United States v. Debose ( 1980 )

ORDER

DAUGHERTY, Chief Judge.

On January 28, 1980 the Court entered an Opinion and Order denying movant’s Motion to Vacate Sentence under 28 U.S.C. § 2255 on the issue of insufficiency of the evidence and directed an expanded record on the issue of ineffective assistance of counsel. The expansion of the record has been accomplished by the filing of affidavits of the movant and court-appointed counsel which are somewhat expositive of movant’s claim of the ineffectiveness of counsel by reason of his failure to perfect an appeal from the conviction herein. The Court’s review of said affidavits reveals cause for further discovery directed to the issue of ineffectiveness of counsel and particularly movant’s waiver or abandonment of the right to a direct appeal. It appears that this issue is one that can be fully developed by interrogatories and cross-interrogatories in lieu of the production of oral testimony. Rule 6, Rules Governing Section 2255 Proceedings, 28 U.S.C.A.; Reed v. United States, 438 F.2d 1154, 1156 (10th Cir. 1971). In this connection it is also the Court’s opinion that counsel should be appointed for the movant to make effective use of interrogatories and cross-interrogatories as provided under 18 U.S.C. § 3006A.

ACCORDINGLY, IT IS ORDERED:

1. That the depositions of all material witnesses concerning the issue of movant’s waiver or abandonment of the right to a direct appeal shall be taken by interrogatories and cross-interrogatories. Rule 31, F.R.Civ.P., 28 U.S.C.A.

2. The clerk of the court is hereby authorized to permit movant’s attorney, to be appointed by separate order herein, to withdraw the court file and any exhibits pertaining to this case.

In view of the foregoing the Court’s Order of February 19,1980 is hereby amended to authorize the appointment of counsel as herein provided by the United States Magistrate.

3. At the earliest'possible time counsel for movant shall confer with counsel for the respondent, at which conference a list of witnesses for each side and interrogatories and cross-interrogatories to each witness will be developed. The interrogatories and cross-interrogatories, if any, will be submitted to each witness with sworn answers and filed in this case within 60 days of the date hereof. When all witnesses have been so interrogated and cross-interrogated and the same filed herein, counsel for both sides shall promptly, in writing, jointly so notify the Court. Whereupon, unless further proceedings or briefing is deemed appropriate, the case will be considered as being submitted for determination and decision by the Court.