Wheatley v. United States , 198 F.2d 325 ( 1952 )

HUXMAN, Circuit Judge.

This is an appeal from an order of the United States District Court for the District of New Mexico, denying a motion under 28 U.S.C.A. § 2255 to vacate a judgment and sentence imposed in that court. Appellant was originally brought before the court under two indictments charging federal offenses. Not having counsel and requesting the appointment of counsel, the court appointed Henry Hughes, a member of the bar of many years standing, who was present in the courtroom when the case was called for trial, to represent appellant. Appellant and his attorney retired to a private room for consultation and shortly thereafter returned to the courtroom, when the case was again called for trial. Being asked to plead, appellant entered a plea of guilty, and received the sentence now in question.

The grounds upon which a vacation of the judgment was sought are set out in the petition, as follows:

“(2) That on, or about the dates of July 24th or 26, 1950, the Honorable District Court of the United States, District of New Mexico, appointed a Mr. Hughes as an attorney for this Petitioner. That Mr. Hughes did then and there, in conference with this petitioner, make a statement to the effect, T have not practiced Criminal Law in 15 years, I don’t know what to do, other than advise you to plead Guilty, for you don’t stand a chance in this Court.’ The Petitioner feels that Mr. Hughes should have told the Court this, to show that the Court employed use of Counsel that was incompetent to handle the case.”

The defendant was not present in court when his motion was called up for determination. Mr. Hughes, his attorney, was present and the following proceedings were had:

“The Court: I am reminded there is another petition of similar nature by petitioner Wheatley. In that case I have read the transcript of proceedings. I am reminded that in the petition it is alleged that Mr. Hughes was attorney for the petitioner, and in some respect the man claimed that Mr. Hughes denied any knowledge of criminal law, and on account of the lack of knowledge of Mr. Hughes, I infer the petitioner claims he did not have proper legal counsel. On that petition I want the record to show that Mr. Hughes is a member of this bar of many years standing, and amply able and competent to represent a defendant, and he did act under assignment of the Court, and the Court is convinced there is no merit whatever to the contention of the petitioner regarding his counsel, Mr. Hughes. Unless Mr. Hughes desires to say something * * * ?”

“Mr. Hughes: May it please the Court, it is with some interest that I have read the petitioner’s present petition. I wish the record to show that I categorically deny that I ever advised this defendant to plead guilty or not guilty, and further, I deny that I ever made a statement to him that he didn’t stand a chance in this court. I further want to advise the Court that as to this defendant my recollection likewise is most vivid because of the events of that morning. The defendant Wheatley was brought from the state prison here. He had his bracelets taken off, and he was conducted to the room to the left, the attorneys’ chambers, and he and I talked at some length. It is that situation, and other comments made to me as his attorney — my recollection of that particular morning is quite vivid. I do not believe that it would be proper for me to make any statement which the defendant made to me as ■'his attorney. As to his opinion that I am incompetent, I beg to advise the Court—

“The Court: I have passed on that.

“Mr. Hughes: All right. But I do wish to advise this Court at that time I did advise the defendant Wheatley of all his constitutional rights, as to a jury trial, and believe, in my opinion, that he was fully advised, informed, and had knowledge of all his rights.”

Mr. Hughes was a practitioner before the Federal Bar of the District of New Mexico of many years standing. It may be concluded that his competency and qualifications as a lawyer before the court was a matter of which the trial court had judicial knowledge and of which it could take judicial notice. If this were all that was involved in the motion, we would have no hesitancy in holding that no factual issue was involved, which required the production of appellant in court for the taking of testimony. But this was not the gist of his complaint. The substance of his complaint was that Mr. Hughes did not give him the effective aid and assistance of counsel because of what transpired in the conference preceding his appearance before the court, in which he pleaded guilty, and this was a matter of fact of which the court had no judicial knowledge and which it could not judicially note. If Mr. Hughes did in fact tell appellant that he had not practiced criminal law for fifteen years and, therefore, did not know what to do other than to advise him to plead guilty, then he did not have the effective aid and assistance of counsel to which he was entitled, notwithstanding Mr. Hughes’ general qualifications. It may be that the charge is a figment of petitioner’s imagination, but it cannot be said as a matter of law that the allegation was so frivolous that it could be brushed aside without a hearing.

The mandate of our court as well as of the Supreme Court is clear that where an issue of fact is presented under Section 2255 petitioner is entitled to a hearing and must be afforded an opportunity to testify and produce evidence in support of his allegations.¹

That there was present and considered an issue of fact, namely whether Mr. Hughes did in fact give appellant the effective aid and assistance of counsel, is evidenced by the court’s finding that “ * * the court is convinced there is no merit whatever to the contention of the petitioner regarding his counsel, Mr. Hughes.”, and also that it permitted Mr. Hughes to testify denying petitioner’s allegation and permitted him to testify and state the advice he gave him in their conference. Under these facts we conclude that the petitioner was entitled to a hearing and to be afforded an opportunity to testify in support of his allegations.

The judgment is reversed and the cause is remanded with directions to proceed in conformity with the views expressed herein.

1 . Barrett v Hunter, 180 F.2d 510, 20 A.L.R.2d 965; United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263.