APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 76-355).
Van Dusen, Gibbons and Garth, Circuit Judges. Gibbons, Circuit Judge, dissenting.
VAN DUSEN, Circuit Judge.
This is an appeal, pursuant to 28 U.S.C. § 2255, from a district court order dismissing without a hearing petitioner's "Motion to Set Aside and Vacate Judgment of Conviction and Sentence Imposed in Criminal Number 73-139."*fn1 Petitioner contends that the district court erred insofar as it did not hold a hearing on his motion. We disagree, on the facts of this case, and will affirm the order of the district court.
At petitioner's trial, one Emma Mozee testified on cross-examination by defense counsel as follows:
"Q. Have you been hospitalized and treated for mental illness?
"Mr. Scarlata: That is objected to.
"Ms. Mozee: Not that I know of.
"The Court: It is answered. I will let the record stand.
"Ms. Mozee: I have been hospitalized for him beating me, but no mental illness.
N.T. 633. Afterwards, during the course of the trial, petitioner's counsel moved to have the court direct the Government to make Ms. Mozee available for further examination primarily because petitioner had advised him that "the witness Emma Mozee has not testified honestly concerning her history of treatment for mental disease or disorders," and that petitioner wanted additional cross-examination in this respect. N.T. 848. The Government resisted that motion on the basis that "what [was] sought to be proved through her being called back . . . is a matter . . . provable without her being here." The court ruled that it would order her brought back if it thought that she was necessary, but that "she was subjected to considerable cross-examination," and that further cross-examination concerning her receipt of psychiatric treatment would be of no benefit to the petitioner. N.T. 848-50.
The dissent assumes that the witness told the prosecuting attorney that she "had mental treatment at Maricopa County Hospital," whereas her affidavit states only that she had such treatment and that
"The prosecuting attorney in the case was very much aware of the fact that I spent (4) days in the mental ward of Maricopa County Hospital when he put me on the stand."
This is fully explained by the affidavit described at pages 4-5 below. The testimony of the witness on cross-examination, quoted at page 2 above, was that she had only been ...