Before MacKINNON, MIKVA and EDWARDS, Circuit Judges.
UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT
Appeal from the United States District Court for the District of Columbia (D.C. Criminal No. 69-923).
Opinion for the Court filed by Circuit Judge MIKVA.
Opinion concurring in the result filed by Circuit Judge MacKINNON.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MIKVA
Appellant, Bennie E. Barnes, appeals the denial of his petition to vacate his sentence under 28 U.S.C. § 2255 (1976). He claims that he was deprived of his right to counsel at a hearing on the section 2255 motion held in the court below. We reverse and remand, 520 F. Supp. 946, for a de novo hearing, at which appellant's chosen counsel is to be present. I. BACKGROUND
This case involves a very brutal set of facts, but one that should not sidetrack us from our inquiry into the constitutionality of the procedures employed here. Barnes was convicted of felony murder, second-degree murder, and arson in connection with the death of his common-law wife. The death occurred in 1969 after a day of apparently heavy drinking by appellant and several arguments with his wife. According to Mrs. Barnes' statement on the day she died, appellant poured gasoline from a Clorox bottle around her and threw a lighted match on the floor. Mrs. Barnes claimed that her husband held her in the fire; Barnes alleged that he attempted to pull her out, but that she slipped and fell. After being found competent to stand trial, *fn1 Barnes was convicted in a trial before Judge June L. Green and sentenced to life imprisonment. *fn2
Appellant's conviction was based in part on his statements to the police at the scene of the fire and at the police station following his arrest. Those statements may be divided into three groups: (1) When the first policeman arrived at the scene, the decedent's niece told him that Barnes had set the fire. The policeman asked Barnes if this was true; Barnes replied, "Well, I will take the blame for it." The sergeant said that he was not asking Barnes to take the blame, but was only asking whether he had set the fire. Barnes responded, "Yes, I did, but it was an accident." Trial Transcript (Tr. I) at 17-19, 297-99. *fn3 (2) After he had been arrested, and as he was being led to the police car, Barnes said, "I am sorry I did it. What do you think they will do to me?" Tr. I at 58, 357. (3) At the police station, Barnes was read his rights and then tried to explain the incident to one of the policemen as an accident precipitated by his wife's picking up the Clorox bottle to throw at him. Tr. I at 35, 313.
Appellant's pretrial motion to suppress these statements on the ground that they had been obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), was denied. Barnes appealed his conviction on a number of grounds, including the alleged Miranda violation. The conviction was upheld by this court, which ruled that the first statement was made before Barnes was in custody or was a suspect and thus before Miranda applied, and that the second statement was voluntarily made and thus also outside the scope of Miranda. 464 F.2d 828, 829-30 (D.C.Cir.1972), cert. denied, 410 U.S. 986, 93 S. Ct. 1514, 36 L. Ed. 2d 183 (1973).
Barnes, acting pro se, filed a section 2255 petition on April 6, 1973, adding to his claims on appeal a claim of ineffective assistance of counsel. That motion was denied on the same day without a hearing, and this court refused to grant leave to appeal in forma pauperis.
Appellant then obtained the services of entirely new counsel, the Public Defender Service, and brought this second section 2255 petition, alleging for the first time that the statements at issue were not voluntary. Voluntariness was disputed on a number of grounds: at the time the statements were made, Barnes was suffering from severe burns; he was intoxicated as a result of having been drinking for the twelve previous hours; he was mentally retarded and educationally disadvantaged; his prior experience with the law was minimal, and he was not read his Miranda warnings until after the first two statements were made; and he was in shock from the fire and from witnessing his wife's injury. *fn4
The court below again denied a hearing on the grounds that appellant had presented "nothing new" and that his claim had implicitly been presented and rejected by the prior opinion of this court. This court reversed, holding that appellant had never before raised the issue of voluntariness, but had only challenged the statements as violative of Miranda. 610 F.2d 888, 891-92 (D.C.Cir.1979). *fn5 The court directed the trial judge to hold a hearing on appellant's motion in order to determine two issues: (1) whether the statements were in fact voluntary; and (2) whether appellant had waived his right to raise the issue in a section 2255 proceeding by failing to do so at the trial and appeal stages. *fn6 As framed by this court, then, the issues to be resolved necessitated evaluation of the performance of both appellant's trial counsel and his attorney on direct appeal.
On September 18, 1979, the court below held an evidentiary hearing without first notifying appellant's current counsel, who had brought the petition. No reason for this failure appears in the record; the government at oral argument "assumed" that the explanation was "administrative oversight." Present at the hearing were Barnes, his counsel at the original trial, the lawyer who handled his appeal, and an Assistant United States Attorney. Both of Barnes' former attorneys defended their prior representations of him. The transcript does not clearly reflect whether the court thought that appellant was appearing on his own behalf or whether she thought he was being represented by Rufus King, Barnes' former counsel on the direct appeal. In any event, no evidence was presented in appellant's favor, the court did most of the questioning of the two witnesses-Barnes and John Dwyer, the lawyer who represented Barnes at trial-and Rufus King's argument addressed only the issue of voluntariness, and not the question ...