The opinion of the court was delivered by: MARSH
The petitioner, Charles Jay Smith, along with two codefendants (Archie and Washington), was convicted of bank robbery, 18 U.S.C. § 2113(a). A third codefendant (Parrotte) was acquitted.
The petitioner has moved to vacate sentence pursuant to 28 U.S.C. § 2255. The principal ground in support of the motion to vacate is the usual accusation, after conviction, of ineffective assistance of counsel.
Petitioner requests a hearing upon his motion under § 2255. The statute requires no hearing where "the files and records of the case conclusively show that the prisoner is entitled to no relief * * *." The transcripts and the files in this case are sufficient to test the petitioner's contentions. Thus, a hearing is not required. It is our opinion that the motion to vacate should be denied.
The petitioner alleges, and the record shows, that he apprised the court of the following matters prior to trial:
1. That he sought to secure counsel of his own choice and had financial means to do so.
2. That appointed counsel was unprepared to give effective defense.
3. That appointed counsel had no prior experience in criminal procedures in federal court.
4. That the petitioner would consider defending himself and the court gave him 24 hours to accept counsel or represent himself with the assistance of the same counsel.
Because of these allegations, I held a full hearing and determined that his appointed counsel, Attorney Harry Swanger, had sufficient time to prepare the case, was sufficiently experienced, and ready to go to trial. It appeared that Attorney Swanger had been a trial lawyer in the state courts for three years where he had been trying criminal cases for approximately a year. When Judge Weber appointed him to represent the petitioner, his name appeared on the list of approved lawyers. Attorney Swanger assured me that he was prepared to go to trial (R., pp. 27, 29). The case had been called for trial on March 23rd and continued; all three codefendants were ready for trial on April 22, 1970, and two of them had been in jail since January, 1970. The fact that petitioner had privately retained and paid Attorney Carl Blanchfield shows that he had sufficient time to retain counsel of his own choice and did so (R., pp. 31, 32). Attorney Blanchfield was summoned to court by me and it appeared that petitioner, his mother, and Attorney Blanchfield had agreed that petitioner should be represented in federal court by appointed counsel (R., pp. 54-57, 63-65). In these circumstances, I believe petitioner was engaging in unwarranted dilatory tactics, and, to a certainty, his complaint that counsel was forced on him is without substance.
The record discloses that the petitioner's appointed counsel was fully prepared and had adequate time to and did interview petitioner, his witnesses, and the prosecuting authorities. He prepared motions, researched the law and conferred with the attorneys for the codefendants. His voucher certified that he spent 28 hours in this regard, including 13 hours consumed by interviews. In behalf of petitioner, he filed a motion for discovery and inspection and a motion for bill of particulars, which were effectively presented and argued. Also, he made a motion to suppress codefendant Parrotte's confession; cross-examined prosecution witnesses who testified adversely to petitioner; and orally moved that the government produce exculpatory evidence and witnesses as required by United States v. Brady (R., pp. 70-71). He opened the case for petitioner and examined three alibi witnesses and the petitioner; presented a point for charge; made motions for judgment of acquittal at the close of the prosecution's evidence, at the close of all the evidence, and after verdict; made summation on behalf of petitioner; filed a motion for a new trial assigning thirteen grounds therefor; and prosecuted the appeal. In addition, appointed counsel represented petitioner at a lineup on April 15, 1970, and at his arraignment on April 16, 1970, before Judge Miller.
It was brought to my attention that petitioner had hepatitis when arrested on March 17, 1970 (R., p. 57). I instituted an investigation and it appeared that after his arrest, petitioner was sent to the jail hospital by the jail nurse for hepatitis (R., p. 60), but had been released on March 23rd. The guard (Bronyak) who had been escorting him to the federal court hearings on March 23rd, April 15th, 16th, and 22nd, stated that he had been told that petitioner's condition was not infectious (R., p. 62). Notwithstanding, I ordered the Assistant United States Attorney to investigate (R., pp. 62, 66). Accordingly, F.B.I. Agent Bria investigated and reported that petitioner was "no longer in a communicable state as far as the disease of hepatitis goes" (R., pp. 68-69).
Allegations of fact which appear undisputed in the record with respect to the petitioner's claim of ineffective ...