Arthur Bruce v. United States

еxplored in the thoroughly presented is District opinions this court case, do not we so Hinton in the Court being agree Moreover, repeat here. opinion written excellent ment with Court District for the Tamm Secretary author holding sub restore ized to withdraw strip lands rights mineral surface case ownership, affirm we to tribal F. See there stated. for reasons Davis, Baltimore, Md., for Mr. Moses Supp. 680-683. appellant. Affirmed. Zagone, Atty., Raymond Mr. N. De- Justice, partment whom Asst.

Atty. Weisl, Edwin Jr. and Gen. L. Roger Marquis H.

Messrs. P. and Walter Attys., Department Justice,

Williams, brief, appellee.

were on Miss for Billingsley Dudley Elizabeth and Mr. S.

Hill, Justice, Attys., Department of also appearances appellee.

entered BRUCE, Appellant, Arthur Judge, Before Senior Circuit Bаstian, v. Wright Judg Circuit Robinson, America, Appellee. es. STATES of UNITED No. 20146. PER CURIAM. Appeals Court States companion This ais case Hinton et of Columbia Circuit. District U.S.App.D.C. 283, al. v. Udall, 124 Argued 1966. Oct. (1966), F.2d 676 in which this held attack on an order of April the Secre Decided tary restoring ownership the Interior mineral, gas of all oil and resources in strip

certain so-called mineral lands in

Arizona Apache Carlo San Tribe unripe adjudication. of Indians was

The District Court in Hinton1 had held

that, assuming justiciability presented, Secretary issue had au thority under Section 3 the ‍‌‌‌​‌​‌​‌‌​‌​​‌​‌​‌​​​​‌​​‌‌​‌​‌​​​‌​​​‌​‌‌​‌‌​​‍Indian Reorganization Act to withdraw from entry rights and to restore subsurface strip

in the mineral lands to tribal own

ership. appeal presents again This issue decided on the merits the Dis

trict Court in Hinton.3 historiсal, statutory and adminis background

trative of the issue here unripe- question of Hinton, reported no opinion 3. Unlike 1. The Court is case. standing presented in this al. et ness under Udall, D.D.C., title of Bowman mining staked here F.Supp. be- suit land claims they were them when ginning work U.S.C. appellee. void null declared D.C., F.Supp.

See also Joseph Snee, Washington, D.C.,

Mr. M. (appointed by court), appellant. for Wieseman, Mr. Theodore Asst. U. S. Atty., Bress, with whom Messrs. David G. Atty., Q. U. S. and Frank Nebeker and Altshuler, Attys., Oscar Asst. U. were S. brief, appellee. on the Mr. T. Edward Miller, Atty., U. Asst. S. also entered appearance appellee. Judge, Before Chief Bazelon, Tamm Judges. Circuit Leventhal, Judge: LEVENTHAL, Circuit pleas, accepting of erroneous claims Before This case involves (hereafter examination of “defense Sirica conducted an the counsel Brodie, counsel”) represented who the defendants. Jackson who gave appellant, questioned prior guilty plea and sentence. were the time of his robbery place took accounts of how the February 24, 1965, appellant, with On Both that were similar in essentials. Brodie, was Jackson and co-defendants gotten together stated that the three had robbery. pleaded Appellant indicted for morning robbery done on and guilty April on June was and drinking. was some version Jackson’s Judge by tо Sirica sentenced three first decided had a eight years. to On June serve two general get money plan with no to some signed pro appellant se motion a they particular mind and source in alleged judgment. his arrest He to High’s later, coming upon the had when inexperienced in crim- trial counsel was store, get money decided to there. inal he was advised matters and that earlier Brodie made no mention change to his to the last moment general they plan, but had all said that understanding guilty he with the High’s just prior decided to rob store put probation he “even entering carrying to it and in charge guilty of wasent said [sic] robbery, Jackson had wielded Judge only victim of circumstances.” gun, money had and Brodie taken counsel, appointed Sirica who filed new They appellant lookout.2 had stood a motion to under vacate sentence agreed robbery that a was committed guilty U.S.C. withdraw the and to fired, which a shot was and that after- 32(d), In- Rule F.R.Crim.P. under ran out and wards all three divided grounds urged by petitioner, stead equally. loot attorney this advanced these: Petitioner appellant questioned, was When guilty robbery his not and first stated had no that he had intent understandingly to was not entered due High’s entering, prior to rob to store erroneously the fact аdvised was cigarettes. get had entered to by defense counsel of re- the elements by questioning Under close as Further, quired robbery. to establish why guilty light pleading he was comply pe- defense counsel did with changed version, appellant of his his ac- instruction, given prior titioner’s to sen- gone count and into admitted he tencing, guilty plea. withdraw knowing robbery store hearing, After which described will be going intending par- place take and shortly, ticipate the District entered find- in it. ings of and fact and conclusions of law hearing appellant did At the § denied the motions. . testify, stand to the but called represented counsel, had once who defense prepayment appeal without Leave accepted appellant civil matter granted by en this court of costs was assignment assurances attorney appointed banc.1 The as testified as Defense to fee. the denial effect contends that he had told counsel follows: appellant’s motions reversed should be co-defendants, drinking guilty plea, fail- because discussion, wheth- some “there had been prior ure to seek withdrawal to sentenc- otherwise, about, Let’s er drunken ing, advice of were induced erroneous money.” go get neither However some (1) prior cоunsel both particular the manner of store nor (2) getting

plea, prior money schedule” “on their sentence. 22, 1966, “[appellant] April vacating stand- 1. Order of an or said that Brodie lookout, panel. door, ing or less a der of denial entered divided guess.” * * * High’s appellant with, went store the leader to when start cigarettes. merely get place you Jackson After takes as gun, they guy.” out and used the panicked ran the other apart- and ran with them an they money, ment where divided the A wrong.” knew ‍‌‌‌​‌​‌​‌‌​‌​​‌​‌​‌​​​​‌​​‌‌​‌​‌​​​‌​​​‌​‌‌​‌‌​​‍that he had done “he then Appellate counsel a structure of erects police. He later turned himself over to the rеsting ineffective assistance of counsel aon foundation claim that Defense counsel discussed given plainly erroneous advice clearly facts with as I “as counsel, who considered that the could, hazy and he seemed about the im- crime of had been established entering prior mediate recollections by appellant’s presence when his com- High’s.” counsel, knowing ap- At first panions store, rob decided to and did a pellant being,” “as human a decent be- sharing Appellant’s and his in the loot. “every story,” lieved bit of his and recom- responses plea judge additional go mended that he to trial. Later how- explained substantially is as follows—that shot, pistol ever counsel learned of the erroneously it was defendant divulged because was by appellant. not first “And by guilty, told his counsel that he was I store, they had, didn’t know if not this judge, that he answered “Yes” when the plans some other in mind of let us admonishing after him to say tell truth a mischievous nature.” As defense “dilly dally Court,” and not this with put pieces together, opin- counsel asked him whether he knew changed. before en- ion He discussed with tering High’s robbery that a appellant, store feasibility and the of a place there, was to take and whether possibility partial and restitution. particiрating had the intention of Defense appel- counsel believed that robbery. background, argues This lant’s involvement was traceable to the counsel, guilty plea shows that the drinking. When asked if he was aware “understandingly,” not made under- e., i. of the cap- doubt whether standing meaning charge, “the of the and specific able required intent being guilty what amount acts of the robbery, approach he said he did not it charge,”3 and that due to ineffective on that facts, basis. “Given all the and assistance counsel has never the fact there was some mischief day had his in court. planned, here, if place,” not in another profits and split that the one-third, were analysis by put begin our We then even did not being know ting time the answers aside for the gun, Jackson my a opinion, “it proceed by appellant at the so, and told wrong whether it is ing. was said that In earlier cases it or not is for determine, the Court to incompetence claim on counsel’s based they lie was as were.” He am- prevail unless trial has cannot plified mockery recommended the a farce. These rendered a appellant, when literally, whom he considered to be taken words are not honest, they up “told me prin were description to mis- rather as vivid you up “If heavy chief.” are to mischief with ciple ahas burden that the accused people, you three showing know requisite mischief is Al unfairness.4 in though going place, you to take are or sober rare and extra the cases are maybe high you it, half when ordinary, appears an accused it along line, somewhere if one of them 28 U.S.C. obtain relief under goes out, you going gross it know is there has been he shows both that place time, take you some incompetence are not and that counsel U.S.App. U.S.App. Edwards v. United Mitchell 152, 155, 707, 710, D.C. 787, denied, 256 F.2d cert. F.2d cert. D.C. denied, 358 U.S. 3 L.Ed. L.Ed.2d 86 S.Ct. U.S. 2d 82 exist- the essence counsel focused out defense blоtted in effect has money general plan get some either ence of a substantial by doing appeal.6 “mischief.” Court5 or testimony import to at fruitful counsel’s not fair The applica was, short, tempt understood further delineation generalities, agreed someone, That reference somewhere. standard rob ble advice, pow say questioned except perhaps that a more is how we take his necessary failure, showing inadequacy particularly in view of erful notwithstanding burden, than to attack to define a collateral to sustain through trial either for new cross- an “mischief” further either warrant order ap- or District Court7 examination of defense or testimony. Appellate pellant’s appeal.8 coun- direct own ' argue differently. point His sel does not requi- Assuming that the for discussion is, apparently, requires incompetence can made site property particular intent from to take showing ignorance doctrine of critical victim, merely general rob not intent rudimentary prepara- discoverable remains unfocused.12 tion,9 persuaded this is we of defense coun- such a case. saying Without whether fairly formulated, and cannot sel was agree with the decisions what extent we supported, taсtical estimate as a now be cite, now that au we we note there is 10 “high probability of conviction.” of a thority proposition support that to plain his advice But is likewise plans person rob when a to others showed appellant’s own statements someone, somewhere, presence with premise guilty on the based him was not protest of the crime scene at guilty by of mere virtue he was to knowledge, premise undertaken others is sufficient guilty presence and encouragement unsound.11 The have held constitute and sufficient that we U.S.App.D.C. 490-91, 254, 460, 487, Huff, 152 80 ra 60 P.2d 5. Jones v. Cal.2d 386 (1963) J.). (1945). Cal.Rptr. (Traynor, re the court Of course 34 14 863 F.2d hindsight to review or reassess fuses States, supra Compare 10. v. United Smith ques judgment of counsel on 5, the District note where affirmed we strategy, or trial of trial tactics tions motion Court’s denial of defendant’s to See, e.g., United Edwards v. decisions. States, grounds that his vacate sentence 3; supra, v. United note Smith hearing In the had been coerced. 2255 § U.S.App.D.C. 115, States, 265 F.2d 105 had in that case counsel testified denied, 843, 99, 361 U.S. cert. urged plead guilty defendant had to 95, (1959); v. United 4 L.Ed.2d 81 Willis Government’s case was because U.S.App.D.C. 211, States, F.2d 271 106 strong, nothing him defendant had 964, denied, (1959), 80 477 cert. 362 U.S. defense, there out of which make a 881, (1960); Alexan 4 879 S.Ct. L.Ed.2d conviction, high probability was a States, (5th F.2d der v. United 290 252 if there wаs of stiffer sentence likelihood 891, Cir.), denied, cert. S.Ct. 368 U.S. 82 no de- the defendant went to trial with (1961); 144, Frand v. 7 L.Ed.2d 89 disposing In fense and was convicted. States, (10th 102 United F.2d Cir. 301 testimony [at we said: “The 1962). hearing] may 2255 be viewed to merely States, U.S.App. support 6. 121 Dillane v. United thesis brought judgment 354, professional (1965). F.2d D.C. 350 732 experience bear, as was bound to E.g., Poe, U.S.App. 7. States v. 122 high do, advising (1) of the (1965), aff’g D.C. 352 F.2d 639 233 probability conviction, (2) of the F.Supp. (Wright, (D.D.C.1964) 173 Cir imposed on sentences some courts have sitting by designation). Judge, cuit guilty pleas such cases.” Dyer U.S.App.D.C. 8. v. United Cooper U.S.App. v. United (March 23, 1967). 379 F.2d 89 F.2d D.C. 9. See the careful discussions in Brubaker Dickson, (9th Compare v. F.2d 37-39 Cir. Jackson 1962) (Browning, J.) People U.S.App.D.C. Ibar- F.2d aiding abetting.13 participation money.” Judge specifically Sirica position Again, taking on the advised him facts did make merits, robbery- guilty judge we note that robbery. then guilt may under rule specifically be established asked as to his conspiracy knowledge that one who enters time at he entered the sub- commit an offense is response store. There indefinite offense committed his co- already stantive followed the admonition noted conspirators that is in furtherance of and “dilly dally —to tell the truth and not to reasonably consequence foreseeable with this Court.” was asked conspiracy.14 again if time he went into the store robbery he knew that a be com- mitted,15 yes. and he answered Five fared ‍‌‌‌​‌​‌​‌‌​‌​​‌​‌​‌​​​​‌​​‌‌​‌​‌​​​‌​​​‌​‌‌​‌‌​​‍have better his counsel had times thereafter asked whether knowledgeable ag experienced, part he went in to take sought gressive, question or limit yes. and answered apply than the full measure of rather considering In whether vacate the liability. doctrines of vicarious But cer Judge plea, Sirica addressed him- tainly the doctrines refute claim cited question self to appel- of whether advice of defense counsel es guilty plea understandingly lant’s tablishes lacked minimum made, properly took into account the competence necessary standards sat responses by appellant questioning isfy appellant’s right constitutional Sirica conducted as counsel. pursuant to the 1959 Resolution of the B Judges.16 That Resolution was primarily question established as a now means We consider the whether ob- viating spurious after-thoughts provided pursuant relief should 32(d), guilty plea accused F.R.Crim.P., ground improp- his that Rule was the erly regardless by promises. that, induced or threats was the that important by assuring also has counsel, appellant value in defense what that guilt an accused whose understood from conduct is not within counsel that was prison the indictment does not was mere that slide into established the fact through ineptitude present proceeds. he counsel. was The and shared Judge merely appellant does not That is indeed what call on the indicated ac- cused to affirm questioned plea pro- he when first that at understands charge voluntarily ceeding. pleads Judge guilty. and When invited Sirica The hap- accused is part asked to make a tell what statement as pleaded guilty, pened, the offense to he which his own words. If the facts gone he that said he had the store to support related the accused do buy cigarettes. why Judge When аsked he plea, makes further was was pleading guilty, appellant there * * ^[*] and got replied some “I inquiry. The case tion. at bar is an illustra- Garguilo, 13. States, 425, United States v. 310 F.2d liamson v. United U.S. 207 J.) ; 249, (2d (Friendly, 1962) 449, 163, Cir. (1908). 253 28 S.Ct. L.Ed. Williams, Law, G. The Criminal Gen- say 15. Earlier said heard he he someone 353, (2d 1961). eral Part n. 3 ed. store, let’s rob the he know didn’t 14. Pinkerton U.S. just talking drinking.” who. “I was and 640, 646-47, 1180, 90 66 S.Ct. L.Ed. 1489 Later he he didn’t hear because it (1946). conspiracy The formation of a raining and he was the oth- behind require necessarily agree does rob ers. ment either the means of commit appears ting robbery, particular The text the Resolution as to person note of Everett to be robbed. Frohwerk v. United 249, U.S.App.D.C. 60, 61-62, 979, F.2d U.S. (1919) (Holmes, J.); 63 L.Ed. 561 Wil 980-981 relating findings ap appel- pellant, and did not know whether The court’s support ample honestly had them or pellant’s remembered admissions lant of his conclusion, accompanying or them from the statements learned its appellant Had testified that under co-defendants. ders understandingly gun knowledge voluntarily no that plea and he had that High’s that there be used at was to entered. robbery general plan of had separate "a entered District Court Judge “mischief”), (or District then the noting pres- finding that guilt to consider whether have had hearing motions but on his ent principle may of vicari- be established sig- testify. think this We also did not Judge liability.18 District Or the ous nigh nificant, decisive. Even indeed well might this was determined have erroneously from understood exceptional cases where one of the robbery es- defense counsel having Court, personally addressed after by presence at crime and tablished being satisfied defendant proceeds, division of the voluntarily plea was made up. Appellant made cleared that charge understanding of the of the nature knew there further admissions plea, consequences will ac- and the he intended was to guilty, de- cept even participate therein. accompanies with a fendant nоt claim these were guilty, does aon is not statement any way “planted” incriminatory admissions evi- determination high counsel.17 Defense probability such a establishes dence testified, contradiction, satisfy require- conviction as to make such a never asked basis be a “factual ment that there statement, pre- never indeed judgment en- can be plea” before ap- viously from such heard details have the case Or thereon.19 tered problem 17. It raised as a has been U.S.App.D.C. 363 F.2d attorney advise ethics whether first im- defendant the evidence p. 118, supra, 13 and and footnotes 18. See plicating overwhelming him is so guilty рlea salvation, is his best sec- accepted not be F.R.Crim. ond will Rule 19. The last sentence defendant, departing 1966, provides: July 1, if “The P., from truth unless effective upon be, judgment is a states facts that show he need a not enter court shall guilty. Freedman, guilty Re- plea that it is satisfied unless Professional of sponsibility jflea.” No Criminal for the a factual basis there is of Defense Lawyer: Questions, judgment preclude a purpose The Three Hardest on a probability guilty plea L. 64 Mich. Rev. 1469 on is based a that saying McCoy (see We have no in United hesitation of conviction may attorney, 17; court, supra an an officer of the Smith v. note practice supra 10) not counsel or such deliberate stated a is notes 5 deception. Advisory Committee in of the the Note Rules, other hand the On the 1959 Resolution U.S.C.A. Crim.Rule see 18 on prohibit language (Supp.1966). does not pleading either a defendant from is con- That guilty, probability-of-guilt stand- or the Court ac- from awith sistent Proj- cepting ground plea, on the ard, Bar Association American see implicating is For evidence overwhelming the defendant so Criminal Minimum Standards ect on though Relating to Pleas that even defendant Standards Justice: of innocent, Guilty (Tentative Feb. believes himself to be be- Draft he at 1.6 § purpose 1967). in lieves it is his own best intеrest and committee’s The justice, of the hence in interest of that he be satisfied court itself mercy plea, than himself on the of the court rather throw factual basis rely exclusively rather than face the virtual certitude of on defendant possibility noted, a conviction after trial and the the committee counsel. As pos- severity imposed greater participation of a sentence avoids the court McCoy plea sibility guilty after trial. from a defendant of a disposed plea just of a con- of nolo “I don’t I think get this, having tendere.20 should time for without replied a trial.” he Counsel would so incriminating However, the admissions wanted, appellant advise if the Court pro- plea were made did not know whether would be ceeding. they subsequently If can be successful of the view answers at ignored reason, re- is some plea. However, appellant asserted that quired hypothesis than a of appealable he felt he had an error —a they may have reflected the reverbera- apparently gleaned jail view from house legal prior tion of erroneous lawyers, for defense counsel said he issue, a different related an or grounds never informed of what admonition, over-reaction to the Court’s give him а reversal. Defense counsel suggestibility or a to conform request then told could of statements his co-defendants. There guilty plea, to withdraw the may thoughts be truth in these wrong. he if felt Or could indicating sig- he way legal their await sentence —since nificance if true. But has accused heavy post-conviction moderate, although a burden aon mo- he had told forthright tion and the absence of probation question of the in view testimony by credible the accused virtual- gun. of a use This ensued: then ly his cause. dooms me, He asked Could he answer, I appeal had to You can II practically anything now, but that was * * * appeal. We now consider as far as we the events sen- discussed tencing day, say ap- How June related in the tes- could that he could not timony peal? course, appeal. of defense he counsel. Of can His guilty you said he wanted to withdraw remedies are available as can see plea, thought guilty was not now. recklessness); who fails to realize as a matter of need not reach actually guilt law his conduct “does not fall a sat- definite conclusion he is charge.” high probability within the isfied conviction. juridical question The is more trouble- The fear lest an man innocent be un- guilt some on a when turns fact like justly punished chary bids be- intention which the accused accused accept plea guilty it fore filed Relating to Pleas denies. Standards proclaiming guilty. Of. one is Guilty, supra, 1.6 at 34. Without justice administration of criminal is well judgment intimating cannot be en- served when those who are in fact case, on a tered such experience guilt, admit their indicates suggested it harmonize many them, preferring that- deny while juridical prevailing philoso- better with gloss involvement, their over phy desiring approve if a court outset, ready least at the to make the procedure for the defendant uses the they critical admission when face mo- contendere, of nolo see note 20. judge, especial- ment of truth before the ly they guilt if are aware denial of 11, 20. The last sentence of Rule F.R.Crim. rejection customarily guilty entails of a P., applicable judgment in is not case of plea. upon plea plea of a nolo contendere. The used, contendere, though Yet rarely there is room for the conclusion of nolo judgment guilty involving on a of is not is still alive for crimes even contrary justice high turpitude. to if on based a moral Lott v. United probability trial, 1563, of 421, the outcome of even L.Ed.2d 367 U.S. 81 S.Ct. Hudson, neither (1961); a nor a verdict of v. United 451, conform to the defendant’s 272 U.S. L.Ed. 347 subjective Exаmples (1926). Bagli evaluation. include And see States v. easy ore, (E.D.N.Y. not the F.Supp. case where the 1960), accused for appropriateness relates facts that the identifies as discussion of the of this crime, mitigating a question but the also case the where for a case elements with guilt judgment legal of involves rath- not rise the of do to level (as . er than clear-cut facts in a crime of defense itself, by excerpt S.App.D.C. In is taken 249 F.2d 504 If this face, expresses appellant's also ren advice case defense counsel and on its it erroneous, earnestly spoke hear- clearly for He was dered service. appel by appellate sentencing, for ing, an vouched if in effect even reviewed court, equivalent friend, appel of noted no means as a and is lant completely appeal. passive omit- participant The advice an lant had been any important possession to dis- reference no time in of ted had at been grounds concerning gun. avail- time tinction Sirica stated at requesting of been withdrawal would have able heavier sentences pleas, depending requests gone whether trial. out if the case had to meted sentence. rea made or after several sound before Defense counsel had urging appellant with not to sons however, pass unwilling, to We are plea. is therefore draw The context by appellate upon focused the issue as quite an “extraor different from that of alleged particular inade- counsél on this interests,” dinary inattention to a client’s hearing quacy of counsel. The defense in which we said could amount have claimed de- held on a motion was counsel. Dillane effective assistance of comply with had failed to fense counsel U.S.App.D.C. present appellant’s instruction 350 F.2d allegation request. was That withdrawal supported proof has not not rendered But that services were argued motion court. The this gross of and that there not the flavor challenge advice not amended inattention to a interest does client's being ‍‌‌‌​‌​‌​‌‌​‌​​‌​‌​‌​​​​‌​​‌‌​‌​‌​​​‌​​​‌​‌‌​‌‌​​‍questioned as a now court necessarily dispose A claim of case. rights. denial While of assistance counsel ineffective may proof amendments conform ap if be made out wishes of readily granted inferred, case clearly pellant diverted were fact nor the court counsel neither legal sub and he erroneous presented as alerted that this was were Turning thereby. stantially prejudicеd Had an of the motion. alternative basis question prejudice, we find that been done additional evidence any substantial record barren perspective present- well have been showing point. Appellant crucial ed, more and an effort made to ascertain innocence, made a bare assertion precisely exactly what defense any evi with has forward come account, and what took Judge Sirica dence that his admissions to important impact not least what are not accurate. prejudice what resulted therefrom. is conceivable prejudiced re mis-advice indeed, because the question is, prejudice The request with in his failure ultimate issue. Once before this sulted substantially prior sentencing. was confronted Gov drawal The argues possible no ernment there was claim of advice that same erroneous appellant, right prejudice sense because accused would have asserts, away meet even the it in cannot turned the accused effect permissive applicable pre to a had in fact standard with the observation sentencing motion for withdrawal counsel and been well served guilty plea. good legal per stand the case contours sеrvice as easily States, ard are not But we will U. defined.21 mitted. Moore 101 v. United States, (1964); U. 21. See Kercheval v. United 274 U. Everett v. United 119 (1964); S.App.D.C. 60, 1009 L.Ed. 336 F.2d 979 S. U.S.App. (1927); Nagelberg Gearhart v. United D.C. F.2d 499 U.S. S.Ct. L.Ed.2d pursue point appellate not not the because was counsel discussed here. In presented may or considered the Dis to some cases it better serve the inter- only justice of trict We observe est to remand for considera- Court. that point points presented foreclosed the District is not tion of not to Dis- taking case, conclusion “failed trict Court’s that Court. In injustice sup appellant’s testify, to establish manifest account failure port guilty plеa,” possibility withdrawal of his for the may that offender first palpably ruling parole applica- that is obtain relief on the applicable failed to tion meet the standards that we have been informed will shortly by be a motion filed considered D. Parole after sentence. Rule the C. Board, 32(d), we deem it F.R.Crim.P.22 best confine our judgment to the motion filed ruled possible preju Another of source Uponby the District Court. Our discus- dice derives from the fact that the sen clear, however, judg- sion makes that our tencing transcript Judge shows preclude ment not intended consid- gun Sirica considered the use of the eration on the merits of a new 2255 critically important denying probation in raising questions motion the kind of dis- meting out substantial sentences. cussed in Part II. According testimony to the of the § hearing, appellant knowledge had no Affirmed. gun prior use, to its but this was sentencing brought clearly never out BAZELON, Judge (dissenting Chief pr oceeding.23 Conceivably it was part): the erroneous advice defense counsel general agreement I am in with the for accounted lack of allocution, discussion opin- in Part I of the and that in turn court’s have bringing My disagreement as the served vehicle for ion. relates appellant’s ignorance gun.24 refusal, II, grant any court’s in Part relief. I would remаnd this case to the possibility prejudice, although This ap- District Court for reconsideration of giving concern, us not does re- warrant pellant’s motion to withdraw his versal because it was focused on in not apply principles and to which District Court. be govern prior imposition of sen- Sirica took into consideration at sentencing hearing tence. appellant may knowledge gun.

have had no Immediately sentencing pro before the ceedings, attorney explored Bruce informed his We have a number of mat- opinion he desired to ters in Part II withdraw to make plea. Counsel advised could clear that оur re- affirmance is not a appeal imposed1 jection after sentence was on its of the contention of merits ready grant procedure presenting District Court were such (b). point, made, presumably motion described in would embrace steps: (a) application two sentencing hearing 23. At sentence as be set because of aside argued merely counsel “at prejudice resulting from ineffective gun.” no time had the counsel; request (b) assistance of would, except the motion that point course, supported is, 24. This mis-advice, counsel’s have been filed by any testimony appellant. Nor sentence, advance considered any argument counsel it set forth pre- Court reference appeal. or on either at the District Court sentencing (see 21) standards note hearing granted accordingly. practice below, In 1. At testified: actual application me, (a) He asked and I described Could answer, presumably granted appeal practi- had to You can unless mentioning more it is dif FORD, Appellant, J. Fred after to withdraw ficult v. Bruce stood than beforehand.2 sentence hearing. America, sentencing Appellee. UNITED STATES of mute at No. 20299. agree My colleagues counsel’s ad- Appeals erroneous,” “clearly United States Court of vice District of Columbia Circuit. assistance ineffective claim “a Argued might the wishes made out if March diverted in fact were 9,May Decided legal he clearly and was erroneous They thereby.” substantially prejudiced however,

deny relief, the issue because judge hear-

presented the trial

ing upon counsel’s not based below was point, rath- on this

erroneous advice upon appellant’s that counsel

er claim to withdraw

failed move though sentencing,

plea prior even Consequently,

requested to do so.

they conclude, there addi- is absent

tional record evidence exactly precisely what de-

indicate “more he took

fense counsel said and what

account, important what the not least prejur

impact appellant and what was on

dice resulted therefrom.” sufficiently present

I find the record opportu-

clear. trial had no

nity whether, under consider withdrawing guilty

lenient standard for prior sentence,

pleas Bruce should the merits.

have been a trial on

By altogether, my denying relief col-

leagues indigent prisoner down send this again only up

the hill start over all pro petition,

on a se even new trial, retrial. seeks ‍‌‌‌​‌​‌​‌‌​‌​​‌​‌​‌​​​​‌​​‌‌​‌​‌​​​‌​​​‌​‌‌​‌‌​​‍a appears appellant may soon be longer

paroled, no and thus proceedings. But

desire further

should his choice. States, cally now, anything v. 274 U.S. 2. See Kercheval United was as far but that * * Nagelberg (1927); appeal *. How S.Ct. 582 as we discussed appeal? say S.Ct. 1252 U.S. that he could not United could I (1964); course, appeal. 119 U. Everett v. His reme- he can Of (1964); S.App.D.C. you F.2d 979 dies can see now. are available U.S.App. Gearhart v. United F.2d D.C.

Case Details

Case Name: Arthur Bruce v. United States

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 27, 1967

Citation: 379 F.2d 113

Docket Number: 20146_1

Court Abbreviation: D.C. Cir.