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Lauchli v. United States

September 16, 1970


Major, Senior Circuit Judge, and Kiley and Fairchild, Circuit Judges.

Author: Fairchild

FAIRCHILD, Circuit Judge.

Petitioner brought a motion to vacate sentences under 28 U.S.C. ยง 2255. The district court denied it and later denied reconsideration. Since no hearing was held, the question on petitioner's appeal is whether the motion, files, and records "conclusively show that the prisoner is entitled to no relief".*fn1

Petitioner was convicted on twelve counts charging offenses under the National Firearms Act of 1934 and the Federal Firearms Act of 1938. He was originally sentenced to concurrent terms of imprisonment on four of the eight counts under the National act and the four under the Federal act.*fn2 He was in custody under those sentences when he made his motion. He had also been placed on probation on the other four counts, under the National act, to commence after service of the first sentences. After release from the first sentences, his probation was revoked and he is now imprisoned by virtue of the probation counts.*fn3

Petitioner asserted that his sixth amendment right to assistance of counsel was impaired by matters arising both at trial and at the close of his appeal. Presumably this claim would affect all counts. He also asserted that provisions of the National act infringe upon his fifth amendment right not to be compelled to incriminate himself. This claim would affect only the counts under that act.

(1) Assistance of counsel, trial court.

Petitioner chose and employed his counsel at trial. The record indicates that defense counsel performed the normal role. Petitioner asserted several instances in which counsel did not comply with petitioner's wishes in the presentation of the case. Only one has been argued here.

Petitioner alleged that he asked counsel to call as a witness Mr. Scroggins, the government's trial attorney. Petitioner's claims as to testimony expected from Scroggins are vague. He says his request was "due to Scroggins' personal involvement in the pre-trial activities", and that "Scroggins could have told who decided the conference at Alton would be cut short and of behind the scenes activities with Alcohol and Tobacco Tax agents to manufacture a crime". It appears that one defense presented at trial was entrapment.

The fact, as claimed, that defense counsel was unwilling to call his opponent as a witness on the basis of assertions as vague as just quoted comes nowhere near the type of failure of counsel which would raise a sixth amendment question.

"The constitutional guarantee of the assistance of competent, effective counsel does not require perfection. That guarantee is such that the essential integrity of the proceedings as a trial is preserved * * * and the trial has not made a travesty of justice".*fn4

"Ordinarily, one is deprived of effective assistance of counsel only in those extreme instances where the representation is so transparently inadequate as to make a farce of the trial. * * * This is especially true where, as here, the defendant chose and employed his own counsel".*fn5

(2) Assistance of counsel, on appeal.

Petitioner chose and employed another attorney to represent him on appeal, his trial attorney continuing to be an attorney of record. Petitioner alleged that his new counsel expressed himself inadequately in oral argument and omitted some material from the reply brief which petitioner thought should be included. The only deficiency argued on this appeal, however, is petitioner's claim that after the decision on appeal, counsel told him it would cost more money than petitioner had to take the case to the Supreme Court. It is argued here that counsel's failure to advise of the procedure for a petition for rehearing in this court and failure to say that an application for certiorari could be made in forma pauperis denied sixth amendment rights.

It is good professional practice, we think, for counsel to inform a client who has lost his appeal of the possibilities for further review. But applying principles similar to those considered above with respect to trial counsel, we do not think that failure to do so in a criminal case establishes a denial of a sixth amendment right. Certainly it does not where there is ...

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