The opinion of the court was delivered by: WEINFELD
This is a motion pursuant to Title 28 U.S.C.A. § 2255 for an order vacating the judgment of conviction of Joseph Sumpter, the petitioner, and the sentence imposed thereunder.
The basis of the motion in substance is that the petitioner was deprived of a fair trial because of the lack of effective representation by his counsel. In support of the charge he alleges:
(1) that his attorney was not 'mentally alert' during the trial; that he failed to cross-examine witnesses properly, to make objections, and to take exception to a portion of the Court's charge; that he failed to ascertain an alleged discrepancy in the overt acts as set forth in the original and the superseding indictments;
(2) that there was not proper preparation for trial;
(3) that he was prevented from testifying in his own behalf by the attorney;
(4) that the attorney represented a codefendant whose interests were in conflict with his, Sumpter's.
Sumpter was indicted with four others in a two-count indictment. He was named only in the conspiracy count. The substantive count charged violations of the narcotics laws. He and three codefendants were convicted after a three-day trial.
The petitioner was sentenced to a five-year term. The other defendants, who are not involved in this motion, received like sentences on the conspiracy count and ten years on the substantive count, to run concurrently.
The petitioner's participation in the conspiracy centered about a number of overt acts which took place at a bar at 116th Street and 8th Avenue, New York City, relating to the prospective sale of narcotics, the testimony as to which was given by an informer and a special agent of the Bureau of Narcotics.
Upon the filing of the petition, the matter was set down for hearing, at which petitioner was present pursuant to the direction of the Court. He testified in support of the charges and the attorney who represented him upon the trial also testified, having been called by the government to rebut the charges.
The judgment of conviction here collaterally attacked carries with it the presumption of regularity.
The petitioner has the burden of establishing by a preponderance of the evidence his charge that he was denied effective representation by counsel. Here allegations of incompetency, inefficiency, or of mistakes or errors in the course of trial are not sufficient to sustain the burden. To succeed, petitioner must establish that the purported representation by counsel was such as to make the trial a farce and a mockery of justice
- that, in fact, it was no representation and so deprived him in violation of the Sixth Amendment of his 'right * * * to have the Assistance of Counsel for his defence.'
Upon a full consideration of the testimony taken upon the hearing, and after observation of the witnesses appearing thereat and their demeanor and conduct, and a review of the files and records of the case, including a transcript of the evidence upon the trial, I am convinced that the charges made have not been sustained. Accordingly, I make the following
(1) That the petitioner, prior to the 18th day of February 1952, had been represented by counsel of his own selection in connection with an indictment, No. 135-600, filed June 4th, 1951, and a superseding one, No. 136-343, filed November 5th, 1951, copies of which had been received by him. That ...