Grant T. Martin v. United States, 248 F.2d 651

Grant T. Martin v. United States

248 F.2d 651

D.C. Cir.

1957

Check Treatment

WASHINGTON, Circuit Judge.

This is an appeal from a denial by the District Court of appellant’s motion to vacate sentence under. 28 U.S.C. § 2255 (1952).

Appellant is nоw serving a term of imprisonment for violations of the narcotics laws. 21 U.S.C. § 174 (1952), 26 U.S.C. § 4704(a), § 4705(a), § 7237(a) (Supp. IV, 1957). He took no appeal from the judgment of conviction. His first claim of error here, as presented by his counsel, is that he was denied a hearing on his allegation — cоntained in his petition under Section 2255 —that he did not receive the effective assistance of counsel at his trial, in that he askеd his then attorney to make a motion to suppress certain evidence (narcotics) seized in his house, and the attorney refused. We think this allegation insufficient to require a hearing. Trial counsel may have decided that to make such a motion would havе admitted appellant’s ownership or possession of the narcotics. See Accardo v. United States, 1957, 101 U.S.App.D.C. -, 247 F.2d 568. Or he may have thought that the seizure was proper and that the motion would properly have been denied. Where it does not appear that the motion could have had a significant effect upon the outcome of the trial, it seems fruitless to conduct an investigation of what ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍counsel did or did not have in mind when he declined to make the motion. If such a motion had been made and denied by the District Court, the propriety of the denial could not now be examined in a proceeding under Section 2255. See White v. United States, 1956, 98 U.S.App.D.C. 274, 235 F.2d 221, and cases cited. Here, counsel was retained by appellant himself and represented him through the period of mаny months which elapsed between his arrest and the end of the trial. Appellant now complains of a failure to act on а particular subject— a failure which was counsel’s deliberate choice. Under all the circumstances here, we seе no useful purpose in the holding of a hearing on the point appellant urges. Cf. Adams v. United States, 1955, 95 U.S.App.D.C. 354, 222 F.2d 45; United States v. Hayman, 1952, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232. 1

*653 The second point urged on oral argument is that appellant could not properly be convicted on both Count 3 and Count 5 of the indictment and receivе consecutive sentences therefor, since — it is argued — those counts charge but a single offense. For present purpоses we will assume, without deciding, that Section 2255 authorizes us to examine appellant’s allegations with respect to Counts 3 and 5, even though he is not now serving the sentence imposed as to the latter count. 2 We turn, then, to the question whether these counts of the indictment charge two offenses or only one. The rule is that “an indictment, the sufficiency of which is not questioned on the trial, will not be held insufficient on ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍a motion to vacate the judgment entered thereon unless it is so obviously defective that by no reasonable сonstruction can it be said to charge the offense for which conviction was had.” Pifer v. United States, 4 Cir., 1946, 158 F.2d 867, 868, certiorari denied, 1947, 329 U.S. 815, 67 S.Ct. 636, 91 L.Ed. 695. 3 In this case an examination of the indictment shows nothing — save similarity of chemical composition and identity of the dates of the offenses — which would indicatе that these counts related to the same lot of narcotics; rather the indictment indicates that there were two different lоts. 4 And it is neither suggested nor shown that the Government divided a single quantity of narcotics in order to multiply the offenses charged against appellant. Cf. Mathis v. United States, 6 Cir., 1952, 200 F.2d 697. Had the error now claimed been presented to the District Court at trial, and been properly рreserved for review on direct appeal, we would have ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍been able to examine the evidence to determinе whether the Government had, in fact, proved two offenses. But we cannot conclude, view *654 ing the petition in the most favorable light, that the sentences imposed were in “excess of the maximum authorized by law,” cf. Gore v. United States, 1957, 100 U.S.App.D.C. 315, 244 F.2d 763, or that appellant’s constitutional rights were violated. Relief under Section 2255 is thus not available.

We have considered the additional points ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍raised in аppellant’s brief, filed pro se, and find nothing to change the conclusion above stated.

The order of the District Court will therefore be

Affirmed.

Notes

. In Jordan v. United States, 1956, 98 U.S.App.D.C. 160, 233 F.2d 362, we held that the District Court acted properly in not holding a hearing on a petition filed under Section 2255, the petition having contained a number of allegations, as described in our opinion, including one charging ineffective reprеsentation by *653 counsel. A petition for certiorari was filed, raising the sole ground that a hearing should have been held on the questiоn whether petitioner had received a speedy trial. The Supreme Court granted the petition. Without opinion, it vacated the judgment and “remanded to the District Court for consideration on the merits.” 1950, 352 U.S. 904, 77 S.Ct. 151, 1 L.Ed.2d 114. Wo do not think that the Supreme Court reversed any holding of this сourt other than that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍relative to the issue of speedy trial, the sole matter brought to its attention.

. Cf. McNally v. Hill, 1934, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238; Crow v. United States, 9 Cir., 1950, 186 F.2d 704. On October 26, 1956, when appellant filed the instant motion to vacate sentence, he had not yet begun to servo his sentence on Count 5. He had been sentenced on December 23, 1955, on four counts (numbered 1, 2, 3 and 5 in the indictment). He received concurrent sentences of 20 months to 5 years on each of Counts 1, 2 and 3. The sentence imposed on Count 5 was 8 months to 2 years, to take effect at the expiration of thе sentences imposed on Counts 1, 2, and 3. We note that if appellant were successful in attacking Count 3, he might nevertheless havе to serve the remainder of the concurrent sentences imposed on Counts 1 and 2, and then serve the consecutive sentence imposed on Count 5. Cf. Oughton v. United States, 9 Cir., 1954, 215 F.2d 578.

. See also Lucas v. United States, 4 Cir., 1946, 158 F.2d 865, certiorari denied 1947, 330 U.S. 841, 67 S.Ct. 977, 91 L.Ed. 1287; Barnes v. United States, 8 Cir., 1952, 197 F.2d 271; Keto v. United States, 8 Cir., 1951, 189 F.2d 247; Bowley v. United States, 8 Cir., 1951, 191 F.2d 949.

. Count 3 reads:

“On or about March 29, 1955, within the District of Columbia, Grant T. Martin facilitated the concealment аnd sale of a narcotic drug, that is, 100 capsules containing a mixture totaling about 97.2 grains of heroin hydrochloride, quinine hydrochloridе and sucaryl, after the said heroin hydrochloride had been imported, with the knowledge of Grant T. Martin, into the United States contrary tо law. This is the same heroin hydrochloride which is mentioned in the first and second counts of this indictment.” Count 5 reads:

“On or about March 29, 1955, within the District оf Columbia, Grant T. Martin facilitated the concealment and sale of a narcotic drug, that is, one bag containing a mixture totaling about 299.6 grains of heroin hydrochloride, quinine hydrocloride and sucaryl, after the said heroin hydrochloride had been imported, with the knowledge of Grant T. Martin, into the United States contrary to law. This is the same heroin hydrochloride which is mentioned in the fourth count of this indictment.”