identifiable prison clothes. We consider each of these contentions below.

* Rogers argues that Treman's failure to withdraw from the case denied him effective assistance of counsel. Specifically, Rogers asserts that because he and Treman were embroiled in "irreconcilable conflict," Treman had an obligation to bring Rogers' requests for a change of counsel to the attention of the district court.2 

A defendant may be deprived of effective assistance of counsel if he and his counsel are embroiled in irreconcilable conflict. Brown v. Craven, 424 F.2d 1166, 1169 (9th Cir. 1970) (determining that defendant was denied effective assistance of counsel when he was "forced into a trial with the assistance of a particular lawyer with whom he was dissatisfied, with whom he would not cooperate, and with whom he would not, in any manner whatsoever, communicate").

Despite Rogers' assertions, the record does not suggest that the relationship between Rogers and Treman presented the type of conflict that would result in a "breakdown of communications or prevent [ ] counsel from adequately presenting [defendant's] defense at the subsequent trial." United States v. Wagner, 834 F.2d 1474, 1482 (9th Cir. 1987). After being assigned to the case and receiving various discovery items provided by the government, Treman gave Rogers copies of them and discussed the case with him. See Declaration of Michael J. Treman at 3. By April 2, 1984, Treman negotiated a plea agreement with the Assistant United States Attorney of two counts of armed robbery and one unarmed count. See id. at 5. Subsequently, Treman wrote a letter to Rogers outlining the government's offer and spoke with Rogers on the telephone on April 3 and 4, 1984. See id. Treman confirmed these telephone conversations in a letter. After Rogers rejected the plea bargain offer, Treman began to prepare for trial.

Unlike Craven, the record in the instant case demonstrates that Treman and Rogers were able to communicate sufficiently to consider the plea bargaining offer and subsequently to prepare for trial. Cf. Hudson v. Rushen, 686 F.2d 826, 828 (9th Cir. 1982) (no substitution of counsel was required when "breach of confidence" had developed between the defendant and counsel, and the defendant refused to take the stand in his own defense despite the advice of his counsel), cert. denied, 461 U.S. 916 (1983). Because no irreconcilable conflict existed, Rogers fails to demonstrate that Treman's failure to excuse himself from the case was objectively deficient under Strickland 's first prong.

Rogers also contends that Treman failed to give him timely and sufficient notice regarding his right to substitution of counsel. Rogers alleges that he made repeated requests, beginning on March 21, 1984, that Treman withdraw from the case. Only after receiving Rogers' letter requesting that Treman "dismiss" himself from the case unless he was prepared to put on an "earnest professional defense," did Treman advise Rogers to request substitution of counsel at the next appearance before the district court. At the time of Treman's response letter to Rogers, the next scheduled appearance before the district court was the first day of trial.

Rogers does not demonstrate, however, how Treman's failure to withdraw from the case or to advise the court promptly about the alleged "irreconcilable conflict" prejudiced Rogers' case, as required by Strickland 's second prong.3  Prejudice exists when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Rogers has made no showing that the result would have been any different had other counsel been substituted for Treman. Indeed, on direct appeal, we determined that the district court's denial of Rogers' motion for substitution of counsel did not result in denying Rogers a fair trial. See Rogers, 769 F.2d at 1424. We cannot conclude that Treman's purported failure to advise the court promptly of irreconcilable differences raises a reasonable probability that the outcome of the trial would have been different.

B

Rogers next contends that he was denied effective assistance of counsel because Treman failed to move to suppress an allegedly suggestive photospread and unreliable identification testimony.4  Rogers argues that because the photospread was so prejudicial, the witnesses' subsequent in-court identifications were tainted and his right to due process was thus violated. We find no merit in this argument.

Convictions based upon an in-court identification following a pretrial identification by a photograph will be set aside when the photographic identification procedure was so impermissibly suggestive as to give rise to a substantial likelihood of misidentification. Simmons v. United States, 390 U.S. 377, 384 (1968). Even if the photospread is suggestive, the related in-court identification may be admissible if the in-court identification is reliable. United States v. Gregory, 891 F.2d 732, 734 (9th Cir. 1989); United States v. Barrett, 703 F.2d 1076, 1085 (9th Cir. 1983).

After carefully reviewing the photospread, we conclude that the photospread was not impermissibly suggestive. The district court, therefore, did not err in concluding that Rogers was not denied effective assistance of counsel because Treman's failure to object to the photospread was not objectively deficient under the first prong of Strickland.

C

Rogers contends that he was denied effective assistance of counsel because Treman failed to object when Rogers appeared at trial in a khaki jumpsuit that was issued by the prison.5  Prior to jury selection, Treman requested a continuance so that Rogers' civilian clothes could be obtained. The district court denied the request and Treman did not formally object.

Without citing any authority, Rogers argues that the difference between his casual appearance and the formal attire of others in the courtroom could easily result in undermining his right to be presumed innocent.6  While an accused may not be compelled to appear before a jury in identifiable prison clothes, see Estelle v. Williams, 425 U.S. 501 (1976), the Fifth Circuit has held that a defendant dressed in khaki prison clothing with no other identification except a laundry number stenciled on the seat of the pants did not "badge [the defendant] as a criminal in the jury's eyes." United States v. Forrest, 623 F.2d 1107, 1116 (5th Cir.) (quotation omitted), cert. denied, 449 U.S. 924 (1980).

We are not persuaded that the khaki jumpsuit was identifiable prison garb within the meaning of Williams and Forrest. We, therefore, conclude that Treman's failure to object was not deficient under the first prong of Strickland; the district court did not err in determining that Rogers was not denied effective assistance of counsel.

III

Rogers contends that the district court improperly denied his section 2255 motion without first conducting an evidentiary hearing. He alleges that an evidentiary hearing is necessary because, if certain disputed facts are true, Rogers would be entitled to relief.7 

Under section 2255, an evidentiary hearing must be granted " [u]nless the motion and the files and record of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; see also Nevius v. Sumner, 852 F.2d 463, 466 (9th Cir. 1988) (to determine whether an evidentiary hearing was improperly denied, the reviewing court considers whether petitioner "has alleged facts which, if proven, would entitle him to relief"), cert. denied, 109 S. Ct. 1972 (1989).

We conclude that even if the disputed facts Rogers identifies are found in his favor, he would not be entitled to a determination that he was denied effective assistance of counsel. Rogers has not demonstrated that prejudice resulted from Treman's failure to withdraw from the case. Indeed, we have already determined, on direct appeal, that the trial court did not improperly deny Rogers' substitution of counsel motion. See Rogers, 769 F.2d at 1424. The additional evidence presented in this collateral action does not persuade us that there is reasonable probability that the trial's outcome would have been different had Treman not tried the case. Therefore, the district court did not err in denying Rogers' motion for an evidentiary hearing.

IV

Rogers also contends that the district court erred in denying his motion for a new trial, under Federal Rule of Criminal Procedure 33, without first conducting an evidentiary hearing.8  In his motion, Rogers argued that a new trial was required because he had recently discovered two new alibi witnesses.

A defendant seeking a new trial must meet the following requirements:

(1) It must appear from the motion that the evidence relied on is, in fact, newly discovered [ ]; (2) the motion must allege facts from which the court may infer diligence on the part of the movant; (3) the evidence relied on must not be merely cumulative or impeaching; (4) must be material to the issues involved; and (5) must be such as, on a new trial, would probably produce an acquittal.

United States v. Krasny, 607 F.2d 840, 843 (9th Cir. 1979) (emphasis in original), cert. denied, 445 U.S. 942 (1980).

As the government notes, both of the alibis could have been discovered earlier. One alibi witness was Rogers' half-brother, James Dunlap, and the other was Rogers' friend, Joseph Schwartz. Even though the government requested a notice of alibis and Rogers apparently spent significant time with both Dunlap and Schwartz, he never mentioned the possibility that he was with either Dunlap or Schwartz during any of the robberies. Furthermore, Rogers could have easily verified earlier whether Dunlap or Schwartz remembered being with Rogers at the time of any of the robberies. The district court, therefore, did not abuse its discretion in denying Rogers' motion for new trial.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

A district court's findings of fact in an ineffective assistance of counsel claim are reviewed for clear error; whether the facts suffice to establish ineffective assistance of counsel is a question of law that is reviewed de novo. United States v. Layton, 855 F.2d 1388, 1415 (9th Cir. 1988), cert. denied, 109 S. Ct. 1178 (1989)

 2

Rogers asserted on direct appeal that the district court abused its discretion by refusing to appoint a substitute for Treman after Rogers complained that there were irreconcilable differences between him and Treman. We disagreed, observing that the record did not reflect inadequate consultation between Rogers and Treman. See Rogers, 769 F.2d at 1424

 3

Rogers argues that he does not have to demonstrate prejudice because he has a right to retain his counsel of choice. Rogers appears to misunderstand the case he cites in support of this argument. In United States v. Ray, 731 F.2d 1361, 1365 (9th Cir. 1984), we stated that individuals who can afford to retain counsel have a qualified right to obtain counsel of their choice and that the denial of this qualified right is reversible error regardless of whether prejudice is shown. Here, Rogers did not "retain his own counsel"--one was appointed. A court is not required to provide an indigent defendant a particular counsel. See Craven, 424 F.2d at 1170

 4

Rogers raised this same argument regarding the photospread in his direct appeal. We determined that under the record available on direct appeal, Rogers was not denied effective assistance of counsel. See Rogers, 769 F.2d at 1424. We noted, however, that the customary procedure for challenging the effectiveness of counsel in a criminal trial is by collateral attack on the conviction under section 2255. See id. at 1425

 5

On direct appeal, we specifically rejected Rogers' argument that he was compelled to stand trial before the jury in identifiable prison clothes. See Rogers, 769 F.2d at 1423

 6

The jumpsuit is described as "freshly-laundered and pressed, and had short sleeves with creases pressed into the sleeves. The outfit had no visible letters, numbers or any other markings that would make it identifiable as prison clothes." Declaration of James R. Asperger

 7

Rogers asserts that there are five disputed facts that bear upon his ineffective assistance of counsel claim: (1) the length of time Treman and Rogers discussed the case on March 21, 1984; (2) whether Rogers confessed to having committed the crimes for which he was indicted; (3) whether Treman discussed the government's request for notice of alibi with Rogers; (4) whether Rogers discussed his scar with Treman; (5) whether Rogers stated to Treman that he would lie on the stand if asked about the robberies

 8

The district court's denial of a motion for a new trial is reviewed for an abuse of discretion. United States v. Chen, 754 F.2d 817, 821 (9th Cir.), cert. denied, 471 U.S. 1139 (1985)