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HRUBEC v. U.S.

April 3, 1990

JAROSLAV HRUBEC, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT. UNITED STATES OF AMERICA V. JAROSLAV HRUBEC, DEFENDANT.



The opinion of the court was delivered by: Bartels, District Judge.

MEMORANDUM-DECISION & ORDER

This is another petition by Jaroslav Hrubec under 28 U.S.C. § 2255 to vacate his conviction and sentence. On March 6, 1985, following a jury trial, defendant Jaroslav Hrubec was convicted of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (Count One), importation of cocaine in violation of 21 U.S.C. § 952(a) and 960(a)(1) and 18 U.S.C. § 2 (Count Three), and possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (Count Four). Hrubec was acquitted on Count Two which charged him with conspiracy to import cocaine in violation of 21 U.S.C. § 963. On April 26, 1985, Hrubec was sentenced to seven years of imprisonment on Count One, and on Counts Three and Four he received a $2,500 fine and seven-year prison terms to be followed by a ten year term of special parole. All three of the seven-year terms of imprisonment were ordered to be served concurrently.

Thereafter, represented by retained counsel, Hrubec took a direct appeal of his conviction to the United States Court of Appeals for the Second Circuit in which he raised three issues. He claimed: the warrant which allowed government agents to enter his home was defective and therefore the evidence obtained pursuant thereto should have been excluded from the trial; the evidence was clearly insufficient to sustain a conviction; and the Government, in summation, abridged Hrubec's Fifth Amendment right not to testify against himself. The Court of Appeals found these contentions to be without merit, and affirmed Hrubec's conviction on October 31, 1989.

Subsequently, on November 7, 1986, Hrubec filed a pro se motion seeking the recall of the Court of Appeals's mandate and assignment of counsel to prepare and file a writ of certiorari. The Court of Appeals denied that motion on November 25, 1986, and denied a petition for rehearing on January 23, 1987.

On February 3, 1987, Hrubec filed a petition under 28 U.S.C. § 2255 (Case No. 87-CV-264). In his petition Hrubec claimed that his conviction should be set aside because he was denied effective assistance of counsel on trial and on appeal. He asserted that trial counsel was incompetent for failing 1) to challenge the constitutionality of the search warrant on due process grounds; 2) to advise him that he had a constitutional right to testify; 3) to obtain a Czech interpreter to help him communicate with counsel and fully understand the proceedings and a Czech expert to refute translations offered by the Government; 4) to challenge the admission of post-arrest statements made prior to the administering of Miranda warnings; and 5) to correct errors in his presentence report and suggest sentencing alternatives to incarceration.

Hrubec also alleged that his appellate counsel's performance had been ineffective in that counsel failed a) to raise on appeal the same issues trial counsel neglected to pursue below; b) to present an ineffective assistance of trial counsel claim; c) to move to reduce the sentence; and d) to seek a writ of certiorari.

On August 14, 1987, this Court referred the matter to the Honorable Carol B. Amon, United States Magistrate, for a report and recommendation. Magistrate Amon held a hearing on May 11, 1988, to specifically address two claims raised by Hrubec's petition — i.e., that he did not fully understand the proceedings because of language difficulties, and that his lawyer failed to tell him that he had a constitutional right to testify. At the hearing Hrubec was represented by court-appointed counsel, testified on his own behalf, and called as a witness the Czech interpreter who had been provided to assist him at the hearing. The Government called Thomas Yeager, a probation officer who had prepared pretrial services and probation reports on Hrubec, and three attorneys — Richard Finkelstein, who was Hrubec's counsel at trial, and John Pacht and Thomas Concannon — all three of whom were with the Federal Defenders Unit of the Legal Aid Society at the time of Hrubec's trial. All of the Government witnesses testified that, during their various dealings with Hrubec, they had had no trouble understanding Hrubec and had had no trouble making themselves understood by him. The three attorneys also testified that they had all advised Hrubec of his right to testify and, in fact, had engaged in protracted discussions with Hrubec over the advisability of him taking the stand in his own defense.

Hrubec now moves this Court once again, this time in a double-barrelled application. First, he again petitions under 28 U.S.C. § 2255 (Case No. 89-CV-3038), asking that his conviction be vacated and the indictment dismissed because, as he claims, A) the "fundamental right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside was violated when a magistrate supervised selection of jurors;" B) 28 U.S.C. § 1827 was violated when "the court did not inquire about movant's ability to comprehend all stages of criminal proceedings, and when the court did not approve a waiver of interpreter, and where such waiver was not made expressly on the record;" C) "due process was violated when agents entering to search movant's home did not comply with [the] knock-and-announce requirement" of 18 U.S.C. § 3109; and D) "trial and appellate counsel were ineffective in failing to raise due process and Fourth Amendment challenge[s] to the search of movant's apartment on [the] ground that the searching agents did not know the scope of the search warrant." Second, Hrubec moves under Fed.R.Crim.P. 35 (Case No. 84-CR-566), claiming that the ten-year special parole term imposed by the Court was illegal and should be vacated. The Court addresses Hrubec's claims seriatim.

I. THE § 2255 PETITION

A. Jury Selected By Magistrate

There is no doubt that, in the afternoon of February 28, 1985, Chief Magistrate Chrein of this District presided over the jury voir dire of Hrubrec's trial. And, as Hrubec points out, in Gomez v. United States, ___ U.S. ___, 109 S.Ct. 2237, 104 L.Ed.2d 923 (1989), the Supreme Court unanimously reversed a conviction obtained in this District because a magistrate, rather than a federal district judge, had presided over jury selection. In Gomez the Court held that a magistrate's presiding over the selection of a jury in a felony trial "without the defendant's consent" was unauthorized by the Federal Magistrates Act, and thus violated the defendant's right to have all critical stages of a criminal trial conducted by a person with jurisdiction to preside. 109 S.Ct. at 2239, 2248 (emphasis added). Accordingly, Hrubec claims that his conviction should therefore be vacated. To apply this principal, the Court must first decide the threshold question of Gomez's retroactivity.

1. Retroactivity

Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), decided the same term as Gomez, related to the application to petit juries of the Sixth Amendment requirement of a representative cross-section of the community that had theretofore been applied only to juror pools from which petit juries are drawn. Before reaching that issue, however, a plurality of the Supreme Court set out standards regarding retroactivity of new constitutional rules of criminal procedure when a court is urged to announce and apply those rules for the first time in collateral federal habeas corpus attacks on state criminal convictions under 28 U.S.C. § 2254. The Teague plurality, adopting guidelines that had previously been suggested by Justice Harlan, stated that the question of retroactivity in such cases must be decided at the outset due to concerns of comity, finality, equality of treatment for those similarly situated, and avoidance of constitutional adjudication. The plurality stated that normally a new constitutional rule of criminal procedure should not be announced in, and applied retroactively to, collateral attacks upon convictions unless: 1) the new rule "places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," id. at 1075; or 2) the new rule is the kind of absolute prerequisite to fundamental fairness that is implicit in the concept of "ordered liberty" — i.e., the new rule announces a bedrock procedural element, violation of which would seriously diminish the likelihood of obtaining an accurate conviction. 109 S.Ct. at 1077. In regard to the retroactivity issue in Teague, Justice White, found that the plurality's approach "is an acceptable application in collateral proceedings of the theories embraced by the Court in cases dealing with direct review," and concurred in that result. 109 S.Ct. at 1079.*fn1

However, despite the division of opinion in Teague, just four months later, in Penry v. Lynaugh, ___ U.S. ___, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989), the Court, although severely divided on other issues having to do with capital punishment for mentally retarded defendants, unanimously agreed that 1) in collateral proceedings retroactivity of a new constitutional rule of criminal procedure is a threshold question; and 2) such a rule is not to be applied in a collateral proceeding unless it meets one of the two exceptions discussed above. 109 S.Ct. at 2952. See also Sawyer v. Butler, 881 F.2d 1273, 1279-81 (5th Cir. 1989) (en banc) (discussing the individual opinions of the Justices in Teague and Penry's effect thereon), cert. granted sub nom., Sawyer v. Smith, ___ U.S. ___, 110 S.Ct. 835, 107 L.Ed.2d 830 (1990). The Court's opinion in Penry dealt only with the first exception and did not articulate what the second exception covered, thus avoiding the divisive issue of whether the "ordered-liberty" exception includes a requirement that the rule sought to be retroactively imposed increases the likelihood of "accuracy of conviction." Finally, in Saffle v. Warden, ___ U.S. ___, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990), in holding neither exception applicable to a collateral attack upon a charge given to a sentencing jury in a capital case, a majority of the Court made it clear that the second exception exists for "watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding." Id. at 1263 (emphasis added). Thus, under the second exception a new rule of criminal procedure must implicate the accuracy of the petitioner's conviction in order to be applied retroactively in collateral proceedings — in other words, Teague's bar on retroactivity applies unless violation of the new rule of criminal procedure increases the likelihood that an innocent man will be convicted. See also Butler v. McKellar, ___ U.S. ___, 110 S.Ct. 1212, 1217-18, 108 L.Ed.2d 347 (1990).

The plurality decision of Teague as adopted by Penry and Saffle, does not, however, necessarily apply to this case for two reasons: (1) Teague (and later, Penry, Saffle, and Butler) dealt with habeas corpus proceedings under 28 U.S.C. § 2254. See 109 S.Ct. at 1084 n. 1 (Brennan, J., dissenting) ("[t]he plurality does not address the question whether the rule it announces today extends to claims brought by federal as well as state prisoners"). Thus, Teague's concerns of comity are not present here in these proceedings under 28 U.S.C. § 2255, as no question arises as to the deference due to the concomitantly sovereign state courts. Of course, Teague's concerns of finality, equality of treatment for those similarly situated, and avoidance of constitutional adjudication are also often present in a § 2255 proceeding. (2) The standards set down by Teague dealt with the retroactivity of newly extended constitutional rules of criminal procedure. Furthermore, these standards dealt not only with new constitutional rules of criminal procedure, but such rules when habeas courts are asked to apply them for the first time ever. Here, the Supreme Court has already announced the Gomez "rule," and that rule is based not on constitutional construction but on statutory interpretation of he Federal Magistrates Act.*fn2

Although Teague and this case differ, the Court holds that the rules of retroactivity set forth in Teague are applicable to § 2255 proceedings where, as here, the petitioner urges retroactive application of new, already-announced, non-constitutional rules of criminal procedure such as Gomez. This result is logically dictated, because if Teague's retroactivity standard and the two exceptions thereto are applicable to alleged constitutional violations, it follows a fortiori that Teague must be applicable to violation of a statute, which is of lesser importance. Policy, too, dictates Teague's application since concerns of finality are just as present here in this collateral attack on a federal conviction as they were in Teague. "Without finality, the criminal law is deprived of much of its deterrent effect." Teague, 109 S.Ct. at 1074. Here Hrubec has already been afforded a suppression hearing, a trial by jury, a direct appeal to the Court of Appeals, a collateral attack on his conviction under § 2255 passed upon by a magistrate and a district judge, and an appeal from the denial of the § 2255 petition. A convicted criminal must eventually come to the realization that he has been given a fair trial, has been found guilty by a jury of his peers, and has had a sentence imposed upon him which he indeed must serve. As Justice Harlan said: "No one, not criminal defendants, not the judicial system, not society as a whole is benefited by a judgment providing that a man shall tentatively go to jail today, ...


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