United States v. Lawrence Kearney

UNITED STATES KEARNEY, Appellant.

Lawrence 81-1043.

No. Appeals, States Court

District of Columbia Circuit.

Argued Nov. 1981.

Decided June Friedman, Washington, D. C. A.

Richard court), appellant. by this for (appointed Stark, Atty., U. Wash- J. Asst. S. Lisa C., D. whom Charles F. C. ington, with C., Ruff, Washington, D. at the Atty., U. S. filed, A. Terry time John the brief was Farrell, Attys., Asst. U. S. Michael W. brief, C., for D. were on Washington, appellee. ROBB, TAMM,

Before MacKINNON Judges. Circuit MacKINNON, Judge. Circuit appeals the denial Lawrence of a the District Court 28 U.S.C. § to set his 1968 conviction motion aside contends, degree He now second murder. motion in as he did on first § was coerced key witness’ had tried perjurious. that motion on “the files case denied This, the second 2255 mo- record.” raising point, tion was denied the same hearing. without a No District Court is offered new evidence or contention Since the support appellant’s motion. claim were de- underlying appellant’s facts adversely appellant direct cided and since both appeal and filed, untimely were in addition motions entitle him to appellant’s do not allegations judg- accordingly We affirm relief. ment of the District Court. PRIOR PROCEEDINGS

I. FACTS AND m. on Thanks- p. 10:30 approximately At 23,1967, Officer Sil- giving Day, November Metropolitan via of Columbia of the District shot while fatally Department Police of 16th Corcoran duty vicinity Streets, prior to the Immediately N.W. Silvia, in his while seated shooting, Officer a man tam- noticed stop light, cruiser car of a locked with the window pering parked eventually across street. He let and three were all manufac- slugs up drove to the car and himself identified the same company' tured and had an officer man previously as to the he had coating. same distinctive In addi- copper occupant noticed and who was now the sole evidence, Stanley tion the scientific War- car, gained having entry thereto ren, eyewitness shooting, an breaking a hole in the door window. Kearney’s, voluntarily approached of friend wheel, man was seated the when behind but days Crooke on the street three Officer him, the approached officer he exited him shooting after the offered to tell car, and in to response request Silvia’s for knew shooting. what he about the At identification, his the man into reached gave time Warren a statement and at trial pants pocket, pulled gun out a shot gave testimony that was consistent with in Silvia the stomach with a caliber .38 statement, viz., standing that he was within revolver. thereafter Shortly was Silvia he a few feet of where was shot and Silvia taken to the hospital. Despite emergency Kearney had seen shoot Silvia. surgery Officer died days Silvia two later August Kearney On convict- from the gunshot wound. (22 jury degree ed a of second murder At only disputed issue was the 2403) carrying a danger- D.C.Code and of § identity of government the murderer. The weapon (22 Sep- ous D.C.Code On introduced strong testimony which estab- 13, 1968, im- tember he was sentenced to lished that appellant was the assailant and prisonment of to years fifteen life on jury a returned verdict of At guilty. count and to concurrent murder a sentence trial, Detective Crooke testified as to the of to ten years weapons three on count. dying of declarations Officer made Silvia during an interview care intensive this appealed his conviction to unit of hospital died, before he in which court, arguing primarily “prejudi- that the up described all facts that led to cial” identification of witness the shooting. He told he Crooke that an Warren was not This credible. Court observed the killer break into the car opinion by Judge Leventhal found Kear- at parked the curb. Part III fully discusses ney’s arguments and affirmed unpersuasive addition, In Silvia’s statement. Kearney’s Kearney, his conviction. United States v. palm prints were car found inside the (D.C.Cir.1969). Specifically, 420 F.2d 170 wheel, the steering ap- of blood stains we to held that the failure trial court pellant’s blood type glove found in the to allow defendant’s counsel cross-examine compartment. Further evidence indicated Warren or not witness as to whether he was belong Kearney car did not to gave on narcotics at the time he a state- had never previously had access police ment not grounds for the interior of the car. or remand of possibility reversal since There was highly also cir- corroborative identity mistaken the defendant was of cumstantial evidence of A Kearney’s guilt. strongly negatived indeed it is not —“if friend of that, Kearney’s testified beyond eliminated reasonable doubt—” murder, day appellant had fired .38 of other evidence. nature The conclusive caliber revolver a log backyard. into in his the evidence Judge Leventhal referred A firearms expert identification testified changed passage has of with the time. that the bullet log, removed from the an- September 12, years On over five other .38 slug caliber found in the front and four years after he sentenced after house, door of appellant’s and the .38 cali- appeal, Kearney affirmance on filed slug ber removed from Officer ab- Silvia’s (1) corpus proceeding claiming habeas new domen were all type fired from the same (Petition, (2) evidence, 3), ly discovered gun. addition, an unfired .38 caliber D.C. Cir. counsel,” of (3) of denial bullet of the “ineffectiveness unique type same killed 5th, Silvia was from the fair trial under the 6th and 14th recovered dresser draw- iner Kearney’s Rights, (4) bedroom. The bul- use unfired Amendments and the Bill this case and the of the United opinion testi and manufactured pre-fabricated the District of (5) Appeals Court of for drug-addict, of an alcoholic States mony Kear- Circuit in United issues he had not been Columbia States that relevant raised U.S.App.D.C. ney, 136 alleged “newly discovered challenged. (1969) (rehearing denied).” (emphasis add- set in an affidavit

evidence” was forth writ- ed). accompanied The denial was 17 at Warren witness Warren.1 order, infra, the vari- ten which considered trial and his five time of the affidavit upon Kearney based his ous elements which stated that trial he had testified later recognized the claim of petition, and present that he was and saw his falsely un- alleged narcotics use was the possible shoot affi friend Silvia. Id. This derpinning perjury the assertion of given was not support davit attack which in substance amounted to an until both and Kear pro petition se testimony: on the identification ney Department were confined at Columbia, subject possi- The of exploration for the at Corrections District of [limited Stanley Warren Lorton, ble narcotic influence of Virginia. ¶1. Petition Warren of his at the time written in the was confined Lorton Youth Center. statement] the identity, relates to the issue of and n.1. The court denied the signature, strong- possibility identity of mistaken is that a corpus petition ground habeas eliminat- ly negatived indeed it is not re under 28 2255 was proceeding U.S.C. § —if the sci- beyond by ed reasonable government and the quired moved doubt — evidence, palm the particularly entific treated in as a “petition be the alternative the Warren’s prints, credibility of motion to vacate under 2255.” Section as the account testimony by buttressed Kear- Thereafter on November to Detective given by Officer Silvia (1) alleging a section 2255 motion ney filed the Govern- strength Crooke. Such of counsel, (2) ineffective assistance of is in deter- highly ment’s ease material “prefabri- that his conviction was based on justice whether mining the interest and the cated and manufactured evidence” than may by be served affirmance rather testimony Stanley Warren.” “perjured proce- for trial remanded refinement of File, 39, principal District Court 2. The p. Kearney, supra, dure. United States v. petition for the the Warren support 174. 420 F.2d at petition affidavit. Id. This was considered File, District Court 40. judge the the criminal had tried February 12, case and on was denied that court com It is clear the trial rule, considered “upon plied applicable consideration the files and record with the intensely questioned by police so that 1. AFFIDAVIT Warren, evening, drug I, Stanley withdrawing hereby I was from the state the follow- feeling very ing my my according ill. under free will and to Warren, I, Stanley any further state that desire. I have not threatened been gave way anything promised which I at or have I been under oath concerning witnessing this statement. I be- of the shoot- make this statement I to do I testified cause want so. Officer is also untrue. I, Warren, Stanley Larry Kearney the state- I saw declare shoot Officer Silvia be- gave Sunday, police change story ment which I on I cause was afraid the untrue concerning finally given police November the death of which I had officers partially Sunday evening. I Officer Gilbert Silvia untrue. present shooting by, was not the scene Submitted Larry Kearney Stanley and I did not see shoot Officer /s/ N. Warren original story I told the Stanley Silvia. which police part VC, and which is in the first contained Box Lorton Youth Center story my changed my Lorton, statement I Virginia true. during police questioning because Subscribed and sworn to before me this 4th mental, physical pres- extreme June, emotional day of which was me for a number sure exerted on Thompson /s/ Charles S. Sunday evening of hours numerous Notary Public afternoon, Earlier, Sunday I had officers. My Expires Commission 9-10-73 I was taken a shot of heroin and at the time present court to vacate his conviction. As relating judg- the files and record to the conviction, court, properly essentially ment of ruled on ed to the trial it raised motion, respect the basis of the the annexed exhib- same claim with to Warren’s testi prior proceedings Kearney mony adversely its and the that was made and decided 1973, i.e., any was not entitled to relief. The court to him in Fifth process was therefore applicable right abridged authorized Amendment due rule summary “Stanley to “make an order for ... in that W. Warren’s confession dismissal No hearing [allegedly] coerced and obtained [of motion].” [sic] required. under duress and that it was erroneous perjured . ." . also together with all [§ 2255] relating raised constitutional issues pro files, records, transcripts, and corre- cedure.

spondence relating judgment to the under attack, promptly by shall be examined repetitive The District Court denied this assigned. to whom is If it fiat, File, 1980 motion District Court No. plainly appears from the face of the mo- 43, appeal and the instant followed.2 On any tion and annexed exhibits and the case, this receiving present appellate coun- proceedings the case that sel conceded that the District Court movant is not entitled to relief in the issues, ruled on the properly procedural but court, district the judge shall make an pursue, chose to for the second time in a order summary for its dismissal and cause 2255 proceeding, the claim that Warren’s ” the movant to be notified.... testimony was perjured. Governing Rules proceedings Section 2255 THE II. TIMELINESS AND FILING Courts, the United 4(b). States District OF THE MOTION

Since the court considered and ruled on the grounds upon substantive which We find that Kearney’s 1980 motion based legal his claim of rights as set forth rejected under section 2255 properly in the affidavit upon of Warren and with, the District Court. To begin it case, “files and record” in the not on basically a motion for a new trial based on any procedure; defect of form or and since newly pursuant discovered evidence filed under section 2255 the court had complete 33, Pelegrina Fed.R.Crim.P. v. United jurisdiction subject over the matter and States, 18,19 (1st 1979), 601 F.2d it Cir. parties to decide the validity Kearney’s timely not filed in the fashion as re motion, its denying order such con motion quired provides: rule which stituted a decree on the “merits”. v. Mayes The court on may motion of a defendant Pickett, 1080, (9th 537 F.2d 1082-83 Cir. grant a new trial required ... if in the 1976), denied, 924, cert. 431 97 U.S. S.Ct. justice.... interest of A motion for 2198, (1977); Fairmont Alu new trial based on ground newly minum Rev., Co. v. Commissioner of Int. discovered evidence may only be made 622, 222 (4th 1955); F.2d 625 Walling Cir. v. before or within years two after final Miller, 629, (8th 138 F.2d 629); 631-32 Cir. judgment .... Clegg States, 886, v. United 112 F.2d 887- present brought motion 12 years after (10th 1940). 88 Cir. conviction, Kearney’s to the extent it appeal No was taken from this 2255 seeks a new trial based on discovered newly ruling. evidence, clearly exceeds-the time two-year years later, 14, Over seven on prescribed October limit rule. by the So did the 1980, died, after the Kear first motion in 1973 over which filed ney petition filed a second under section five after years adjudged. sentence was 2255. This was his request third to this While the trial court did not on the two rely Appellate appointed by Kearney, (D.C. panel counsel was United States v. 659 F.2d 1203 analyzed of this court over a dissent Cir. prior proceedings facts and decisions.

219 it A motion for new trial be de year may limitation when denied 12, 1974, February years motion on five affidavits without an cided on basis of final, after his sentence became hearing. Ewing v. United evidentiary now, the stale necessary rely on it 633, States, (D.C.Cir.1942) 135 F.2d 638 claim, old, now over 13 ness of J.); States, v. (Rutledge, Hillman v. ignored. should not be Cf. Oddo United 264, 1911), denied, cert. 192 F. 272 854, (2d Cir.), 858 cert. 699, 834, 32 56 L.Ed. 1263 U.S. S.Ct. denied, 337 U.S. 93 L.Ed. S.Ct. (1912); v. United Chetkovitch (1949); generally see United States v. v. United Gordon Robinson, 80 S.Ct. (6th Cir.), cert. (1960). recognized L.Ed.2d 259 diffi 1353; 94 L.Ed. 339 U.S. imposed government culties in re- Johnson, 106, 112, v. United States 327 U.S. prosecuting long criminal cases after 464, 466, (1946). 90 L.Ed. 562 Unit present event considerations that are to be Ward, Circuit, supra, ed in the 8th States weighed in the balance against granting In affirming is to the same effect. new trials. A collateral attack must also denial, hearing, without a of a new trial “sufficiently higher clear a hurdle than a recanting based on a affidavit of witness appeal.” .. . direct Frady, United States v. - its curiam per opinion states: -, 1584, 1594, L.Ed.2d Our decision is not Appellants contend that the trial court based on the untimeliness of the erred in denying their new trial motion but we consider that fact and the without the benefit of a to deter- hearing difficulties it justify creates comment. mine validity alleged recanted testimony. A motion for new trial based III. SECTION 2255 PROCEEDINGS newly may discovered evidence be de- AND RECANTING AFFIDAVITS ordinarily upon cided affidavits without a Attempts are numerous convicted hearing, .... More- [citations omitted] defendants to overturn their criminal con over, the necessity for a is dimin- victions presenting affidavits of recant involving challenged ished cases testi- ing witnesses in support of a section 2255 mony judge where trial has had an above, motion. As stated courts treat such opportunity to observe the demeanor and requests as a Pelegri motion for new trial. weigh the of the witness at credibility States, na v. United supra. Recanting affi trial, .. . Further- [citation omitted] davits and upon witnesses are looked with more, upon ‘courts look recantation with “the utmost suspicion” by the courts. Unit Vincent, court, ed 1326, 1332 suspicion. States v. The trial which has had (2d 491 F.2d Cir.), denied, 880, 144, cert. it, 419 95 the witness much before is in a better 42 L.Ed.2d 120 (1974); United States v. position to determine where the truth lies Johnson, (4th 487 F.2d 1973); 1278 Cir. appellate than an court.’ omit- [citation Lewis, United (6th States v. 338 F.2d 137 On this we are satisfied the record ted]. 1964); Cir. Newman v. United 238 court did not abuse its discretion in fail- 861, F.2d (5th 1956); n.4 Cir. United ing hearing.” to hold a 544 F.2d at 976. Ahern, 507, States v. (10th F.2d Cir. (emphasis added). 1980) (“downright suspicion”); United A similar presented factual situation was Ward, States v. (8th 544 F.2d 975 Cir. moving defendants in United States Mackin, United 958, States v. Curry, (5th v. 497 F.2d 99 Mov- Cir. (D.C.Cir.1977) (“recantations by witnesses counterfeiting ants had been convicted of for the prosecution are viewed with suspi testimony; basis a co-defendant’s ”); cion ... Johnson v. United signed recanting then the co-defendant (8th F.2d Cir.), cert. stating affidavit that some of (1961) (courts upon perjured. look recantation Defendant’s motion for a suspi with cion). new trial on the basis of the affidavit was Johnson, ration. v. hearing. appeal denied without a On States 1973) (denying Fifth stated law of this cir- F.2d 1278 motion Circuit “[t]he affidavit was executed two and cuit has been well established where the previously ordinarily that a motion for new trial one-half after the when the affi- may together be an evi- ant were inmates upon prisoner decided affidavits without and the Third, judge the same who had dentiary hearing prison). ... [citations omitted] case, gained by pre- acumen the trial and observed Warren’s de- tried during pro- sided the entire course of the at the meanor and on the stand ceedings qualified makes him well to rule criminal also ruled on the 1973motion. on the motion for a new trial on the basis of Fourth, conclusory Warren’s affidavit is consuming the affidavit and makes a time that his merely generally form. It states 100,101. hearing unnecessary.” Id. at testimony at police statement to the and his same conclusion was reached in United without offer- “partially trial were untrue” Hedman, v. States F.2d 813 how he had ing any explanation as to 1981) (“... in Section 2255 cases . .. surround- learned of all the intricate details existing record and the court’s recollection ing personally the crime unless ob- where, obviate the need for a as them he trial. served as testified at here, the judge entertaining request for a Mackin, As in United States new trial presided original also at the tri- it defies in his credence al”). declaration, dying and Warren in his state- weighing against police subsequent

Another factor ment testimo- Kearney’s untimely delays ny, motions is that identical contrived falsehoods concern- varying years, Judge Burg precise from 5 to 12 as the minute details and circum- (now Justice) observed, crime, er “properly Chief stances of the and of all the events puts the movant leading up principal portion under heavier burden for to it. The passage inevitably ripens time statement to the is set forth police Warren’s finality judgment and increases the as an marked for appendix hereto. It was again difficulties of proving the case.” identification as Defendant’s Exhibit No. Brodie v. United 159— but was not introduced into evidence. (D.C.Cir.1961). However, was read from and referred extensively in the cross-examination of Kearney’s present based on was also defense counsel. It affidavit, recanting Warren’s embodies 83-124). (App. shown to him. many of the factual features that have led deny courts to attempts by similar convict new trial considering motion for ed defendants to obtain new trials or vaca that an affidavit based on contention First, tion of newly convictions. Warren’s testi dis recanting witness constitutes mony subjected to thorough applied cross ex covered evidence the first test to be amination at trial and was is reason by judge corroborated the is whether the court every by detail the physical ably prior testimony evidence and well satisfied testimony of other witnesses credited was false. Gordon v. United Second, jury 1949). the and the court. (6th while War F.2d Cir. If that first satisfied, ren was apparently not involved in Kear and the primary ground is not ney’s automobile, breaking into the new trial primary ground granting for the a friend of Kearney’s at the time of the is Id. The trial who denied lacking. judge murder imprisoned and both were at Lorton obviously the 1973 motion determined in 1973 when gave affidavit, the affidavit recanting to Warren’s Kearney acting pro se. compulsion ruling at was false. In so he was in that prison confinement exerts on a fellow the in United position judge same as the inmate, Johnson, who as witness had testified States v. at U.S.

against prisoner a fellow in such circum observed Supreme where the Court stances, is require too well known to with respect judge: elabo- to the trial claim of alibi The defense was a doubt. original the trial and

He had conducted of the identity was the only Johnson the issue against watched the case and had contradiction trial there was no unfold from killer. At respondents and the other Kear- testimony placing judge palm print Consequently the trial day day. to auto, evidence link- and other pass ney well inside exceptionally qualified and the slugs, ing Kearney gun, the affidavits. an ab- bullets, there to be and continues the 1973 motion The decision here on contradicting evidence any physical sence of of the files “upon was made consideration points. on these the evidence opinion of this case and the and records The court Appeals the . .. Court of ...” A. The Palm Prints “(2) respect claims of error ruled: That the palm prints Three of Kearney’s prosecu testimony, manufactured inside the steering wheel found testimony, knowing perjured tor’s use of told Crooke Plymouth car in which Silvia taken of counsel and ineffective assistance sitting immediately the murderer had been record are light pleadings in the stom- emerging to shoot before Silvia facts. supporting mere conclusions without palm prints these ach. The existence of motions, files and (3) pleadings, That significance inside the car of conclusive petitioner conclusively records show belong Kearney. car did not because the A factual deter entitled to no relief ...” (Callaghan), to a third belonged person It record conclu mination that the files and prior had no Kearney, who unknown adjudication resolved the issue is an sively Moreover, Kearney relationship with him. though evidentiary “on the merits” even no moments before Offi- had been observed v. hearing was held. Sanders United illegal entry an into the 1068, 1077, 10 affecting cer Silvia 1, 16, in the door. breaking glass Pickett, locked car (1963), Mayes L.Ed.2d 148 his, (2) he never (1) the car was not 1976), v. Since Hallowell car, access to the inside of critical time (3) he was observed at proper It was therefore for unrefuted illegal entry, an effecting judge here to the 1974 decision of rely upon at three palm prints evidence of his physical deny the trial this 1980 motion conclu- practically inside the car is locations hearing. without a who was that it was sive evidence question. place at the time and present THE EVIDENCE IV. SUPPORTING whatsoever And there is no contradiction independent rejecting An reason the man evidence the existence Kearney’s upon motion rests car, entry into illegal who effected the which is guilt, of conclusive evidence of his the car when Officer who was inside attacked, which causes us to con person approached, was Silvia record there is no clude that on the entire shot emerged and Officer Silvia. jus miscarriage a fundamental risk of conclusive- prove inside the car palm prints - supra, Frady, tice. United States v. ly that he was that man. at -, at 1596. The testi a reasonable mony proved beyond at trial The Blood B. Stains at about doubt that Officer was shot car, Kear- when entry In into the Thanksgiving Day, gaining m. on p. 10:30 or 11:30 door, he glass in the ney evi broke the window physical 1967. Positive November himself, stains as some blood dence, prints may have cut Kearney’s palm in the form of compartment. car, glove were found in the description of the inside the and Silvia’s indicated declaration, tests of this blood Laboratory dying in his given crime as A, Kearney’s type. which matched testimony, type persuasive combined with other evidence, but it is not conclusive Kearney verdict that This supported jury’s the the been might have Kearney that proves far a reasonable beyond was the murderer one who was inside the car and left the Officer as to the shooting and the blood (Tr. stains. up circumstances that led to it. 901- C. The Revolver and the Bullet Slugs appeal testimony On the must be con strongly support sidered most in of the

Additional Kear- testimony proved that ney jury’s verdict. Koolish v. United did have a .38 caliber revolver on (8th Cir.), day murder, cert. which was the caliber of gun that killed Officer A friend Silvia. (1965). No different rule applies sec Kearney’s day testified that on the Here, proceeding. tion 2255 the evidence murder he saw with a .38 revolver Kearney (Tr. 177-78, 830), overwhelmingly supports jury finding Kearney that told him he that 20th, Kearney guilty beyond had obtained the a reasona gun on November he, friend, murdering and ble doubt of that had Officer Silvia. unsuccessfully buy Consequently, miscarriage justice ap tried to no gun Kearney. from Addi- pears Kearney’s tional evidence conviction must stand. tying gun Kearney Any argument and the presented murder was in the form conviction should be slugs of three reversed because testimony from a .38 caliber Warren’s revolver. above, As stated slug clearly unpersuasive. (See one believable is was obtained part infra). from the front V The independent door in the house corrobora where Kearney tive just lived. Another was evidence reviewed is so detailed obtained from a log compelling had fired the .38 into in constitutes conclu presence sive testimony of his friend.3 slug Kearney’s guilt The other without was fired into Warren’s testimony. Kearney’s Silvia’s stomach and claim here caused then, to the contrary, death. An additional .38 properly caliber unfired dis bullet was missed obtained from a dresser in Kear- District Court on the basis of ney’s slugs room. The were such conclusive testimony. too mutilated addition the to determine testimonial positively they were corroboration of all the details fired from gun, the same the trial record by but ballistics tests indi- Warren’s trial testi slugs mony disproves cated the gener bore sufficient im- Warren’s rifling completely alized, pressions conclusory to indicate they all fired belated affidavit that from the type same his statement when he weapon,4 voluntarily a .38 caliber went to police, Also, slugs testimony revolver. the bullet at trial were discussion, infra, a unique copper untrue.5 222- coating, as did the whole 224. room, bullet retrieved from

they were all manufactured the same V. THE PRIOR DECISION

company.

Kearney’s motion also must be re D. Analysis of the Testimony and Evi- jected because the underlying claims were

dence previously litigated on the merits and were adversely decided to him. not, not, The defendant could and did effectively positive attack the palm print Part of Kearney’s attack on Warren’s testimony, and his argument completely ig- testimony based on a claim that he used persuasive nores the narcotics; testimony of Detective but the defense claimed to have Crooke reciting the dying declaration of knowledge such at the time of the i.e.: day question See comment at n.4. and as the assailant of Silvia. slugs 4. The that all three were fired type gun, from the same when combined with complete 5. We are in accord here with our was observed to holding point Kearney’s original ap- on this log fire slug the shot into the from which that peal Kearney, in 1969. See United States v. extracted, exceptionally strong evidence supra, 420 F.2d at 174. identifying Kearney possessor gun as

223 In the ab proceeding. second section 2255 ... We have informa- “Defense counsel: no relief can be showing 420 F.2d sence of such a that he is a narcotics user.” tion El preclude stage ground. trial court did not at this on that granted at 172. The Beto, 856, (5th Cir.), All liott v. examining on that issue. 857 defense from 474 F.2d ruled, did, was to “defer denied, 985, 2284, it as this court cert. 411 U.S. pending establishment v. United cross-examination Griffin (1973); L.Ed.2d 963 questions.” a foundation for (D.C.Cir.), cert. 411, subsequently was not at 174. That Crooke denied, 1363, 922, 78 S.Ct. U.S. on whether by cross-examined the defense L.Ed.2d 1366 Warren was under the influence narcot- set aside a always authority We have implicating ics when his statement gave justice, in the interests of conviction magnified er- Kearney, cannot now be into 2106, Fed.R.Crim.P., 33, but U.S.C. § ror. support- we here fall far short of facts find perjury The claim of narcotics use and fact, ing disposition. they support such in the current are interwoven briefs to at- deny a determination to such motion. testimony; tack Warren’s identification but repe The claim of here is a perjury allegation government there is no of the same claim made in the 1973 tition knowingly perjured used This is testimony. proceeding section 2255 and denied a is any allega- case where there direct it relies on the old judge. Essentially knowing government tion of the use support. affidavit with no new The perjured testimony. Even if strength improved of this claim has not “liberally claim be construed” to include passage with the of seven should Giglio see use, however, such knowing be denied as a successive any regard v. United Sanders claim. 373 U.S. (1972), L.Ed.2d 104 the same im- issue was 1068, 1074, 10 83 S.Ct. L.Ed.2d plicitly proceed- involved the section 2255 pro (1963).6 governing The Federal Rule ing in 1972 to the same exact extent as it is provides: under ceedings 28 U.S.C. § now, and it was decided Kear- adversely to may a or successive motion be ney at time. No new evidence is second presented claimed to exist or is in this dismissed if the finds that fails reaffirming inapplicability judicata of res 6. Justice Brennan remarked in Sanders: habeas, application “each is to be we said: prisoner A whose motion under 2255 is § judicial disposed in the exercise of a sound another, denied will often file sometimes guided a discretion and controlled consid- many successive motions. We are aware bearing a eration of whatever has rational consequence question that in whether to discharge sought. propriety grant hearing a on a successive motion can may Among which be con- the matters particularly be when mo- troublesome — sidered, given controlling weight, and even prepared tion is without the assistance of prior discharge are ... a refusal to on like counsel and contains matter extraneous to application.” 265 U.S. at 231 S.Ct. at [44 prisoner’s problem the new, case. But the is not quoted approvingly from The Court 521]. corpus and our decisions under habeas opinion parte Cuddy, Mr. Justice Field’s in Ex have identified situations where denial with- supra, [(9th Cir.)]: at 66 “‘The ac- hearing [40 F.] proper though out even a second justice tion of the or on the second court application or successive states a claim for application naturally will be affected to some relief. such One situation is that involved in degree by of the court or officer Loisel, the character Salinger v. [265 made, application There, to whom the first supra. applica- 68 L.Ed. a first 989] ” given to it.’ the fullness of the consideration corpus tion for habeas had been after Court, hearing, by 265 U.S. at 231-232 S.Ct. at 521-22]. [44 one District and the denial applications petitioner’s Appeals. successive was affirmed the Court of retry properly sought prisoner subsequent applications, denied because he then filed first, previously fully claim against considered and decided all identical in a to the different District Similarly, nothing subsequent ap- Court. We plications might him. indicated grant requires sentencing properly a hear- have that a court been denied simply alleging ground on a successive motion basis first denial had already fully followed a full on the merits. We considered on a relief against prisoner. governing principle; there while announced motion and decided 224 files and records of the for found allege grounds

to new or different court was on issues prior conclusively relief and determination determined the case opinion merits. adversely Kearney.7 to Our raised 217-218, the above, States, 368 F.2d 822 supra, pp. Thornton v. United As indicated Leventhal, pro- (D.C.Cir.1966), Judge 2255 states: section 1974 denial affidavit, method of cor customary “the normal and Warren’s ruled on ceeding, which errors, recting trial even as to constitutional Therefore, it could merits. was on the questions, by appeal, [section 2255] but he petitioner, appealed have been regular cannot serve as a substitute for became thus The decision do so. did not in the judicial process appeal of trial and be success- Rule cannot under the final and collat indicating absence of circumstances later, now, years seven challenged fully an effective provide eral attack is needed to the interest be “in shown to unless rights.” constitutional preserving means of sup- not does Complete analysis justice.” supra, Frady, Id. at 825-26. United States finding. a port such at -, 102 at 1593 S.Ct. U.S. - Laughlin States, v. United effect. to the same (D.C.Cir.1972), denied, cert. 412 U.S. there is no significant It is also 941, 2784, (1973), L.Ed.2d 402 we claim that Warren was under the influence held that any ground presented of relief at trial when he testified and narcotics section proceeding that was under oath repeated identified thereof, determined on the merits redeter voluntarily given statement mination of that ground dependent Also, extent officer Crooke. to the upon judge’s exercise of his sound dis Kearney may incompetence claim of coun cretion to find that justice ends of sel, justified it is not in the absence of would be served thereby. Accordingly, a specific to indicate serious showing of facts reversal of such grounds decision on such incompetence. United v. Decoster States must rest only upon a finding of abuse of 196, (Decoster III), (D.C.Cir. that discretion. respect With requiring 1979) (en banc) (a case); appeal direct Scott hearing we stated: hearing is re “[N]o States, (D.C.Cir. v. United 427 F.2d 609 quired where the District Court finds that States, F.2d 113 Bruce v. United the files and records of the case conclusively States, (D.C.Cir.1967); Mitchell v. United raised, determine the issues or that denied, (D.C.Cir.), cert. grounds for relief have been previously de 81, (1958). termined on the merits and the ends of justice require do not redetermination.” VI. INTERNAL EVIDENTIARY 474 F.2d at 452. CORPORATION OF WARREN’S TRIAL TESTIMONY

In Kearney’s first proceed- section 2255 the record ing, Finally, which included present perjury Warren, dying claim and Officer declara- affidavit, based on Warren’s Silvia’s the trial Appellant suggests dentally, 7. the relevance of Davis v. the memorandum order of the trial 1954), hearing United 210 F.2d 118 court on the remand found Davis’ false, and, involving kidnappers, pled guilty case one of the Bremer be when he claim to Judge Joyce which was remanded for because the before Matthew M. on June competently, intelligently, courtroom clerk had not noted in the court’s that “he Volney entering understanding^ minutes Davis his waived constitutional guilty plea right If rights represented by had waived his to counsel. to be counsel under proven properly it had been he did Sixth Amendment to the Constitution counsel, right waive his that fact would have understanding with a full conclusively him entitled to a new trial. How- implications Judge thereof.” of Chief Order ever, appellant here makes no attack whatsoev- Nordbye, H. D.C.Minn. No. 6096 Cr. Gunnar that, physical er on the with evidence other Aff’d, August Davis v. United evidence, conclusively proves uncontroverted 1955), cert. 226 F.2d 834 guilt; and five after he was sentenced 100 L.Ed. 1446 point argued the same denied on the good prisoners The case is a illustration of presided full record at the untimely bringing grossly that are false. claims Thus, inapposite. initial trial. Davis is Inci- 327) (Tr. was seated tion,8 part which testimony identical gave and Crooke the first denying ruled on in following details: motion, are exactly the same section 2255 murder was between The time of the of the on so intricate factual details many m. on November p. 10:30 and 10:45 circumstances, surrounding offense and the 35); was in a red and (Tr. Kearney movements, location, de- involving timing, Chevrolet, white, he mostly when white subjec- scription tangible objects, even passing to Warren as Warren was waved by tive for acts individuals and causation the (Tr. 36); Kearney was seated on by every material fact to which practically (Tr. 37) and Warren talked driver’s side testified, the claim in Warren’s on through to him a broken vent window present affidavit that he was not when the (Tr. 38); the car the passenger the side of murder and not see was committed did (Tr. 38), police Plymouth car was a white as he told Kearney voluntarily shoot Silvia on the east located at 16th and Corcoran police, gave signed them a statement (Tr. side of the street Officer [as (Dft. H) Ex Ex in Govt. testified Kear- Warren did alert suspected] Silvia court, completely destroyed.9 in (Silvia) his ney police presence to the subject to a (Tr. Crooke testified as “second 38-39 cf. car at 16th and Corcoran 327)10 car left 16th & approached police ... the car” in which [who] (Tr. 327) badge.” [emphasis added], description has his of the Crooke testified to testimony thus corroborated Sil- [Warren’s events as recited to him Silvia on his Officer suspicion, bed, via’s that Warren had alerted Kear- testimony death was held to be ney presence police (with to the car validly spontaneous utterance admitted as a corner, Silvia) following across the testi- dying and a He was cross-ex- declaration. not mony:] (Tr. 332) amined. you Jury Would tell His Honor and the Q Jury 9. Warren also testified before the Grand you Kearney what said to Lawrence when given transcript and the defense was of that you approached him and talked to him from testimony. (Tr. 105) any If there was incon- the broken vent window. sistency jury testimony, grand between his police A I told him car was on the trial, counsel, his at defense comer. very manner, tried the case in a alert would you you What word did use when said Q surely jury. have called it to the attention of the “police car”? significant It is also that there is no claim that A Roller. Warren was under the influence of narcotics you What do mean “roller”? Q grand jury when he testified before the or that A Police car. any respect. here was false you Kearney When told that a roller Q similarity 10. and exactness this testimo- there, any by Kearney answer made Crooke, ny by involving Warren and you after had him that? told Silvia, process thought and Warren’s Officer A No. confirming testimony that he had alerted Kear- you you again, repeat Did tell him did Q corner, ney police (roller) to the car at the as again? extremely persuasive suspected, if had A Yes. absolutely presence conclusive of Warren’s car, you police you When saw this Q crime. scene of the identify police able to it as a car? testified that Silvia on Officer Crooke Officer A Yes. you identify his death bed told him: How were By able to it? Q top “He said he continued 16th and Cor- A a radio aerial on the [from car. watching type police man who had broken What [the of car was this car? coran] Q Chevrolet], Plymouth. A A the window entered the white car, suddenly coming easterly police from an direction Whereabouts was this Q Plymouth, you Kearney white at the time told of this car on Corcoran Street was a second car, subject. subject approached about it? opened A On the comer of 16th Street. and Silvia said the man the door and it, something which 16th On side of Street was Q said to the man who was in the recall, you the east or the west side? Do car. Kearney in, relation to the car that Chevrolet, point Silvia said at this he felt that he was made, on which side was it on 16th spotted the second man him. had Street? pulled he move in. He said he So decided to police guess car in behind the Chevrolet on an the east side. IA angle got into Corcoran Street and out of flashlight car with him and he and took murder, and his presence at the Warren’s a few minutes after Warren Corcoran thereon, were also statements (Tr. 41); conflicting first observed it Warren identi- tags subject of extensive fied the Chevrolet its Connecticut matters that were (Tr. 42); vent in the the defense he saw the broken examination at but cross (Tr. 43); passenger window on the side examine War- completely refused to cross officer) (the murdered shooting Officer Silvia as to the details of the actual ren pulled 7/24/68, his car around near the car (Tr. p. testified. to which seated, got which out and 84-128). the wheel

asked who was behind and The case is thus one where “files Chevrolet, for his identification conclusively [support records (Tr. 44); got out of his car Officer Silvia prisoner en judge’s [was] decision] pointed flashlight at his wallet relief,” And, titled to no U.S.C. § carrying which he was in his hand. The previously since claim had been (Tr. wallet contained his identification the merits denied on 46); then walked Officer Silvia 45— trial, and who relied heard the witnesses (Tr. 47) around behind the Chevrolet heavily analysis reasoning on the Kearney passenger slid over to the side that the conviction appellate panel affirmed got out of the car that from side and earlier, necessity there is no sev years four (Tr. shortly stood near the sidewalk to do years grant en later to or pants, thereafter went into his deny other than the motion to the extent pulled gun and shot Officer Silvia previously that it was based on claims (Tr. 49); up Warren then ran Corcoran Hardy raised and denied. v. United [they Street fled East on Corcoran (D.C.Cir.1967); (Tr. 50, 328); Officer was Silvia Street] McGuinn United wearing a white trench coat which was (D.C.Cir.), cert. 353 U.S. (Tr. 51). identified as Compare exhibit with testimony (Tr. Officer Crooke’s 324- 328). VII. CONCLUSION Transcript references are to Warren’s testi- personifies abuse of great This case mony at trial. Cf. Tr. 953-955 to the same post pro- repetitive conviction section effect. ceedings clog the courts and raise un- Warren’s statement that Kearney shot justified hopes in convicted criminals that a away Silvia from “three to four feet” is also years new trial down the road from their corroborated of the FBI testimony will leave with government conviction expert firearms based of the analysis on his again insufficient witnesses and evidence to discharge gun effect of the of the on the most heinous of- obtain conviction for a all-type weather coat then being worn only filing fense. Not was the in this case (Tr. transcript, Silvia. files untimely, but because the evidence over- adequate and record were thus more than whelmingly supports beyond conviction five after the shooting for the trial doubt, reasonable the section because judge to refuse to recanting credit Warren’s decided ad- already 2255 issue had been alleging affidavit a belated claim of perjury merits, versely Kearney there was in the face practically conclusive would virtually no chance that the motion testimony identifying Kearney as the assail- granted. be ant, i.e., palm prints, as to the tests, gun slugs, complete the blood the cor- This decision is rendered after a transcript origi- roborated distance from which review of the entire shot, files, records, and the exhibits mosaic corroboration of War- nal on all the ren’s ex- subsequent proceedings. and Crooke’s of the most and all Such the conclu- surrounding shooting. compels minute details amination and review Questions Sergeant sion Detective Bernard received a fair trial and was properly convicted on the basis of over- D. Crooke:

whelming evidence. His guilt proved

far beyond reasonable doubt and it would justice

not be in the interests of statement then recites follow- grant [The present motion as we risk what- perceive no ing:] soever improperly convicted. Q: you Larry tell told anyone Did The subject for the reasons set them that he had shot the Policeman? above, accordingly forth denied and the No, just saying A: I heard them that he

ruling of the District is affirmed. Court it. simple telling Judgment accordingly. Q: game you was in the men- crap Who statement? your tioned in APPENDIX really A: I don’t remember. SQUAD

OFFICE OF THE HOMICIDE else that Q: anything you Is there would already like mention that has not METROPOLITAN POLICE been mentioned in this statement? DEPARTMENT might you really A: I as well tell what WASHINGTON, D. C. I was there. I happened. Everything SUNDAY, NOVEMBER in the true you up told statement to point Larry’s party. when I left RE: HOMICIDE of Police SHOOTING Of- I left the I alone and party When was Silvia, Male, White, ficer Gilbert 14th to walked to Street and then over years age, Pronounced Dead at 2:10 “Que” A.M. November 13th and Street. I walked back Dr. Paul Strong of the Washington Hospital down to 13th and Corcoran Street and Center staff Washington Hospi- at the then straight out Corcoran Street. I tal Center. just walking going was and not any- place particular. walking I was on the STATEMENT OF: STANLEY WALTER WARREN, male, even side of the street. I negro, walking was age, residing 1458 in the block coming Corcoran Street toward Northwest. Phone RO 2-7150. A stu- I walking 16th As I was saw Street. dent in the Tenth Grade at Cardoza Spanish park yellow three men with a High School. go black vinal into a top Mustang

house on the other side of the street. got As I near the corner I saw a man the first two pages and one-half of the [In sitting behind the wheel of a white statement generally his describes Chevrolet with red trim. I didn’t know activities the evening shooting, his who it was but he waving started at going to Larry Kearney’s while a house got me. When I closer I saw that it party progress, was in and his other move- Larry sitting in the car and I saw ments, but fails to mention that he had a white Police Plymouth sitting Cruiser observed the shooting of Officer Silvia. He the corner of 16th and Corcoran did recite a rumor he had heard to that Street Northwest. The Police Cruiser effect.] front of church and near the Saturday afternoon about 2:00 or 2:30 I lamp post. saw one Policeman in the PM I was out on the street and there were cruiser. people crap game in a they saying I in the how After saw Policeman stupid Larry was for about talking I Larry how he had cruiser and in the car walked killed the Policeman. Later I Saturday night Larry up saw in the to the Chevrolet and noticed that back of a Police car morning and this I that he the vent window on the side passenger heard had been arrested for killing the Policeman. I throught broken. talked [sic]

Q: say hear the Detective he was you Did a Policeman? “Hey, there’s and said vent window I corner.” Car) say A: He didn’t it. (Police roller like he leaned over again and he said it flashlight on his Q: Did he flash his straining to me and was hear Larry? couldn’t it badge when he showed the radio on and He turned hear me. badge, I all I saw A: didn’t see Larry didn’t running. had the motor card. Identification get out going like he was look with his Q: you Did see the Policeman away to walk got ready I car and anytime? at at revolver up behind pulled Cruiser the Police A: No. got Policeman was in. The Larry car doing when Q: What was the Policeman side up to the driver’s and walked out Larry fired the shot? car and if it was his Larry asked standing A: there. Just was, he said him that Larry told Q: were fired? many How shots out pulled Policeman then “Yes.” The A: One. and was badge and his flashlight Q: Larry How close was to the Policeman in front of him and asked holding them when he shot Policeman? Larry identification. Larry for some far. may A: Three feet be not and came out across the seat slid Po- Q: Larry shot the gun Describe of the car. The Officer passenger side liceman with? out, get just “You don’t have said it because it was dark A: I couldn’t see Larry some identification.” show me gun. but it looked like a old the officer the car then and was out of Q: gun with a you Larry and when he Have ever seen around the car walked head before? he nodded his walked toward us back. “Hey” I said and nodded to me. A: No.

At time “I’m to Larry going this said Q: Larry happened gun What to the that you my show identification.” He said this used in the shooting? opened

when he out of the car. He his got A: I don’t know. coat to pants and went and turned Q: photograph I of a you now show pulled gun the side and then out a and shot Man? subject, you male do know this him. The Policeman badge had in the Larry, A: That’s the one who was flashlight grabbed in his hands and his side car shot the Policeman. “Oh, and said God.” The Policeman then Larry Kearney Photograph NOTE: fell. taken after his arrest. see ran. I didn’t Dam” I said “God Q: Larry wearing What was after know I don’t that and after happened what shooting say or I should at the shoot- 15th Street to I down Larry did. ran what ing? then down “Que” street then to one not the same A: He had a hat on but “Que” Street. at 1428 house my cousin’s He he was arrested. he had on when but when then there cousin wasn’t My with a coat suburband [sic] He told happened. what told him came in I know collar. I don’t wool trimmed stay there me to alright for it was that it was dark. what color it was because all you tell I should Larry they caught if coat hat and this where Q: you Do know that I the statement rest of truth. The are now? to the Chili truth, go we did is the gave know. I A: I don’t Larry yesterday sawI Bowel. When and that tape car parked him about asked the Chevrolet Q: How was shooting? “the Policeman told me Larry in before Larry true and saw you it. about anymore say didn’t died.” We corner, you near parked was A: It ticket got have know, he should Bernard Sergeant Detective Questions by there. parking D. Crooke: know about shooting of Detective Q: you Did see how the vent window on Gilbert Silvia? passenger broken? A: It would have came out sooner or already got It broken when I

A: later. there. Q: you Larry Kearney Did assist in any- Q: in the auto you anyone Did see else way on the night shooting of Larry?

other than Detective or at after the anytime shooting? A: No. A: No.

Q: you anyone Did see else in the area at shooting? the time of Q: Is there anything you would like to add to this statement that has not al- Spanish people going A: Just the in the ready been covered? house when I 16th walking toward street. A: No.

Q: you wearing What were at the time given typed by Statement to and De- the shooting? tective D. Sergeant Bernard Crooke A: I was wearing plaid round brim hat WITNESSED and a white trench I wear- coat. /s/ Det. D. Sgt. Bernard Crooke ing brown loafers. Det. William Mann /s/ Q: How tell what many persons you did /s/ Walter Warren Stanley you concerning shooting saw initials and those of Detective [Warren’s Policeman. appear Crooke on each page Warren’s cousin, A: Only my Taylor. Rezan statement.] Q: Do know you anyone Larry TAMM, shooting? Judge, concurring part:

told about the Circuit A: No. presented by appeal The issue this Q: you Do know Larry or heard what failing whether the district court erred in may have put gun? presented hold a on the claims A: No. agree 1980 motion. I Q: district court’s in this case should you any keys Do know if has decision Larry be For the reasons set forth be-

that he uses on cars? affirmed. low, however, analysis there is much in the A: I don’t know. I employed by majority with which Q: you Had seen the Chevrolet that Lar- agree. cannot ry prior was in to this date? A: Yes. I.

Q: you When did see the car? It is that pro prisoners’ well settled se A: I had seen there this past that car be construed. pleadings liberally should Monday and Tuesday. Kerner, Haines v. 519, 520-21, Q: you How do know it was the same 595-96, (1972). It 30 L.Ed.2d ear? is also manifest that timeliness is never an A: It had tags. out of state se per proceedings issue section Q: Did you notice if the vent window may any such a motion be filed “at because Monday Tuesday? was broken on I there- time.” 28 U.S.C. A: No. majority that agree fore cannot with the Q: you injuries Did see on any Larry, of motion should portions some he bleeding anywhere? untimely an motion for a be construed to be that the tim- Although agree new trial. I A: Not I that could see. to cer- Kearney’s filings is relevant Q: Why did wait until the end of the you that arise equitable tain considerations to tell what original you statement reasonable likelihood that the cases, majority’s no section 2255 I believe the murder, positively to a eyewitness of an discussion of motions for a new murderer, the defendant as the identifying in the current context. In addi irrelevant jury. See tion, judgment the case at affected I find no nexus between States, Dupart of claims v. United majority’s hand and the discussion I 1976). Accordingly, cannot Cir. evidence and claims newly discovered unavailability of ultimate recanting agree witness upon based affidavits of concluding that basis for simply recanting proper If relief is a es. this case involved in this case. newly required discovered no witness and a claim of evidence, I believe that its resolution would newly

be a matter. Claims of dis simple III. evidence, more, covered without are not heavily relies majority opinion cognizable under section 2255. Davis v. See as a denial of the section 2255 motion States, 333, 346, of the merits of the claim determination 2298, 2305, (1974); Howard perjured testimony use of knowing v. United given controlling weight by properly Pelegrina also v. United clear, I it far from the district court. find 18, 19 (1st 1979), n.2 and cases however, that the 1974 denial on this issue case, cited therein. This is not such a how In was a “merits determination.” ever, that, Kearney contends con liberally the claims district court concluded “[t]hat strued, presents his motion a claim of the respecting manufactured evidence of error knowing government perjured use knowing per- use of prosecutor’s [and] testimony. question we confront jured light ... taken in whether process required this due claim mere conclu- pleadings and record [were] hearing. facts,” supporting sions without motions, files and records pleadings, II. conclusively petitioner [was] show[ed] The majority Kearney finds that the evidence ad- entitled to no relief.” v. United duced at Kearney’s excluding (D.D.C. even Feb. Civ. No. 74-213 eyewitness 1974) (order motion); Warren’s identification testimo- denying section ny, appellant’s guilt beyond showed a rea- (R.) pg. wording Record 2. The sonable doubt. face of such conclu- the district court’s order makes unclear evidence, reasons, sive the majority perjury no hear- whether the 1973 claim was dis- hand, ing was required posed on the section 2255 motion of on its merits. On one allegation because would be entitled to no perjury found that the relief regardless allega- sufficiently pleaded subject of the truth of his to form the hand, tions. If it is assumed that suffi- of a merits on the other ruling; ciently alleged a due the process appeared claim of as well to rule that claims, knowing perjured testimony, use of how- entitled to relief on none of his ever, appropriate arguably, perjury the standard used to de- at least the including, termine 373 whether would be entitled In v. United charge. Sanders 1, 1068, (1963), to relief if proved his claim true is whether U.S. “the any false could ... in rea- the that a district court Supreme Court held sonable likelihood have the to the denial of judg- may give controlling weight affected Illinois, (1) jury.” “only ment of the 360 if the Napue prior v. section 2255 motion 264, 271, 1173, 1178, subsequent 79 in the ground presented S.Ct. 3 L.Ed.2d same the indisputably high adversely This is was determined application standard; (2) it. the majority employ applicant prior application, does not merits, I doubt whether it can be said that there is was on the determination considered, all, and, not considered at if (3) justice the ends of would not be served subsequent the merits of the by reaching that the claim deny decision 1974 to 15, application.” at at without a The ma- hearing was erroneous. added). (emphasis jority concludes that the 1974 claim was Where, as properly denied on merits. that the section 2255 motion Assuming here, a prior basis for the denial of the know- sufficiently alleged filed in 1973 unclear, motion is I believe that the court is prose- perjured testimony by use of required any to resolve doubt in favor of cutor, holding in 1974 the district court’s Sanders, se applicant. Cf. pro 373 U.S. conclusively that the issue was resolved on (if at doubt arises appears the basis of the record to have been a ground alleged whether for relief in a sufficiently alleged A claim of erroneous. successive motion ground is the same al- in- knowing perjured testimony use of leged in a prior the trial be volves facts outside record and doubt should requires evidentiary hearing. thus an resolved in favor of the applicant). Accord- Smith v. United 510 ingly, I believe that exten- majority’s Lindhorst United 1980); v. Cir. sive possible discussion of bases upon which United the 1974 district court F.2d have could found Vecchiareilo, v. States 424 that the files and conclusively records Maturo, v. (D.C.Cir.1976); States showed that Kearney was entitled to no (D.C.Cir.1976). Under relief to be It clear unnecessary. to me Sanders, it seems clear that the “interests that the 1974 ruling should not be treated justice” require, standard would at the as a merits determination and that this least, very ground some other than the suc- court should consider the claims raised in cessive support motion rationale to a denial the 1980 motion to whether they determine without of the 1980 motion. On required a hearing. hand, the other if it is assumed that in 1974

the district court process found that the due IV.

claim had not been sufficiently alleged, then there was no “merits” determination appeal, court-appointed On counsel has view, of that issue. On this having there presented process several serious due consideration, been no merits if the 1980 believe, however, claims.1 I do motion contained sufficient allegations, pressed claims are sufficiently alleged Sanders would require ruling the motion itself. The motion states: “De- denial of the 1980 motion as successive was nial of process. due Fifth Amenbment [sic] erroneous. Violation ... That W. WAR- STANLEY REN’S,

I believe that a good COnfession was coersed possibility exists [sic] [sic] that.the knowing perjury use of claim was and obtained under duress and that it was knowing perjured Bohlinger, (1st In addition to the use of In 499 F.2d 29 claim, appellant’s hand, however, alleged involuntary counsel states that case at “fairly alleges read” the interjected motion statement was into the trial if, process alleges, due was violated as Warren impeach counsel in order to the wit- his written statement was obtained coercion majority ness Warren. As the notes at Although and duress. the use of coerced state- statement was never introduced into evidence. justice sys- ments is abhorrent to our addition, criminal during at no time the trial was it tem, cases that have disallowed their use are alleged involuntarily the statement was clearly distinguishable from the case at bar. given. Accordingly, allegations the belated prosecutor normally attempts to admit al- admissibility coercion do not affect the of War- legedly coerced statements order to show a ren’s trial un- defense counsel prior guilt admission of a defendant who successfully sought impeach. no Because innocence, Denno, now claims Jackson v. 378 regardless relief on this claim is available 368, 1774, (1964), U.S. 84 12 S.Ct. L.Ed.2d 908 allegation, truth of the no on this issue impeach or to a witness whose trial required. statement, is at variance with a LaFrance

232 testamony perjured

erronious [sic] Kearney, v. No. United States Crim. PACIFIC COMMUNICA SOUTHERN [sic].” CO., Petitioner, Aside, Vacate, or 1537-67, TIONS Motion to Set at 43. (D.D.C.); at 4 R. Correct Sentence v. is supported the motion Although COM FEDERAL COMMUNICATIONS he commit stating affidavit of and United States MISSION whatso allegation ted there is no perjury, America, Respondents, aware of prosecutor ever therefore, alleged perjury. Co., Telegraph Telephone and American process a due sufficiently allege does not Systems, Aerospace Satellite Business Conzemius, v. Inc., United States America, See violation.2 Association Industries v. Scott Corporation, 695, (8th 697 Cir. Telecommunications MCI Systems, 1116, United F.2d Cir. Transmission United States Inc., al., Radio, denied, 1111, Inc., et cert. 1976), Aeronautical Irregular Common Carrier 1128, (1977). Even constru 51 L.Ed.2d 565 Conference — Route, claim, Intervenors. to raise such documents than the bare conclu nothing there is more INDUSTRIES ASSOCIA AEROSPACE prosecutorial knowledge. sion of Concluso AMERICA, Petitioner, TION OF statements, support no facts in ry alleging v. sup to no facts from which pointing drawn, are insuf porting inferences can be COM FEDERAL COMMUNICATIONS United See require hearing. ficient and United States MISSION Hearst, 1190, States v. F.2d America, Respondents, denied, 938, cert. 1980), 451 U.S. Radio, Inc., Transport Air Aeronautical DeVincent v. United (1981); America, Tele Ad Hoc Association (1st Committee, communications Users addition, alleged even if Co., Telegraph Telephone and American motion, it is supporting facts in the 1980 Corporation, MCI Telecommunications have been doubtful the motion would Systems, States Transmission with a fully justified saved from a denial Inc., Conferenc e —Ir Common Carrier Romano, hearing. See United States Route, regular Intervenors. cert. (2d Cir.), 81-1594, Nos. 81-1674. Accordingly, agree I that the district court’s Appeals, United States Court affirmed. decision this case should be District of Columbia Circuit. April 1982.

Argued Decided June 1982. 2. rests on this decision majority opinion as the Insofar notes that the motion determination, allege prosecutorial knowledge I concur. does not alleged perjury. Majority Opinion 222-

Case Details

Case Name: United States v. Lawrence Kearney

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

Date Published: Jun 18, 1982

Citation: 682 F.2d 214

Docket Number: 81-1043

Court Abbreviation: D.C. Cir.