680 F.2d 183 | D.C. Cir. | 1982
Lead Opinion
Opinion PER CURIAM.
Dissenting opinion filed by Senior Circuit Judge BAZELON.
In this appeal, James Green challenges the district court’s denial without a hearing of his motion under the federal habeas corpus statute, 28 U.S.C. § 2255. Green sought modification of the 10-30 year pris
I.
Green was represented at his five-day trial by retained counsel of his choice. On November 6, 1968, the jury found Green guilty of the armed rape and robbery of a Washington, D. C. resident in her home. He was also found guilty of first degree burglary and illegal assault with and possession of a loaded gun. The facts of the crime were recounted by the district court:
The defendant followed Mrs. Lilia Pearce, a 26-year old, white female into her residence on March 27, 1968. He waited until she was leaving again and asked her where the janitor was located. Mrs. Pearce took the defendant downstairs, where he shoved her into a corner, pointed a gun at her head, and threatened to kill her if she would not give him her money. He then pulled her back up the stairs to her apartment. Once inside, he forced her into each room, asking what she had of value. Mrs. Pearce turned over $100.00. The defendant then forced Mrs. Pearce onto the bed where he made her take off her clothes and then had sexual relations with her. When he finished, he tied her hands, gagged her and forced her into a closet, against which he put a duffel bag before leaving.
United States v. Green, No. 729-68 at 1 (Nov. 7, 1980) (memorandum order denying § 2255 motion).
Subsequent to Green’s conviction, the probation office for the district court prepared a presentence report, which detailed both the government’s and Green’s versions of the offense, explained that Green had no previous arrest record (though he was AWOL from the Army at the time of his offense), discussed various aspects of his background, and concluded with an “Evaluative Summary.” The evaluative summary contained a review of Green’s personal history and attitudes including observations on his propensity to “project responsibility onto others, particularly the police, the Assistant U. S. Attorney, and even his own lawyer.” The report summed up with the comment that “[i]n any event, it would seem that the conviction and circumstances of the offense outweigh other considerations. In all likelihood, Green presents a real threat to others in the community, should he again choose to victimize someone.”
Green’s sentencing hearing, at which he was represented by trial counsel, was held on January 3, 1969. We quote the hearing transcript virtually in its entirety:
[COUNSEL]: In this case, if it please the Court, I am almost in a position*185 where I feel I need counsel, for this defendant, I think I should say for the record, has totally repudiated this humble counsel.
THE COURT: I don’t hear you.
[COUNSEL]: I say this defendant has totally repudiated this humble counsel and so all I can say is that this is a young man. He is in military service. I think that there must be within him seeds for rehabilitation. The Court has a total probation record on James K. Green, and I am sure the Court remembers the trial for we went through it for several days and in at least this counsel’s opinion tried as best we could to give him full and fair representation.
THE COURT: Indeed, it was the Court’s opinion that he was afforded the finest of counsel.
[COUNSEL]: So we would therefore submit him to the Court and ask the Court to hear him say anything he desires to say.
THE COURT: Mr. Green.
THE DEFENDANT: Your Honor, I would like to ask the Court a couple of questions, if I may.
THE COURT: You just tell us what you have to say. The Court isn’t interrogated.
THE DEFENDANT: I have nothing to say.
THE COURT: Nothing to say? . . . [T]he Court sentences the defendant James K. Green to be incarcerated for a period of not less than ten years nor more than thirty years in a penal institution to be designated by the Attorney General or his authorized representative. You have ten days in which to note an appeal.
[COUNSEL]: Your Honor, I will go down immediately and get the necessary forms and furnish them to the defendant. I feel that this is my duty. And after that I ask the Court that I be relieved in this case.
THE COURT: There is a new rule of the Court that you may be familiar with, that asks that trial counsel stay on to assist counsel who may be appointed in the appellate case.
[COUNSEL]: Of course I will be happy to do that.3
On Green’s appeal of his convictions, he was represented by new counsel appointed by this court. The convictions were affirmed by a unanimous panel in an opinion written by then Chief Judge Bazelon. In the course of that appeal, new counsel did not raise any issue regarding error in Green’s sentencing nor allege ineffective assistance of counsel at any stage of the proceedings. While the appeal was pending, Green brought a pro se motion for a new trial alleging ineffective assistance by virtue of counsel’s failure to file certain pretrial motions, but did not mention any defects in either the trial or the sentencing process. That motion was denied without, opinion, and no appeal was taken.
Green served four years of his 10-year sentence and then escaped from prison, remaining free from 1973-1977. Upon his recapture, he was sentenced to an additional year in prison. In January 1982, he was released to the community under parole supervision.
Green had filed his habeas motion pro se on August 7,1980, some llVfe years after his conviction, claiming that he was sentenced on the basis of willfully false and prejudicial information in the presentence report,
The record having been thus supplemented, as permitted by the section 2255 rules, 28 U.S.C. foil. § 2255 Rule 7,
II.
We dispose first of Green’s principal attack that he was sentenced on the basis of prejudicial and willfully false material supplied by the probation officer. We note that Judge Bazelon’s dissent agrees that Green has made out no ease on this ground. Diss. Op. at 192 n.3. Relying on Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), and United States v. Bass, 535 F.2d 110 (D.C.Cir.1976), appellant’s due process claim rests on the assertion that he was sentenced on the basis of materially false information. In Townsend, “the Supreme Court held that the due process clause was violated when a defendant ... ‘was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.’ ” United States v. Bass, 535 F.2d at 118 (quoting Townsend v. Burke, 334 U.S. at 741, 68 S.Ct. at 1255). Beyond the fact that the district court expressly recalled that the challenged statements in the presentence report were not material to the determination of the sentence, the record shows that the presentence report did not contain materially “false assumptions.” Townsend v. Burke, 334 U.S. at 740, 68 S.Ct. at 1255.
Green’s motion lists six inaccuracies in the presentence report. First, Green complains that the report stated that bail was denied him due to the Bail Agency’s inability to find community ties. The transcript of Green’s preliminary hearing on April 9, 1968, shows that the presiding judge set bail at $25,000 because of the strength of the case against Green and because Green was not at that time a resident of the District of Columbia. Transcript of Preliminary Hearing at 34-37. Green remained incarcerated, and filed a pro se motion for release on personal bond on August 8,1968. The Bail Agency submitted its report on August 15, 1968, recommending against release on personal recognizance because it had been unable to verify the information supplied by Green. A hearing on Green’s motion was, according to a notation in the district court record, “continued pending report from military.” Court Clerk’s Memorandum for August 30, 1968. In sum, the presentence report was substantially correct on this point.
Green next disputes that the author of the report was unable to locate the District Roma Bakery where Green reported that he had worked for five or six years prior to his induction into the Army. He claims that no attempt was made to contact his former employer, and submitted with his motion a listing in the 1976 District of Columbia phone book for a “Roma-Italian Bread Corp.” at the same address he had given the probation office in 1968. The government, however, submitted with its Opposition an envelope supporting the contention that a request for information was sent to “District Rona Baking Company” at 1644 North Capitol Street and was returned marked “Moved, left no address.” Further, the report did not infer from the failure to locate the company that Green had lied. On the contrary, the report assumed that Green resigned from a previous job “to work for the baking company.”
Green also objected that the report implied that he was “a person who tells lies” through the account that “According to military records, Green entered the service not in March of 1967, as he said, but on October 6, 1967.” The government concedes that the report is in error, but, in the absence of any indication that Green had something to gain from a misrepresentation, the error does not render the report prejudicial, and was certainly not “material.”
Green’s fourth objection to the report is the characterization, in the evaluative summary, of his relationship with his natural father:
Green has occasionally maintained contact with his natural father, though he never really assumed any parental responsibility for Green.
Appellant disputes the accuracy of this statement with a statement from his natural father that “my son ... has always had my Moral and Financial support.” Green,
Green’s final objections address statements in the report which on their face are clearly the opinions of the author and not “assumptions” at all. The author states that Green’s “style of dress and behavior seemed to indicate effeminate characteristics, but he denied ever engaging in homosexual activities,” and that “it would seem that the conviction and circumstances of the offense outweigh other considerations. In all likelihood, Green presents a real threat to others in the community ... . ”
Green’s allegations, neither individually nor in the aggregate, establish the report as “materially false,” and, therefore, Green’s due process claim must fail.
III.
With regard to his claim of ineffective assistance, Green makes three allegations on appeal. First, he claims that trial counsel did not discuss the presentence report with him nor disclose its contents. Green’s supposition is that trial counsel was concerned about the presentence report’s account of Green’s dissatisfaction with counsel. Second, Green alleges that trial counsel made no other attempt to verify or refute the information in the report. Third, he argues that trial counsel provided ineffective assistance by failing to comment on the inaccuracies in the report or otherwise effectively advocate at the sentencing hearing. Green attributes the IIV2 year delay in filing his motion to his prior lack of knowledge of the contents of the report, but does not explain how he came by it at this late date.
We do not suggest that counsel’s preparation for and conduct at the sentencing hearing was a model of vigor. And we agree that Green “was as much entitled to effective representation by counsel at sentencing as at any other critical stage of his trial.” United States v. Pinkney, 543 F.2d 908, 914 (D.C.Cir.1976); see American Bar Association Project on Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 5.3(e) (1968) (“The defense attorney should recognize that the sentencing stage is the time at which for many defendants the most important service of the entire proceeding can be performed.”). But we do not find it necessary to decide whether counsel’s conduct constituted “a serious incompetency that [fell] measurably below the performance ordinarily expected of fallible lawyers.” United States v. Decoster, 624 F.2d 196, 208 (D.C.Cir.) (en banc) (plurality opinion per Leventhal, J.), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979). This court has repeatedly maintained that to establish a deprivation of the sixth amendment’s guarantee, absent a “governmental impediment to effective assistance of counsel,” 624 F.2d at 214, “the accused, though ineffectively represented, must further show a likelihood of harm therefrom, and that only then does the government face the need to disprove actual injury.” United States v. Wood, 628 F.2d 554, 561 (D.C.Cir. 1980) (Robinson, J., concurring in part and dissenting in part). See United States v. Hinton, 631 F.2d 769, 771 (D.C.Cir.1980) (per Bazelon, J.); United States v. Decoster, 624 F.2d at 208.
In Decoster, this court considered en banc the appeal of a conviction challenged
This case falls squarely within the category which concentrates on the possible injustices in the individual case, and here appellant has made no showing of “likelihood of effect on the outcome.” In fact, the record shows just the reverse. The single disputed issue of fact, i.e., whether counsel showed Green the presentence report, is immaterial because Green has failed to show that any harm likely resulted, even if his version of the facts is credited. Green argues that he could have identified errors and omissions for counsel. He further argues that counsel should have verified and brought to the court’s attention favorable evidence of Green’s employment history, work habits and positive family relationships in order to correct the impression that Green had lied to the probation officer about his place of employment, and to alert the court to Green’s previous stability and reliability. But, as the dissent apparently concedes, the report was substantially correct, did not imply that Green had lied about his employment, and not unfavorably described his home environment. Green has identified no additional facts that might have been raised by, counsel to sway the judge toward leniency. Further, while the district court judge was satisfied with counsel’s competence and so did not address the likelihood that Green was prejudiced by his attorney’s alleged incompetence, the judge effectively ruled out the possibility of prejudice emanating from the alleged deficiencies in counsel’s performance. She has specifically said that in imposing a 10-30 year sentence she “relied primarily on the facts of the crime and the trial testimony,”
It is at best pure speculation that more eloquent pleading would have resulted in a lower sentence. In any case, such conjecture does not rise to the level of a showing of likely prejudice. The trial judge has looked at the allegations, taken them seriously enough to write a memorandum opinion stating that a hearing would be futile. If we were to insist on such a hearing we would be saying that a trial judge who imposes a sentence well within statutory bounds for major felonies, after a full-scale trial and upon a presentence report in which no material error has been found, must hold a hearing on a claim raised for the first time HV2 years later that better allocution might have reduced the sentence.
BAZELON, Senior Circuit Judge, dissenting:
Sentencing is the most important part of the typical criminal trial. Effective legal representation at sentencing is critical to meeting society’s urgent interest in reaching determinations that accurately and fairly build upon the past and honestly attempt to create hope for the future. The majority opinion in this case holds that James K. Green is not even entitled to an evidentiary hearing on his claim of ineffective assistance of counsel at sentencing, because, according to the majority, Green “has made no showing of ‘likelihood of effect on the
The first part of this opinion discusses my serious concern that the relationship between James Green and his counsel was probably so fundamentally flawed by the time of his sentencing hearing as to have left him effectively unrepresented — or worse — at the hearing. Specifically, it examines the evidence already in the record pointing to the existence of conflicts of interest and disabling irreconcilable differences between Green and his counsel, and explains why Green is entitled to an eviden-tiary hearing on both these related issues. It also demonstrates why neither of these defects would require an independent showing of prejudice in order to constitute a violation of the Sixth Amendment.
The next part of the opinion examines the district court judge’s duty at the time of sentencing. It explains why, even if the defects in the relationship between Green and his counsel were not as serious as I suspect them to be, we should remand for an evidentiary hearing to determine whether the possibility of a constitutional deprivation should have been evident enough at the time of sentencing that the sentencing judge’s failure to make a thorough inquiry at that time was itself a violation of the Sixth Amendment.
Finally, the opinion turns to the issue upon which the majority opinion most clearly focuses — the claim of incompetence of counsel — and discusses why, contrary to the majority’s analysis, Green has made a sufficient showing under both prongs of the test articulated in United States v. Decoster, 624 F.2d 196 (D.C.Cir.) (plurality opinion), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979), to warrant an evidentiary hearing. That section of the opinion concludes with some general observations about the implications of the majority’s position for this court’s oversight of the critically important process of criminal sentencing.
I. THE ATTORNEY-CLIENT RELATIONSHIP
Whatever other standards the Sixth Amendment may impose on the conduct of counsel in criminal cases, “[t]he first essential element of effective assistance of counsel is counsel able and willing to advocate fearlessly and effectively.” United States v. Hurt, 543 F.2d 162, 167-68 (D.C.Cir.1976). “Complete fidelity of a lawyer to his client is an essential element of the existence of the [lawyer-client] relationship.” United States v. Decoster, 624 F.2d 196, 236 n.51 (D.C.Cir.) (MacKinnon, J., concurring), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979) (Decoster III). Such
The requirement that an attorney show “complete fidelity” to his or her client is distinct from the requirement that the attorney demonstrate some given level of competence.
In this case, I believe that the record before us strongly suggests both a conflict of interest and disabling irreconcilable differences between Green and his counsel. Because no further showing of prejudice would be necessary to make out a successful Sixth Amendment claim on either of these grounds, I would remand these claims for an evidentiary hearing.
A. Conflict of Interest
By the time of James Green’s sentencing hearing, he was seriously displeased with the performance of his counsel, and had indeed “repudiated” counsel.
Green alleges that his counsel did not discuss his presentence report with him, or disclose its contents.
Even if Green’s counsel did show him the presentencing report, the contents of that report create a further reason to infer the existence of an actual conflict of interest. The report’s “Evaluative Summary” included a statement that, “[i]n our view, [Green] rather clearly projected responsibility onto others, particularly the police, the Assistant U. S. Attorney, and even his own lawyer.”
Finally, even if we ignore any of the problems created by the presentencing report, the transcript of the sentencing hearing creates a clear inference that an actual conflict of interest adversely affected counsel’s performance. At the very start of Green’s sentencing hearing, his counsel announced that “I am almost in a position where I feel I need counsel.”
In light of all of the above, I am convinced that the record demonstrates the strong possibility that the self-serving instincts of Green’s counsel “adversely affected ... counsel’s performance.”
B. Disabling Irreconcilable Differences
1. Basis of the Claim
The Constitution requires that counsel in a criminal case act “in the role of an active advocate in behalf of his client, [rather than] that of amicus curiae." Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), cited in United States v. Hurt, 543 F.2d 162, 168 n.31 (D.C. Cir.1976). In this case, the record strongly suggests the possibility that the rift between Green and his counsel not only triggered a conflict of interest between them, but also more generally rendered counsel unable or unwilling to give Green the zealous advocacy and “complete fidelity” to which he was entitled. Cf. Brown v. Craven, 424 F.2d 1166, 1169-70 (9th Cir. 1970). Indeed, it strongly appears that Green was, in practical terms, left unrepresented at his sentencing hearing. See United States v. Daniels, 558 F.2d 122, 127 (2d Cir. 1977); United States v. Burkley, 511 F.2d 47, 51 (4th Cir. 1975).
As I have previously discussed, Green’s counsel began the sentencing hearing with the comment that she almost felt as if she needed counsel. She then proceeded to inform the district court that “this defendant, I think I should say for the record, has totally repudiated this humble counsel.”
2. The Prejudice Standard
The one serious issue remaining as to this part of Green’s claim is whether he must also show some form of prejudice in order to prevail. I believe, however, that the same considerations that have led courts not to apply a prejudice test in cases of conflict of interest also require us to reject such a test in the context of disabling irreconcilable differences.
I should note at the outset that, if one were to rely entirely on the majority opinion, it would not be at all clear why even conflict of interest claims do not require a showing of prejudice. The majority suggests that the main consideration prompting the imposition in United States v. Decoster, 624 F.2d 196 (D.C.Cir.) (plurality opinion), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979) (Decoster III), of a “likely prejudice” standard on claims of ineffective ( assistance based on attorney incompetence was the absence in such cases of the sort of explicit government action found in, for example, outright government interference in the ability of counsel to represent his or her client.
In fact, a sensitive reading of Decoster III suggests a number of criteria, besides the degree of explicit state involvement, that must be applied in determining whether a prejudice test is appropriate in a particular Sixth Amendment context. One of these is whether the particular problem being addressed is “susceptible to easy correction by prophylactic rules.”
A second criterion identified in Decoster III is the need to find a legal standard that pragmatically “achieves a realistic solution of the pertinent legal tensions.”
The second “pertinent legal tension” that concerned the Decoster III plurality was the view that too probing an inquiry into attorney incompetence would intrude excessively into the lawyer-client relationship and ultimately threaten the adversary model of justice to which we are committed.
A final consideration, only implicit in the Decoster III plurality opinion, but emphasized in the concurrence by Judge MacKin-non,
Taking into account all these considerations, I conclude that Green’s claim that the rift between him and his lawyer deprived him of a zealous and active advocate does not require any additional showing of prejudice. Therefore, we need not look beyond the content of counsel’s remarks at the sentencing hearing to remand for an evidentia-ry hearing before the district court.
C. The Majority's Position
The majority advances two main arguments against my analysis of the conflict of interest and disabling irreconcilable difference issues in this case. First, it suggests that I have defined one or both of these concepts too broadly. Second, it claims that I have advanced no causal link between the nature of Green’s relationship with his counsel and the performance of counsel.
With regard to the first point, I believe that my analysis of both the conflict of interest and disabling irreconcilable differences issues goes no further than is required by the common sense meaning of the constitutional requirement that counsel be “able and willing to advocate fearlessly and effectively,” with “complete fidelity” to the interests of his or her client.
United States v. Barnes, 662 F.2d 777 (D.C.Cir.1980), is perhaps even more directly on point. As relevant here, that case involved the representation of a defendant in a 2255 hearing by his original appellate counsel. Among a number of questions possibly at issue in the hearing was whether the defendant’s substantive claim was barred by his failure to raise it on the original appeal. Counsel at the 2255 hearing both neglected to discuss that issue and
The majority also writes that my analysis does no more than “restat[e] counsel’s alleged deficiencies and [then] by fiat as-crib[e] Green’s expressed unhappiness with counsel as their cause.”
II. THE DUTY OF THE SENTENCING JUDGE
Aside from requiring that counsel show “complete fidelity” to their clients, the Sixth Amendment also imposes a separate qualified duty on trial judges to guarantee that such complete fidelity does in fact exist.
In light of the sentencing judge’s almost certain duty of inquiry, it is particularly disturbing that she not only failed to undertake an affirmative inquiry, but may have stifled whatever further opportunity there was for the issue to surface during the course of the hearing. At the conclusion of counsel’s unhelpful and self-serving allocution, counsel “ask[ed] the Court to hear [Green] say anything he desires to say,”
THE COURT: Mr. Green.
THE DEFENDANT: Your Honor, I would like to ask the Court a couple of questions, if I may.
THE COURT: You just tell us what you have to say. The Court isn’t interrogated.
THE DEFENDANT: I have nothing to say.43
Whether or not such a response by the sentencing judge would, in the course of a normal sentencing hearing, represent a denial of the defendant’s right to speak,
III. THE COMPETENCE OF COUNSEL
Even if the majority were correct that the only Sixth Amendment issue worth exploring in this appeal is the claim that Green was deprived of effective assistance of counsel by virtue of counsel’s incompetence, I would still have to dissent from its conclusion that Green is not entitled to an evidentiary hearing on his claim.
A. “Serious Incompetency”
United States v. Decoster, 624 F.2d 196, 208 (D.C.Cir.) (plurality opinion), cert. de
this standard does not require “errorless representation,” [but] it does demand that counsel’s choices be “the product of deliberate and informed decision, not oversight or inadvertence.” Where counsel’s choices are uninformed because of inadequate preparation, or are not “arguably .. . the product of tactical decisions,” a defendant has been denied his right to the effective assistance of counsel guaranteed by the Constitution.
United States v. Hinton, 631 F.2d 769, 780 (D.C.Cir.1980) (footnotes omitted). The majority explicitly declines to reach this part of the Decoster III test, focusing instead on the additional requirement in Decoster III that the accused bear the initial burden of “demonstrating a likelihood that counsel’s inadequacy affected the outcome” of the proceeding.
First, it is clear to me that, if we take as true Green’s allegation that his counsel did not disclose the presentence report to him or disclose its contents, that failure by counsel would clearly constitute serious incompetence. United States v. Donn, 661 F.2d 820, 824 (9th Cir. 1981). “[A] defense attorney develops his case in large part from information supplied by his client.” De-coster III, supra, at 209. Discussing the presentence report with Green would have been the best way for counsel to alert herself to inaccuracies or omissions in the report. A whole range of further decisions, including what investigations were appropriate and what arguments would have been viable at the hearing, would have depended on a thorough dialogue between lawyer and client. See United States v. Pinkney, 551 F.2d 1241, 1250-51 (D.C.Cir. 1976). Failure to confer with a client, and to attempt to obtain as much first-hand information from the client as possible, is not a “quick judgment,”
The second disturbing element in the record is counsel’s failure, according to her own affidavit, to make an independent effort to verify the presentence report or fill in its gaps, even after Green allegedly expressed his objections to it.
Finally, counsel’s behavior at the sentencing hearing speaks for itself. Counsel’s al-locution was perfunctory at best, and very possibly counterproductive. Even if counsel’s self-serving comments about the rift with Green and about counsel’s own performance at trial are not evidence that counsel lacked “complete fidelity” to Green’s cause,
B. Likely Prejudice
As I have already suggested, the majority bases its rejection of Green’s claim of incompetent assistance of counsel on a finding that Green has not made an adequate showing of likely effect on the outcome of
1. Reliance on the District Court Opinion
As the majority concedes, the district court never reached the second prong of the Decoster III test in discussing Green’s Sixth Amendment claim.
In reaching its conclusion, the majority looks to the section of the district court opinion which dealt with Green’s claim that his Fifth Amendment rights had been violated by the presence of errors in his pre-sentence report. In that part of its opinion, the district court held that “[t]he alleged errors pointed to in the presentence report ... were not material to the Court’s determination of sentence.”
I find it difficult even to rationalize the majority’s conclusion as a corner-cutting but plausible inference from the overall tone of the district court opinion. First, a more committed and informative allocution by counsel, based on adequate consultation with Green and proper independent investigation, might have led the sentencing judge to impose a different sentence even if it did not move the judge not to “rel[y] primarily on the facts of the crime and the trial testimony.” Second, there is no indication that the district court confronted the possibility that Green’s counsel could have, aside from correcting the errors in the presen-tence report, also given a significantly expanded and persuasive allocution.
There is a serious additional problem with the majority’s reliance on the district court’s opinion. The district court’s analysis of whether or not the errors in the presentence report tainted the sentencing
The plurality opinion in Decoster III clearly saw an important distinction between likely prejudice and actual prejudice. In explaining why the “likely prejudice” test was an “appropriate modification”
2. “Additional Facts”
The majority opinion also states that “Green had identified no additional facts that might have been raised to sway the judge toward leniency.”
The majority opinion raises a more general concern about the application of the second prong of Decoster III to sentencing. The Decoster III test was conceived with the trial context most clearly in mind.
Together, these two differences between the trial and sentencing context make likely prejudice in the latter case both more likely to occur and also much more difficult to pin down. The majority opinion, however, ignores this dilemma. Rather than requiring a searching examination and thorough discussion by the district court, it denies Green’s claim on the basis of a factually and legally unrelated finding in the district court’s memorandum. And rather than attempting to be sensitive to the subtleties of the sentencing calculus, it adopts a mechanistic view of sentencing that challenges the defendant to find that one special fact that would push a lever marked “leniency” in the sentencing judge’s mind.
What most disturbs me about the majority opinion is that, while it purports to follow Decoster III, it may, as a practical matter, deprive defendants of the level of protection against incompetent counsel at sentencing that Decoster III attempted to afford them during trial. Such a result would be particularly unfortunate because sentencing is the one area in which judicial scrutiny may be most necessary. It has often been said that sentencing is the most important stage in a criminal proceeding.
. United States v. Green, 436 F.2d 290 (D.C.Cir. 1970) (per Bazelon, C.J.) upheld his conviction for first degree burglary while armed, D.C.Code § 22-1801(a); robbery, § 22-2901; rape while armed, § 22-2801; assault with a dangerous weapon, § 22-502; and carrying a dangerous weapon, § 22-3204.
. Presentence Report at 6.
. Transcript of Sentencing Hearing at 1-2.
. Id. at p. “1-B” of attachment.
. Appellant’s Motion to Vacate, Set Aside, or Correct Sentence at pp. 1-3 of attachment.
. Opposition to Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 at 2-6.
. Id. at 6-8.
. Rule 7, entitled “Expansion of Record,” provides:
(a) Direction for expansion. If the motion is not dismissed summarily, the judge may direct that the record be expanded by the parties by the inclusion of additional materials relevant to the determination of the merits of the motion.
(b) Materials to be added. The expanded record may include, without limitation, letters predating the filing of the motion in the district court, documents, exhibits, and answers under oath, if so directed, to written interrogatories propounded by the judge. Affidavits may be submitted and considered as a part of the record.
(c) Submission to opposing party. In any case in which an expanded record is directed, copies of the letters, documents, exhibits, and affidavits proposed to be included shall be submitted to the party against whom they are to be offered, and he shall be afforded an opportunity to admit or deny their correctness.
(d) Authentication. The court may require the authentication of any material under subdivision (b) or (c).
. It is quite possible that in anticipation of a parole hearing in 1981, he was allowed access to the report. The Parole Act requires the Parole Commission to provide to a requesting prisoner in advance of any parole determination “reasonable access to a report or other document to be used by the Commission in making its determination.” 18 U.S.C. § 4208(b)(2).
. The defendant had already testified at trial at which time his past employment and family situation were discussed at some length. See Trial Transcript at 442, 466-67.
. The dissent attempts to draw formalistic distinctions to challenge the relevance of the trial court’s statements regarding the basis of its sentencing decision in establishing lack of prejudice. The district court’s explanation that the sentence was based primarily on the facts of the crime came specifically in response to the argument that the inaccurate and incomplete report misled the court. The court had before it the corrections and additions to the report that Green claims ought to have been offered initially. In the face of this, the court reaffirmed the sentence as merited by the defendant’s conduct. In this context, such an affirmation by the very judge that imposed the sentence amounts to the same thing as saying that the additional information and argument that Green asserts should have been proffered would not have affected the sentencing decision. True, the district court did not state that a more adequate and helpful performance by counsel could not have had any effect on the sentence. But neither had appellant provided any substántive omissions from either the pre-sentence report or allocution that might realistically have affected the outcome. It is beside the point that some hypothetical, unspecified additional information conceivably “might” have resulted in a different sentence, because the inquiry is whether Green has shown that his sentence likely would have been reduced. Cf. 28 U.S.C. foil. § 2255 Rule 4 (note) (“petition is expected to state facts that point to a ‘real possibility of constitutional error’ ”). The unanchored potentiality of harm cannot justify overriding the justice system’s special concerns on collateral attack “such as respect for finality of judgments and conservation of judicial resources.” United States v. Decoster, 624 F.2d at 207. Cf. id. (“direct appeal gives more latitude to the court”).
. The dissent attempts to categorize this case as one of conflict of interest where no prejudice need be shown. As Judge Bazelon has previously observed, prejudice is presumed from lack of loyalty, but appellant “must first demonstrate that there has been a breach of loyalty in order for that presumption to be operative.” United States v. McCord, 509 F.2d 334, 353 n.69 (D.C.Cir.1974), cert. denied, 421 U.S. 930, 95 S.Ct. 1656, 44 L.Ed.2d 87 (1975) (denying hearing on habeas claim that counsel did not fully represent client’s interests). In Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333 (1980) (denying habeas corpus on claim of potential conflict of interest where attorneys represented multiple defendants), the Supreme Court cautioned: “until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.” 446 U.S. at 350, 100 S.Ct. at 1719. If all rifts of the type that develop between disappointed defendants and their trial attorneys were to be characterized as conflicts of interest or “disabling irreconcilable differences,” rarely could trial attorneys represent their clients at sentencing. Not only is
The dissent attempts to gut the Decoster prejudice requirement by transforming this into a “loyalty” case. It purports to establish an actual conflict of interest by restating counsel’s alleged deficiencies and by fiat ascribing Green’s expressed unhappiness with counsel as their cause. While “actual” conflict exists where “potential” conflict “ ‘adversely affect[s] ... counsel’s performance,’ ” Diss.Op. at 194 n.11, the dissent fails to show that “potential” conflict, as opposed to other factors, affected counsel’s performance. Even if “potential conflict” is posed by Green’s not atypical disappointment at his attorney’s inability to exonerate him, we are left adrift as to why we should assume here that counsel’s sensitivity to criticism was such as to prompt her to (1) avoid discussion of the report with Green (assuming this is true), (2) fail to supplement the report with favorable information, or (3) abbreviate the presentation at allocution. “Vague” and “conclusory” allegations will not suffice even to raise the issue, let alone establish the existence of a conflict of interest. Blackledge v. Allison, 431 U.S. at 75 & n.7, 97 S.Ct. at 1630 & n.7. See text following note 8 supra. In an attempt to establish a causal connection, the dissent suggests that to defend her client’s character, counsel’s sentencing presentation should have questioned the adequacy of her representation at trial. The weakness of this suggestion as a basis for establishing a conflict of interest is best demonstrated by the cumulation of speculations and tenuous connections the dissent employs to attempt to make the point. Diss.Op. at 194 (effective presentation at sentencing “could easily have” included argument that Green was more mature than indicated in report; such argument “could easily have” required counsel to recognize validity of Green’s complaints about counsel). Similarly, the dissent attributes counsel’s brevity at allocution to “irreconcilable differences” even while conceding that “[t]he exact nature of the causal relationship may not be certain.” Diss.Op. at 195. In sum, the record is woefully inadequate to show a conflict of interest or irreconcilable differences. We are a long way from a situation where an attorney owes a duty to a client that threatens the attorney’s self-interest, e.g., United States v. Barnes, supra, or clashes with a duty owed by the attorney to another, e.g., Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). The dissent would have us hold that any expression, no matter how vague, of client dissatisfaction combined with allegations of counsel’s deficiency, no matter how minimal, is sufficient to make a showing of breach of loyalty. An elementary appreciation of the realities of the criminal process suggests that this approach would eliminate the prejudice requirement in the vast majority of incompetency cases. Although the dissent marshalls “characteristic eloquence” in its “expression of aspirations for the legal system,” United States v. Decoster, 624 F.2d at 214 (commenting on Judge Bazelon’s dissent), we remain concerned with “tenable standards,” id., and will not sub silentio overrule Decoster by formulating an exception that swallows the rule.
The absence of a cognizable conflict also disposes of appellant’s contention that the sentencing judge ought to have inquired into the nature of the “problem” between Green and his counsel. Contrary to the arguments advanced by appellant and the dissent, “[ujnless the trial court knows or reasonably should know that a particular conflict exists, the court need not initiate an inquiry.” Cuyler v. Sullivan, 446 U.S. at 347, 100 S.Ct. at 1717. As no actual conflict has been shown even yet, the sentencing judge could hardly have had notice of it.
. Maj. op. at 189.
. See 28 U.S.C. § 2255 (1976).
. I do concur in Part II of the majority opinion, which affirms the district court’s finding that Green is not entitled to an evidentiary hearing on his claim that he was sentenced on the basis of materially false information. I do not take this holding to mean, however, that the sentencing report was a sufficient or complete account of Green’s character and background. Nor do I believe that the district court’s finding in any way negates the possibility that the sentencing decision would likely have been influenced by countervailing or supplementary information or insights supplied by counsel. See pp. 201-202 infra.
. See also United States v. Hearst, 638 F.2d 1190, 1193 (9th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); United States v. Burkley, 511 F.2d 47, 51 (4th Cir. 1975).
. See United States v. Barnes, 662 F.2d 777, 782 n.8 (D.C.Cir.1980); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); United States v. Decoster, 624 F.2d 196, 234-37 (D.C.Cir.1979) (MacKinnon, J., concurring), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979).
. 624 F.2d at 208 (plurality opinion). The De-coster III formulation actually referred only to the “outcome of the trial." Id. (emphasis added). I discuss at pp. 204-205 infra, the differences between the trial and sentencing contexts that must be kept in mind in giving content to Decoster Ill’s likely prejudice requirement.
. See Cuyler v. Sullivan, 446 U.S. 335, 349-50, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333 (1980); United States v. Barnes, 662 F.2d 777, 782 n.8 (D.C.Cir.1980).
. Transcript of Sentencing Hearing at 1, quoted in Maj. op. at 184-185. See Presentencing Report at 3; Affidavit of Trial Counsel at 1-2.
. Presentencing Report at 3.
. But cf. Slappy v. Morris, 649 F.2d 718, 720-21 (9th Cir. 1981); United States v. Barnes, 662 F.2d 777, 781 (D.C.Cir.1980); United States v. Mardian, 546 F.2d 973, 979-81 (D.C.Cir. 1976); United States v. Seale, 461 F.2d 345, 356-61 (7th Cir. 1972); Brown v. Craven, 424 F.2d 1166, 1169-70 (9th Cir. 1970) (all discussing parameters of defendant’s right to counsel of his choice).
. Cuyler seems to require both that the conflict of interest between lawyer and client be “actual” rather than “potential,” and that it “adversely affect” counsel’s performance, but these are in fact not necessarily separate issues: as a number of courts have recognized, any otherwise “potential” conflict that “adversely affect[s] . .. counsel’s performance” is by definition an “actual conflict.” See Brown v. United States, 665 F.2d 271, 272 (9th Cir. 1982); United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938, 101 S.Ct. 2018, 68 L.Ed.2d 325 (1981); Honneus v. United States, 509 F.Supp. 1135, 1138-39 & n.3 (D.Mass.1981).
. Appellant’s Motion at p. “1-B” of Attachment.
. Id.
. See Machibroda v. United States, 368 U.S. 487, 493-96, 82 S.Ct. 510, 513-15, 7 L.Ed.2d 473 (1962); Walker v. Johnston, 312 U.S. 275, 285, 61 S.Ct. 574, 578, 85 L.Ed. 830 (1941); Friedman v. United States, 588 F.2d 1010, 1014-17 (5th Cir. 1979); Lindhorst v. United States, 585 F.2d 361, 364-66 (8th Cir. 1978); Stidham v. Wingo, 452 F.2d 837, 839-40 (6th Cir. 1971).
. See United States v. Hurt, 543 F.2d 162, 166 (D.C.Cir.1976); cf. Maj. op. at 190-191 n.12.
. Presentencing Report at 6.
. Transcript of Sentencing Hearing at 1.
. id.
. The pro se motion was made during the course of Green’s original appeal, and after the appointment of appellate counsel. The motion claimed ineffective assistance of counsel in counsel’s alleged failure to file certain pretrial motions. It was denied without opinion on May 20, 1969.
. See n.l 1 supra.
. Transcript of Sentencing Hearing at 1.
. Id. (emphasis added).
. Maj. op. at 188-189.
. 624 F.2d at 201-02 (plurality opinion); cf. id. at 235-36 (MacKinnon, J., concurring).
. Id. at 201 (plurality opinion).
. Cf. Anders v. California, 386 U.S. 738, 744-45, 87 S.Ct. 1396, 1400-01, 18 L.Ed.2d 493 (1967); ABA Code of Professional Responsibility, DR 5-101(A).
. 624 F.2d at 208 (plurality opinion).
. Id. at 214-17.
. Id. at 295-300 (Bazelon, J., dissenting).
. See id at 217 (plurality opinion).
. Id. at 208-09.
. Id. at 236-37 (MacKinnon, J., concurring).
. See e.g. Holloway v. Arkansas, 435 U.S. 475, 487-91, 98 S.Ct. 1173, 1180-82, 55 L.Ed.2d 426 (1978); Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir. 1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979); United States v. Hurt, 543 F.2d 162, 168 (D.C.Cir. 1976).
. See pp. 192-193 supra.
. Maj. op. at 190-191 n.12.
. See p. 187 supra.
. The majority makes much of the fact that the record before the district court was supplemented by an affidavit from Green’s original counsel. Maj. op. at 186. By my reading of the affidavit, however, it does not add any information that would reduce the need for an evidentiary hearing. The affidavit does state, contrary to Green’s sworn 2255 motion, that counsel showed the presentencing report to Green and discussed it with him. See p. 201 & n.48 infra. But this account does no more thán create a direct conflict between two credible and concrete sworn statements, and such a conflict can only be resolved by an evidentiary hearing in which both claims can be subject to thorough cross-examination. See Walker v. Johnston, 312 U.S. 275, 286-87, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941); Lindhorst v. United States, 585 F.2d 361, 364-65 (8th Cir. 1978); Advisory Committee Note to Rule 7 of the Rules Governing § 2254 Cases (quoting Raines v. United States, 423 F.2d 526, 530 (4th Cir. 1970)). (The Advisory Committee Note to Rule 7 of the Rules Governing § 2255 Proceedings refers to the corresponding § 2254 Advisory Note as the source for “a full discussion of reasons and procedures for expanding the record.”) Perhaps more important, counsel’s own account of the upshot of her alleged conversations with Green can only add weight to the conclusion that she provided him with ineffective assistance. See p. 201 infra.
. See Holloway v. Arkansas, 435 U.S. 475, 481-87, 98 S.Ct. 1173, 1177-1180, 55 L.Ed.2d 426 (1978); cf. United States v. Williams, 594 F.2d 1258 (9th Cir. 1979); Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970).
. Maj. op. at 190-191 n.12.
. The majority reads Cuyler to impose a duty of inquiry only in cases of actual conflict. Maj.
. My one hesitation arises out of the possibility that, in the context of the relationship between counsel and the sentencing judge, the words counsel spoke had a very different meaning than that which would otherwise be obvious from the record. But this hesitation, at best, requires that we remand for an eviden-tiary hearing, and would not justify our rejection of Green’s claim.
. Transcript of Sentencing Hearing at 1.
. Id. at 2.
. See Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961) (“Trial judges before sentencing should, as a matter of good judicial administration, unambiguously address themselves to the defendant. Hereafter trial judges should leave no room for doubt that the defendant has been issued a personal invitation to speak prior to sentencing.”).
. Maj. op. at 188-189. Cf. note 6 supra.
. See United States v. Decoster, 624 F.2d 196, 208 (D.C.Cir.) (plurality opinion), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979).
. United States v. Butler, 504 F.2d 220, 224 (D.C.Cir. 1974).
. See Affidavit of Trial Counsel at 1 (stating that counsel had reviewed the presentence report with Green, and that though Green was unhappy with the report, counsel found it “accurate in all material respects” and “consistent with counsel’s impressions of Mr. Green and with the information he had given [counsel] about himself.”).
. See Part II supra.
. Maj. op. at 189-190.
. See id. at 186-187, 189-190.
. Memorandum Opinion at 3.
. See United States v. Hinton, 631 F.2d 769, 783 (D.C.Cir.1980) (“Rather than speculate as to the meaning of the district court’s findings, we remand the record for clarification [on the issue of prejudice].”).
. Maj. op. at 189-190 (emphasis added), see also id. at 190 n.ll (district court’s holding “amounts to the same thing” as finding of no effect on outcome).
. Memorandum Opinion at 2.
. Id.
. See note 3 supra.
. Maj. op. at 190.
. The district court’s memorandum opinion never mentions the possibility that Green’s counsel could have provided an expanded allo-cution.
. Cf. United States v. Hinton, 631 F.2d 769, 783 (D.C.Cir.1980) (remanding for clarification because although district court opinion “could be considered a ruling on ‘likely prejudice,’ ... [the district court did] not reveal what standard it relied upon in reaching its conclusion.”).
. Id.
. Id. at 208.
. Maj. op. at 189-190.
. See United States v. Grayson, 438 U.S. 41, 48, 98 S.Ct. 2610, 2614, 57 L.Ed.2d 582 (1978) (sentencing judges have broad discretion; one partial way to guide that discretion is to give judges “as much information as reasonably practical concerning the defendant’s ‘character and propensities],] ... his present purposes and tendencies,’ and, indeed, ‘every aspect of [his] life.’ ”) (citations omitted); United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) (“a trial judge in the federal judicial system generally has wide discretion in determining what sentence to impose, ... [and] may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come.”); 18 U.S.C. § 3577 (1976) (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”); Tyler, Some Guideposts for the Com-pleat Sentencer, in JUSTICE IN SENTENCING 198, 203 (Orland & Tyler, eds. 1974) (“Notwithstanding occasional declarations of judges and lawyers to the contrary, humility and wisdom require that we constantly bear in mind that sentencing and correctional dispositions do not lend themselves to an exclusively legal approach and formulation. Another way of putting this point is to say that sentencers must be allowed discretion in order to comport with the notions of our society of just [treatment].”).
. See Mempa v. Rhay, 389 U.S. 128, 133-34, 88 S.Ct. 254, 256, 19 L.Ed.2d 336 (1967); Carter v. Illinois, 329 U.S. 173, 178, 67 S.Ct. 216, 220, 91 L.Ed. 172 (1946) (“It is a commonplace that no more difficult task confronts judges than the determination of punishment not fixed by stat
The very nature of the proceeding at the time of imposition of sentence makes the presence of defendant’s counsel at that time necessary if the constitutional requirement [of the assistance of counsel] is to be met. There is then a real need for counsel.... Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of the defendant’s conduct; to correct any errors or mistakes in reports of the defendant's] past record; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws. Any Judge with trial Court experience must acknowledge that such disclosures frequently result in mitigation, or even suspension, of penalty.
Moreover, counsel is the only participant in the sentencing process who can effectively attempt to check the abuses and distortions that arise out of the probation officer’s control of information and the insular relationship of probation officer and trial judge. See Fennell & Hall, Due Process of Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv.L.Rev. 1615, 1668-70 (1980). Indeed, “the sentencing stage is the time at which for many defendants the [attorney can perform his or her] most important service of the entire proceeding .... ” American Bar Association Project on Minimal Standards for Criminal Justice, Standards Relating to Sentencing Alternatives and Procedures § 5.3(e) (App.Draft 1968) [hereinafter referred to as Sentencing Standards]; see id. at § 5.3(f) & Comments a, h-n.
. See United States v. Alton Box Board Co., 1977-1 Trade Cas. ¶ 61,336, at 71,168 (N.D.Ill. 1977) (sentencing judge “gives in depth consideration to the defendant’s version of the offense, his prior record, if any, his family history, his marital history, his home and neighborhood, his education, his religious background, his special interests and leisure time activities, his physical, mental, and emotional health, his military history, if any, his employment record, his occupational record, his credit record and financial condition including his net worth, and his needs and the needs of others who depend upon him.” (emphasis added)); R. Dawson, Sentencing: The Decision as to Type, Length, and Conditions of Sentence 200 (1969) (study of trial judges in Michigan indicates that they “attempt to make the minimum sentence reflect the total circumstances of the case. One judge, asked what factors he took into account in fixing the minimum, replied: ‘Such matters as the convict’s criminal record, family situation, circumstances of the crime in question, etc., are always taken into account by the court in fixing the minimum.’ ”); Wilkens, Kress, Gottfredson, Caplin & Gelman, Sentencing Guidelines: Structuring Judicial Discretion 8 (1978) (sentencing judges view employment history as most important measure of defendant’s social stability); Ringold, A Judge’s Personal Perspective on Criminal Sentencing, 51 Wash.L.Rev. 631, 640 (1976) (“At the time of sentencing, with the defendant before me, ... I study [inter alia] his history and that of his family. I evaluate his education, his training ■ and employment, the emotional and physical health of his family, and the nature of his prior conduct.”).
. See Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949) (“A sentencing judge ... is not confined to the narrow issue of guilt.... Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.... [P]revalant modern philosophy of penology [requires] that the punishment should fit the offender and not merely the crime.”); United States v. Foss, 501 F.2d 522, 527 (1st Cir. 1974) (“any kind of mechanical sentence that steadfastly ignores individual differences is to be avoided”); S.1630, 97th Cong., 1st Sess., tit. III, sec. 125,
. 624 F.2d at 199, 208 (plurality opinion).
. The majority opinion quotes at length from the district court’s account of the facts of Green’s crime. Maj. op. at 184. I do not know if it means to suggest thereby that Green’s claim deserves a less careful hearing from this court than if his crime had not been so repugnant. If that is indeed the majority’s attitude, it would be most unfortunate. Whether or not we believe that James K. Green deserves any measure of our solicitude, we at least owe ourselves a duty to insure that nothing in the process by which he was sentenced compromised society’s interests in criminal dispositions that are accurate and, at least potentially, productive.
. See United States v. Pinkney, 551 F.2d 1241, 1249 (D.C.Cir.1976); Sentencing Standards, supra note 66, at § 5.3, Comment k; A. Campbell, Law of Sentencing § 102, at 330 (1978); M. Frankel, Criminal Sentences at vii (1972); Nemerson, Coercive Sentencing, 64 Minn.L. Rev. 669, 740 (1980).
. The individualized sentence is an attempt to balance the needs of society and the needs of the defendant so as to improve as much as possible the fate of each. Moreover, the pronouncement of a criminal sentence, properly conceived,
*205 forces the participants in the criminal process to confront anew the moral and political complexities inherent in the criminal act. The social and psychological factors underlying street crime may have so transformed some defendants that little hope exists for their rehabilitation. The safety of society may indeed require them to be incapacitated, particularly if the only available alternative is to return them to the twisted world of their origins. Such defendants are doubly cursed. In these cases, however, the very unearthing of the social and psychological factors will at least direct society’s attention toward the strong possibility that these same factors will also transform a defendant’s children or younger brothers and sisters. Our sense of criminal justice thus sensitizes our sense of social justice, and expands the criminal process into the political process.
Bazelon, Missed Opportunities in Sentencing Reform, 7 Hofstra L.Rev. 57, 61 (1978).
. See United States v. Pinkney, 551 F.2d 1241, 1249 (D.C.Cir.1976); A. Campbell, supra note 71, at v, § 102 (Sentencing Standards, supra note 66, at § 5.3, Comment a.
Rehearing
On Petition for Rehearing
ORDER
On consideration of appellant’s petition for rehearing, filed June 21, 1982, it is
ORDERED by the Court that the aforesaid petition is denied.
On Suggestion for Rehearing En Banc
ORDER
Appellant’s suggestion for rehearing en banc has been circulated to the full Court and the Court not having voted in favor thereof, it is
ORDERED by the Court en banc that the aforesaid suggestion is denied.
A statement of Senior Circuit Judge Ba-zelon concerning his call for a vote on the suggestion for rehearing en banc is attached.
Statement of Senior Circuit Judge BA-ZELON as to why he called for a vote on rehearing en banc.
This case has no bearing whatsoever on the question of James K. Green’s guilt or innocence. It has nothing to do with being “soft” or “hard” on crime. There is no possibility of a new trial. Green’s request for a hearing on his attorney’s conduct at sentencing does, however, put the integrity of the entire sentencing process on the line. In rejecting his request, the court’s per curiam opinion recurrently notes that he was convicted of a repugnant crime and that 11% years passed before he filed the instant petition.
First, the court argues that no “likely prejudice” resulted from counsel’s shoddy behavior.
Second, the court states that a trial judge’s duty to inquire into the possibility of attorney conflict of interest arises only where there is an “actual” conflict.
Third, although the court concedes that the district court never reached the likely prejudice issue,
Fourth, the court’s mechanical application of the likely prejudice standard shows little comprehension of or sensitivity to the unique and subtle complexities of the sentencing calculus.
Finally, this decision seriously erodes our long-standing commitment to the proposition that defense counsel’s investigation and allocution are pivotal to the sentencing process.
. See Maj. op. at 183, 184, 185, 188, 189, 190.
. See dissenting op. at 205 n.70.
. See Maj. op. at 188-191.
. See dissenting op. at 184-190.
. See id. at 184-186.
. See Maj. op. at 191 n.12.
. See dissenting op. at 190-191. The circularity of this court’s reasoning is striking: the only purpose of an inquiry is to determine whether a conflict actually existed, but because Green has not demonstrated that a conflict actually existed, no inquiry need be held. See Maj. op. at 191 n.12.
. Maj. op. at 189. The district court did not reach the issue because it held that Green’s counsel had performed competently at sentencing. If this court had not gone out of its way to avoid that issue, I believe it could not honestly have concluded that Green’s counsel met the minimum standard of competency required by the Constitution. Green’s counsel is alleged never to have shown him his presentence report. According to counsel’s own version of the story, she failed to pursue any independent investigation into the facts relevant to sentencing, even after Green complained about the accuracy and tone of the sentencing report. And her behavior at sentencing was so self-serving and counter-productive that I doubt it could honestly be said that she presented any allocution at all or that Green had, in practical terms, any representation at all. See dissenting op. at 191-201.
. Maj. op. at 190 n.ll; see also id. at 189 (district court “effectively ruled out the possibility of prejudice”) (emphasis added).
. See dissenting op. at 202 n.53, 203 n.60; United States v. Hinton, 631 F.2d 769, 783 (D.C. Cir. 1980).
. See dissenting op. at 203, 205.
. See id. at 205.
. See id. at 204 n.66.