jury, that such actions could lead to an adverse attitude by the jury. This warning lead to an objection by the prosecutor that the court was aiding defendant in the presentation of his case.
Viewing defense counsel's performance as a whole, as we must, we can find no support for any claim that his performance fell below the objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052 (1984). Defendant has not shown that counsel's performance was "deficient." Any judicial scrutiny of counsel's performance must be highly deferential. 80 L. Ed. 2d at 694. The presumption is that counsel's actions represent sound trial strategy, p. 694-95. Defendant must also demonstrate that the alleged ineffective performance had an actual effect on the outcome. Defendant has failed to carry that burden and has produced no evidence to show that counsel's performance was deficient or that it fell below any objective standard.
Use of False Testimony by Government
Defendant has alleged no facts to indicate that Pearl gave false testimony at trial. The alleged inconsistent statements do not give rise to a claim of perjury. All that they show, at best, is a failure of recollection, which was explored by defense counsel at trial. At no time has defendant shown that Pearl named any other person as the third bank robber. At no place has defendant shown that Pearl named any other person as the third bank robber. At no place has defendant shown that the government knowingly used false testimony against him.
The Alleged Contingency Agreement
The defendant alleges that Pearl's reduction in sentence was based on the contingency of a successful prosecution of Hans. She testified at his first trial, he was convicted, and Pearl's cooperation was brought to the attention of this court by the government at the time of consideration of her Rule 35 motion. There is no evidence that the government or the court made the conviction of Hans a condition of the reduction of sentence.
The "Allen Charge "
There is nothing to show that an "Allen" charge was given. The court advised counsel in chambers that it would not give an Allen charge. There was no basis for defendant's counsel to raise this issue on appeal, and there is no basis for alleging ineffective representation by counsel on appeal on this issue. The alleged coercive action by the court in allowing the jury fifteen minutes to decide was based on an inquiry by the court as to whether the jury would be able to return a verdict within that time, or would wish a recess until the following Monday, the jury having been deliberating until Saturday noon. The foreman requested a short period to canvas the jury. There is no support for defendant's contention and his highly selective excerpt from the record is very misleading.
The Illegal Sentence
Defendant alleges that his concurrent sentences for violation of 18 U.S.C. § 2113(a) and 18 U.S.C. § 2113(d) are illegal. While we did not impose consecutive sentences, as considered in United States v. Herrold, 635 F.2d 213, 215 (3d Cir. 1980), the Court of Appeals has held that a resentencing, with defendant present must be held on the merged charges at 18 U.S.C. § 2113(a) and (d). We will therefore have defendant returned to this court for resentencing after the time for appeal of this order has expired or after the determination of any such appeal.
We find that the motion is without support from the record, and presents no independent evidence in its support. We find that the claim for relief is without merit, except for the illegal sentence allegation which we will remedy. Therefore we determine that no hearing need be held on the petitioner's motion.
The petitioner's motion will be denied except that he will be brought before the court for resentencing as indicated.
AND NOW, this 3rd day of September, 1986, defendant's motion to vacate sentence under 28 U.S.C. 2255 is DENIED, except that petitioner will be returned to the court for resentencing at a time set by the court following the expiration or determination of any appeal from this order.
GERALD J. WEBER, United States District Judge
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