Opinion
R. W. Laster and James F. Lane, Little Rock, Ark., for defendants.
Edward L. Shaheen, U. S. Atty., D. H. Perkins, Jr., Asst. U. S. Atty., Shreveport, La., for United States.
RULING
ON MOTIONS TO VACATE OR SET ASIDE SENTENCES
DAWKINS, Senior District Judge.
On February 17, 1977 Raymond Lynn Buckelew and James Laney Jenkins, through new retained counsel, filed a motion to vacate or set aside sentence. On March 24, 1977 Judson Lee Drane, through the same newly retained counsel, filed a motion to vacate or set aside sentence. These cases are consolidated for determination of the above styled motions.
Present counsel for these petitioners did not participate in pre-trial or trial proceedings. Apparently, his first connection with the case was when, after petitioners' convictions and sentences were affirmed on appeal, and rehearing denied, as set forth Infra, he was appointed to represent Buckelew and Jenkins in applying to the Supreme Court for writs of certiorari, which also were denied.
The motions to vacate were brought pursuant to 28 U.S.C. s 2255, amended by Public Law 94-426 of September 28, 1976, 90 Stat. 1334, "Rules governing section 2255 proceedings for the United States district courts", effective February 1, 1977.
On February 17, 1977 Buckelew and Jenkins also filed a motion to continue them on bond or to be enlarged upon a new bond. This motion was referred to James M. Barton, United States Magistrate, in accordance with Local Court Rule 28 C. 8, and 28 U.S.C. s 636(b). The bond hearing was conducted on the afternoon of February 17, 1977 and upon its conclusion petitioners were ordered committed to serve their sentences in accordance with the mandate received by the Clerk of this Court from the United States Court of Appeals for the Fifth Circuit. Following that hearing, Magistrate Barton made a report and recommendation to the Court. After receiving this, a written ruling, with reasons, was entered by the undersigned Judge after considering the case De novo, adopting the Magistrate's report and denying the motion to remain enlarged on bond.
Judson Lee Drane likewise filed a motion to be enlarged on bond on March 24, 1977. A written ruling was made upon this motion on March 25, 1977, denying it for the same reasons set forth earlier with respect to Buckelew and Jenkins.
Through counsel, Buckelew and Jenkins filed a motion to disqualify the undersigned Judge and to transfer the case to another division in this District, or to another judge. Judson Lee Drane later filed the same motion. These motions then were denied as being premature since the record had not been returned from the appellate court, petitioners having appealed their convictions and sentences to the United States Court of Appeals for the Fifth Circuit, which affirmed their convictions and sentences, United States v. Scallion, et al., 533 F.2d 903 (5th Cir., 1976). Buckelew and Jenkins, through counsel, then twice applied for writs of certiorari to the United States Supreme Court. These were denied. After his report and recommendations were made by Magistrate Barton, petitioners Buckelew and Jenkins filed a motion to vacate his ruling, report and recommendation, and also that He, too, be disqualified from further performance of his s 2255 duties under the terms and provisions of 28 U.S.C. s 455(b)(1).
Before proceeding further, we must deal with the auxiliary motion to disqualify the undersigned Judge from this proceeding. Any opinion a trial judge may have had as to any of the defendants, which was not obtained from extrajudicial sources, but only from the Court's handling of the defendants during trial, is not a basis for disqualifying that judge from passing upon this s 2255 motion.
In Morrison v. United States, 432 F.2d 1227 (5th Cir., 1970), the Court stated:
"There is no merit to the contention that the District Judge, who as sentencing judge had seen appellant's presentence report, was barred as a matter of law from acting on the motion to vacate because possessed of information concerning the appellant not formally introduced into evidence. For sound reasons the sentencing judge is allowed to have and to employ that data in the first instance. His knowledge does not bar him from acting on a s 2255 motion."
In United States v. Franks, 511 F.2d 25 (6th Cir., 1975), the Court stated:
"The claim that the district judge should have recused himself from trying Mitchell is untenable. First, there is no showing that Mitchell's attorney of record certified the good faith of Mitchell's affidavit claiming bias and prejudice. United States v. Thomas, 299 F.Supp. 494, 500 (E.D.Mo.1968). Second, even assuming procedural compliance with 28 U.S.C. s 144 (1970), Mitchell's allegations that the district judge had cited him for contempt at best demonstrate judicial, as opposed to personal bias. Oliver v. Michigan State Bd. of Educ., 508 F.2d 178 (6th Cir., 1974); United States v. Roca-Alvarez, 451 F.2d 843, 848 (5th Cir., 1971); Hanger v. United States, 398 F.2d 91, 100-1001 (8th Cir., 1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969); United States v. Garrison, 340 F.Supp. 952, 956-957 (E.D.La.1972). Third, much of Mitchell's affidavit contains 'scurrilities and generalities (which fall) far short of the specificities required by statute.' Griffith v. Edwards, 493 F.2d 495, 496 (8th Cir., 1974); Martelli v. City of Sonoma, 359 F.Supp. 397, 400 (N.D.Cal.1973)."
In Beland, et al. v. United States, 117 F.2d 958 (5th Cir., 1941), an affiant expressed fear that the judge was not impartial, said fear having been increased by the severity of sentences imposed in other narcotic cases. The Court held the allegations did not satisfy the statute which was designed to disqualify a judge because of personal bias and prejudice and not because of his rulings and sentences which were not acceptable to the affiant.
In Barry v. Sigler, 373 F.2d 835 (8th Cir., 1967), the Court stated:
"Merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings, or has found it necessary to cite a party for contempt, does not automatically or inferentially raise the issue of bias. As stated by the court in Lyons v. United States, 9 Cir. 1963, 325 F.2d 370, 376, cert. den. 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738, which ruled that affidavits filed under s 144 were legally insufficient: 'The section (144) is directed to personal bias, which means an attitude of extrajudicial origin. A mere showing of prior judicial exposure to the present parties or questions will not invoke the section.' See also Cox v. United States, 8 Cir. 1962, 309 F.2d 614, 619-620; Barnes v. United States, 9 Cir., 1956, 241 F.2d 252; United States v. Lowrey, W.D.Pa.1948, 77 F.Supp. 301, 302, aff'd 172 F.2d 226 and 179 F.2d 964, cert. den. 339 U.S. 969, 70 S.Ct. 986, 94 L.Ed. 1377; United States v. Sansone, 2 Cir., 1963, 319 F.2d 586."
See also, United States v. Avilla, 443 F.2d 792 at 794, 795 (5th Cir., 1971).
Even where allegations of bias are made pursuant to the provisions of 28 U.S.C. s 144, and the Court finds the factual allegations to be legally insufficient, there arises a duty on the part of the judge to continue in the case. See Firnhaber v. Sensenbrenner, Jr., 385 F.Supp. 406 (E.D.Wis., 1974); United States v. Sclafani, 487 F.2d 245 (2d Cir., 1973), cases cited at p. 255, cert. denied, 414 U.S. 1023, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973).
Accordingly, it being our Duty to hear this matter, the motion to disqualify or to transfer this matter hereby is denied.
On February 25, 1977, in accordance with Rule 4 of s 2255, by memorandum order, we directed the United States Attorney to file an answer, supported by brief, to the motion to vacate or set aside sentence, and motion to disqualify filed by Buckelew and Jenkins, within twenty (20) days after receipt of the complete record in the case by the Clerk of this Court from the Appellate Court. A similar order was entered in the matter of Judson Lee Drane, ordering the United States Attorney to file an answer to the motions Drane had filed in the case, together with a brief and any pertinent records. The record and exhibits were returned to this Court on March 31, 1977; and on April 11, 1977 the United States Attorney filed a response and supporting brief. Attached to his response are the affidavits of the two Assistant United States Attorneys who prosecuted the case, Messrs. L. Edwin Greer and Joseph Cage, who now are in private practice. Also attached is an affidavit made by Special Agent John Pfeifer, FBI, who was in the courtroom throughout trial.
Buckelew and Jenkins, in their motion to vacate or set aside sentence, made a "statement of the case" asserting that "on September 24, 1974, after pleas of not guilty, they and the other defendants went to trial in the United States District Court for the Western District of Louisiana, Shreveport Division, before the Honorable Ben C. Dawkins, Jr., for allegedly defrauding certain Las Vegas hotel casinos by means of telephone calls, in violation of 18 U.S.C. s 1343, and allegedly conspiring to commit fraud in violation of 18 U.S.C. s 371. These defendants did not testify at their trial. (Obviously because of criminal records. See the records of Buckelew, Jenkins and Drane, as shown by Xerox copies of excerpts from their pre-sentence reports, appended.) On October 4, 1974 the jury convicted these two defendants on both counts, and each was sentenced to three years on each count, the sentences to run consecutively. Drane was convicted on the conspiracy count, and was sentenced to three years imprisonment.
"Timely appeal was taken to the United States Court of Appeals for the Fifth Circuit, which affirmed the convictions on June 17, 1976, rehearing denied on August 27, 1976. They further state that on August 5, 1976, Thomas L. Robinson, Esq. of Memphis, Tennessee, counsel for these defendants at their trial and on their appeal to the Fifth Circuit, became ill and completely incapable of continuing or tending (sic) to his practice. On September 14, 1976 the Fifth Circuit appointed the undersigned counsel (R. W. Laster, Esq.) who theretofore had had no involvement in these defendants' case, for the express purpose of preparing and filing a petition for a writ of certiorari to the United States Court of Appeals for the Fifth Circuit (sic) on behalf of defendants, which was denied on January 25, 1977. They state that no other petitions, motions or applications with respect to these two defendants' sentences herein have been presented in any federal court."
A similar statement of the case was made on behalf of Drane, with the exception that no writ applications were made to the United States Supreme Court.
Petitioners Buckelew and Jenkins make the following contentions as grounds for their motion to vacate:
"Count I Incompleteness of the record of the trial court proceedings.
Count II Physical and mental condition of Thomas L. Robinson.
Count III Conduct of the trial judge.
Count IV Conduct of the bailiff.
Count V Conduct of the plea bargaining and indigency proceedings."
Defendant Drane makes the same contentions as Bukelew and Jenkins as to Counts I, III, and IV.
As noted, the full record has been returned by the appellate court to the Clerk of this Court. The government has filed a response, including affidavits which are permitted under Rule 5 of Section 2255, (see Advisory Committee Note) and also has filed a memorandum brief supporting its answer. After careful review of the entire record and the response by the Government, we conclude that, in accordance with Rule 8 of s 2255, there is no necessity for an evidentiary hearing in deciding these motions since the record supports all of the facts and conclusions we make, and will afford defendants a complete review.
After a two-week trial, conviction and sentencing by this Court, all defendants appealed to the United States Court of Appeals for the Fifth Circuit. Each defendant, through counsel, in filing numerous motions before, during and after trial, adopted each other's motions so that each defendant would be afforded the benefit of any motion filed by any one of the defendants. The Fifth Circuit, after considering all assignments of error alleged by each of the defendants, affirmed petitioners' convictions and sentences on June 17, 1976 and denied rehearings on August 27, 1976. United States v. Scallion, 533 F.2d 903. The Circuit Court, in considering all motions presented, gave a full statement of the case. This showed, Inter alia, that the total amount of money all of the defendants received by defrauding the hotel casinos (including Gerald Lee Ray, who pleaded guilty and testified as a Government witness) to be approximately $106,000.00.
The Court of Appeals had the full record before it when considering the appeal of all defendants. This shows clearly that this Court and the Appellate Court already have considered each of the contentions now presented.
The Government, in its answer, correctly argues that these defendants now are seeking to use their s 2255 motion as a device to obtain new trials instead of properly presenting their contentions on appeal of their case. It is fundamental that a s 2255 motion is not a substitute for an appeal. Brown v. United States, 480 F.2d 1036 (5th Cir., 1973); Floyd v. United States, 365 F.2d 368 (5th Cir., 1966). Hence, trial errors that could have been raised on appeal cannot form the basis of a collateral attack upon the verdict. We are aware, of course, that if a Fundamental right has been violated and could not have been presented on appeal, it may be presented in a collateral attack through a s 2255 motion. We find no such fundamental right presented here which was not presented during trial or on appeal. All of the contentions now made by each of these defendants were before the court during the trial, as the presiding Judge.
We now consider Seriatim each of the contentions presented by these defendants:
Count I alleges that the record is incomplete; that the court reporter intentionally omitted many of the Judge's remarks, comments, jokes, stories, and personal remembrances; that, although asked by counsel to record the proceedings accurately, he refused to do so. The record discloses that a full and accurate report was made of the entire proceedings during the trial and presented a complete record for review and consideration by the Appellate Court. There is nothing in this contention showing any prejudice to any of the defendants. Clearly, if there was any substance to this, with four able defense counsel representing them, they would have insisted on making a record of this.
In Count II Messrs. Buckelew and Jenkins allege that the physical and mental condition of their retained counsel, Thomas L. Robinson, Esq., deteriorated to such a great extent that his services were ineffective and they were not afforded effective assistance of counsel during the trial and on appeal. We find this contention to be wholly without merit. The record clearly shows that Mr. Robinson, a former United States Attorney himself, was most effective and competent as shown by the numerous motions he filed before trial, objections during trial, and in post-trial motions. He also presented many points considered by the Court on appeal. The Court personally observed his demeanor and performance during the course of the trial and at the numerous conferences held among counsel and the Trial Judge. He presented a vigorous defense of his clients, and in fact, the record shows he was lead counsel during trial. The 1973, 1974 and 1975 editions of Martindale-Hubbell Law Directory show that Mr. Robinson (who now is dead and unable to defend himself against such ridiculous charges) was born in 1907 and admitted to practice law in 1929, with an L.L.B. degree. He enjoyed a rating of "a v", which showed that, among his fellow lawyers and judges, he had considerable legal ability and a high general character and reputation. This category embraces a faithful adherence to ethical standards, professional reliability and diligence, and other such factors. Mr. Robinson demonstrated all these characteristics in defense of his clients at trial. The Fifth Circuit had reason to comment upon one of the contentions by Jenkins on appeal, in reference to Mr. Robinson, at fn. 20, on Page 920, of its decision. The Court made the following statement:
"Jenkins argues that there was a clear violation of Federal Rule of Criminal Procedure 32(a), in that before sentencing he was not afforded an opportunity to make a statement in his own behalf, and to present any information in mitigation of punishment. We note that over four pages of the transcript are devoted to his counsel's moving statement in his behalf in mitigation of punishment, and that he gave no indication that Jenkins himself wished to make an additional statement. . . ."
Mr. Robinson's conduct before, during and after trial comported with all recognized standards of legal advocacy and was in accord with recognized jurisprudence pertaining to appointed and retained counsel. MacKenna v. Ellis, 280 F.2d 592 (5th Cir., 1960), cert. den., 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78; Arnold v. Wainwright, 516 F.2d 964 (5th Cir., 1975); Bartelt v. United States, 505 F.2d 647 (5th Cir., 1974); Fitzgerald v. Estelle, 505 F.2d 1334 (5th Cir., 1974); and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
Count III sets forth a lengthy diatribe as to the conduct of the Trial Judge. But, nowhere is any specific reference made as to any remark which might have been made by the Trial Judge which would have influenced the jury against any of the defendants. Many of the assertions listed under this count are totally untrue. For example, the claim that the trial judge went to sleep in the middle of his jury charge is a physical impossibility. This well could be said to characterize all of these defendants' accusations. This contention also has been ruled upon by the Fifth Circuit in its review of the case on appeal. At 533 F.2d 913, Paragraph 9, the Court found that no bias or prejudice was shown by the Judge during the trial. At p. 919 the Court considered the motions for a new trial, and at fn. 19 made this ruling:
"Our disposition of this issue also disposes of the issue of whether the conduct of the trial and demeanor of the presiding Judge violated appellants' rights to due process of law."
There is no merit in Count III.
Count IV urges that there was misconduct committed by the bailiff of this Court. This contention likewise has been presented to and ruled upon by the Fifth Circuit in its decision at p. 920 (beginning at Paragraph 24 on Page 919). The Court's language is that "to suggest that appellants were prejudiced appears to be pure speculation." We, too, find this contention to be wholly speculative and without basis in fact.
Count V alleges that the conduct of plea bargaining and indigency proceedings was detrimental to them. Buckelew and Jenkins indicate that they were dissatisfied with their representation by Mr. Robinson. They state that he attempted to enter into a plea bargain without their authority. This, also, appears to be pure speculation since no plea bargain ever was mentioned to this court, and especially not at trial. Following trial and conviction of Buckelew and Jenkins, it was ascertained that they were without funds to prosecute their appeals. In all fairness to them, it was considered that their trial counsel should be the court-appointed attorney to represent them on appeal. Accordingly, after they properly executed an affidavit of indigency, Mr. Robinson was appointed to represent them. The record shows that he vigorously appealed their case. This indigency contention was noted and ruled upon at 533 F.2d at p. 920, paragraph 25, where the Court of Appeals determined that no prejudice was shown.
(6) We find no new contentions by defendants which rise to constitutional proportions. Their collateral attacks upon their convictions and sentences have been considered by this Court and by the Court of Appeals. Under the provisions of 28 U.S.C. s 2255, Rule 9(b), we are not required to consider them again. Moreover, should we perchance be in error in any way, petitioners' failure to assert any such grounds in their motions for a new trial "constituted an abuse of the procedure governed by these rules". (Final sentence, Rule 9(b). United States ex rel. Wilson v. Follette, 438 F.2d 1197, cert. den., 402 U.S. 997, 91 S.Ct. 2182, 29 L.Ed.2d 163; Williams v. United States, 426 F.2d 253, cert. den., 400 U.S. 881, 91 S.Ct. 125, 27 L.Ed.2d 119 (9th Cir., 1970); Williams v. United States, 466 F.2d 672; Ugarte-Veizaga v. United States, 452 F.2d 1194 (5th Cir., 1972).
Accordingly, finding no merit in any of the contentions presented by Buckelew, Jenkins and Drane, their motions to vacate or set aside their sentences are DENIED.