The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Petitioner was one of thirteen defendants convicted by a jury of conspiracy to violate the federal narcotics laws after a ten-week trial. He moves under 28 U.S.C. § 2255 to vacate and set aside the judgment of conviction and sentence imposed upon him on July 10, 1962. He also moves to disqualify the trial court from considering his § 2255 application on the grounds that the court "is of necessity a material witness"
and "has previously shown an intense personal bias and prejudice against petitioner."
We deny the motions.
Petitioner bases his application for relief under § 2255 on two related grounds: first, he claims that during part of the trial he was not mentally competent to have understood the proceedings against him and to have been able properly to assist in his own defense, and, second, that an oral motion made by his attorney during trial for a psychiatric examination was "unconstitutionally and illegally" denied by the trial judge without holding a hearing.
Stripped of the embellishments, arguments, opinions and conclusions which saturate the supporting affidavits of petitioner and his present counsel, the facts alleged show that, following an abortive six-month trial, the second trial of petitioner and thirteen other defendants for conspiracy to violate the federal narcotics laws began on April 2, 1962. After two months of trial, on June 4, 1962, at 10:30 A.M., while under cross-examination about a prior conviction for conspiracy to violate the federal narcotics laws,
petitioner picked up the witness chair and threw it at the prosecutor. The chair shattered against the jury rail. Following a two-hour recess,
petitioner's trial attorney reported that: "he thought" petitioner was "not in control of himself;" "he has been incoherent when I tried to talk to him;" "he complained of being sick" and that counsel tried to consult with him and that he just "couldn't get through to him now. There is a block there." Trial counsel then moved "to commit Mr. Mirra to Bellevue or whatever appropriate place there is for examination by a qualified psychiatrist." The court denied the motion stating its reasons upon argument held after the close of the day's testimony.
We also granted trial counsel's request to remove petitioner from the stand and defer his cross-examination.
The jury was excused. Mirra was returned to his chair, and as he was being gagged and shackled, he stated "why are you going to gag me for?" One witness testified on direct examination before the luncheon recess.
The trial resumed at 2:15 P.M., and most of the afternoon, while other witnesses testified, petitioner's trial counsel reported that: he "got no response" when he tried to talk with petitioner; petitioner "said he had a headache;" said he had been given two pills by the Courthouse nurse; "appeared to be asleep" and said he could not remember testimony. At the conclusion of the day's testimony, trial counsel moved for a mistrial and a psychiatric examination on the ground that "it was impossible to consult with [petitioner] at all at this time." The court denied the motions on the merits. It stated its reasons for finding bad faith and lack of any genuine factual issue or basis whatsoever for a psychiatric examination or hearing.
At the same time, the court reserved decision on whether to hold a hearing on counsel's claim that petitioner had been given sedatives which induced sleep. The next day, petitioner's counsel continued, on and off, to report that petitioner was not responsive. After trial a hearing was held and the court found, on the basis of documentary evidence and testimony, that petitioner had been given an aspirin-like compound which did not induce sleep and concluded that at the time of the incidents of June 4 and 5 petitioner was able to stand trial, comprehend the nature of the proceedings and communicate with counsel.
Thus, petitioner's own papers show, as does the trial record, that the grounds which he now urges as a basis for collateral relief were presented to and rejected on the merits by the trial court. The appellate records show that those grounds were not raised on direct review in either the Court of Appeals, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963), or in the Supreme Court, Mirra v. United States, 375 U.S. 940, 84 S. Ct. 360, 11 L. Ed. 2d 272 (1963). The government now contends that the judgment is not "vulnerable to collateral attack" under § 2255 because habeas corpus will not be allowed to do service for an appeal absent some valid excuse or exceptional circumstances.
Put another, and we think a more current, way, petitioner is foreclosed from federal collateral relief if he by-passed normal appellate procedure deliberately or through inexcusable neglect.
While the ultimate burden of proving deliberate by-passing or inexcusable neglect may well be on the government,
we believe that where, as here, the government has carried its burden of pleading,
petitioner must at least come forward with some averment which would permit a finding upon a hearing that he had not deliberately by-passed his right to appellate review.
That procedure is especially appropriate in a case like this. There was no barrier to, or intolerable risk presented by, normal appellate procedures. Petitioner had competent counsel. The essential facts are in the record, and there is no claim of newly discovered evidence. The explanatory facts, if any, lie peculiarly within the knowledge of petitioner. Petitioner is now represented by experienced counsel of his own selection. He claims no present disability, and his moving affidavits, as well as the official records, conclusively show that the grounds asserted as a basis for collateral relief were pressed at trial but not raised on appeal.
It is our duty to give practical form for the application of the principles governing collateral relief.
Surely, in the circumstances shown here, sound judicial administration requires that petitioner at least aver some adequate explanation for by-passing normal appellate procedures in order to obviate unnecessary hearings should it appear that the explanation is insufficient. Two explanations are advanced. The first, suggested by petitioner, is that he has no memory of the facts alleged as a basis for his motion and did not learn of them until they were brought to his attention in subsequent court proceedings and until he had read the trial transcript after he began serving his sentence. The second, asserted by counsel in a reply memorandum, is that petitioner's appellate counsel deliberately failed to raise these available points as a matter of strategy. Significantly, petitioner does not state categorically that he did not know of the facts upon which he now relies at the time of his appeal. If he means to imply that he did not know them when he appealed, the explanation is patently false.
The record conclusively shows that at the time petitioner filed his brief on appeal, December 26, 1962, and at the time of argument, January 30, 1963, both petitioner and his appellate counsel did know of the facts and claims which petitioner now makes. On June 26, 1962, the court sentenced petitioner for contempt and cited and read to petitioner the transcript of the trial record relating to petitioner's throwing the witness chair at the prosecutor (Tr. 9089-9092). He was also made aware of his counsel's claim that he was not in control of himself when and after he threw the chair and that his counsel had so informed the court (Tr. 9096-9097). When asked if he had anything to say in his behalf before the court pronounced sentence, petitioner replied:
"Nothing much, your Honor, except that I am a hothead, period.
Well, I am sorry for the chair incident, your Honor. The other things I didn't realize were contemptible. I just was shooting off my mouth. I didn't realize that was contempt." (Tr. 9098-9099.)
Petitioner appealed from his contempt conviction and filed a brief in the Court of Appeals July 17, 1962 in which, among other things, he argued:
"There is no question that the appellant's act of June 4, in throwing a witness chair in the direction of the prosecutor (Tr. 6461-6464), was obstructive of the administration of the trial and it is not intended to urge a contrary conclusion on this appeal. It is however submitted that the very irrationality of the act necessitated, on the question of appropriateness of the punishment, an inquiry by the trial Court into the appellant's state of mind when the act was committed. * * *
After the incident, appellant's counsel requested a recess to permit him to talk to the appellant, a request which was granted (Tr. 6465). Counsel subsequently informed the Court that appellant was incoherent and moved that he be examined by a psychiatrist, a motion which was denied (6467). After appellant was returned to the stand, counsel informed the Court that he was not responsive to interrogation regarding a matter clearly within his knowledge (Tr. 6468). At the proceedings at which appellant was found in contempt, counsel reiterated in mitigation his observation that appellant had not been in control of himself at the time the incident occurred (Tr. 9097).
The failure of the trial Court to order an inquiry into appellant's mental condition would not have altered the disruptive character of the act itself, but would have had a bearing on the appellant's state of mind and intent when the act was committed, and thus on the appropriateness of the sentence to be imposed." (Government's Appendix, Exhibit "A," pp. 9-11, filed in opposition to this motion.)
On July 20, 1962, the Court of Appeals affirmed petitioner's contempt conviction in a per curiam opinion. United States v. Bentvena, 304 F.2d 883 (2d Cir. 1962). On August 3, 1962, petitioner filed a pro se petition for certiorari seeking review of the Court of Appeals' affirmance of his contempt conviction. That petition attaches a transcript of the contempt proceedings in the district court, petitioner's brief in the Court of Appeals, and the per curiam opinion of the Court of Appeals.
The record, therefore, conclusively demonstrates that five months before his brief was filed on direct review from his conviction, both petitioner and his appellate counsel knew of the facts and claims now made, were able to assert his rights, and were aware of their significance. The record also shows that petitioner is neither immature, illiterate, nor uneducated.
Nor is he a stranger to appellate procedures, for he had appealed a prior conviction as well as his conviction for contempt. There is nothing in the record or petitioner's papers to suggest mistake, inadvertence, ignorance, inadequacy of appellate remedy, change in the law, lack of jurisdiction or any exceptional circumstances whatever for by-passing appellate procedures.
We think these indisputable facts compel the conclusion that petitioner and his counsel knew of the facts and claims on which he now relies and of their significance, but deliberately decided not to raise them on direct review. His present counsel's explanation that appellate counsel unilaterally decided not to raise the points on appeal is, we think, incredible. The trial record shows that petitioner's trial and appellate counsel hardly made a move without consulting petitioner. Strangely, there is no affidavit from appellate counsel, although petitioner's papers show that he knows where to find him. It is strange also that present counsel suggests the excuse not by affidavit, but by memorandum, and, even then, fails to state that he so much as interviewed appellate counsel. In any event, the proferred excuse is insufficient as a matter of law for counsel's choice of strategy is binding on the accused unless "exceptional circumstances" exist. Henry v. State of Mississippi, 379 U.S. 443, 451, 85 S. Ct. 564, 13 L. Ed. 2d 408 (1965). Here, petitioner does not allege the existence of exceptional circumstances, nor, indeed, do we find any on our own.
In particular, there is not even an allegation that petitioner was not consulted about the points to be raised on appeal.
Accordingly, since petitioner has failed to come forward with any legally sufficient reason for failing to present known claims on direct review, he is procedurally barred from presenting them here.
Even if this procedural barrier were hurdled, petitioner's motion would still be denied, for the "application, files, and records of the case alone,"
conclusively show that his claims have no merit.
The merits of this application cannot be understood out of the context of the trial. Petitioner was one of twenty-nine defendants accused of violating the federal narcotics laws. He was tried with thirteen codefendants and all but one were convicted. This trial, lasting two and one-half months, had been preceded the year before by a trial which had turbulently crawled "along its rocky road for six months over every conceivable type of obstruction and interruption" before ending in a mistrial on the eve of summations when "the foreman of the jury broke his back in an unexplained fall down a flight of stairs in an abandoned building in the middle of the night."
The first trial was so "bedeviled by frequent delays" and "impeded by apparent illness, accident and other misfortune,"
that the trial judge, in order to insure defendants' continued presence, ordered the remand of all defendants. The remand was upheld by the Court of Appeals, which stated that Judge Levet "may well have detected a general pattern of conduct not attributable to less than all of the defendants." United States v. Bentvena, 288 F.2d 442, 446 (2d Cir. 1961).