United States v. James K. Green

UNITED STATES of America GREEN, Appellant.

James K.

No. 80-2461. Appeals, States Court of

District of Columbia Circuit.

Argued June May

Decided Rehearing

Opinion on Denial 16,1982. July Banc

Rehearing En Cole,

Charles G. Washington, D. C. (ap- pointed Court), by this appellant. Holmes, Susan R. Atty., Asst. U. S. C., Washington, D. whom Charles F. C. Ruff, C., U. Atty., Washington, S. D. at the filed, time brief was Terry John A. Farrell, Michael W. Asst. Attys., U. S. C., Washington, brief, D. were on the appellee. BAZELON,

Before Senior Judge, Circuit WALD, and WILKEY and Judges. Circuit Opinion PER CURIAM. Dissenting opinion filed by Circuit Senior Judge BAZELON.

PER CURIAM: appeal, challenges James Green the district denial a hearing court’s without motion under the federal habeas cor statute, pus 28 U.S.C. 2255. Green sought year pris modification she Pearce had value. Mrs. turned after his conviction imposed sentence on burglary then rape, robbery, armed over The defendant forced armed $100.00. armed a dan he possession with and Pearce onto the bed where made assault Mrs. and dispute not weapon. Green did her off her clothes and then had gerous take validity underlying convictions which sexual with her. When he fin- relations 1970;1 hands, appeal in the issue upheld ished, on gagged were he tied her her and Green closet, court was whether district against before forced her into a which he his sixth process due been denied put leaving. before bag a duffel assistance of right effective amendment Green, No. 729-68 at sentencing. Section 2255 counsel (Nov. 7, 1980) (memorandum denying order hold court to a require district does motion). § if files and the motion “the conviction, Subsequent to Green’s conclusively case show that records probation pre- office for the district court relief,” and the to no prisoner is entitled pared presentence report, a which detailed here. We hold that court so decided district government’s both the and Green’s versions appraisal court’s record the district offense, explained that Green had no was not entitled correct and Green was previous (though arrest record was he proc was neither denied due to relief. He Army at AWOL from the the time of his stage was nor his ess offense), aspects discussed various his by tainted ineffective assistance of sentence background, and concluded with an “Evalu- forth in under the standards set Summary.” summary ative The evaluative 624 F.2d 196 a personal contained review of Green’s his- (en banc), (D.C.Cir.) tory including and attitudes observations on propensity “project his responsibility others, particularly police, onto As- I. Attorney, sistant U. even S. and his own represented five-day was at his Green lawyer.” up The report summed with the his trial retained counsel of choice. On any event, comment it would “[i]n jury November found seem that the conviction and circumstances robbery and guilty rape the armed a outweigh of the offense other considera- Washington, D. C. resident in her home. likelihood, presents tions. In all a degree guilty He was also found first community, real threat others illegal pos- burglary and assault with again should he choose victimize some- gun. session of a loaded The facts of the one.” The report also includ- were crime recounted district court: ed the statement that “Green said he felt Pearce, The defendant followed Mrs. Lilia incompetent was lawyer per- his old, 26-year her a white female into resi- was haps conspiracy there dence on March 1968. He waited lawyer Attorney,” Assistant U. S. leaving again she was until and asked her although Green could offer no motivation janitor where the was located. Mrs. conspiracy. for such a downstairs, Pearce took the defendant sentencing hearing, at which he corner, point- where he shoved her into a counsel, trial represented was held head, gun her ed threatened to January quote We the hearing give her kill if she would not him her entirety: in its transcript virtually pulled up money. He then her back inside, case, apartment. to her Once In this if it please stairs [COUNSEL]: room, asking Court, I position forced her into each what am in a almost Green, 22-502; (D.C.Cir. weapon, carrying dangerous 1. United States v. 436 F.2d 290 § Bazelon, 1970) (per C.J.) upheld weapon, his conviction 22-3204. § armed, degree burglary for first while D.C.Code 22-2901; robbery, rape 22-1801(a); while § § Report 2. Presentence armed, 22-2801; dangerous assault for this de- THE where I feel need COURT: There is a new rule of fendant, say you may with, I think I should the Court that be familiar record, repudiated this totally humble that asks that stay on to assist counsel may appointed counsel. who the appellate case. you. I don’t hear THE COURT: Of course I will be happy say [COUNSEL]: I this defendant has [COUNSEL]: to do that.3 this humble counsel totally repudiated young is a say so all I can is that this and appeal On his convictions, Green’s he I think military He in service. man. represented by was appointed new counsel within for there must be him seeds that by this court. The convictions were af- pro- The Court has a total rehabilitation. by a firmed unanimous panel opinion Green, K. I record on James and bation by written Judge then Chief In Bazelon. trial sure Court remembers the am the course of appeal, that new counsel did days through we for several went any not regarding raise issue error opinion in at this counsel’s tried least sentencing allege Green’s nor ineffective full fair give we to him as best could any stage assistance of counsel at of the representation. proceedings. appeal pend- While the was Indeed, it was the THE COURT: ing, brought pro se motion for a he Court’s was afforded alleging new trial ineffective assistance finest of counsel. virtue of failure to file certain pretrial motions, we would therefore any So did not mention

[COUNSEL]: submit him to the Court ask defects in or sentencing either without, say anything he process. Court to hear him desires That motion was denied say. opinion, appeal and no was taken. THE COURT: Mr. Green. years Green served four of his 10-year Honor, DEFENDANT: I THE Your prison, sentence and then escaped from a couple would like to ask the Court free maining Upon from 1973-1977. his I questions, may. if recapture, he was sentenced to an addition- just year prison.

THE COURT: You tell us what In January al he was say. you community parole have to The Court isn’t interro- released under su- gated. pervision. nothing THE DEFENDANT: I have Green had se pro filed habeas motion

say. 7,1980, August years some llVfe after his Nothing say? THE COURT: . . . conviction, claiming he was sentenced Court sentences the defendant [T]he willfully prejudi- on the basis of false and James K. to be incarcerated for in the presentence report,4 cial information period of less years not than ten nor more and that he was denied effective assistance thirty penal years institution to sentencing hearing5 of counsel at designated by Attorney General or counsel did disclose to him the representative. his authorized You have contents of the presentence report nor seek days appeal. ten in which to note an purported in the report to correct errors Honor, go judge. Your I will before the ref- [COUNSEL]: get immediately necessary erence he or down made conflict rift be- and furnish them to the defendant. time forms tween them at the which my duty. might adversely represen- I feel that this is And after affected her speculation ask the Court that I be relieved in him was his tation of she this case. “concerned” about dissatisfaction Sentencing Hearing p. Transcript at 1-2. Id. “1-B” attachment. Vacate, Aside, Appellant’s Motion to Set pp. 1-3 of attachment. Correct Sentence at proce to avail itself of those pre- chose expressed had

with her judge to dispose that “enable the accordance dures report. In sentence proceedings, petitions 28 some not dismissed on section 2255 habeas governing rules 4(a), expense pleadings, Green’s motion without the time and 2255 Rule foil. § U.S.C. evidentiary hearing.” who required had to the district was referred Allison, opposition Blackledge him. originally sentenced motion, filed affi- government records, “files, of the Upon the author examination davits relating to transcripts, correspondence trial counsel to report and defendant’s attack,” errors in allegations judgment under foil. show that Green’s U.S.C. 4(b), incorrect or immate- whether the were either Rule determine attorney given “facially adequate allegations that Green’s suffi rial6 and [had] Counsel’s competent representation.7 plenary pre in fact him cient basis to warrant had the evidence,” she reviewed affidavit stated that 431 U.S. at sentation Green, report with and that presentence the court denied Green’s mo S.Ct. report, unhappy the was with though evidentiary hearing. Green tion without an Cf. it in all material found “accurate Boggs, United v. 612 F.2d 991 States im- with counsel’s respects” “consistent Cir.), Mr. and with the infor-

pressions of Green (1980) (no evi 66 L.Ed.2d need for given about him- he had mation dentiary hearing judge [counsel] where district who that al- affidavit also claims self.” The motion was same dismissed defendant’s counsel to correct though Green had asked judge imposed sentence and was famil who provide the he did not report, situation). iar with defendant’s The memo for these “any legal or factual basis randum the reasons for dis defining order Furthermore, counsel “believed wishes.” missing process competence due the unwise, tactically, challenge the would be claims, errors alleged stated “[t]he suggested by the report in the manner de- presentence pointed report” to in did, however, Counsel advise fendant.” not been “material to the Court’s determi objections could voice his Green nation of sentence.” United States sentencing hearing. Final- the court at Green, Rather, 1. supra, at memoran “I knew that Mr. ly, the affidavit states: dum recalls that the court had “read order regard displeased with me in this Green was including the entire record Court, but I did not and I so advised the it relied réport, primarily on the facts Mr. him- seek to withdraw because Green testimony of the crime and the trial in the case.” self asked me remain decision,” making its id. and, additionally, that counsel had having supplement been thus The record rules, him ed, represented competently, id. by the section permitted 7,8 appealed Rule district court order of foil. district Green § U.S.C. oath, directed, Opposition to swers under if so to written 6. Motion Vacate Sentence judge. interrogatories propounded to 28 U.S.C. at 2-6. Pursuant may be Affidavits submitted and considered Id. at 6-8. part as a of the record. (c) any party. opposing In Submission to Record,” pro- “Expansion entitled Rule directed, expanded case an in which record is vides: documents, letters, exhibits, copies (a) expansion. Direction for If the motion proposed shall be affidavits to be included summarily, may is not dismissed they against party submitted to whom expanded direct the record offered, are shall to be and he be afforded parties by the materi- inclusion additional deny opportunity to admit or their correct- relevant determination of the mer- als ness. its of the motion. (d) may require Authentication. The court expanded (b) Materials to be added. The material under sub- authentication limitation, include, may let- record without (c). (b) or division filing predating ters the motion court, documents, exhibits, and an- district ap was, and counsel was motion according to this court dismissal to a notation in the record, district court pending on his behalf. “continued pointed port from military.” Clerk’s Court Memo- sum, randum August In II. presentence report substantially correct principal of Green’s dispose We first point. that he was on the basis sentenced attack Green disputes next author of willfully sup false material prejudicial the report was unable to locate District officer. note probation We plied Bakery Roma where reported that he Judge agrees Bazelon’s dissent had worked for five prior or six years to his ground. has made out no ease on this induction into the Army. He claims that no on Town Op. Relying at 192 n.3. Diss. attempt was made to contact his former Burke, send employer, and submitted with his motion a and (1948), L.Ed. 1690 listing in the 1976 District of Columbia Bass, (D.C.Cir.1976), appel 535 F.2d 110 phone book a “Roma-Italian Bread process due lant’s claim rests on the asser Corp.” at the same given address he had that he tion was sentenced on the basis probation government, office 1968. The Townsend, materially false information. however, submitted Opposition with its Supreme “the that the proc Court held due envelope supporting the contention that a clause was when a ess violated defendant request for information sent to was “Dis- assump ... ‘was the sentenced on basis of trict Baking Rona at Company” 1644 North concerning criminal tions his record which ” Capitol Street and was returned marked untrue.’ materially were “Moved, Further, left address.” the re- Bass, Townsend v. (quoting F.2d at 118 port did not infer from the failure to locate Burke, U.S. S.Ct. the company Green lied. had On the the fact the ex Beyond district court contrary, report the assumed that Green pressly challenged recalled that state resigned previous from a job “to work for presentence report ments were not the baking company.” material to the determination of the sen tence, objected Green also the report im- presen record shows that plied that he was “a person who tells report materially lies” tence did not contain through Burke, “According the account that to mil- Townsend v. assumptions.” “false records, itary Green entered the service said, in March as but on October six Green’s motion lists inaccuracies government 1967.” The concedes that First, report. com- Green report error, but, inis absence of plains that the report stated that bail was any indication that Green had something to denied him due to Bail Agency’s inabili- gain a misrepresentation, from the error ty to find community transcript ties. The does not the report render prejudicial, and preliminary of Green’s hearing on April was certainly not “material.” presiding shows that set objection Green’s fourth the report $25,000 bail because of the strength characterization, in the evaluative sum- against case Green and because Green mary, relationship of his with his natural not at time resident of father: District of Transcript Columbia. of Prelim- Green has occasionally maintained con- inary Hearing at 34-37. Green remained father, tact with his natural though he pro incarcerated, se motion for and filed really parental never any assumed re- personal 8,1968. on August release on bond sponsibility for Green. Bail Agency its on report submitted August recommending against Appellant disputes accuracy of this personal recognizance lease because statement a statement from his natu- verify had been unable information “my ral father that son always ... has supplied by Green. A my Green, on Green’s Moral and support.” Financial delay filing prior his motion to his lack of dispute the

however, not otherwise does report, family history knowledge which of the contents of of his report’s account relationship he came it at explain a close but does not how describes who, with Green’s stepfather, and his Green this late date.9 him,” mother, adequately “provided suggest We do not that counsel’s who years old and was two since Green at the sentenc preparation the offense for for and conduct about “expressed concern charged vigor. . .. and contin- And we ing hearing has been was model which he his incarcera- despite him support “was as much entitled to agree that Green ue[d] Thus, reject the basis does not tion.” by counsel at sen representation effective rather concluding stepfather, that his stage tencing as at other critical father, paren- assumed his natural Pinkney, trial.” United States family. in the nuclear tal role American Bar (D.C.Cir.1976); see Project state- for Crimi objections final address Association Standards Green’s their face are report Justice, Relating which on ments in nal Standards Sentenc and not opinions of the author clearly 5.3(e) ing Alternatives and Procedures § states at all. The author “assumptions” (1968) (“The attorney recog should defense “style dress and behavior that Green’s sentencing stage is the time at nize that the characteris- to indicate effeminate seemed impor many which for defendants the most tics, engaging ever in homo- but he denied proceeding entire can be tant service of the activities,” “it would seem and that sexual it neces performed.”). But we do not find conviction and circumstances that the whether conduct sary to decide considerations. outweigh other offense incompetency constituted “a serious likelihood, a real threat presents all measurably performance below the or [fell] ” ... . community others in the dinarily expected lawyers.” fallible 196, 208 individually United allegations, neither banc) (D.C.Cir.) (en (plurality opinion per aggregate, establish nor in the therefore, Leventhal, 944, false,” and, J.), 444 “materially U.S. 302, fail. process due claim must 100 62 L.Ed.2d 311 This S.Ct. repeatedly maintained that to es III. the deprivation tablish a sixth amend guarantee, “governmental a regard claim of ineffective ment’s absent With to his assistance, effective allegations impediment makes three assistance of coun Green sel,” 214, accused, First, though he claims that trial coun- 624 “the appeal. on F.2d report presentence ineffectively represented, did not discuss the must further sel therefrom, with him nor disclose its contents. Green’s of harm show a likelihood trial counsel was con- supposition government is face then does the report’s cerned about disprove injury.” the need to actual United dissatisfaction with Wood, (D.C.Cir. account of Green’s v. States F.2d Second, alleges that counsel. J., 1980) (Robinson, concurring part in verify or attempt made no other dissenting part). in See United States report. refute information Hinton, (D.C.Cir.1980) Third, argues provided that trial counsel he Decoster, Bazelon, J.); (per failing to comment ineffective assistance 624 F.2d at 208. report or other- on the inaccuracies in Decoster, en this court considered at the effectively wise advocate challenged of a conviction year appeal banc the hearing. Green attributes IIV2 report possible anticipation quite tion “reasonable access to a other in of a It is in parole to be used the Commission allowed access document requires making report. determination.” 18 U.S.C. Act its The Parole 4208(b)(2). requesting provide Parole Commission any parole prisoner determina- advance of issue, then, on the not at basis of ineffective assistance our concern must Each the appellant’s counsel. various focused on whether the defendant has suf performance claims of defective were re palpable fered a injustice as a result of jected appellant turn because the failed performance. counsel’s substandard attorney’s failings to show that had a Decoster, 624 F.2d at 214. We likely impact on the result of trial. case This falls squarely within the depending also said Decoster on category which possible concentrates claim, differing nature of the ob standards injustices case, individual and here tain to establish violation of sixth appellant showing has made no of “likeli guarantee amendment crimi all “[i]n fact, hood of effect on the outcome.” In prosecutions, nal shall have the accused ... just record shows the reverse. The Counsel Assistance of for his defense.” single fact, i.e., disputed issue of whether government Where the refuses to make counsel showed the presentence re indigent counsel available to an defendant port, immaterial because Green has failed government or where the to re interferes to show likely resulted, harm even representation, per strict effective se rule if his version the facts is credited. Green applies that the conviction be reversed. See argues that he could have identified errors 624 F.2d at 201 and omissions for counsel. He further ar alia, States, (citing, inter Geders v. United gues that counsel should have verified and 47 L.Ed.2d 592 U.S. S.Ct. brought court’s attention favorable (1976); Wainwright, Gideon v. evidence employment of Green’s history, 792, 9 (1963)). L.Ed.2d 799 “At the work positive habits and family relation cases, other end of the continuum are in ships in order to correct the impression that one, cluding present in which the issue probation Green had lied to the officer performance . . . when ‘untram place about his of employment, and to alert meled and state unimpaired’ by action.” previous the court to Green’s stability and at 202 (quoting Holloway F.2d v. Ar But, reliability. as the apparently dissent kansas, concedes, was substantially cor (1978)). Judge Leven rect, imply did not that Green had lied opinion adopted thal’s the view that in such employment, about his unfavorably and not case, “involving quality perform described his home environment. Green ance, as reflected in acts or omissions has identified no that might additional facts trial,” 624 F.2d at the defendant must been by, raised counsel to sway the “a demonstrate likelihood of effect Further, leniency. toward while the per outcome.” 215. A rule se judge court was satisfied with district coun may serve a deterrent purpose where competence sel’s so and did not address the government involved, action is but no such likelihood prejudiced that Green was by his justification vacating exists for a attorney’s alleged incompetence, judge judgment court’s when individual effectively ruled the possibility out of prej allegedly incompetent behavior is emanating udice implicated. alleged from the by But deficien cf Address Honora performance. cies in counsel’s Bazelon, ble L. She spe David Robert S. Marx Lec tures, cifically said that (Dec. 6-7, 1972), imposing a 10-30 year U. Cincinnati sentence reprinted primarily as she “relied on the The Defective Assistance of facts Counsel, 1, (1973) (if of the crime testimony,”10 U.Cin.L.Rev. and the trial specific that she duty presentence breaches of counsel’s had read the entire of care report were presumed to be sixth that alleged amendment vio “the errors . . . lations, develop determination, courts stan were not would clear material” her performance). dards of Where deterrence and “that the defendant’s actions merited government unconstitutional imposition action is given.” sentence already length. 10. The defendant had testified at trial situation were See discussed some employment family past Transcript time which Trial 466-67. conviction(s) court determines Green, if district supra, 2. We United void, of the validity as sen- treating prior doubt the convictions no reason for the the reasons about court’s ex- appropriate). statement tence is still The court’s that a to be overlooked is not It sentence. the motion planation disposition rape, armed guilty of Green found jury had finding likely prejudice.11 precludes a judge and the burglary, robbery, and armed three indetermi- impose authority to that pure speculation It is at best con- imprisonment, life up to nate sentences pleading would have resulted eloquent more consecutively. D.C. Code currently or case, any sentence. In such in a lower for commit- (additional penalty 22-3202 §§ level of a not rise to the conjecture does armed), (rape). 22-2801 when ting crime The trial showing likely prejudice. pro- habeas governing federal rules allegations, at the judge has looked taken motions to provide for habeas ceedings enough to write memoran seriously them because judge precisely the trial referred hearing would stating that a dum with the facts judge “is familiar on such a If we were to insist be futile. trial, and is surrounding the circumstances saying that a trial hearing we would be false likely by to be misled consequently not within imposes who a sentence well what occurred.” 28 U.S.C. allegations as to felonies, major after a statutory bounds Note Advisory Committee 2255 Rule upon trial and re full-scale States, 173 F.2d Carvell v. United (quoting material error has been port in which no Farrow v. Cf. (4th Cir. found, must hold a claim States, 580 F.2d 1339 1978) United HV2 years the first time later raised for banc) (en all other circuits (practice of have reduced might allocution that better challenging sen- deny section 2255 motion prior invalid the sentence.12 by influenced possibly tence system’s special overriding justice concerns attempts to draw formalistic dis- The dissent finality respect challenge of the trial attack “such as the relevance on collateral tinctions to regarding judicial judgments the basis of its statements and conservation court’s establishing prej- lack of decision in sources.” United States v. explanation (“direct appeal gives udice. The district court’s lati- at 207. Cf. id. more primarily on the facts of court”). based sentence was tude response specifically the crime came incomplete argument the inaccurate categorize attempts 12. The dissent this case report court had before misled the court. The prejudice as one of conflict of interest where and additions to the it the corrections Judge previ need be shown. As Bazelon has ought been offered that initially. claims to have observed, ously presumed from this, the court reaf- In the face of loyalty, appellant “must first dem lack of defend- firmed the sentence as merited loyalty that there has been a breach of onstrate context, ant’s conduct. In this such an affirma- operative.” presumption in order for that to be very judge imposed the sen- tion McCord, States v. saying thing tence amounts to the same (D.C.Cir.1974), n.69 argument additional information and (1975) (denying 44 L.Ed.2d 87 95 S.Ct. hearing proffered asserts should have been did not on habeas claim that counsel sentencing deci- would not have affected the interests). Cuyler fully represent client’s True, the district did not state that sion. Sullivan, 446 U.S. adequate helpful performance more (1980) (denying habeas could not on the have had effect corpus potential of interest on claim of conflict provided appellant But neither had sentence. any attorneys represented multiple defend where pre- the substántive omissions from either ants), Supreme “until a the Court cautioned: report might realis- sentence or allocution that actively rep defendant shows that his counsel tically have affected the It is beside outcome. interests, conflicting has not resented estab point hypothetical, unspecified that some the predicate for his claim lished the constitutional “might” conceivably information additional 446 U.S. at of ineffective assistance.” sentence, in a because have resulted different type If all the S.Ct. at 1719. develop rifts of inquiry is shown the whether Green has disappointed defendants and likely reduced. his sentence would have been attorneys as their trial were to be characterized (note) (“peti- 28 U.S.C. foil. 2255 Rule 4 Cf. “disabling irreconcilable conflicts of interest or differences,” expected point to a is to state facts that tion attorneys rarely rep could ”). possibility The error’ ‘real of constitutional sentencing. Not their clients at resent justify potentiality of harm cannot unanchored end, meeting society’s of urgent circumstances interest in reach- totality In the impression leave us with the accurately does not determinations and fair- Hence, we injustice ly upon has been suffered. past an build honestly attempt hope affirm. to create for majority the future. The opinion in this case holds that James K. BAZELON, Judge, dissent- Senior Circuit not Green is even to evidentiary entitled an ing: hearing on his of claim ineffective assist- because, ance of counsel at Sentencing important part sentencing, is the of ac- most legal cording majority, criminal Effective to the typical trial. Green “has made showing is critical to of representation ‘likelihood of effect on disabling speculations such a definition of circum- tion broad and tenuous connections obliga- attorney’s employs attempt with an stances inconsistent the dissent point. to to make the representation absent tion to continue pelling” “com- Diss.Op. (effective presentation at 194 considerations, Model Code of Profes- easily “could have” included ar Responsibility (1979), this sional court has defined conflicts which attorney-client relationship EC gument that Green was more mature indi corrupt the report; argument easily cated in such “could i.e., narrowly, more required recognize validity have” to duty “when counsel’s to his client instances complaints counsel). Similarly, Green’s about for calls a course of which concern action brevity the dissent attributes counsel’s at allo suggests himself that he avoid.” to cution “irreconcilable differences” even Hurt, (D.C.Cir.1976)(ap- conceding while exact nature “[t]he pellate genuine sub- counsel’s unreasonable but may relationship causal not be certain.” jective of libel suit rendered him unable to fear sum, Diss.Op. at 195. In the record is woeful press of ineffective assistance of trial claim ly inadequate to show a conflict of interest or counsel). Barnes, United States v. long way irreconcilable We differences. are a (D.C.Cir.1980)(conflict present F.2d 777 attorney when attorney duty from a situation ato client that where an owes performance appeal was at at whose attorney’s threatens self-in upon by represent issue called client terest, e.g., Barnes, supra, or hearing). section 2255 duty attorney clashes with a owed attempts gut The dissent Decoster another, e.g., Georgia, Wood v. requirement by transforming into The “loyalty” purports case. an It establish any expres dissent would have us hold that by restating actual conflict of interest counsel’s sion, vague, no matter how of client dissatisfac ascribing alleged deficiencies and fiat allegations tion combined with de counsel’s expressed unhappiness Green’s with counsel as minimal, ficiency, no matter how is sufficient their where While conflict cause. “actual” exists showing loyalty. to make of breach of An “ “potential” ‘adversely conflict affect[s] elementary appreciation of the ” realities Diss.Op. performance,’ ... counsel’s process suggests approach criminal that this n.11, “potential” the dissent fails to show prejudice requirement would eliminate the factors, conflict, opposed to other affected incompetency the vast Al cases. performance. “potential counsel’s Even if con though the dissent marshalls “characteristic el disap posed atypical flict” pointment oquence” “expression aspirations in its attorney’s inability at his to exoner system,” legal him, why ate we are left as to adrift we should (commenting Judge Bazel sensitivity assume here that counsel’s to criti dissent), on’s we remain concerned with “tena prompt (1) such cism was discussion as to her to avoid standards,” id., ble overrule Decoster and will not sub silentio (assuming report with Green by formulating exception true), (2) supplement this is fail that swallows the rule. information, (3) with favorable or abbreviate cognizable absence of a conflict also presentation “Vague” at allocution. disposes appellant’s contention that the sen- “conclusory” allegations not suffice will even tencing ought inquired to have into issue, to raise the let establish the exist alone “problem” nature between Green and his Blackledge ence of a conflict v. & of interest. Contrary arguments Allison, n.7, counsel. by advanced 431 U.S. at 75 & S.Ct. at 1630 dissent, “[ujnless appellant and supra. the trial following n.7. See text In an note reasonably connection, attempt court knows particular should know that a establish a causal exists, suggests conflict dissent character, defend her court need not that to client’s Sullivan, sentencing presentation inquiry.” Cuyler initiate questioned adequacy should her U.S. at 100 S.Ct. at 1717. As no actual representation yet, this trial. The weakness of conflict been even shown the sentenc- suggestion establishing as a ing judge hardly basis for a conflict could have had notice it. is of interest best demonstrated the cumula ”1 reaching that relationship In the course of defects between Green outcome.’ however, (1) conclusion, majority dis- and his counsel were not as serious as I be, single unconvincing footnote suspect misses in them to we should remand for Amendment of Green’s Sixth part evidentiary hearing that to determine wheth- concededly depend er the possibility claim that does depri- of a constitutional the out- showing “likelihood of effect on vation enough should have been evident come”; the “likelihood of (2) so construes time of sentencing sentencing that the claim for part as to that effect” test judge’s thorough failure to make a inquiry virtually gut which it appropriate so as to time was itself a violation of the attempt competence to insure the Amendment. Sixth during sentencing phase Finally, opinion turns to the issue (3) conjures out of proceedings; criminal upon opinion which the most clear opinion finding a crucial the district court ly incompetence focuses —the claim of made; never in fact the district court contrary why, counsel —and discusses the claim that (4) mistakenly dismisses majority’s analysis, Green has made a suffi inquired sentencing judge should have showing prongs cient under both of the test hearing possibili- into the sentencing at the Decoster, articulated in being denied his Sixth ty Green cert. (D.C.Cir.) (plurality opinion), F.2d rights. Amendment Because I believe that denied, 444 U.S. “motion and the files and records of the (1979), L.Ed.2d 311 to warrant an evidentia “conclusively do not show” that Green case” ry hearing. section opinion That of the relief,2 respectfully to no dis- is entitled general concludes with some observations sent.3 implications majority’s po about the opinion my part The first of this discusses oversight sition for this court’s of the crit relationship serious concern that be- ically important process of criminal sentenc James and his counsel was tween ing. fundamentally by the

probably so flawed time of his as to I. THE ATTORNEY-CLIENT effectively unrepresented left him RELATIONSHIP —or hearing. Specifically, worse —at the it ex- Whatever other standards the Sixth already the evidence in the record amines may impose Amendment on the conduct of pointing to the existence of conflicts of cases, counsel in criminal first essen “[t]he disabling irreconcilable differ- interest and tial element of effective assistance of coun ences between Green and his sel is counsel willing able and to advocate why eviden- explains Green is entitled to an fearlessly effectively.” tiary hearing on both these related issues. Hurt, 162, 167-68 (D.C.Cir.1976). why It also demonstrates neither of these “Complete fidelity lawyer of a to his client require independent defects would show- an essential element of the existence of in order to constitute relationship.” [lawyer-client] violation of Sixth Amendment. n.51 (D.C.Cir.) (MacKinnon, J., part examines concurring), next judge’s duty at the time the district court (1979) (Decoster III). sentencing. explains why, It even if L.Ed.2d 311 Such op. tencing Maj. complete was a sufficient or background. account of Green’s character and

2. See 28 U.S.C. finding do I Nor believe that the district court’s any way negates possibility majority opinion, I do concur in Part II of the likely decision would have been in- finding which affirms the district court’s by countervailing supplementary fluenced or evidentiary hearing is not entitled to an insights supplied information counsel. on his claim that he was sentenced on the basis pp. 201-202 infra. materially false information. I do not take mean, however, holding the sen-

193 “complete fidelity” clearly lacking when both this court and the Supreme Court have, there is a conflict of interest III, between law since Decoster reaffirmed the yer and client. United See States v. rule long-standing showing preju- that a Barnes, 777, (D.C.Cir.1980); 662 F.2d 781-82 unnecessary.7 dice is attempt I will to dem- Hurt, United supra.4 States v. It is also why onstrate below the same rule applies absent when there are such irreconcilable with regard disabling irreconcilable dif- ferences, differences lawyer clear, least, and client that but it is at the very ceases, terms, the lawyer practical question cannot be resolved serve as an effective advocate for his or her simple holding reference to the of Decoster Daniels, client. See United States v. 558 III. 122, (2d F.2d 1977); 127-28 Cir. United case, In this I believe that the record 47, Burkley, (4th States v. 511 F.2d 50-51 us strongly suggests before both a conflict 1975); California, Cir. cf. Anders v. 386 U.S. of interest and disabling irreconcilable dif- 1396, 1400, 18 87 S.Ct. L.Ed.2d 493 ferences between his counsel.

(1967). showing Because no further would requirement necessary to make out a successful that an attorney show Amendment “complete Sixth claim on either of these fidelity” to his or her client is grounds, I would distinct remand these claims for requirement from the the at- an evidentiary hearing. torney demonstrate some given level of competence.5 The most salient operational A. Conflict of Interest difference between claims based on the two requirements preju- relates to the issue of By time of James Green’s sentencing dice. Almost three years ago, in Decoster hearing, he seriously displeased was III, supra, this court imposed on defendants the performance of his and had making a constitutional claim based on fact, “repudiated” indeed counsel.8 In incompetence of counsel “the initial burden told his probation officer that “he of demonstrating a likelihood that felt his lawyer incompetent inadequacy affected the outcome” of the perhaps conspiracy there was a between his proceeding.6 We imposed no such re- lawyer Attorney.”9 and the Assistant U. S. quirement, however, on course, defendants making unhappiness Of client’s with his a claim grounded on a basic defect in the lawyer does not in and give of itself rise to relationship between lawyer and client. In- a violation Sixth Amendment.10 In deed, with regard interest, case, however, conflicts of displeasure led Hearst, 4. See also Cuyler Sullivan, United States v. 335, 349-50, 7. See 638 F.2d v. 446 U.S. 1190, denied, (9th 1980), 1708, 1193 cert. 1718-1719, Cir. 451 100 S.Ct. 64 L.Ed.2d 333 938, 2018, (1981); Barnes, 101 (1980); 777, S.Ct. 68 L.Ed.2d 325 United States v. 662 F.2d Burkley, 47, United States v. (4th (D.C.Cir.1980). F.2d 782 n.8 Cir. quoted 1, Transcript Sentencing Hearing Barnes, 5. See United States v. 777, 662 F.2d Presentencing at 184-185. Re- Hearst, (D.C.Cir.1980); United States v. 782 n.8 3; port Affidavit of Trial Counsel at 1-2. 1190, (9th 1980), 638 F.2d cert. de Cir. nied, 938, 451 U.S. 68 L.Ed.2d Presentencing Report (1981); United States v. 624 F.2d (D.C.Cir.1979) (MacKinnon, J., 234-37 Morris, Slappy cf. 10. But 720- concurring), Barnes, (9th 1981); States v. Cir. (D.C.Cir.1980); F.2d Mardian, (D.C.Cir. 1976); 979-81 (plurality opinion). 6. 624 F.2d at 208 The De- Seale, 356-61 F.2d coster III formulation actually referred Craven, (7th 1972); Brown Cir. the “outcome of the trial." Id. (emphasis add- 1970) (all discussing 1169-70 ed). infra, pp. discuss parameters right of defendant’s to counsel differences between the trial and choice). kept giving contexts that must be in mind in likely prejudice to Decoster Ill’s content quirement. 194 Attorney, part lawyer.”16 the usual reaction U. S. and even his own

to more than gives every presentation reaction at An effective Green’s sen- precisely easily created the sort of sign having tencing hearing could included adversely af- “actual of interest argument conflict an that Green in fact had a more fectpng] lawyer’s performance” which is personality given his mature than he credit in and a violation of Sixth presentence support of itself report. for in Sullivan, Cuyler v. 446 Amendment. argument, Green’s advocate could easi- 1708, 1718, L.Ed.2d argue 100 S.Ct. 64 ly required have been that some or Barnes, (1980);11 see United v. 333 States Green’s complaints all of about his trial 777, (D.C.Cir.1980); United 662 F.2d 781-82 supportable, counsel were in fact and not Hurt, (D.C.Cir.1976). product v. F.2d 162 merely tendency States of a project responsibility. our Because cases make that his counsel did not alleges very that it “expect clear is unreasonable to him, or presentence report his discuss attorney vigorously attack his own for explanation disclose its contents.12 His representation client,” prior aof United is that was con- alleged failure Barnes, 782, supra, I would report’s cerned about for an evidentiary hearing remand to deter- account of Green’s dissatisfaction with presen- mine whether the of the contents counsel.13 Neither the claim nor Green’s report tencing did in create fact an actual inconcrete, explanation conclusory, or in- conflict of interest between Green and his credible,14 only evidentiary hearing counsel. can what actually happened determine why. allegations But if Green’s are well- Finally, even if ignore any we founded, it seems me that then clear to problems created by presentencing re- counsel’s “concern [her]self” —rather port, transcript hear- indifference, negligence, or than mere bad ing creates a clear inference that an actual judgment course to take a —led adversely conflict interest affected coun- contrary action to that her called for performance. very sel’s At start of “duty to client.”15 [her] sentencing hearing, Green’s his counsel an- nounced that “I am position almost in a

Even if counsel did him the Green’s show where I feel I need counsel.”17 presentencing report, the contents of that Counsel then went on report a further infer to devote half of an already create reason to actual abbreviated a self-serving existence of an conflict of interest. allocution to de- trial, report’s Summary” “Evaluative includ- fense saying conduct view, ed a statement our that “I am sure the Court remembers the “[i]n [Green] projected clearly responsibility rather onto we through went it for several others, particularly the police, the Assistant days and least this counsel’s Cuyler require 11. seems to both that the con 13. Id. lawyer flict of interest between and client be “potential,” “actual” rather and that States, 14. See Machibroda v. United 368 U.S. “adversely performance, 487, 493-96, affect” counsel’s 513-15, 510, 82 S.Ct. 7 L.Ed.2d separate necessarily these are in fact not is (1962); Johnston, 275, Walker v. 312 U.S. recognized, sues: 285, 574, as a number of courts have 578, (1941); 85 L.Ed. 830 “potential” States, otherwise conflict “ad Friedman United 588 F.2d versely performance” . .. counsel’s (5th 1979); affect[s] 1014-17 Cir. Lindhorst v. United States, definition an “actual See Brown conflict.” (8th 1978); 585 F.2d 364-66 Cir. States, (9th v. United 665 F.2d Cir. Wingo, (6th Stidham 1982); Hearst, States v. Cir. 1980), (1981); 68 L.Ed.2d Honneus Hurt, 15. See United States v. States, F.Supp. v. United 1138-39 & (D.C.Cir.1976); cf. at 190-191 n.12. (D.Mass.1981). n.3 Presentencing Report 6. Appellant’s p. Motion at “1-B” of Attach- ment. Transcript Hearing Sentencing give we tween tried as best could to Mm full Green and his counsel not trig gered Whether a conflict representation.”18 them, fair of interest between generally but also more sponse allegations Green made rendered counsel unwilling give unable or officer, response Green the zeal probation or in to counsel’s ous advocacy “complete fidelity” “repudiation,” own which he was entitled. Cf. Brown v. Cra anticipation charges Green could have ven, (9th 1970). Cir. made at or the,sentencing did make Indeed, was, it strongly appears that Green in subsequent pro se motion for new tri- terms, practical in unrepresented left at his al,19 it that felt seems counsel need sentencing hearing. See United States v. make legitimate clear Green had no Daniels, (2d 1977); F.2d Cir. grounds complaint. attempt Such Burkley, United States v. general retain the confidence of the trial community, the rest of expense being even at client As I have previously discussed, Green’s immediately represented, would have been began counsel the sentencing hearing with entirely natural. But would it also have the comment that she almost felt if she contrary been to Green’s constitutional needed counsel. proceeded She then to in- right to “the services attorney of an devot- form the defendant, district court that “this client,” ed solely to interests of his Von I I record, think say should for the Gillies, 708, 725, Moltke v. 68 S.Ct. totally repudiated this humble counsel.”21 316, 324, (1948), quoted 92 L.Ed. 309 in The reading most charitable I give can this Hurt, supra, at 165-66. gratuitous otherwise counterproductive remark is that was attempting, counsel if above, light In of all of I am con- awkwardly, court, inform “for vinced that the record demonstrates record,” that the rift between Green and strong possibility self-serving in- made impossible counsel for counsel to stincts “adversely of Green’s counsel affect- provide Green with effective representa- ed ... performance.”20 counsel’s I would tion. message This becomes more much evidentiary therefore remand for an hear- explicit say in counsel’s next words: “I this ing in precise which the facts and their repudiated defendant has totally this hum- precise consequences can more conclu- ble counsel and so can say all I is that this is sively determined. a young military man. He is in service. think there must be within him seeds for Disabling B. Irreconcilable Differences language rehabilitation.”22 The I have 1. Basis Claim strongly suggests italicized that counsel rec- The requires Constitution in ognized that an adequate allocution would a criminal case act “in the role of an active required more a few half-hearted client, advocate in behalf of his ambiguous [rather comments on Green’s be- that of amicus v. half, curiae." Anders than] but felt unwilling, unable or because California, U.S. of the rift developed 1400, 18 (1967), L.Ed.2d 493 cited in them, United go beyond those words. The exact Hurt, (D.C. States v. 168 n.31 nature causal relationship may not be Cir.1976). case, strongly In the record perhaps certain: a failure of communica- suggests the possibility the rift be client, tion between lawyer and perhaps supra. id. 20. See n.l 1 pro during 19. The se motion was made Transcript Sentencing Hearing original appeal, course of Green’s and after the appointment appellate counsel. motion (emphasis added). Id. claimed ineffective assistance alleged pretrial failure file certain It motions. without denied May 20, 1969. Moreover, gest. that Decost extent exasperation sheer or distraction coun- er III But, rely clear did on the “state action” ration part. light of counsel’s sel’s explain imposition ale to of different represent her inability statement of types the ac- standards for different as confirmed adequately, claims, allocution, reasoning Sixth Amendment open .content of her it is an tual has been question presence seriously by Cuyler to me whether the mere undercut Sullivan, 335, 348-50, sentencing hearing of counsel at Green’s him, sense, 1708, 1718-19, meaningful (1980), provided representation guaran- Supreme the level of active which the explicitly Court defined Anders teed the Sixth Amendment. See class of Amendment cases in which Sixth California, (1) supra; government v. Dan- there is no involvement of iels, Craven, supra; supra. III, Brown v. the sort contemplated by Decoster (2) resulting which conviction should be 2. The Prejudice Standard overturned without a showing prejudice. The one serious remaining issue as to this fact, Decoster reading a sensitive part of Green’s claim is whether must criteria, besides suggests III a number of also show form of prejudice some order involvement, degree explicit state believe, however, prevail. I determining wheth- applied that must be same considerations that have led courts par- in a appropriate er a test is not to a apply prejudice test in cases of context. One of ticular Amendment Sixth conflict of interest also us to require reject problem be- particular these is whether the such a test in the context of irrec- disabling easy correc- ing “susceptible addressed is oncilable differences. 25 Disabling ir- by tion rules.” prophylactic I should note at the if outset one differences, in- like conflicts of reconcilable terest, were to rely entirely majority opin on the fairly objectively can be identified ion, it why would not at all clear even par- by participants process. in the trial conflict of interest claims require do not a ticular, to ex- although may it be difficult showing prejudice. majority sug The his or her own pect defense counsel to doubt gests that the main consideration prompt nor competence, it is neither unreasonable imposition De expect unrealistic to defense coster, (D.C.Cir.) (plurality F.2d 196 (cid:127) they in which become identify situations opinion), cert. give unable to their client zealous and sin- (1979) (Decoster S.Ct. III), L.Ed.2d 311 gle-minded representation.26 Imposing “likely of a prejudice” standard on prophylactic stage rule at the review claims ineffective assistance based on ( therefore, cases, salu- in both workable and attorney incompetence was the absence in tory. such cases of the sort of explicit govern in, ment action example, outright found A second criterion identified in Decoster government ability interference in the III is the need to find a legal standard that counsel to If represent or her client.23 pragmatically “achieves a realistic solution precise agencies role of the official pertinent legal tensions.”27 One of government were the touchstone in those tensions arises out of disruptive deciding impose preju whether or not to effects that too strict a standard in incom- test, however, dice far too much would be petence inquires would have on the criminal swept away along incompe with claims of justice system.28 I continue to believe that tence. very The illustrations used in De such disruption may be a lesser price to pay coster III indicate that this was not the than continuing to system tolerate a court’s intention.24 Although dissented provides grossly unequal justice to those III, give Decoster I would certainly unable to afford competent But, counsel.29 plurality opinion in that case credit more be that as it may, neither conflicts of inter- majority’s sug construction would est nor irreconcilable pervade differences so (1967); Responsibili- 23. ABA of Professional 188-189. Code 5-101(A). ty, DR (plurality opinion); 24. 624 F.2d at 201-02 cf. id. (MacKinnon, J., 27. concurring). (plurality at 235-36 opinion). at 208 (plurality opinion). Id. at 201 Id. at 214-17. California, 744- 26. Cf. Anders v. (Bazelon, J., dissenting). Id. at 295-300 1396, 1400-01, 18 L.Ed.2d Majority's C. The Position criminal defendants relationships between fear that an counsel that we need and their argu- two main The advances problems check on those and stern effective against analysis ments conflict of my consequences.”30 “noxious would lead to disabling interest and irreconcilable differ- First, suggests ence issues in this case. tension” that legal “pertinent second I have defined one or both of these plurality III the Decoster concerned Second, it claims that concepts broadly. too into inquiry probing too the view I have advanced causal link between the no exces- would intrude incompetence attorney relationship nature of with his relationship lawyer-client sively into of counsel. performance counsel and the adversary mod- ultimately threaten which we are committed.31 justice el I believe point, With to the first regard cannot be rele- same concern Clearly, this the conflict of my analysis of both not particu- is at stake are when what vant differ- disabling interest and irreconcilable counsel dur- by made defense judgments lar than is re- goes ences client, issues further but representing ing the course meaning sense of the quired by the common relationship attorney-client in the a breach that counsel be requirement constitutional Indeed, enforcement rigorous itself. fearlessly to advocate willing “able and repre- against guarantee Amendment Sixth fidelity” to the effectively,” “complete with whom one lawyer sentation Moreover, interests of his or her client.34 disabling or a conflict of interest either a attempt to restrict majority’s scope nothing can do irreconcilable difference guarantee of this vital constitutional justice. adversary system strengthen cited case-law clearly very refuted consideration, only implicit A final Hurt, In United States majority. empha- opinion, plurality III Decoster example, (D.C.Cir.1976), F.2d 162 543 Judge MacKin- by concurrence sized during Hurt attorney represented the who in other importance non,32 prime and of hearing examining ineffec- evidentiary not whether or the issue of concerning cases original trial by tive assistance defendant’s the is requirement33 prejudice impose libel the by found himself sued for counsel category of Sixth balance, any particular in challeng- he was lawyer performance whose the over- between protections, Amendment the although found ing. The court difficulty the prejudice of all likelihood immunity gave doctrine of absolute case. particular in a prejudice proving of nothing or evidentiary hearing at the “little interest, to conflicts regard With representation to fear from continued Holloway v. Arkan- said Supreme Court into evidentiary inquiry appellant on the 1173, 490-91, 475, 98 sas, S.Ct. 435 U.S. trial coun- the service which quality evil (1978), that the 1181-82, 55 L.Ed.2d rendered,” exag- sel id. at counsel’s himself com- finds what the advocate “is in entirely subjective con- gerated and almost rather than doing” refrain from pelled to of the suit consequences cern about act and that affirmative particular interest between him created a conflict of therefore would inquiry into and his client. Clearly, pre- “unguided speculation.” quire regard with problem applies cisely the same Barnes, United 662 F.2d 777 irreconcilable differences. disabling (D.C.Cir.1980), perhaps is even more direct- here, ly point. As relevant that case all these considera- Taking into account involved tions, representation claim that of a defendant I conclude that Green’s deprived by original in a 2255 his lawyer hearing appellate his rift between him and does Among questions active advocate counsel. a number of of a zealous and him showing prej- possibly hearing additional at issue was whether require any Therefore, beyond we need not look the defendant’s substantive claim was udice. the sen- by remarks at barred his failure to raise it on the the content of counsel’s original an evidentia- hearing appeal. to remand for Counsel at the 2255 hear- tencing district court. both hearing neglected before the to discuss issue and ry Fitzharris, Cooper v. (1978); (plurality opinion). 30. See id at 217 1978), U.S. Id. at 208-09. (1979); 99 S.Ct. J., concurring). (MacKinnon, Hurt, Id. at 236-37 (D.C.Cir. States v. Arkansas, e.g. Holloway 33. See supra. pp. 34. 1180-82, 487-91, L.Ed.2d rep- prior about demonstrates that Green’s claim is without defensive generally was merit, This I oppor- believe he is entitled to that the defendant. resentation I interest. tunity.37 a conflict easily perceived how, light understand it difficult find II. THE DUTY OF THE SENTENCING Hurt, majority here Barnes of both JUDGE dem- conclusively record argue that can Aside from requiring that counsel show in- no conflict was there onstrates “complete clients, fidelity” to their his counsel. terest Sixth Amendment also imposes separate qualified duty on trial my analysis judges guarantee writes that majority also that such complete fidelity al- does no more than counsel’s does in fact ex- “restat[e] ist.38 The leged by majority deficiencies and fiat as- holds that ab- [then] “[t]he sence of a cognizable with expressed unhappiness disposes conflict also crib[e] course, appellant’s counsel as their cause.”35 I must of contention that the sentenc- ing judge respectfully telling ought If to have disagree. inquired into the nature of the alleges ‘problem’ the truth did when between Green and his counsel.”39 This presentence report— holding not show him the assumes whether or not there something any duty concedes cannot be on the part of the sentencing judge decided this court on follows auto- this record-—then matically from whether perform- or not the possibility that failure was caused ance of itself, in and of led to report’s account of Green’s dissatis- constitutional deprivation. As the plausible. Similarly, Supreme is concrete and faction Sullivan, Court made clear Cuyler nothing I see far-fetched possibil- about L.Ed.2d 333 ity self-serving comments at (1980), however, were two issues are sentencing hearing product gov- erned by entirely defensiveness rather than different mys- some more standards. the absence duty terious of a of inquiry, cause. And we need look no further a violation Sixth counsel’s own words at the Amendment will not be found unless there totally repu- defendant has was an actual conflict of inter- —“this 348,100 est. diated this humble counsel and all I can Id. at so S.Ct. at 1718. The duty say is that ...” of inquiry, hand, etc.36—in order to conclude on the other triggered that her proba- (1) abbreviated allocution was possible combination of conflict bly interest, due (2) to her irreconcilable differences objection” either “timely “special pretend Green. do not that we can circumstances” sufficient to re- things know all these with But verse the certainty. normal presumption that either it is no conflict in precisely purpose evidentiary of an fact exists or lawyers hearing to clients sort out all the facts and reach a involved knowingly accept such risk of conflict may 346-48, more definite I see as exist. Id. conclusion. Because 100 S.Ct. at nothing in 1717-18.40 conclusively this record that Maj. op. Advisory at 190-191 n.12. Committee Note to Rule 7 of the Governing (quoting Raines Rules 2254 § Cases States, (4th v. United supra. p. 423 F.2d 530 Cir. 36. See 187 1970)). (The Advisory Committee Note to Rule Governing Proceedings 7 of the Rules § majority 37. The makes much of the fact that corresponding Advisory refers to the supple- record before the district court was Note as the source for “a full discussion of by original mented an affidavit from Green’s procedures expanding reasons and the rec- Maj. op. By my reading counsel. ord.”) Perhaps important, more counsel’s own affidavit, however, any it does not add upshot alleged conversa- account of the of her information that would reduce the need for an only weight to the tions with Green can add evidentiary hearing. state, The affidavit does provided conclusion that she him with ineffec- contrary motion, to Green’s sworn 2255 p. See infra. tive assistance. presentencing showed the to Green and discussed it with him. See p. 201 & Arkansas, Holloway 38. 435 U.S. n.48 infra. But this account does no more thán 481-87, 1173, 1177-1180, 55 L.Ed.2d create a direct conflict between two credible Williams, (1978); cf. United States v. statements, and concrete sworn and such a Craven, (9th 1979); Brown v. F.2d 1258 Cir. by evidentiary conflict can be resolved (9th Cir. hearing subject in which both claims can be to thorough cross-examination. See Walker v. at 190-191 n.12. Johnston, 275, 286-87, 312 U.S. 61 (1941); 85 L.Ed. 830 Lindhorst v. United Cuyler majority duty impose 40. The reads a to States, 1978); inquiry only Maj. in cases of actual conflict. there course of the hearing. At the must concede conclusion of unhelpful interest counsel’s and self-serving conflict allocu- possible at least was tion, state- counsel’s or not Court to hear Whether ease. “ask[ed] this sentencing say anything he desires say,”42 [Green] ments at Green’s —such I feel I point where which the following a position exchange took “I am almost place has to- defendant between Green and the “this sentencing counsel” need judge: counsel” —con- humble this repudiated tally almost they objection,” “timely stituted THE COURT: Mr. Green. circumstanc- “special certainly created Honor, THE DEFENDANT: Your I sentencing have led that should es” would like to ask the a couple Court receiving was that Green to insure questions, may. if I Indeed, the Court representation. adequate THE tell just COURT: You us what to im- grounds tenuous far more relied on you say. have to The Court isn’t interro- Cuyler under inquiry duty pose gated. of Wood case subsequent standard THE nothing DEFENDANT: have 1097, 67 261, 101 S.Ct. Georgia, say.43 case, Moreover, this L.Ed.2d Wood, a conflict involves Cuyler unlike by response or not such Whether rath- client lawyer of interest of a would, the course sentencing judge loyalties conflicting er than a de- represent hearing, sentencing normal Consequently, employers. various clients speak,44 right defendant’s nial Cuyler invoked presumption even the what case, extinguished have, in this may will, sig- some absent conflict possible into inquiry complete of a there hope possi- outweighed contrary, nal counsel, and relationship Green’s case, it In benefits, apply. may ble on Green’s relationship the effect my analysis even if me that clear to seems Amendment. the Sixth rights under mistaken, dissent I of this in Part III. THE hear- COMPETENCE OF COUNSEL at Green’s judge presiding duty affirmative had an probably Even if the majority were correct spoken the words import inquire into the only Amendment worth Sixth issue ex- steps whatever to take ploring appeal is the claim that protect necessary been would have deprived Green was of effective assistance Amend- the Sixth under rights of counsel virtue incompe- of counsel’s ment.41 tence, I would still have to dissent from its conclusion that is not entitled to an judge’s almost light evidentiary hearing on his claim. particularly it is duty inquiry, certain to under- only failed disturbing that she not A. Incompetency” “Serious may inquiry, take an affirmative there opportunity further stifled whatever (D.C.Cir.) (plurality opinion), cert. de during the to surface was for the issue reading op. based on My 190-191 n.12. This possibili- one hesitation arises out “[ujnless Supreme ty that, that relationship the comment Court’s in the context of the be- reasonably should sentencing judge, the trial court knows or tween counsel and the the exists, particular need very conflict spoke [it] know that a words different a inquiry.” meaning 446 U.S. at not initiate than that which would otherwise be context, hesitation, considered in at 1717. Wien S.Ct. obvious from the record. But this however, “particular best, requires conflict” in that the term that we remand for an eviden- possi- likely tiary to a hearing, justify rejec- seems most to refer sentence and would not our brought the court’s attention ble conflict to tion of Green’s claim. objection special rather than or circumstances Transcript Sentencing Hearing case, any whatever to an actual conflict. Id. at 2. entirely ambiguity may Cuyler erased exist in is States, Georgia, 450 U.S. Wood v. 365 U.S. 44. See Green v. United 1097, 1104, (1981), (1961) L.Ed.2d 220 S.Ct. should, (“Trial judges to deter- found it “difficult ... as a which Court before administration, good judicial conflict of interest was mine whether an actual unam- matter of possi- present,” biguously that “the but nevertheless held address themselves to the defendant. sufficiently bility judges of a conflict of interest leave no room Hereafter should apparent time of the revocation doubt defendant has been issued at the impose upon personal speak prior the court to sentenc- the court to invitation to below] [in original). duty inquire (emphasis ing.”). to further” what including investigations appro- were nied, 944, 100 L.Ed.2d priate what arguments would have III), (1979) (Decoster requires hearing, been at the have de- viable would of coun claim of ineffective assistance pended dialogue on a thorough alleged incompetence grounded sel lawyer and client. States v. See United must be inadequacy claimed “[t]he (D.C.Cir. Pinkney, F.2d measur incompetency that falls a serious 1976). client, Failure to with confer ordinarily ex ably performance below the to attempt obtain as much first-hand this court pected lawyers.” of fallible As from client possible, information subsequently explained, not a “quick judgment,”46 or a “tactical not require this standard does “errorless decision,”47 which a court should loath to it demand representation,” does [but] second-guess, but is rather the sort precisely product counsel’s choices be “the of egregious responsibil- of a violation clear decision, not deliberate and informed ity to which Hinton was addressed. oversight or inadvertence.” Where coun- choices are because of sel’s uninformed disturbing The second element in the rec inadequate “argu- or not preparation, are failure, ord is according to her .. . of tactical deci- ably product affidavit, own an independent make ef sions,” a defendant has been denied his fort to verify presentence report fill to the effective assistance of coun- right in its gaps, even allegedly after Green ex guaranteed by sel Constitution. pressed objections Competent it.48 Hinton, 780 counsel generally expected verify omitted). (D.C.Cir.1980) (footnotes The ma- presentence information contained part jority explicitly declines reach report, see v. Pinkney, supra, test, focusing of the Decoster III instead on 1250, supplement report when incom in Decoster III requirement additional plete, inaccurate, challenge when see the accused bear the initial burden of id.; United ex rel. v. Myers, States Jackson “demonstrating a likelihood that counsel’s (3d F.2d 1967). Cir. I strongly inadequacy affected outcome” doubt that Green’s counsel’s failure to meet convinced, however, proceeding.45 I am these rationalized, duties can be even under if the had reached the first majority Decoster Ill’s non-“categorical” approach, test, III it— prong of Decoster neither 208 (plurality opinion), as a nor have any honest observer —could con- result of reasonable tactical choices or ac cluded that the record so far assembled in ceptable allocations of resources. conclusively this case demonstrates Finally, counsel’s behavior at the sentenc- of compe- Green’s counsel met standard ing hearing speaks for itself. Counsel’s al- tence demanded Constitution. perfunctory locution was at best, and very that, we take as me if First, it is clear to possibly counterproductive. if Even coun- counsel did that his allegation true sel’s self-serving Green’s comments about rift to him report presentence disclose Green and about per- counsel’s own contents, by coun- that failure its or disclose formance trial are not evidence that incom- serious clearly constitute sel would “complete lacked fidelity” Donn, 661 F.2d cause,49 petence. they seem to display seri- attor- defense 820, 824 ous lack “[A] of care competence. from part large develops his case ney Likely B. Prejudice De- by his client.” supplied information Discussing the III, supra, at As I coster have already suggested, would with Green rejection bases its of Green’s claim of in- alert her- counsel to way best competent been the assistance of counsel aon find- in the re- or omissions self to inaccuracies not made adequate decisions, of further range A whole port. showing likely effect on the outcome of 48. See Affidavit Maj. op. supra. (stating Trial Counsel 45. at 188-189. Cf. note 6 presentence counsel had reviewed the re- port Green, with though and that Green was 46. See United F.2d unhappy report, with the counsel found it (D.C.Cir.) “ac- (plurality opinion), respects” curate in all material “consistent L.Ed.2d 311 impressions with counsel’s of Mr. Green with given the information he had [counsel] himself.”). Butler, about 47. United States v. (D.C.Cir. 1974). supra. 49. See Part II plausible, majori- er and ty’s and I concur the sentencing hearing. finding the This seems rejection grounded Fifth Amendment primarily on the read- Green’s majority’s But ing opinion majority of the court claim.57 court’s holds that the the takes the district reading district —a I find it entirely majority that also states that “Green additional mistaken. The statement out context when “precludes statement a find- has identified .no might likely prejudice” with to regard facts have been raised Green’s claim ineffective by toward sway to assistance of [sentencing] judge thing say that, It is one to given counsel.58 the materials leniency.”50 believe that this ad- ground ditional en, before the district court at is not mistak- equally sentencing, but the time of all of which it con- also shows a disturbing lack of sidered, it most appreciation compelling found the factor for the nature sentenc- determining to ing process. the sentence be the facts crime testimony. of the and the trial It is Opin- 1. Reliance on the District Court matter, entirely different in logic both ion and experience, say if additional information, arguments insights, had concedes, district majority As the court, presented sentencing been could not to the it of the prong never the second court reached impose have been moved to Sixth discussing Decoster III test in different sentence. To infer one conclusion Rather, the district the Amendment claim.51 the other just plain from wrong. original also judge, court who had been prong, rested on the first judge, even rationalize I find difficult Court stating members the specifically corner-cutting “[t]his as majority’s conclusion of the competence and skill from the overall plausible inference case, stages all attorney trial First, a opinion. of the district court tone of re- sentencing.”52 Instead including the manding to the district court on allocution informative committed and more the issue of consultation adequate on based however, en- prejudice,53 majority likely investi- independent proper with Green and exegesis in order gages reach an awkward sentencing judge might have led gation, to court that the district conclusion it did even if a different sentence impose possibility prej- “effectively ruled out primarily “rel[y] not to move not alleged from the deficien- emanating udice the trial crime and facts of the on the performance.”54 cies in counsel’s Second, indication there testimony.” possi- court confronted that the district conclusion, In reaching its have, aside could that Green’s bility from tence panded court looks the section the district presen- the errors correcting with opinion which dealt Green’s claim significantly ex- report, given also rights his Fifth lated been vio- Amendment For allocution.59 persuasive pre- in his presence errors as it to reach out the need feel majority does is when part In that report. opinion, sentence the of its to understand difficult particularly alleged court held that district “[t]he remanding option it has the pointed errors to in the speak court the district letting case and ... were material to the deter- Court’s itself. explaining mination of sentence.”55 In problem is a additional There serious holding, the district court went on to state on majority’s reliance the district the facts primarily that she had “relied analy- court’s opinion. in court’s The district testimony of the making crime and the errors in the This sis of whether or not sentencing decision.”56 [her] tainted the presentence report finding by prop- the district was both Maj. op. thing” finding 50. as at 189-190. “amounts the same of no outcome). effect 186-187, 51. See id. 189-190. Opinion 55. at 2. Memorandum Opinion 52. Memorandum 3. Id. Hinton, 53. See States v. supra. 57. note 3 (D.C.Cir.1980) (“Rather speculate meaning findings, of the district court’s Maj. op. we remand the record for clarification [on prejudice].”). issue of 59. The district court’s memorandum possibility never mentions that Green’s added), provided see (emphasis expanded counsel could allo- at 189-190 (district holding also id. at 190 n.ll cution. court’s 202 decision to on seems have been based some- Facts” 2. “Additional thing like “actual very prejudice” much an The majority opinion also states that there a test. Even if were more of factual “Green had identified additional facts link, therefore, of effects that might have been raised to sway in presentence report errors and the judge toward leniency.”64 contrary, theOn effects of incompetency of Green’s Green raises a whole series of material facts opinion the district court’s could might have influenced the assure not us the latter did not consti- judge. For example, Green’s could

tute “likely prejudice” sufficient to meet have emphasized Green’s stable employ- the second of prong the Decoster III test.60 history, ment ambig- which was left at best uous in the presentence report. in III Counsel plurality opinion Decoster presented could have judge evalua- important distinction be- clearly saw an tions by employers former prejudice. and actual likely prejudice tween could have influenced the district court in why “likely prejudice” explaining its assessment of whether of Green had the “appropriate was an modification”61 test potential to make a stringent in valuable contribution to the more standard articulated 113, society. Counsel could States, 379 F.2d have discussed Brace v. United Green’s active ambition to pro- commented be music (D.C.Cir.1967), Judge Leventhal moter. Counsel could concepts justice tug given of have “[ojverreaching sen- tencing judge a seriously trou- more complete whenever it is account on court Green’s family background though than injustice, likelihood of even was con- bled tained in the injus- report. establishment At the there no concrete minimum, counsel could rely as a For this court to on de- tice fact.”62 avoided voting half of her finding prej- district of no actual allocution to a court’s series self-serving likely pronouncements. preju- there was no None of udice find that possibilities these explicit betrayal “smoking is a of Decoster III’s constitutes dice pistol.” But the compromise facts attempt to fashion a suitable relevant to sentenc- ing are almost realistic never position that would form of smok- “achieve[] Rather, pistols. sentencing is pertinent legal ten- a highly resolution of discretionary process I will more explain sions.”63 As some influenced a wide range of below, know, III is considerations.65 detail this erosion Decoster We do however, that in the the role of regrettable most because it occurs defense sentencing can be attorney incompetence during critically important context influential.66 We also sentencing. know that considera- inquiry scope, largely broad in Hinton, 60. Cf. unlimited either 769, consider, may as to kind (D.C.Cir.1980) of information (remanding for clarification may come.”); or the source from which although because district court “could (1976) (“No U.S.C. ruling ‘likely be limitation shall be prejudice,’ considered a ... placed concerning information district back- [the not reveal did] what standard ground, character, person upon reaching it relied conduct conclusion.”). its convicted of an offense which a court of the 61. 624 F.2d at 206. may United States receive and consider for the purpose imposing appropriate sen- 62. Id. tence.”); Tyler, Guideposts Some for the Com- pleat Sentencer, in JUSTICE IN SENTENCING Id. at 208. (Orland Tyler, 1974) (“Notwith- & eds. at 189-190. standing judges occasional declarations lawyers contrary, humility and wisdom Grayson, 65. See United States v. 438 U.S. require constantly that we bear mind that 2610, 2614, (1978) 98 S.Ct. 57 L.Ed.2d 582 dispositions and correctional do (sentencing judges discretion; have broad one exclusively legal ap- lend themselves partial way guide give that discretion proach way put- and formulation. Another judges reasonably “as much information as point ting say is to sentencers must practical concerning the defendant’s ‘character comport allowed discretion in order to with the propensities],] present purposes ... his society just [treatment].”). notions of our tendencies,’ and, indeed, ‘every aspect of ”) (citations omitted); Mempa Rhay, 128, 133-34, life.’ [his] 389 U.S. Tucker, 589, 591, 404 U.S. (1967); S.Ct. Carter (1972) (“a Illinois, 30 L.Ed.2d judicial system generally (“It federal (1946) wide commonplace dis- L.Ed. is a determining cretion in what judges sentence im- no more difficult task confronts pose, may appropriately ... punishment [and] conduct an determination of not fixed stat-

203 facts that history might do been raised to family sway and employment like tions toward leniency” ignores sentenc- both in the role significant play often and The reality aspiration. only way to important, Perhaps more ing decision.67 complete determine whether a more large in and is based system our effective allocution would have made a dif- such considerations premise on part ference in this case is to remand for explicit in part and desirable legitimate play complete and factfinding to the district For the sentencing calculus.68 court. no additional has identified “Green say that Standards]; Sentencing after referred to as see judge may ute. Even the most self-assured a, 5.3(f) id. at & h-n. § Comments every bring his aid considera well want to to appropri can counsel for the accused tion that Co., v. Alton Box Board 67. See United States Pinkney, urge.”); ately 551 71,168 61,336, (N.D.Ill. 1977-1 Trade Cas. ¶ 1241, (D.C.Cir.1976); Wolfs v. F.2d Britton, 1248-51 depth judge “gives 1977) (sentencing in consid 1975) (coun 311 Cir. version of the of to the defendant’s eration fense, very important role sel “has a substantial and record, any, family prior if his histo his raising mitigating perform ... to in factors to neighbor history, ry, and his home his marital sentencing”) (quoting American the court education, background, hood, religious his his Project on Standards for Crim Bar Association activities, special and leisure time his interests Justice, Relating Standards to the Prosecu inal mental, health, physical, his and emotional his military 227 the Defense Function tion Function and record, history, any, employment if his Kuh, 1971)); (App.Draft Defense Counsel’s record, occupational credit record and his his (1978) Sentencing, 14 433 Role in Crim.L.Bull. worth, including his net financial condition (“As long judges retain in criminal matters depend who his needs and the needs of others sentences, imposing broad discretion in defense Dawson, added)); upon (emphasis R. him.” may, intelligently performed, role if Type, Length, Sentencing: The Decision as minimize that sentence that the do much to (study (1969) 200 of Sentence Conditions omitted.)). may impose.” (Footnote As they judges Michigan of trial in indicates States, in Martin v. United was said 225, “attempt minimum sentence re to make the (5th Cir.), U.S. 227 340 the case. One flect the total circumstances of (1950). 647 S.Ct. 95 L.Ed. judge, took into account asked what factors he very proceeding the time nature of the minimum, fixing replied: ‘Such matters presence imposition sentence makes the record, family situa as the convict’s criminal necessary at that time of defendant’s counsel tion, question, of the crime in circumstances requirement as- if the constitutional [of etc., always taken into account the court are is to be met. There sistance of counsel] Kress, Wilkens, ”); fixing in Gottfredson, the minimum.’ Then is the real need for counsel.... then a Gelman, Sentencing Caplin & presentation opportunity afforded Structuring Judicial Discretion Guidelines: offense, in extenuation of the Court facts (1978) employment (sentencing judges view conduct; explanation of the defendant’s important history measure of defend as most reports errors or mistakes correct stability); Ringold, Judge’s Per A ant’s social and, record; past of the defendant's] Sentencing, Perspective sonal Criminal short, appeal equity of the Court (“At (1976) the time of Wash.L.Rev. penal its administration and enforcement of me, sentencing, ... I with the defendant before Any Judge experience with trial Court laws. study history his his and that of [inter alia] acknowledge fre- must quently that such disclosures education, training family. evaluate his n suspen- mitigation, result in or even physical employment, the emotional sion, penalty. prior family, of his health of his conduct.”). and the nature Moreover, only participant counsel is the effectively attempt sentencing process who can York, and distortions that arise check the abuses v. New 68. See Williams probation (1949) infor- out of the officer’s control of L.Ed. 1337 relationship proba- mation and the insular (“A sentencing judge confined to the ... is not Hall, judge. guilt.... Highly tion officer and trial See Fennell & relevant —if narrow issue Sentencing: Empirical appropri Due Process An of an not essential —to his selection Analysis Legal possession of Presentence Disclosure fullest ate sentence is Courts, Reports concerning possible in Federal 93 Harv.L.Rev. the defend information Indeed, “the ant’s life and characteristics.... [P]revalant stage many penology [requires] philosophy is the time at which for defendants modern [attorney perform most punishment the important can his or fit the offender and her] should the merely Foss, proceeding crime.”); service of the entire ” Project 1974) (“any (1st kind of .... American Bar Association Justice, steadfastly ignores Minimal Stan- Standards for Criminal mechanical sentence avoided”); Relating Sentencing dards Alternatives and is to be individual differences Sess., III, 5.3(e) 1968) (App.Draft S.1630, Cong., sec. Procedures 1st tit. [herein- 97th “Likely Prejudice” pin 3. The Test to occur and also much more difficult to Applied however, Sentencing majority ig- to down. The opinion, this nores a dilemma. Rather than requiring a opinion gener- more majority raises searching examination and dis- thorough the of application al concern about court, it cussion Green’s claim the the district denies sentencing. to prong of Decoster III second a factually basis of and test conceived with The Decoster III legally unrelated finding district in To clearly context most mind.69 trial court’s at- memorandum. And rather than III the intent of Decoster be faithful therefore to tempting to be sensitive to the of subtleties that recognize that we requires calculus, the sentencing adopts it a mechan- prejudice” when slippery is a much more “likely notion sentencing view of sentencing challenges istic defendant to find that one would that a to outcome of applied special fact hearing applied than to when push a in “leniency” lever marked place, of a trial. In the first as outcome the sentencing judge’s mind.70 above, suggest highly indi- What majori- most disturbs me about the determination, viduated and there is ty opinion is purports while it fol- to determining the of easy formula for effect III, low Decoster it as a may, practical out- or on the any particular insight fact matter, deprive of defendants the level of Second, of a sen- come. the determination protection against incompetent at range a wide tence entails consideration of sentencing that Decoster III to attempted alternatives, highly graduated opposed of as afford them during trial. Such a result essentially bipolar decisionmaking to the would be particularly unfortunate because in prejudice” in at engaged “Likely trial: sentencing is the one area in judicial which significant requires the outcome of a enough change scrutiny may be most necessary. It has factfinding original been often said that sentencing is the most tipping in a of likely balance result important stage proceeding.71 criminal con- factfinding balance. It is not only important for the individual contrast, text, by there “balance” to is no defendant, but is the part one of the process any factor tipped, and material could of criminal adjudication attempts to do effect, small, large have some or on where some good, affirmative merely rather than along range possible results deci- past react to sentencing time, events.72 theAt same alight. sionmaker will phase is the of the criminal proc- between ess that two differences defense likely these counsel are most Together, likely shirk, make sentencing context under entirely the trial mistaken view likely more case both their active role in representing the latter their clients 994(d) (1981) (proposed suggest thereby § revision of if it means federal that Green’s code) (in categories establishing criminal claim of de deserves a less careful from purpose sentencing guidelines, repug- fendants for court than if his crime had not been so Sentencing attitude, majority’s If Commission nant. created under is indeed the statute account, should take into would be most extent rele unfortunate. Whether or not vant, including skills, any previ matters we believe that James vocational K. deserves employment record, solicitude, family ous measure of our we at least our- ties and owe responsibilities); Advisory duty Judges nothing selves a process by to insure Council of compro- the National cy, Delinquen Council on which he was Crime sentenced society’s Sentencing (1957) (“The disposi- Guides for mised interests in criminal parents, brothers, and, defendant potentially, tions that whose are accurate least and sisters respected society’s productive. have demands of law and order, family whose life demonstrates mutual Pinkney, 71. See United States consideration, parents love and whose Standards, (D.C.Cir.1976); Sentencing su- given him discipline, reasonable and consistent 5.3, k; Camp- pra § note at Sentencing Comment A. family eager and whose him, help members are bell, (1978); Law of probation is a better risk than one who Frankel, (1972); Sentences at vii M. Nemerson, Criminal advantages.... history does have these A Sentencing, 64 Minn.L. Coercive stable, steady employment, job changes with Rev. primarily improvement, usually made indi good adjustment.”). cates social attempt 72. The is an individualized sentence society and the needs of balance needs (plurality 69. 624 F.2d at opinion). improve defendant as to as much so quotes Moreover, pro- opinion length possible 70. The from of each. fate sentence, properly the district court’s account facts criminal nouncement of a conceived, Green’s crime. at 184. I do not know Judge Circuit BA- Statement Senior guilty.73 The plea a verdict or ends majority alert for a vote on why ZELON as to called little to precious will do en banc. rehearing their importance to the attorneys fact, demote sentencing. may, It role bearing This case has no whatsoever on signal superfluity to a allocution abandonment sure ingless question guilt of James K. Green’s or to en- effort serious nothing being innocence. It has to do with a mean- sentencing be more There is no “soft” possibility for a “hard” crime. aspirations of our unworthy charade request of a new trial. Green’s needs of the practical contrary on his conduct at attorney’s justice system. criminal does, however, put integrity on the line. sentencing process of the entire Rehearing for Petition On rejecting request, per the court’s BAZELON, Judge, Circuit Senior Before recurrently curiam notes that he opinion WALD, Judges. Circuit and WILKEY repugnant was convicted of a that crime and years passed before he filed the 11% ORDER not, petition.1 instant course it The court does as of PER CURIAM. cannot, on the stink explicitly rely I passage of the crime or the believe the of time.2 petition appellant’s On consideration of arguments it does articulate are 21, 1982, it is rehearing, for filed June as decision is a just unsupportable. This that the afore- by the Court ORDERED dangerous precedent. petition said is denied. First, “likely that no argues the court Rehearing En Banc Suggestion for On shoddy prejudice” resulted from counsel’s ROBINSON, BA- Judge, Before Chief However, under a clear and behavior.3 long-standing exception WRIGHT, ZELON, Judge, Senior Circuit prejudice WALD, WILKEY, TAMM, MacKINNON, quirement, no such demonstration has ever EDWARDS, and MIKVA, GINSBURG performance where counsel’s required been was BORK, Judges. Circuit in- adversely by affected a conflict of The disabling terest or other differences.4 ORDER there was a serious amply record conflict between Green and his shows that PER CURIAM. counsel, and rehearing en Appellant’s suggestion for this conflict question there can be little has been circulated to the full Court banc conduct self-serving contributed to counsel’s in favor having and the voted Court sentencing.5 at thereof, it is Second, the court states that a trial en that the ORDERED the Court banc judge’s duty inquire into the possibility suggestion aforesaid is denied. of attorney conflict of interest only arises where there is an “actual” conflict.6 In Ba- Judge A statement of Circuit Senior fact, the Supreme Court has quite stated on the concerning zelon suggestion tached. his call for vote clearly that the duty inquire is triggered en banc is at- rehearing (a) possible interest, conflict of (b) justice, expands proc- social the criminal proc- participants in the criminal forces political process. ess into the political anew the moral ess to confront Bazelon, Opportunities Sentencing Missed act. complexities in the criminal inherent Reform, underly- psychological Hofstra L.Rev. factors The social and may transformed have so street crime Pinkney, 73. See United States v. hope exists for little some defendants (D.C.Cir.1976); Campbell, supra A. note safety society rehabilitation. their v, Standards, incapacitated, (Sentencing supra may require § them to be indeed 5.3, note Comment particularly alternative a. if the available their twisted world of return them to the 183, 184, 185, 188, 189, Maj. op. 1. See doubly origins. cursed. defendants are Such however, cases, very unearthing In these op. dissenting 2. See at 205 n.70. psychological factors will of the social Maj. op. at 188-191. See society’s attention toward least direct strong possibility will dissenting op. same factors that these at 184-190. children or a defendant’s also transform 5. See id. at 184-186. younger sense of sisters. Our brothers and n.12. justice at 191 sense of 6. See sensitizes our criminal thus objection” “special circum- “timely either to that possi- stances” that alert the FARM STATE MUTUAL AUTOMOBILE triggered Both factors were bility. here.7 CO., Mason, INSURANCE Kent Patricia Third, concedes that although Boyd, Petitioners, Warren and Leorlin likely never reached the the district court inexplicably decides prejudice issue,8 the district court’s itself DEPARTMENT OF TRANSPORTATION, thing” finding to the same as “amounts on the outcome.9 This rush likely Lewis, effect Secretary, Drew National squarely flies in the face judgment Highway Safety Administration, Traffic requiring a previous decisions this court Raymond Peck, Jr., A. as Adminis- remand for a factual determination trator, Respondents, court, Contrary issue.10 believe this record reeks with doubt about likely effects of counsel’s performance.11 Superintendent of Insurance of the State Fourth, application the court’s mechanical York, of New Importers Automobile shows little likely prejudice standard America, Inc., Motor Vehicle Manufac- to the comprehension sensitivity of or Association, al., turers et Consumer of the sen- unique complexities and subtle Legal Alert and Foundation, Pacific In- tencing calculus.12 tervenors. Finally, this decision erodes our seriously long-standing proposi- commitment investigation tion that defense counsel’s OF INDE- NATIONAL ASSOCIATION pivotal sentencing and allocution are INSURERS, Automobile PENDENT reality The is many that all too process.13 Council, Eugene Owners Action J. defendants are unable to afford counsel Petitioners, Meyung, who are willing carry or able to out these effectively. duties The courts must re- spond when alarm bells off go indicating possible conflict, incompetence, or other im- NATIONAL HIGHWAY TRAFFIC propriety. Today this court has turned a alarm, however, deaf ear to the and has SAFETY ADMINISTRATION, sent a message to the bench and bar that Respondent, we couldn’t care less if defense counsel’s the sentencing process contribution to is out competently, incompetently, carried Importers America, Automobile Inc., not at all. Legal Consumer Alert and Pacific Foun- dation, Motor Vehicle Manufacturers

Association, al., Superintendent et of In- ing, complained dissenting op. even circulari- after Green about 7. See at 190-191. The accuracy ty report. reasoning striking: tone of of this court’s And her purpose inquiry behavior at was so self- whether a of an is to determine serving existed, counter-productive actually I doubt conflict but because Green honestly presented could said actually that she not ed, exist- demonstrated that a conflict had, practical allocution all Maj. op. or that Green inquiry need be held. See terms, any representation See dissent- at all. 191 n.12. ing op. at 191-201. 8. court did not 189. district reach the issue held that Maj. n.ll; because it op. at 190 also id. at see performed competently (district counsel had at sentenc- “effectively possi- ruled out the ing. way gone If this of its bility court had out prejudice”) (emphasis added). issue, honestly avoid that believe it could not 10. See n.53, n.60; dissenting op. at 202 met the concluded Green’s counsel Hinton, competency required minimum standard of (D.C. alleged the Constitution. Green’s counsel never to have shown him his dissenting op. See port. According to counsel’s own version of 12. See id. at 205. story, pursue any independent she failed to 13. investigation into the to sentenc- facts relevant id. at 204 n.66.

Case Details

Case Name: United States v. James K. Green

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

Date Published: May 21, 1982

Citation: 680 F.2d 183

Docket Number: 80-2461

Court Abbreviation: D.C. Cir.