The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
Petitioner John Ormento was one of thirteen defendants convicted by a jury after a ten-week trial of conspiracy to import and distribute vast quantities of heroin in violation of the federal narcotics laws. He moves, by his retained attorney, William C. Erbecker of the Indiana bar, for post-conviction relief, pursuant to 28 U.S.C. § 2255, granting a hearing and vacating a judgment of conviction and the sentence imposed upon him on July 10, 1962. He also moves to disqualify the trial judge from considering this application for collateral relief on the ground that he "is of necessity a 'material witness' within the meaning of 28 U.S.C., Sec. 455, and also because of the bias and prejudice of the [trial judge]." We deny the motions.
We first consider the application for post-conviction relief.
The bulky petition is not a model of pleading. It is replete with quotations from cases, dissertations on legal principles, bald assertions, palpable misstatements and distortions of the record, immaterial, vague, frivolous and conclusory allegations, and rank speculation. We would be quite justified, therefore, in dismissing the petition out of hand. United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970). Instead, we have searched the maze of verbiage in an attempt to elicit petitioner's claims. That process reveals at once that petitioner seeks to raise and relitigate virtually every issue previously litigated unsuccessfully in this court, in the Court of Appeals, and in the Supreme Court on petition for certiorari. Petitioner also incorporates by reference an earlier petition for post-conviction relief, filed by co-defendants Carmine Panico and Carlie DiPietro. That petition was considered and rejected, but petitioner seeks to relitigate issue raised and decided against those petitioners. See Panico v. United States, 291 F. Supp. 728 (S.D.N.Y. 1968), aff'd, 412 F.2d 1151 (2d Cir. 1969), cert. denied, 397 U.S. 921, 90 S. Ct. 901, 25 L. Ed. 2d 102 (1970).
This application cannot be understood in the vacuum of generalities pleaded by petitioner but must be considered in the context of facts shown in the files and records of the court.
It is, of course, impossible in the confines of this opinion to give more than the barest outline of the events in this ten-week trial which produced nearly 10,000 pages of transcript and over 5,000 exhibits. Petitioner was one of twenty-nine defendants accused of a vast international conspiracy to violate the federal narcotics laws. He was tried for the second time with twelve co-defendants, the other sixteen having been severed between trials. All but one of the remaining defendants were convicted after a ten-week trial.
The second trial, held in 1962, had been preceded a year earlier by a six-month trial disrupted with almost every conceivable type of obstruction and misconduct. The disorder and delay ended in a mistrial 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 and no alternate jurors were left to replace him.
The first trial, before Judge Levet, was so disrupted by frequent delays, sham illnesses, accidents and other misfortunes that Judge Levet was compelled to remand all the defendants to insure their continued presence. The Court of Appeals, after tallying an array of incidents, remarked that the "trial judge 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.), aff'd sub nom. Fernandez v. United States, 81 S. Ct. 642, 5 L. Ed. 2d 683 (1961). Two of the defendants were held in contempt of court at the conclusion of the first trial, and the contempts were affirmed on appeal. United States v. Galante, 298 F.2d 72 (2d Cir. 1962).
Between trials, the defendants were enlarged on bail. Retrial of the case was adjourned on numerous occasions because a number of defendants claimed financial inability to retain counsel despite ability to post substantial bail. In July 1961, Judge Murphy found that the failure to retain counsel was part of a plan to postpone trial indefinitely, and he threatened contempt proceedings.
The case was assigned to us for trial in February 1962, but it was not ready because several defendants were still without counsel. It was not until March 9, 1962 that all remaining defendants had counsel either retained or appointed by the court. A pre-trial conference was held in March and the second trial was set peremptorily for April 2, 1962.
Nevertheless, on the appointed day, counsel for the defendant Loicano failed to appear claiming a recurrence of a chronic heart condition which had also plagued and delayed the first trial; another, counsel for the defendants Carmine and Salvatore Panico, although retained in September 1961, was engaged in another trial which was expected to last for one week; and still others withdrew at the last moment and there were numerous switches and substitutions of counsel. We denied applications for adjournment and assigned a lawyer, who had been through the first trial, to represent the Panicos and Loicano.
During the empanelling of the jury, Salvatore Panico made the first outburst. It was echoed a few minutes later by defendant Loicano. Two days later, on April 4, the court was forced to remand all of the defendants and this action was affirmed by the Court of Appeals, which noted that the incidents on which we had relied "might well seem to indicate a renewal of the 'misadventures' of the previous trial." United States v. DiPietro, 302 F.2d 612, 613 (2d Cir. 1962) (per curiam).
The problems were just beginning. Hardly a minute passed without a chorus of objections, motions for mistrial, severance, etc. We were swamped with applications for hearings and adjournments. A year later, Judge Moore observed on appeal that "[one] with a bent for statistics would find, no doubt, that if this trial were continued on every occasion that one or more of the defendants or their counsel so requested the trial would still be in progress." United States v. Bentvena, 319 F.2d 916, 936 (2d Cir.), cert. denied [Ormento v. United States, DiPietro v. United States, Fernandez v. United States, Panico v. United States, Galante v. United States, Loicano v. United States, Mancino v. United States, Sciremammano v. United States, Mirra v. United States], 375 U.S. 940, 84 S. Ct. 345, 346, 353, 354, 355, 360, 11 L. Ed. 2d 271, 272 (1963).
Defendants resorted to every conceivable means to interrupt, delay and abort the trial, to inject or provoke reversible error, or to plant the seeds for postconviction relief. Some defense counsel were repeatedly and inexcusably tardy. Defendants and certain defense counsel claimed numerous incapacitating illnesses and injuries which physical examinations failed to substantiate. Several defendants claimed inability to understand the proceedings and to consult with counsel due to aspirin-like medication administered by prison medical personnel. Five defendants claimed insanity and applied for psychiatric examination.
Verbal outbursts and obscenities were commonplace. On one occasion, this petitioner, Ormento, overpowered four marshals, forced his way from the courtroom and tried to break into the robing room screaming obscenities at the judge. On another, defendant Salvatore Panico climbed into the jury box, walked along the inside rail from one end of the box to the other, pushing jurors in the front row, and bellowing and screaming:
"Get out of here. The Judge has got me guilty. Big John, Joe B, they are the junk pushers. We're innocent. My brother and I, we haven't got anything to do with this thing. They have me in jail already. Do you understand me? They have us in jail for nothing. They got us in jail. Twenty years they want to give me.
Twenty years, for nothing. Ruined for life. For what? Ruined for life. For what?" (Tr. 5638.)
His brother, not to be outdone, chimed in screaming obscenities at the court and prosecutor. On still another, defendant Mirra, echoing Salvatore Panico, shouted "they are all dope pushers" when asked on the stand if he knew certain co-defendants. The next morning, while under cross-examination, Mirra picked up the witness chair and hurled it at the Assistant United States Attorney. The chair missed the assistant but struck and shattered against the jury rail.
Referring to these and other misconduct, the Court of Appeals said:
"We have described only two of the more dramatic disturbances which plagued the trial of this case for we find it neither necessary nor judicious to publicize or preserve the vile language and rebellious conduct that characterized this trial. Suffice it to say that more abhorrent conduct in a federal court and before a federal judge would be difficult to conceive." United States v. Bentvena, supra, 319 F.2d at 930.
The courtroom antics were interspersed with off-stage acts by the defendants and certain of their counsel which always interrupted and delayed the trial. The actions of the court, now so righteously protested by petitioner, were forced and necessary responses to the unprecedented efforts of the defendants, including this petitioner, to thwart a fair, orderly and completed trial. In order to keep order, to prevent a frustration of justice and to complete the trial, we were compelled to station a large number of marshals in the courtroom, search spectators and gag and shackle both Panicos and Mirra during the latter part of the trial. Reviewing these measures, the Court of Appeals said:
"If any one distinct impression is gained from a scrutiny of the record here, it is that the trial judge was justified, indeed was forced, to resort to stern measures to obtain order in his courtroom." United States v. Bentvena, supra, 319 F.2d at 930-931.
The Court of Appeals, denying defendant Galante's application for bail, found that the defendants' misconduct demonstrated "a concerted effort to interfere with the judicial process." United States v. Galante, 308 F.2d 63, 64 (2d Cir. 1962). That conclusion has been shared by nine different appellate judges,
who, in one context or another, have scrutinized this record and reviewed the conduct of the defendants at either or both of their trials. Answering defendants' contention that they had been denied a fair trial by the unruly incidents and our measures to cope with them, the Court of Appeals observed:
"The judge did all in his power to minimize their effect, and we find no ground for reversal in the circumstances. Any other answer to these contentions would produce little less than anarchy.
In view of the unprecedented tactics employed to impede the continuance and resolution of this trial, we find that the actions and rulings of the trial judge were reasonable and often necessary to prevent the frustration of justice." United States v. Bentvena, supra, 319 F.2d at 931-932.
We held eleven defendants, including petitioner, in contempt. Petitioner was only sentenced to ten days because we found mitigating circumstances in that he was suffering from a toothache at the time he attempted to break into the robing room. All contempt convictions, except Salvatore Panico's, were either dismissed as moot or affirmed on July 20, 1962. United States v. Bentvena, 304 F.2d 883 (2d Cir.) (per curiam), cert. denied sub nom. Mirra v. United States, 371 U.S. 927, 83 S. Ct. 296, 9 L. Ed. 2d 234 (1962). Decision as to Salvatore Panico was reserved, however, until September 14, 1962, when his contempt conviction was affirmed, Judge Friendly dissenting. The Supreme Court, Mr. Justices Harlan and Clark dissenting, reversed Salvatore Panico's contempt conviction and remanded the matter for plenary hearing on the issue of his competence to form the requisite criminal intent. United States v. Panico, 308 F.2d 125 (2d Cir. 1962), vacated and remanded, 375 U.S. 29, 84 S. Ct. 19, 11 L. Ed. 2d 1 (1963).
With this review of the record, we turn to consideration of this petition.
"The statute requires 'a prompt hearing' when the allegations of deprivation of constitutional rights raise disputed issues of fact in order to 'determine the issues and make findings of fact and conclusions of law' with respect to them 'unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.' 28 U.S.C. § 2255; Sanders v. United States, supra, 373 U.S. 1 at 6, 15, 83 S. Ct. 1068 at 1077, 10 L. Ed. 2d 148; Townsend v. Sain, 372 U.S. 293, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963); Machibroda v. United States, supra, 368 U.S. 487 at 494, 82 S. Ct. 510, 7 L. Ed. 2d 473; Note, Developments in the Law: Federal Habeas Corpus, 83 Harv. L. Rev. 1038 (1970). A hearing is not required, therefore, where the allegations are insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous. Sanders v. United States, supra, 373 U.S. at 19, 83 S. Ct. 1068; Machibroda v. United States, supra, 368 U.S. at 494, 82 S. Ct. 510; Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 119, 76 S. Ct. 223, 100 L. Ed. 126 (1956)." United States v. Malcolm, supra, 432 F.2d at 812.
Nor is an evidentiary hearing required on nonconstitutional claims or even on constitutional claims where a trial or appellate court has determined the same claim adversely to the applicant on the merits and reaching the merits on the post-conviction application would not serve the ends of justice. Kapatos v. United States, 432 F.2d 110 (2d Cir. 1970); United States v. Granello, 403 F.2d 337 (2d Cir. 1968), cert. denied, 393 U.S. 1095, 89 S. Ct. 878, 21 L. Ed. 2d 785 (1969); Castellana v. United States, 378 F.2d 231 (2d Cir. 1967).
An evidentiary hearing is required as to constitutional claims (1) where a federal trial or appellate court said nothing in the earlier proceedings because the issue was not raised, (2) where it was unclear whether the court's "say" was on the merits, (3) where new law has been made or facts uncovered relating to the constitutional claim since the trial and appeal, and (4) where the trial or appellate court bases its rulings on findings of fact made after a hearing that was not full and fair. Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969); Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Kapatos v. United States, supra.
With these principles in mind, we now consider petitioner's claims as best we can discern them.
DENIAL OF ADEQUATE ASSISTANCE OF APPELLATE COUNSEL
Petitioner claims that he was denied adequate assistance of counsel on appeal because, while his appeal was pending, he was remanded to Leavenworth and allegedly unable to confer with appellate counsel.
Petitioner wholly fails to specify any item of prejudice resulting from his incarceration at Leavenworth. His conclusory allegation that his appellate attorney, who had not represented him at trial, could not possibly digest and comprehend the complex issues presented by the proceedings at trial, especially the damage to petitioner by the repeated misconduct of co-defendants and their counsel, simply does not square with the facts. The records on appeal brand this claim as palpably false and frivolous.
Petitioner was represented on appeal by Jacob Kossman, Esq., a noted appellate attorney, and as the brief submitted on petitioner's behalf demonstrates his assistance to petitioner was conscientiously thorough and of the highest caliber. He filed a lucid and lengthy brief and reply brief and raised every issue remotely pertaining to his client, including, by incorporation, all the issues raised by all the co-defendants. Indeed, the Court of Appeals took note of "the zeal and quality of the performance rendered by defense counsel at trial and before this Court." United States v. Bentvena, supra, 319 F.2d at 935.
The frivolity of this claim is conclusively demonstrated not only by the files and records of this case, but by the fact that this voluminous petition raises no issue of any substance that was not raised and disposed of on petitioner's direct appeal from his conviction.
Accordingly, we conclude that petitioner's claim of denial of his Sixth Amendment right to effective assistance of ...