The opinion of the court was delivered by: MARSH
The defendant, Albert Dwight Raines, was convicted of bank robbery and assault jeopardizing lives. 18 U.S.C. § 2113 (a), (d). Pursuant to 28 U.S.C. § 2255, he has moved the court to vacate his prison sentence of 15 years. The principal reason set forth in support of the motion is the usual accusation, after conviction, of ineffective assistance of counsel.
The other reasons are:
2. "Denial of speedy trial"
3. Unconstitutional failure of prosecution to disclose to the defendant evidence favorable to the defendant "
The defendant requests a hearing. However, section 2255 does not require a hearing when "the files and records of the case conclusively show that the prisoner is entitled to no relief --." The motion, records, files, affidavits, statement of Kevin L. Barden and the traverses filed are conclusive that an evidentiary hearing is not required and the motion to vacate will be denied. See Rules Governing Section 2255 Proceedings, Rules 7 and 8, Title 28 foll. § 2255.
The record discloses that the defendant was indicted on June 5, 1975, convicted by a jury on September 4, 1975, and sentenced on October 20, 1975. The Court of Appeals affirmed the conviction on October 12, 1976.
Among the contentions presented to the Court of Appeals by the defendant were:
1. Ineffective assistance of counsel.
2. Prejudicial identification.
3. Denial of speedy trial.
Since the conviction was affirmed grounds 2 and 3 cannot be raised again pursuant to Section 2255. Consideration of contentions on direct appeal preclude reconsideration of the same contentions on a motion for postconviction relief. Scott v. United States, 545 F.2d 1116 (8th Cir. 1976); Boeckenhaupt v. United States, 537 F.2d 1182 (4th Cir. 1976); Webb v. United States, 510 F.2d 1097 (5th Cir. 1975); Houser v. United States, 508 F.2d 509, 514 (8th Cir. 1974).
The evidence of defendant's guilt was ample. In the morning of February 12, 1975, three lady tellers in the Ambridge Savings & Loan Association (bank) observed two black males enter shortly after 9:00 o'clock and robbed the bank. Each teller described the details of the robbery and each positively identified the defendant Raines as one of the robbers. Each looked at the defendant from two to five minutes at close range in a well lighted room (Tr. pp. 29, 37, 44). Afterwards they were told to lie on the floor and then were herded into a vault and the door closed. The fourth teller, Joyce Johnson, was required to accompany the taller robber, Kevin L. Barden, to each cash drawer and stuff the money into a pillow case. (Tr. pp. 89-90). It was stipulated that $7611 was missing after the robbery (Tr. 86).
Duane C. Preston, Jr., was the F.B.I. agent in charge of the investigation. Attorney Morris Cohen, the defendant's retained counsel, educed from agent Preston on cross-examination that two other bank employees, Joyce Johnson and a secretary were present during the robbery and were not called as witnesses by the prosecution. He brought out that Joyce Johnson, the fourth teller, who was commandeered by Barden to stuff the money into a pillow case, could not identify Raines, and that the secretary who was made to lie on the floor by Barden (Tr. 89) was not shown the photographic displays by Preston which was strong evidence that she likewise could not identify Raines (Tr. pp. 72-73).
Raines refused to participate in a line-up. There was no evidence or suggestion that either Joyce Johnson or the secretary had refused to identify him or had identified another, thus distinguishing this case from the uncalled witnesses in Moore v. United States, 432 F.2d 730 (3rd Cir. 1970). Here, Raines' counsel capably elicited the fact that the two uncalled bank employees could not positively identify Raines. It was a reasonable tactical decision by counsel, absent impeaching elements present in Moore (supra), not to subpoena these employees of the bank to testify they could not identify Raines which had already been brought out, and then on cross-examination, reiterate the damaging details of the robbery. Their presence in the bank and their inability to identify Raines established by defense counsel was a well designed defense strategy to raise an adverse inference in the minds of the jury.
Each of the three teller witnesses recounted pre-trial photographic inspections. From one six-picture spread each selected Raines' picture as being one of the robbers. (Cf. United States v. Hines, 470 F.2d 225 (3rd Cir. 1972)).
The F.B.I. agent, Preston, described his activities in investigating the case including exhibition of several photo-spreads to the four tellers separately. References to the pre-trial photographic identifications were made to buttress the in-court identifications of the three of them. "This has been a proper and strategically sound tactic for years." United States v. Clemons, 144 U.S. App. D.C. 235, 445 F.2d 711, 713 (1971). The value of ...