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May 29, 1980


The opinion of the court was delivered by: NEAHER

Petitioner pro se, currently a prisoner incarcerated at the Massachusetts Correctional Institution, seeks relief from a judgment of conviction imposed on a verdict of unlawful possession of an automatic rifle in violation of 26 U.S.C. § 5861(d) entered after a non-jury trial before the Honorable Jack B. Weinstein of this court. The court sentenced petitioner on February 1, 1974, to a term of imprisonment of five years. The conviction was affirmed by the Court of Appeals on May 24, 1974. Judge Weinstein has previously entertained and denied as frivolous petitioner's motion to vacate the judgment of conviction pursuant to 28 U.S.C. § 2255 on the ground that he was "mentally incompetent" to stand trial and "insane" at the time of the commission of the alleged offense. Petitioner has renewed this motion and has presented additional grounds for relief on the motion pursuant to § 2255 now before the court. We have considered petitioner's various claims and find none has merit. Accordingly, his motion under § 2255 is denied in all respects, as is his motion for appointment of counsel.

Taking petitioner's contentions in order, it is manifest that grounds numbered one and two have already been decided against petitioner by Judge Weinstein in his earlier memorandum and order dated September 9, 1974. Answering petitioner's claim of mental incompetency, the court stated:

"The evidence of incompetency is less than persuasive. The report of Dr. Leonard R. Friedman, who examined the petitioner on February 22, 1974, stated an "impression' that the petitioner was unable to prepare a defense in a pending criminal case in the State of Massachusetts. This psychiatric report was apparently contradicted by a May 1974 evaluation by psychiatrists at the Medical Center for Federal Prisoners at Springfield, Missouri."

 The court also made findings which dispose of petitioner's claim asserted rather late in the day that he was rendered incompetent to stand trial through daily administration of drugs at the place where he was confined during trial. Judge Weinstein found that:

"In this court petitioner was represented at trial and on appeal by competent counsel who had obviously had many conversations with the petitioner and certainly would have raised the issues if there was any basis for doing so. The court's own observations of the petitioner on frequent occasions in the courtroom such as sitting across the table from the petitioner during a suppression hearing and at the time of sentencing, revealed a person fully competent to participate in his trial. The petitioner appeared to be alert, consulted with counsel and reacted rationally. He appeared at all times to be lucid."

 These observations of the trial judge completely dispose of petitioner's claim of incompetence or diminished understanding due to drug ingestion, in the absence of suggestion apart from petitioner's bald allegation that petitioner was in any manner impaired during the course of the criminal proceedings that resulted in his conviction. Neither redetermination of the claim nor a hearing on the issue is required in these circumstances. See Tallent v. United States, 604 F.2d 370 (5th Cir. 1979); Lawary v. United States, 599 F.2d 218 (7th Cir. 1979); United States ex rel. Schnitzler v. Follette, 406 F.2d 319 (2d Cir.), cert. denied, 395 U.S. 926, 89 S. Ct. 1783, 23 L. Ed. 2d 244 (1969).

 Petitioner next claims that he was denied his due process right to trial by jury. He alleges that at no time did he waive his right to a jury trial but nonetheless was found guilty by the court after a hearing on his motion to suppress evidence. Reference to portions of the transcription of proceedings of October 25 and 26, 1973, and February 1, 1974, which are reproduced in the government's memorandum of law at pages 7-8, belie petitioner's contention.

 During the proceedings of October 25, 1973, petitioner's counsel placed the court on notice that they might ask the court to treat the entire matter as a non-jury trial at the conclusion of the suppression hearing. And on the following day, petitioner's counsel indeed agreed to submit the case to the court after denial of the suppression motion. Finally, at sentencing on February 1, 1974, counsel made a point of recalling to the court's attention petitioner's decision to avoid unduly burdening the government and the court with a long trial by agreeing to submit the case to the court for decision.

 In these circumstances, there can be little doubt that the waiver of trial by jury was effective and binding on petitioner. He was represented by competent counsel a fact found by Judge Weinstein in his decision on petitioner's initial application and was present during the various discussions that led to the jury waiver. At no time did petitioner register any objection to the course chosen on his behalf by counsel. The waiver was intelligently made with the consent of petitioner and thus satisfies the constitutional principles of Patton v. United States, 281 U.S. 276, 50 S. Ct. 253, 74 L. Ed. 854 (1930) ("Before any waiver can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant.") See Bayless v. United States, 381 F.2d 67 (9th Cir. 1967); Rogers v. United States, 319 F.2d 5 (7th Cir. 1963), cert. denied, 375 U.S. 989, 84 S. Ct. 524, 11 L. Ed. 2d 475 (1964); Horne v. United States, 264 F.2d 40 (5th Cir.), cert. denied, 360 U.S. 934, 79 S. Ct. 1460, 3 L. Ed. 2d 1549 (1959).

 There have been recent appellate court decisions, however, suggesting that failure to comply with the requirements of Rule 23, F.R.Crim.P., concerning waiver of jury trials, may result in reversible error. See United States v. David, 167 U.S. App. D.C. 117, 511 F.2d 355, 360-62 (D.C.Cir.1975) (Rule 23(a), F.R.Crim.P.). See also United States v. Reyes, 603 F.2d 69 (9th Cir. 1979) (Rule 23(b), F.R.Crim.P.). The pertinent rule in this case states:

"Cases required to be tried by jury shall be so tried unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government." Rule 23(a), F.R.Crim.P.

 While it appears that an oral stipulation may, under certain circumstances, satisfy the rule, see United States v. Reyes, supra, 603 F.2d at 71 and cases there cited, these courts have emphasized the importance of detailed questioning of the defendant in open court at the time of the waiver, United States v. David, supra, even when a defendant has signed a written waiver, United States v. Hunt, 413 F.2d 983, 984 (4th Cir. 1969).

 Although the Court of Appeals for this circuit has apparently not yet spoken on the issue, we need not decide whether petitioner's waiver satisfies the standards of Rule 23. Whatever the merit of petitioner's contention in the context of a direct appeal, this, of course, is a collateral proceeding. Petitioner's conviction was affirmed on appeal on his sole contention that the firearm was improperly admitted into evidence because the fruit of an illegal search. While claims based upon constitutional errors or on a lack of jurisdiction are not barred from being raised on collateral attack even though no direct appeal has been taken, United States v. Loschiavo, 531 F.2d 659, 662-63 (2d Cir. 1976), citing Sunal v. Large, 332 U.S. 174, 67 S. Ct. 1588, 91 L. Ed. 1982 (1947); Bowen v. Johnston, 306 U.S. 19, 59 S. Ct. 442, 83 L. Ed. 455 (1939), a non-constitutional claim which is not raised on direct appeal may be properly rejected as grounds for § 2255 relief, United States v. Loschiavo, supra, 531 F.2d at 663, citing among other cases, Davis v. United States, 417 U.S. 333, 345-46, 94 S. Ct. 2298, 2304-05, 41 L. Ed. 2d 109 (1974). See Alessi v. United States, 593 F.2d 476 (2d Cir. 1979).

 Quite apart from this general proposition that "the writ of habeas corpus will not be allowed to do service for an appeal," Sunal v. Large, supra, 332 U.S. at 178, 67 S. Ct. at 1590, petitioner's jury waiver claim is defective on the additional ground that " "collateral relief is not available when all that is shown is a failure to comply with the formal requirements' of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error," Davis v. United States, supra, 417 U.S. at 346, 94 S. Ct. at 2305, quoting from Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962). See United States v. Timmreck, 441 U.S. 780, 99 S. Ct. 2085, 60 L. Ed. 2d 634 (1979). There must be a fundamental defect which inherently results in a complete miscarriage of justice and presents exceptional circumstances where the need for the remedy afforded by the writ is apparent. Id. See Edwards v. United States, 564 F.2d 652 (2d Cir. 1977); Del Vecchio v. United States, 556 F.2d 106 ...

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