ORAL ARGUMENT NOT YET SCHEDULED
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,Plaintiff-Appellee,
RONALD M. xxxxxxx,Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
FEDERAL PUBLIC DEFENDER
625 Indiana Avenue, N.W.
Washington, D.C. 20004
L. BARRETT BOSS
Assistant Federal Public Defender
Counsel for Appellant
CR. NO. 91-0486
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
Pursuant to Rule 28(a)(1) of the General Rules of this Court,
appellant hereby states as follows:
A.Parties and Amici: The parties in this Court are the defendant-appellant, Ronald Michael xxxxxxx, and the plaintiff-appellee, United States of America. There are no intervenors or amici in this Court, and there were none in the district court.
B.Rulings Under Review: In this appeal, the defendant challenges the district court's denial of his motion, pursuant to 18 U.S.C. § 2255 to Vacate, Set Aside, Or Correct Sentence based on his being denied effective assistance of counsel at trial. The trial court denied Mr. xxxxxxx's Motion in a written Memorandum And Order, dated February 28, 1994. (APP. 241).
C. Related Cases: This case has not been before this Court or any other court previously, except to the extent that the appeal from the underlying conviction, from the denial of Mr. xxxxxxx's previously filed Motion To Modify Sentence, and from the denial of his Motion pursuant to 18 U.S.C. § 2255, were consolidated for purposes of appeal and were held in abeyance pending the Supreme Court's decision in United States v. Neal, 116 S.Ct. 763 (1996).
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES i
TABLE OF AUTHORITIES iii
STATUTES AND REGULATIONS 1
ISSUE PRESENTED 1
STATEMENT OF THE CASE 2
A.Nature of the Case, Course of Proceedings, and Disposition in the Court Below 2
B. Statement of Facts 4
i.Mr. Werdig's Pretrial Representation Of
Mr. xxxxxxx 5
ii.Mr. xxxxxxx's Ill Health And His Inability To Testify 7
iii.The Government's Evidence at Trial and The Defense Case Presented By Trial Counsel 10
iv.The 28 U.S.C. § 2255 Proceeding 13
SUMMARY OF ARGUMENT 15
MR. xxxxxxx WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY'S FAILURE TO PROTECT HIS RIGHT TO TESTIFY AT HIS TRIAL, AND THERE IS A REASONABLE PROBABILITY THAT MR. xxxxxxx'S TESTIMONY WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL. 16
A.Standard of review. 16
B.The constitutional right of an accused to testify is fundamental, and trial counsel is obligated to protect that right 17
C.Trial counsel was ineffective in failing to protect Mr. xxxxxxx's right to testify 18
1.Trial counsel's performance in protecting Mr. xxxxxxx's fundamental right to testify fell below an objective standard of reasonableness 19
2.If counsel had protected Mr. xxxxxxx's right to testify, there is a reasonable probability that the jury would have acquitted Mr. xxxxxxx of Count 2. 24
D. The trial court erred in failing to hold an evidentiary hearing on this issue 29
CERTIFICATE OF LENGTH 32
CERTIFICATE OF SERVICE 32
TABLE OF AUTHORITIES
Faretta v. California,
422 U.S. 806 (1975)17
Ferguson v. Georgia,
365 U.S. 570 (1961)26
Fontaine v. United States,
411 U.S. 213 (1973)30
Green v. United States,
365 U.S. 301 (1961)27
Johnson v. Zerbst,
304 U.S. 458 (1938)18
Marchibroda v. United States,
368 U.S. 487 (1962)30
Murchu v. United States,
926 F.2d 50 (1st Cir.),
cert. denied, 502 U.S. 828 (1991)30
* Nichols v. Butler,
953 F.2d 1550 (11th Cir. 1992)(en banc)18, 26, 28
Poe v. United States,
233 F. Supp. 173 (D.D.C. 1964),
aff'd, 352 F.2d 639 (D.C. Cir. 1965)23, 26
* Rock v. Arkansas,
483 U.S. 44 (1987)17, 26
Sanders v. United States,
373 U.S. 1 (1963)30
* Strickland v. Washington,
466 U.S. 668 (1984)passim
United States v. Bigman,
906 F.2d 392 (9th Cir. 1990)30
United States v. Briggs,
939 F.2d 222 (5th Cir. 1991),
cert. denied, 506 U.S. 1067 (1993)30
United States v. Butts,
630 F.Supp. 1145 (D. Me. 1986)29
United States v. DeCoster,
487 F.2d 1197 (D.C. Cir. 1973)21,31
United States v. Estrada,
849 F.2d 1304 (10th Cir. 1988)31
United States v. McCord,
509 F.2d 334 (D.C. Cir. 1974)31
* United States v. Moskovits,
844 F. Supp. 202 (E.D. Pa. 1993)24, 27
* United States v. Ortiz,
82 F.3d 1066 (D.C. Cir. 1996)17, 18, 26
United States v. Pennycooke,
65 F.3d 9 (3d Cir. 1995)18
United States v. Pollard,
959 F.2d 1011 (D.C. Cir.),
cert. denied, 506 U.S. 915 (1992)16
United States v. Rodriquez,
929 F.2d 747 (1st Cir. 1991)30
United States v. Teague,
953 F.2d 1525 (11th Cir. 1992) (en banc)18
United States v. Walker,
772 F.2d 1172 (5th Cir. 1985)29
Wright v. Estelle,
572 F.2d 1071 (5th Cir.),
cert. denied, 439 U.S. 1004 (1978)26
STATUTES AND RULES
21 U.S.C. § 841 et. seq.2
28 U.S.C. § 22551, 13, 30
Federal Rules of Evidence 60924
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,PLAINTIFF- APPELLEE,
RONALD xxxxxxx,DEFENDANT- APPELLANT.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF FOR APPELLANT
STATUTES AND REGULATIONS
Pursuant to Rule 28(f), Federal Rules of Appellate Procedure and Circuit Rule 28(a)(5), the pertinent statutes are set forth in the Addendum to this brief.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The notice of appeal having been filed within the ten-day period set forth in Fed. R. App. P. 4(b), this Court has jurisdiction pursuant to 28 U.S.C. § 1291.
Whether the trial court erred in denying Mr. xxxxxxx's motion, pursuant to 28 U.S.C. § 2255, to vacate his sentence due to ineffective assistance of counsel based on a finding, which was made without a hearing, that trial counsel's failure to protect the defendant's right to testify was not prejudicial since the defendant's proposed testimony would have been "redundant and cumulative" with the single defense witness who did testify?
STATEMENT OF THE CASE
A.Nature of the Case, Course of Proceedings, and Disposition in the Court Below.
On August 22, 1991, Mr. xxxxxxx was charged by indictment with one count of distribution of ten grams or more of lysergic acid diethylamide (LSD) and two counts of possession with the intent to distribute ten grams or more of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(v). (APP 11).
On September 5, 1991, Mr. xxxxxxx was arrested and arraigned before the district court. At that time, attorney Robert M. Werdig, Jr. was appointed to represent Mr. xxxxxxx in this case. On the following day, the trial court set a $25,000.00 surety bond that held Mr. xxxxxxx throughout the proceedings. (DE #2).
On September 27, 1991, Mr. xxxxxxx was charged in a superseding indictment with distribution of one gram or more of LSD and possession with the intent to distribute ten grams or more of LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(v). These charges arose from a sale of a 1000 doses of LSD to an undercover police officer on June 12, 1991, and the seizure by the police of more than 8000 doses of LSD from Mr. xxxxxxx's apartment on June 21, 1991, respectively. (APP 13).
On October 3, 1991, a status hearing was held and the court set trial for November 12, 1991. (DE #5). On November 12th, however, the trial date was continued until January 13, 1992, because Mr. xxxxxxx had written a letter to the Federal Public Defender and to the trial judge complaining about Mr. Werdig's representation, and requesting new counsel. On November 12th, Mr. xxxxxxx withdrew his request for a new attorney, and the trial was re-scheduled. (APP 15).
On January 13, 1992, Mr. xxxxxxx's jury trial began before the Honorable Norma Holloway Johnson. On January 15, 1992, the jury returned a verdict of guilty on Count One. (DE #12) (APP 132). On January 16, 1992, after indicating to the trial court that it was deadlocked and after being read an Allen charge, the jury returned a verdict of guilty on Count Two. (DE #13-15)(APP 133-134).
On March 31, 1992, Mr. xxxxxxx was sentenced to 168 months imprisonment on each count, to be served concurrently; four years of supervised release on Count One and five years of supervised release on Count Two, to run concurrently; and a special assessment of $100. (APP 136). On that same day, Mr. xxxxxxx filed a notice of appeal of his convictions and sentence. (APP 139).
On May 14, 1993, Mr. xxxxxxx filed his motion pursuant to 18 U.S.C. § 2255, alleging ineffective assistance of trial counsel. (APP 140). On February 28, 1994, the district court denied Mr. xxxxxxx's § 2255 motion without a hearing. (APP 241). On March 9, 1994, Mr. xxxxxxx filed a notice of appeal of the February 28th Order, and also moved to hold the appeal in abeyance pending the district court's disposition of Mr. xxxxxxx's Motion To Modify Sentence of Imprisonment. (APP 248).
On August 5, 1994, Mr. xxxxxxx filed the aforementioned Motion To Modify Sentence Of Imprisonment with the district court based on an amendment to the Sentencing Guidelines. (DE #46). On May 1, 1995, the trial court granted the defendant's motion, in part, and reduced his sentence to 120 months of imprisonment. (APP 249). On May 5, 1995, the defendant filed a notice of appeal of the May 1st Order. (APP 256).
On July 21, 1995, this Court held the appeal in abeyance pending the Supreme Court's decision in United States v. Neal, 116 S.Ct. 763 (1996). On February 6, 1996, this Court returned this consolidated appeal to its active docket and set a briefing schedule.
B. Statement of Facts
This case arises from an undercover operation in which a confidential informant introduced Mr. xxxxxxx to an undercover DEA agent for the purpose of selling the agent LSD and having Mr. xxxxxxx purchase marijuana from the agent. (APP 20, 22) (1/13/92: 88, 91). After a controlled purchase of LSD from Mr. xxxxxxx's residence on June 12, 1991, the agents staged a meeting in Baltimore on June 21, 1991, at which time the undercover agent was purportedly going to sell marijuana to Mr. xxxxxxx and an individual named Hans Howarth in exchange for cash and some LSD. (APP 31) (1/13/92: 102). Mr. xxxxxxx was arrested at that time and a search warrant, which had been obtained the day before, was executed for Mr. xxxxxxx's apartment. (APP 27, 31-32) (1/13/92: 98, 102-103). During the search of the residence, the agents uncovered in a record album cover over 8000 doses of LSD. (APP 33-34) (1/13/92: 104-105).
i.Mr. Werdig's Pretrial Representation Of Mr. xxxxxxx
Mr. Robert Werdig was appointed by the trial court to represent Mr. xxxxxxx. Although a financial bond had been set for Mr. xxxxxxx, he was unable to make bail and remained incarcerated from the time of his arrest on September 5, 1991. (DE #2) (APP 225-226). Despite multiple letters requesting that Mr. Werdig visit him at the jail to talk about the case, Mr. Werdig failed to do so for over 60 days. One such letter advised his counsel that his health was declining rapidly because of the poor diet and unhealthy conditions that existed at the jail. (APP 207, 225-226). The letter also included information about the facts and circumstances of the case and ended with a request for a conference to discuss these matters. (APP 201-208, 226). Finally, Mr. xxxxxxx wrote to the district court and to the Federal Public Defender complaining about Mr. Werdig's failure to meet with him. In response, Mr. Werdig had one fifteen minute meeting with Mr. xxxxxxx on November 9, 1991, three days before the scheduled trial date of November 12th. (APP 226).
During that brief meeting, counsel explained that he planned to defend the case on a theory of vindictive prosecution, arguing that the federal prosecution was instituted against Mr. xxxxxxx only after he had received probation in a related state case. (APP 227). Counsel agreed that Mr. xxxxxxx should testify at his trial but they neither prepared nor discussed the substance of his proposed testimony. (APP 227). Instead, counsel only advised Mr. xxxxxxx to listen carefully to the questions asked and to keep his answers brief. (APP 227). Counsel did not discuss trial tactics or the significance of Mr. xxxxxxx's testimony, and because counsel agreed that Mr. xxxxxxx should testify at his trial, did not discuss the ramifications of a decision not to testify. (APP 226-227).
When Mr. xxxxxxx appeared in court for trial on November 12, 1991, he discovered that his trial was not going to go forward because his pro se motion for new counsel first had to be resolved. (APP 228). Expecting that his counsel would diligently prepare his defense now that they had a substantive meeting, Mr. xxxxxxx agreed to retain his counsel rather than start over with a new attorney. (APP 228).
The trial date was continued to January 13, 1992. Again, Mr. Werdig failed to meet with xxxxxxx to prepare the defense and Mr. xxxxxxx's testimony; instead, Mr. xxxxxxx did not see counsel again during that two-month period and did not have any discussions with him concerning his testimony at his trial. (APP 228).
ii.Mr. xxxxxxx's Ill Health And His Inability To Testify
By the time of the new trial date, January 13, 1992, Mr. xxxxxxx's health had dramatically deteriorated. He experienced constant pain in his lower abdomen, causing him to walk with a limp, and was running a high fever. (APP 228). Although attorney Werdig was aware of Mr. xxxxxxx's medical condition, he failed to request a continuance, a medical examination, or any other relief. (APP 228-229).
On the first day of trial, when Mr. xxxxxxx inquired as to the questions he would be asked when he testified, his counsel told him that he had not prepared any specific examination. (APP 228-229). Moreover, for the first time, counsel told Mr. xxxxxxx that he probably should not testify at all because his illness would prevent him from handling the prosecutor's cross-examination and his testimony could weaken the vindictive prosecution defense, thereby jeopardizing his appeal. (APP 228-229).
At the conclusion of the first day of trial, the trial court, without receiving any information from defense counsel, noticed that Mr. xxxxxxx was limping. When the court inquired of Mr. xxxxxxx regarding his health, Mr. xxxxxxx responded that he was having problems with his bladder and that he believed that he had a kidney infection and intestinal problems. (APP 37-38) (1/13/92: 119-20).
On the second day of trial, when the government rested, it was time for the defense to put on its case. Although the pain in his side had increased and he was having difficulty focusing on what was occurring in the courtroom, Mr. xxxxxxx told his counsel that he still wanted to testify on his own behalf, but that he was afraid that he would be incoherent on the witness stand. (APP 229-230). Based upon this information, counsel advised the court as follows:
MR. WERDIG: I have one witness I'd like to put on this afternoon, Your Honor. And Mr. xxxxxxx indicates that he might wish to take the stand but that he could not do it today, that his state of physical well-being is not such that he feels strong enough to commence his testimony at this time. And I would ask, then, that we recess until tomorrow morning. And if he is to take the stand, that he would do so first thing in the morning.
(APP 72-73) (1/14/92: 114-15). After the defense called its one witness, Denise Helou, the court recessed for the day. Before Mr. xxxxxxx left to return to the jail, his counsel told him that his opportunity to testify would come the next day. (APP 229-230).
By the time that Mr. xxxxxxx returned to the jail that evening, he was extremely weak. (APP 230). The pain in his side had worsened and he knew that he was quite ill. Because of his counsel's inconsistent advice and failure to even discuss his proposed testimony, Mr. xxxxxxx did not know whether his testimony would help or hurt his case. (APP 230). Given his deteriorating condition, he worried that he would not be physically or mentally able to testify effectively. Between his nervousness and his illness, he hardly slept at all that night. (APP 230).
When Mr. xxxxxxx woke up the following morning, the pain in his side was so severe that he could hardly walk. In addition, as he was being loaded on to the bus in the morning to come to court, due to his illness, he lost control of his bowels and had to be taken back into the jail to change his clothes and clean himself. (APP 230-231).
When he arrived at court, his counsel told him that he did not look well and repeated his advice that he should not testify. (APP 231). Counsel did not advise him that they could request a further continuance or recess so that he might not have to testify until his health improved. (APP 231). As a result, Mr. xxxxxxx believed that he had to make an immediate decision. (APP 231). Due to his deteriorating condition, Mr. xxxxxxx lacked the strength to persist in his intention to exercise his right to testify. (APP 230-231).
Defense counsel failed to alert the court that Mr. xxxxxxx's illness had worsened and did not request an additional recess, continuance, medical examination, or any other relief. Making no reference at all to the influence of Mr. xxxxxxx's illness on his decision not to testify, and without requesting any alternative relief, defense counsel approached the bench and, outside the presence of Mr. xxxxxxx, informed the court as follows:
MR. WERDIG: ... I just want to make a simple statement to the Court. That is, I have advised my client of his constitutional rights regarding testifying. The reasons why he should, the reasons why he should not, and the instructions that you will give to the jury. And he has decided not to testify.
THE COURT: Very well. Well, do you have another witness?
MR. WERDIG: No. We would rest at this time.
(APP 85) (1/15/92: 4).
Two days later, following the return of the jury's verdict, on January 17, 1992, Mr. xxxxxxx was admitted to the emergency room of D.C. General Hospital. (APP 235). The pain that began in his lower back had intensified and spread to his lower abdomen, rendering him unable to walk. (APP 235). Mr. xxxxxxx's weight was low; he was suffering from anemia; and he complained of fever, chills, sweating and diarrhea. (APP 235). After his admission, he developed a fever of one hundred and three degrees. (APP 235). Although he was initially diagnosed as having an acute kidney infection, further tests disproved the original diagnosis and revealed an inflammation and possible abscess of the right ilio psoas muscle. (APP 235). Mr. xxxxxxx remained hospitalized for almost two weeks. (APP 235). His doctor opined that based upon Mr. xxxxxxx's "presenting symptoms and subsequent diagnosis, ...[he] would not have been "well enough to focus and participate effectively in a court proceeding on January 14, 1992." (APP 236)(emphasis added).
iii.The Government's Evidence At Trial And The Defense Case Presented By Trial Counsel
At trial, the prosecution presented evidence that on June 12, 1991, at 3145 17th Street, N.W., Washington, D.C., at approximately 8:00 p.m., an undercover DEA Task Force agent and an informant met Mr. xxxxxxx for purposes of purchasing LSD from the defendant. (APP 19-20) (1/13/92: 87-88). According to the agent, William Denford, the meeting occurred at Mr. xxxxxxx's residence, which "appeared to be the basement apartment," of the rowhouse at the aforementioned address. (APP 21) (1/13/92: 90). During the meeting, the agent asked Mr. xxxxxxx for the LSD which he had come to purchase, and Mr. xxxxxxx went into his bedroom and came back out with 1000 doses which he sold to the agent for $1000. (APP 22-23) (1/13/92: 91-2). The agent testified that Jason xxxxxxx and Hans Howarth were also present in the apartment. (APP 21) (1/13/92: 90). Mr. xxxxxxx and Mr. Howarth also discussed with the agent the possibility of purchasing marijuana from the agent. (APP 24) (1/13/92: 93). The agent testified that although he was wearing a body wire, the tape of the conversations that evening was inaudible. (APP 25) (1/13/92: 96).
A subsequent meeting was arranged at a restaurant in Baltimore on June 21st for the purpose of selling Mr. xxxxxxx and Mr. Howarth five pounds of marijuana. (APP 28) (1/13/92: 99). At that meeting, agent Denford and another undercover officer met with Mr. xxxxxxx and Mr. Howarth and, ultimately, Mr. Howarth attempted to exchange 100 doses of LSD and $3750 for the marijuana. Both Mr. Howarth and Mr. xxxxxxx were placed under arrest. (APP 29-32) (1/13/92: 100-103). A cassette tape with 393 additional doses of LSD was recovered from the automobile driven by Mr. xxxxxxx. (APP 33) (1/13/92: 104).
After the two were arrested, agent Denford informed Mr. xxxxxxx that he had previously obtained a search warrant for Mr. xxxxxxx's residence, and the keys to the apartment were taken from the defendant. (APP 32) (1/13/92: 104). The agent, along with a search team, proceeded immediately to 3145 17th Street, N.W., to execute the search warrant. In the bedroom, 141 doses of LSD and $1,100 were found on a bookcase. In the living room, the agents found 8,440 hits of LSD on green and white paper in an album cover sitting next to the stereo. (APP 33-34) (1/13/92: 104-105). The album cover was in a milk crate which contained approximately 100 albums. (APP 86) (1/15/92: 8). Agent Denford did not recall whether those albums had been present on June 12th. (APP 87) (1/15/92: 9).
The defense stipulated that the fingerprint found on the plastic bag which contained the LSD purchased on June 12th belonged to Mr. xxxxxxx, but there was never any effort to recover fingerprints from the record album cover. (APP 70) (1/14/92: 54). On behalf of the defendant, Mr. Werdig waived his opening statement. (APP 18, 73) (1/13/92: 84; 1/14/92: 115). In support of the "vindictive prosecution" theory of defense, Mr. Werdig elicited on cross examination of Agent Denford the fact that Mr. xxxxxxx had been convicted in Baltimore, Maryland of distribution of LSD based on his conduct at the June 21st meeting and had been sentenced to probation. (APP 63-69) (1/14/92: 31-37).
The defense only called Denise Helou as a witness. Ms. Helou testified that she moved in with Mr. xxxxxxx in September of 1990 and that she lived there until the first week of June 1991. (APP 74-75) (1/14/92: 117-118). When she moved out, she gave her key back to Mr. xxxxxxx, who in turn, gave it to a friend of his named Joe Johnson. (APP 75) (1/14/92: 118). Mr. Johnson had been staying at the apartment since May of 1991, (APP 80) (1/14/92: 123), and continued to sleep there after Ms. Helou left. (APP 75-77) (1/14/92: 118-120). Jason xxxxxxx also was staying at the house during this time period, and both Mr. Johnson and Jason xxxxxxx had their own keys. (APP 76-77) (1/14/92: 119-20).
Ms. Helou testified that Mr. xxxxxxx did not own a record turntable, and that there was no equipment in the house on which to play a record album. (APP 77) (1/14/92: 120). Furthermore, she never saw any records in the house while she had been living there or when she returned on two occasions in June after moving out. (APP 78-79) (1/14/92: 121-22). On cross examination, she testified that Mr. xxxxxxx had told her that the LSD found in the record album cover belonged to Mr. Johnson. (APP 81) (1/14/92: 128).
iv.The 28 U.S.C. § 2255 Proceeding
On May 14, 1993, Mr. xxxxxxx filed a motion, pursuant to 28 U.S.C. § 2255, to vacate his sentence based on the ineffective assistance of trial counsel. Mr. xxxxxxx's primary argument was that defense counsel's conduct deprived him of the right to testify at his own trial.
The government's Opposition to the defendant's motion relied heavily on an affidavit from trial counsel. According to Mr. Werdig, Mr. xxxxxxx never told counsel that his physical condition prevented him from testifying. (APP 197). Mr. Werdig claimed to have advised Mr. xxxxxxx not to testify because he could be impeached with his 1990 Superior Court conviction for "possession with intent to distribute LSD" as well as the "1991 distribution of LSD conviction which was imposed in Circuit Court in Baltimore in conjunction with the facts in this case." (APP 197).
The trial court denied Mr. xxxxxxx's motion without an evidentiary hearing or even oral argument. Regarding the issue of Mr. xxxxxxx's failure to testify, the trial court's opinion rested solely on the court's finding that "the defendant's failure to testify did not prejudice his case." (APP 242). The trial court reasoned that Mr. xxxxxxx did not suffer any prejudice "because another witness provided the jury with most of the evidence to which defendant claims he would have testified." (APP 242). Specifically, the court held that "much of [Mr. xxxxxxx's] testimony would have been redundant and cumulative" with the testimony of Denise Helou, the sole defense witness. (APP 243). Thus, the court never reached the issue of whether trial counsel performed deficiently.
SUMMARY OF ARGUMENT
The trial court erred in denying Mr. xxxxxxx's Section 2255 motion based on a claim that his trial counsel had been ineffective by failing to protect Mr. xxxxxxx's fundamental constitutional right to testify.
Mr. xxxxxxx was extremely ill at the time of his trial, and was admitted to the hospital for almost two weeks the day after the jury returned its verdict. Despite the defendant's serious illness, of which trial counsel was aware, counsel never explained to the defendant the possibility of a continuance or some other form of relief which would preserve Mr. xxxxxxx's right to testify, and counsel made no such request of the trial court. Accordingly, counsel performed deficiently by failing to protect Mr. xxxxxxx's right to testify, and Mr. xxxxxxx never voluntarily, knowingly and intelligently waived that right. According to trial counsel, Mr. xxxxxxx decided not to testify after being warned by counsel that he would be subject to impeachment with his two prior convictions should he testify. However, even if this were an accurate rendition of events, trial counsel would still have been ineffective since one of these prior convictions was a misdemeanor which could not be used for impeachment and the other conviction was actually elicited by defense counsel in cross examination during the government's case-in-chief.
The trial court did not reject Mr. xxxxxxx's contention that trial counsel had been ineffective, but instead held that any such error by counsel did not prejudice the defense since Mr. xxxxxxx's proffered testimony would have merely been "redundant and cumulative" with the only defense witness who did testify. The trial court clearly erred in finding, without even holding a hearing, that if the defendant had testified there was not at least a reasonable probability that the jury would have acquitted him of Count Two. The court's finding treated the defendant as simply another fact witness and failed to recognize the unique and inherently significant nature of a defendant's testimony. While it is difficult to conceive of any situation in which a defendant's testimony could be characterized as merely cumulative, Mr. xxxxxxx's testimony was particularly important because the salient issue was whether he constructively possessed the 8440 doses of LSD which comprised Count Two of the superseding indictment. That Mr. xxxxxxx did not know that this LSD was inside the record album in his living room was a fact to which only he could testify.
MR. xxxxxxx WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL BY HIS TRIAL ATTORNEY'S FAILURE TO PROTECT HIS RIGHT TO TESTIFY AT HIS TRIAL, AND THERE IS A REASONABLE PROBABILITY THAT MR. xxxxxxx'S TESTIMONY WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL.
A.Standard of review.
This Court reviews the district court's factual determinations in its Section 2255 ruling under the clearly erroneous standard, while its legal conclusions are reviewed de novo. United States v. Pollard, 959 F.2d 1011, 1023 (D.C. Cir.), cert. denied, 506 U.S. 915 (1992).
B.The constitutional right of an accused to testify is fundamental, and trial counsel is obligated to protect that right.
The right of an accused to testify, which is grounded in the Fifth and Sixth Amendments, "is one of the rights that '[is] essential to due process of law in a fair adversary process.'" Rock v. Arkansas, 483 U.S. 44, 51 (1987) (quoting Faretta v. California, 422 U.S. 806, 819 n.15 (1975)). Relying on this precedent, this Court recently recognized the fundamental nature of the defendant's right to testify. United States v. Ortiz, 82 F.3d 1066, 1069 (D.C. Cir. 1996).
Although the decision whether to testify at his own trial ultimately must be made by the accused himself, it is now clear that in this Circuit the obligation to protect the defendant's right to testify falls squarely upon defense counsel. Id. at 1070. In Ortiz, this Court rejected a rule which would have required the trial court, as a matter of course, to conduct a colloquy of every non-testifying defendant in order to ensure that a defendant's waiver of his or her right to testify was voluntary, knowing and intelligent. Id. at 1070-71. Instead, the Court held that:
Absent evidence of something to alert the district court to a problem in the client-counsel relationship, such as conduct falling below the Sixth Amendment standard of Strickland v. Washington, 466 U.S. 668 (1984), a per se rule would be an inappropriate interference with the client-counsel relationship when the court can (and should) readily determine from counsel whether the defendant has been properly advised.
Id. at 1071 (citations omitted).
Accordingly, trial counsel assumes the "primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not," id. at 1070 (citations omitted), and with this responsibility comes the weighty burden of ensuring that any waiver of that fundamental right constitutes an "intentional relinquishment or abandonment of a known right or privilege," Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See Ortiz, 82 F.3d at 1070 ("[c]ounsel ... has the obligation to advise the defendant of his or her right to testify or not in a manner that would enable the defendant to make a knowing and intelligent choice")(citations omitted); United States v. Pennycooke, 65 F.3d 9, 12 (3d Cir. 1995) (the finding of an effective waiver of the right to testify presumes that counsel and the defendant have discussed this issue).
C.Trial counsel was ineffective in failing to protect Mr. xxxxxxx's right to testify
Since counsel is obligated to protect the accused's fundamental right to testify, the claim of ineffective assistance of counsel is the proper legal framework to address counsel's errors that caused that right to be violated. See Nichols v. Butler, 953 F.2d 1550, 1552 (11th Cir. 1992) (en banc); United States v. Teague, 953 F.2d 1525, 1534 (11th cir. 1990) (en banc). In Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984), the Supreme Court held that to obtain reversal of a conviction on ineffective assistance grounds, the defendant must prove that counsel's performance was objectively unreasonable and that a reasonable probability exists that, but for counsel's unprofessional errors, the results of the proceeding would have been different. In this case, defense counsel's failure to protect Mr. xxxxxxx's right to testify fell below an objective standard of reasonableness and a reasonable probability exists that, but for this deficient representation, Mr. xxxxxxx would have testified at his trial and he would have been acquitted of Count Two.
1.Trial counsel's performance in protecting Mr. xxxxxxx's fundamental right to testify fell below an objective standard of reasonableness
In the instant case, defense counsel was ineffective because the manner in which he handled Mr. xxxxxxx's effort to testify on his own behalf prevented Mr. xxxxxxx from exercising his constitutional right to testify. Significantly, the trial court did not reject the defendant's argument on this issue, but instead held that it was irrelevant in light of the fact that there was no prejudice to Mr. xxxxxxx from his not testifying. (APP 242). In fact, trial counsel did commit several crucial errors, each of which independently and cumulatively resulted in trial counsel's performance falling below an objective standard of reasonableness.
First, counsel failed to fully consult and advise Mr. xxxxxxx of the strategic implications of a decision not to testify at his trial. As set forth in the Statement of Facts, Mr. Werdig only had one substantive meeting with Mr. xxxxxxx, and that meeting, which only lasted fifteen minutes, occurred only after numerous complaints by Mr. xxxxxxx and only days before the first scheduled trial date. At that meeting, counsel agreed that Mr. xxxxxxx should testify at his trial but did not prepare him to testify nor discuss with him the substance of his proposed testimony. Instead, his counsel only advised him to listen carefully to the questions asked and to keep his answers brief. Other than counsel's explanation of the vindictive prosecution theory of defense, Mr. Werdig did not discuss with Mr. xxxxxxx at that time, or at any other time, trial tactics or the significance of Mr. xxxxxxx's testimony. Significantly, counsel failed to address the strategic implications of having Mr. xxxxxxx admit to distributing a small quantity of LSD, as charged in Count One of the indictment, while denying and vigorously defending against the charge of possession with the intent to distribute ten grams or more of LSD, as charged in Count Two, that carried a ten-year mandatory minimum sentence. Finally, because counsel agreed that Mr. xxxxxxx should testify at his trial, they did not discuss the ramifications of a decision not to testify. By failing to advise Mr. xxxxxxx of the implications of his decision whether or not to testify, counsel effectively deprived his client of the ability to intelligently make that decision.
In fact, because counsel did not clearly discuss or review Mr. xxxxxxx's proposed testimony, counsel was not in a position to determine whether he would be an effective witness or to fully evaluate the significance of his testimony. Moreover, in advising Mr. xxxxxxx that he should not testify, counsel failed to inform him that it would be extremely difficult to convince the jury that he did not constructively possess the drugs seized from his apartment -- the basis of the charge in Count Two -- if he did not testify. In short, counsel's lack of advice concerning the decision whether Mr. xxxxxxx should testify violated his duties to confer with his client as often as necessary to fully discuss "strategies and tactical choices," and to "take all actions necessary to preserve" his client's rights. See United States v. DeCoster, 487 F.2d 1197, 1203-04 n. 43 (D.C. Cir. 1973).
In addition to violating his duty to competently advise Mr. xxxxxxx concerning his decision to testify, defense counsel also failed to protect his right to testify by requesting some relief that would have enabled him to recover from his illness before having to take the stand. This failure was inexcusable and ineffective in light of the facts available to Mr. Werdig: Although Mr. xxxxxxx informed Werdig of his deteriorating health a full two months before the trial date of January 13, 1992, Werdig did not take any measures to ascertain the seriousness of his illness. At the end of the first day of trial, the court, without receiving any information from defense counsel, noticed and commented on Mr. xxxxxxx's limp. (APP 37-38) (1/13/92: 119-20). The record reflects that on the second day of trial, Mr. xxxxxxx was too sick to testify and that he communicated this fact to his counsel. (APP 72-73) (1/14/92: 114-115). As a result, court was recessed early. By the third day of trial, he had lost control of his bowels; and the day after the trial was concluded -- two days after he "waived" has right to testify -- he was admitted to the hospital for approximately two weeks.
Given Mr. xxxxxxx's Affidavit, Dr. Malekghasemi's Affidavit, the trial court's sua sponte observations of Mr. xxxxxxx's infirmity and Mr. Werdig's own statement to the trial court requesting an early recess on January 14th because Mr. xxxxxxx was not well enough to testify, there can be no doubt that Mr. xxxxxxx was, in fact, too sick either to actually testify or even to knowingly and intelligently waive his fundamental right to testify.
Although Mr. xxxxxxx's health was deteriorating and although counsel was on notice of this fact, Mr. Werdig never advised the defendant that they could request a further continuance or recess so that he might not have to testify until his health improved. In the absence of such requests for relief, Mr. xxxxxxx believed that he had to make an immediate decision, a belief which certainly was fostered by the trial court's repeated admonitions to Mr. xxxxxxx throughout the trial that if he failed to return to court from the jail, the trial would proceed without him. See (APP 37, 71, 82-83) (1/13/92: 119; 1/14/92: 62, 136-37). Finally, given these overwhelming circumstances, Mr. xxxxxxx merely followed his counsel's advice and agreed not to testify. Making no reference at all to the influence of Mr. xxxxxxx's illness on his decision not to testify and without requesting any alternative relief, defense counsel approached the bench and, outside the presence of Mr. xxxxxxx, informed the court that Mr. xxxxxxx had decided not to testify. (APP 85) (1/15/92: 4).
Thus, given these extraordinary circumstances, counsel's performance in failing to protect Mr. xxxxxxx's constitutional right to testify fell below the minimum reasonable standard of competence required of criminal defense attorneys practicing in federal court. Certainly, at a bare minimum, a reasonably competent defense attorney, with reason to know that his client was too ill to intelligently decide whether he should testify, would have requested a continuance, recess, or medical examination. See Poe v. United States, 233 F. Supp. 173, 177 (D.D.C. 1964) (conviction set aside where counsel's legal error and failure to request continuance to research evidentiary question prevented defendant from testifying), aff'd, 352 F.2d 639 (D.C. Cir. 1965).
Not only was Mr. xxxxxxx too sick to effectively waive this constitutional right, but also even if the Court accepts Mr. Werdig's representations regarding the advice on this issue that he gave Mr. xxxxxxx, such advice would have rendered any waiver invalid. According to Mr. Werdig, he advised Mr. xxxxxxx not to testify only because of a risk of impeachment with two prior convictions: a 1990 Superior Court conviction for possession with intent to distribute LSD and a 1991 distribution of LSD conviction which was imposed in Baltimore and which arose from Mr. xxxxxxx's transaction with the undercover officers on June 21st. (APP 197)
However, this advice was unsound because the 1990 conviction was for a misdemeanor, attempted possession of LSD (reduced from the original felony charge of possession with intent to distribute LSD). (APP 257). Accordingly, it could not have been used for impeachment purposes. See Fed. R. Evid. 609. Moreover, the 1991 conviction was part of the same course of conduct that resulted in his conviction in the instant case, and testimony about the events leading to that conviction had already been elicited during the government's case-in-chief. (APP 26-33, 40-62) (1/13/92: 97-104; 1/14/92: 6-28). More significantly, the fact that Mr. xxxxxxx was actually convicted of a criminal offense arising from this transaction in Baltimore was elicited by Mr. Werdig during cross-examination, presumably as part of his defense theory of vindictive prosecution. (APP 63-65) (1/14/92: 31-33). Thus, Mr. Werdig's advice to Mr. xxxxxxx not to testify in order to avoid placing these convictions before the jury was not compatible with reasonable professional standards. See United States v. Moskovits, 844 F.Supp. 202, 206 (E.D. Pa. 1993)(finding ineffective assistance where trial counsel wrongly advised defendant that if he testified, uncounseled Mexican conviction could be used as impeachment).
2.If counsel had protected Mr. xxxxxxx's right to testify, there is a reasonable probability that the jury would have acquitted Mr. xxxxxxx of Count 2.
Without a hearing, the trial court held that even if Mr. Werdig had been ineffective, there was no prejudice because Mr. xxxxxxx's testimony would have merely been redundant with, and cumulative to, the testimony of the only defense witness, Denise Helou. (APP 243). To establish prejudice under Strickland, Mr. xxxxxxx was required to establish that there was a reasonable probability that, but for counsel's ineffectiveness, the result of the proceeding would have been different. A reasonable probability does not require a showing "that counsel's deficient conduct more likely than not altered the outcome in the case;" rather, a reasonable probability is one which is "sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693-94. In this case, the prejudice analysis actually has two prongs: that Mr. xxxxxxx would have testified but for counsel's ineffectiveness and that had he testified, there is a reasonable probability that the outcome would have been different.
There was overwhelming evidence that Mr. xxxxxxx would have testified in his own defense had he been physically able, and the trial court did not find otherwise. Mr. xxxxxxx stated under oath that he definitely intended to testify in his case. (APP 228-231). Furthermore, as noted previously, there can be no legitimate dispute about the fact that Mr. xxxxxxx was extremely ill during his trial. That it was his illness, rather than any intelligent analysis of his options, that caused him not to testify, is corroborated by trial counsel's own affidavit in which Mr. Werdig states that he advised Mr. xxxxxxx not to testify because of the risk of impeachment with his prior convictions. (APP 197).
The trial court denied Mr. xxxxxxx's claim of ineffective assistance of counsel with regard to his right to testify based on a finding that Mr. xxxxxxx's testimony would have been merely cumulative to, and redundant with, the testimony of the sole defense witness, Denise Helou. (APP 243). However, in analyzing this issue, the trial court clearly erred by treating the defendant as simply another trial witness without recognizing that a defendant's testimony "is unique and inherently significant." Nichols v. Butler, 953 F.2d 1550, 1553 (11th Cir. 1992)(en banc). Indeed, it is hard to conceive of any case in which a defendant's testimony could ever be considered merely "cumulative." As this Court, noted in Ortiz, "the most important witness for the defense in many criminal cases is the defendant." Ortiz, 82 F.3d at 1069 (quoting Rock v. Arkansas, 483 U.S. at 52). Long before Rock was decided, Judge J. Skelly Wright wrote that, "[t]he importance the jury attaches to the accused not taking the stand and denying his guilt cannot be over emphasized." Poe v. United States, 233 F. Supp. at 177. And, as Judge Godbold explained in his often quoted dissent in Wright v. Estelle, 572 F.2d 1071, 1078 (5th Cir.), cert. denied, 439 U.S. 1004 (1978):
Where the error is in keeping the defendant from the stand the judge can consider the content of what the defendant might have said the same as for a nonparty witness. But he cannot weigh the possible impact upon the jury of factors such as the defendant's willingness to mount the stand rather than avail himself of the shelter of the Fifth Amendment, his candor and courtesy (or lack of them), his persuasiveness, his respect for court processes. These are elusive and subjective factors, even among persons who might perceive and hear the defendant, but more significantly, they are matters neither communicated to an appellate judge nor susceptible of communication to him.
See also Ferguson v. Georgia, 365 U.S. 570, 582 (1961) (it is the defendant "who above all others may be in a position to meet the prosecution's case"); Green v. United States, 365 U.S. 301, 304 (1961)("the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself"); United States v. Walker, 772 F.2d 1172, 1179 (5th Cir. 1985) ("where the very point of a trial is to determine whether an individual was involved in criminal activity, the testimony of the individual himself must be considered of prime importance").
For example, in United States v. Moskovits, 844 F.Supp 202 (E.D. Pa. 1993), Judge Pollak granted the defendant's Section 2255 motion where the defendant argued that his failure to testify at trial was due to incorrect advice from his trial counsel that a prior, uncounseled Mexican drug conviction could have been used for impeachment. In considering the potential importance of the defendant's testimony, Judge Pollak observed that it is
a rare case in which a court can comfortably say that even though errors prevented defendant from testifying, the outcome of his trial was still fundamentally fair and the verdict not rendered suspect....We judges properly view with skepticism our ability to conclude with any confidence in the average case that an error keeping a defendant from testifying did not likely affect the outcome of the trial, or did not render that trial unfair....
Id. at 207 (quotations and citations omitted).
In the instant case, it is clear that Mr. xxxxxxx's testimony would have been highly relevant and would not have been cumulative. Given that Mr. xxxxxxx would not simply have denied that the drugs were seized from his apartment, but instead, intended to assert the defense that he was not the person who had dominion and control over them, his testimony was crucial to establish this defense. See Nichols, 953 F.2d at 1553-54 ("where the question was not whether a crime was committed, but whether the defendant was the person who committed the crime, his testimony takes on even greater importance").
If he had testified, Mr. xxxxxxx would have confirmed several of the facts asserted by Ms. Helou regarding the other individuals who were sharing his house and the fact that the 8440 doses of LSD must have belonged to Joe Johnson. However, Mr. xxxxxxx would have also testified to critical facts not addressed by Ms. Helou. First, he would have testified that he did not know that there was any LSD hidden in the box of record albums which the police claimed to have found in the living room. (APP 231). In fact, Mr. xxxxxxx had never seen the box of albums in his apartment and did not own any record albums or even a record player. (APP 231) Second, he would have testified that Joe Johnson was a large scale LSD distributor, and that Johnson was the one who provided the defendant with the LSD which he sold to the agent. (APP 231).
Rather than render his testimony cumulative and unnecessary, Ms. Helou's testimony actually served as important corroboration for Mr. xxxxxxx's assertions regarding his lack of knowledge and Mr. Johnson's ownership of the LSD in the record album. Accordingly, Mr. xxxxxxx's proposed testimony would have significantly enhanced his defense and provided the jury with the opportunity to directly observe his demeanor and evaluate his credibility.
Although the defense essentially conceded the distribution charge in Count One, the prosecution's case on the more serious charge of possession with the intent to distribute ten grams or more of LSD in Count Two was very close. Based solely upon Ms. Helou's testimony, the jury deadlocked on Count Two and only returned a verdict after receiving an Allen charge from the Court. Therefore, it is reasonably likely that had the jury found Mr. xxxxxxx's intended testimony to be persuasive, it would have acquitted him on Count Two. Accordingly, there is at least a reasonable probability that but for counsel's errors in preventing Mr. xxxxxxx from testifying at his trial, the outcome of this case would have been different. See Strickland, 466 U.S. at 694. See also United States v. Butts, 630 F.Supp. 1145, 1149 (D. Me. 1986) ("ineffective assistance of counsel which results in a deprivation of the defendant's right to testify transcends conventional Sixth Amendment analysis and ... prejudice is sufficiently proven, if not presumed from, the resulting denial of the defendant's right to testify").
D.The trial court erred in failing to hold an evidentiary hearing on this issue.
While the record below provided ample justification for the district court to vacate Mr. xxxxxxx's conviction without holding an evidentiary hearing, there was no basis on which the district court could have denied the motion without first holding the evidentiary hearing. Both the applicable statute and the case law required the Court to hold a hearing. Under § 2255, the district court should have held a prompt evidentiary hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief...." 28 U.S.C. § 2255.
Similarly, courts have uniformly held that where the allegations in a Section 2255 motion are not negated by the record, the district court must hold an evidentiary hearing to decide any unresolved factual and legal issues. See, e.g., Fontaine v. United States, 411 U.S. 213, 215 (1973)(summary dismissal reversed and remanded for hearing where record failed to conclusively show that petitioner not entitled to relief); Sanders v. United States, 373 U.S. 1, 19-20 (1963)(petitioner entitled to hearing on claim that he was under influence of drugs when he waived indictment and pled guilty); Marchibroda v. United States, 368 U.S. 487, 494-96 (1962) (hearing required where petitioner entitled to relief if allegations in motion are true); United States v. Briggs, 939 F.2d 222, 228 (5th Cir. 1991)(district court must hold evidentiary hearing unless motion and record show conclusively that relief is not available), cert. denied, 506 U.S. 1067 (1993); United States v. Rodriquez, 929 F.2d 747, 752 (1st Cir. 1991)(evidentiary hearing required to determine whether actual conflict of interest existed adversely affecting counsel's representation); Murchu v. United States, 926 F.2d 50, 57 & n.12 (1st Cir.)(petitioner entitled to hearing on allegations that trial judge attempted to coerce guilty pleas where allegations not conclusory or contradicted by record), cert. denied, 502 U.S. 828 (1991); United States v. Bigman, 906 F.2d 392, 394 (9th Cir. 1990)(hearing required unless record conclusively establishes that allegations are false); United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988)(petitioner entitled to evidentiary hearing to determine coercion by counsel where transcript of proceeding inclusive); United States v. McCord, 509 F.2d 334, 352 (D.C. Cir. 1974)(hearing required where any factual allegations which, taken as true, establish substantial violation of right to effective assistance of counsel; here, petitioner failed to allege facts sufficient to justify hearing), cert. denied, 421 U.S. 930 (1975); United States v. DeCoster, 487 F.2d 1197, 1204 (D.C. Cir. 1973)(same).
In the instant case, the detailed allegations set forth in our motion were not conclusory, merely speculative, or inherently incredible. Furthermore, they primarily involved matters outside the record that were not conclusively contradicted by the "files and records of the case." Under these circumstances, prior to denying his motion, Mr. xxxxxxx was clearly entitled to an evidentiary hearing.
For the foregoing reasons, Mr. xxxxxxx's conviction should be vacated. In the alternative, the case should be remanded for an evidentiary hearing.
A. J. KRAMER
FEDERAL PUBLIC DEFENDER
L. Barrett Boss Assistant Federal Public Defender
625 Indiana Avenue, N.W., Suite 550
Washington, D.C. 20004
Counsel for Ronald M. xxxxxxx
CERTIFICATE OF LENGTH
I hereby certify that the foregoing brief for appellant Ronald M. xxxxxxx does not exceed the number of words permitted by Rule 28(d) of the General Rules of this Court.
L. Barrett Boss
CERTIFICATE OF SERVICE
I hereby certify that on the 11th day of June, 1996 I caused two copies of the foregoing Brief of Appellant Ronald M. xxxxxxx, together with the Addendum and the Appendix thereto, to be served by first-class mail, postage prepaid, upon:
John Fisher, Esquire
Chief, Appellate Division
Office of the United States Attorney
for the District of Columbia
555 - 4th Street, N.W.
Washington, D.C. 20001
L. Barrett Boss
28 U.S.C. § 2255
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
A motion for such relief may be made at any time.
Unless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.
The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.
An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.
An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant failed to apply for relief, by motion, to the court which sentenced him, or that such court denied him relief, unless it also appears that the remedy by motions is inadequate or ineffective to test the legality of this detention.
ADDENDUM TABLE OF CONTENTS
21 U.S.C. § 841 et. seq.A-1
28 U.S.C. § 2255A-3