840 F.2d 11
UNITED STATES of America, Plaintiff-Appellee,
W. Garland NEALY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
W. Garland NEALY, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
W. Garland NEALY, Defendant-Appellant.
In Re W. Garland NEALY, Petitioner.
Nos. 86-7263, 86-7264, 87-6611 and 87-8015.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 30, 1987.
Decided Feb. 17, 1988.
NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
W. Garland Nealy, appellant pro se.
Mary Stanley Feinberg, Assistant United States Attorney, for appellee.
Appeals from the United States District Court for the Southern District of West Virginia, at Charleston. Charles H. Haden, II, Chief District Judge. (Cr. No. 82-36 [No. 86-7263]; C/A No. 2:86-0456 and Cr. No. 82-20036 [Nos. 86-7264 and 87-6611]
On Petition for Writ of Mandamus.
D.W.Va., 729 F.2d 961.
AFFIRMED AND DISMISSED.
Before JAMES DICKSON PHILLIPS and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.
W. Garland Nealy, a federal inmate, was convicted in January 1983, after a jury trial, of conspiracy to aid and assist the preparation and presentation of false tax returns in violation of 18 U.S.C. Sec. 371, and ten additional counts of aiding and assisting in the preparation and presentation of false and fraudulent United States Partnership Returns of Income in violation of 26 U.S.C. Sec. 7206(2) and 18 U.S.C. Sec. 2. Nealy was sentenced to a term of imprisonment of five years and fined $10,000. His convictions were affirmed on appeal. United States v. Nealy, 729 F.2d 961 (4th Cir.1984).
On April 18, 1986, Nealy filed a motion under 28 U.S.C. Sec. 2255 to vacate, set aside or correct his sentence. In his motion Nealy raised twenty separate claims which he alleged entitled him to have his sentences set aside. Nealy's claims included allegations of misconduct on the part of the United States Attorney, including knowingly using perjured testimony; ineffective assistance of counsel; pre-indictment delay; double jeopardy violations resulting from multiple sentences; violation of attorney-client privilege; and multiple instances of nonconstitutional trial error.
Nealy's motion to vacate was referred to a United States Magistrate for report and recommendation pursuant to 28 U.S.C. Sec. 636(b)(1). By report filed October 8, 1986, the magistrate found that none of Nealy's twenty claims entitled him to relief and recommended that the motion be denied. After being afforded additional time to do so, Nealy filed lengthy objections to the magistrate's report.
On August 26, 1987, the district court, after de novo review of the magistrate's report in light of Nealy's objections to it, entered an order adopting the magistrate's report and denying the motion. Nealy's appeal from this order is the subject of No. 87-6611.
While Nealy's Sec. 2255 motion was pending with the district court he filed a motion for discovery of documents. In the motion Nealy requested the court to grant an earlier motion for production of documents. In the earlier motion Nealy had alleged that the requested documents were necessary in order for him to respond to the Government's response to his Sec. 2255 motion. Nealy also alleged that certain of these documents "were affecting his custody program, parole status, and other matters most important to defendant." By order entered June 23, 1986, the district court denied the motion for discovery of documents. Subsequent to the district court's order Nealy filed a "Motion for Judgment of Acquittal" and a "Motion for Reconsideration" of the June 23rd order.
In the motion for judgment of acquittal Nealy sought reversal of his conviction on the ground that the judge's charge to the jury was not transcribed. Nealy alleged that this omission denied him due process on appeal. Attached to Nealy's motion was a highlighted reference contained in the Government's motion for an extension of time to respond to the Sec. 2255 motion, which indicated that "instructions to the jury were not transcribed, since no issues concerning instructions to the jury were raised on direct appeal." In the motion for reconsideration of the court's June 23rd order Nealy again noted that the documents contained inaccuracies which have affected, and are affecting, his institutional programming, custody, parole status, and other matters.
By order entered July 11, 1986, the district court denied the motion for judgment of acquittal and denied the motion for reconsideration of the June 23rd order. Nealy's appeal from this order is the subject of No. 86-7263. Nealy also filed an appeal from the June 23rd order denying his motion for discovery, which is the subject of No. 86-7264. Additionally, Nealy filed a petition for a writ of mandamus in this Court in which he seeks an order directing the district court to rule on his Sec. 2255 motion. The mandamus action is the subject of No. 87-8015. Each appeal will be discussed in turn.
Nealy's appeal from the denial of his motion for judgment of acquittal is without merit. The time limit within which Nealy could bring such a motion has long since passed. Under Rule 29, Federal Rules of Criminal Procedure, a motion for judgment of acquittal must be made within seven days after the jury is discharged. Here Nealy's motion was filed over three years after his jury was discharged. The district court properly denied it. Even were we to liberally construe the motion as one presenting a ground for relief under Sec. 2255 Nealy would not be entitled to relief. The mere fact that the trial judge's charge to the jury was not transcribed does not, standing alone, entitle a movant to have his convictions vacated, nor does it mean that there has been a due process violation for purposes of direct appeal. The fact that Nealy's appellate counsel did not request the jury charge to be transcribed for use on appeal indicates that he found no error in the instructions. Had Nealy's direct appeal counsel felt that there had been such an error he could have requested that that portion of the trial be transcribed.
Moreover, the charge to the jury has now been transcribed. We have reviewed that transcript in view of Nealy's claims raised in his Sec. 2255 motion and have found no reversible error.
Nealy's appeal from the order denying his motion for discovery must be dismissed as interlocutory. The discovery motion was filed while the Sec. 2255 motion was pending with the district court. In the motion Nealy sought certain documents which he felt were necessary in order for him to respond to the Government's response to his Sec. 2255 motion. Nealy also attempted to show a need for these documents based upon the effect that they were having on his custody program and parole status.
Under 28 U.S.C. Sec. 1291, this Court has jurisdiction to review final decisions of the district court. A final decision disposes of all issues in dispute as to all parties. "Federal appellate jurisdiction generally depends on the existence of a decision by the District Court that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)).
The collateral order doctrine provides a limited exception to the final judgment rule. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981); Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). Under the collateral order doctrine an interlocutory order may be appealed if it (1) conclusively decides the disputed issue; (2) resolves an important issue which is separate from the merits of the case; and (3) is unreviewable on appeal from the judgment. Firestone, supra, at 375. Nealy's appeal does not qualify under this doctrine. See Rouse Construction International, Inc. v. Rouse Construction Corp., 680 F.2d 743, 745 (11th Cir.1982).
Although we are constrained to dismiss this appeal for lack of jurisdiction we may now consider the propriety of the district court's failure to order the discovery requested. Final judgment has been entered on the underlying Sec. 2255 motion. The notice of appeal from that final judgment permits us to consider the denial of the discovery motion. Upon consideration of the record we conclude that the district court did not abuse its discretion in refusing to grant the discovery request. Nealy made no showing of particularized need for the documents, or a showing as to how the requested documents would assist him in responding to the Government's response to his Sec. 2255 motion. Absent such a showing the district court was not required to order production of the documents.
Additionally, to the extent that the motion for discovery was directed to alleged effects on Nealy's custody program and parole status the district court was without jurisdiction to consider it. These alleged "effects" do not challenge the imposition of Nealy's sentence, nor do they call into question the constitutional validity of his conviction. Instead these allegations are directed to the execution of the sentence by the Attorney General and the United States Parole Commission. As such, review may be had through a petition for habeas corpus relief pursuant to 28 U.S.C. Sec. 2241. United States v. Addonizio, 442 U.S. 178 (1979). Under 28 U.S.C. Sec. 2241, jurisdiction of a petition for a writ of habeas corpus lies either in the district where the petitioner is incarcerated or in the district where petitioner's custodian is located. Braden v. 30th Judicial Circuit Court, 410 U.S. 484 (1973); Rheuark v. Wade, 608 F.2d 304 (8th Cir.1979); Blau v. United States, 566 F.2d 526 (5th Cir.1978); Billiteri v. United States Board of Parole, 541 F.2d 938, 948 (2d Cir.1976). The record indicates that Nealy is incarcerated at a federal correctional institution located in Dallas, Texas. For federal habeas corpus purposes Nealy's custodian is the warden of that institution. See Billiteri, supra, at 948. The district court lacked jurisdiction to consider any request for relief based on these allegations and properly declined to address them.
Additionally, to the extent Nealy challenges allegedly inaccurate information used by the Parole Commission, this challenge must be initially addressed through the administrative avenues outlined in 28 C.F.R. Sec. 2.19(c). United States v. Legrano, 659 F.2d 17 (4th Cir.1981). Upon exhaustion of administrative remedies, Nealy may bring a habeas corpus action pursuant to 28 U.S.C. Sec. 2241 in the district in which he is confined.
Nealy's petition pursuant to Rule 21(a), Federal Rules of Appellate Procedure, requested a writ of mandamus ordering the district court to rule on the , at that time, pending Sec. 2255 motion. Judgment on Nealy's Sec. 2255 motion was entered on August 26, 1987. Because Nealy has obtained the relief requested in the petition for a writ of mandamus, the petition is moot. Therefore, although leave to proceed in forma pauperis is granted, the petition is dismissed.
Collateral attacks brought under 28 U.S.C. Sec. 2255 are limited to claims of constitutional magnitude or to errors which inherently result in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 184-86 (1979); Hill v. United States, 368 U.S. 424, 428 (1962); see also United States v. Timmreck, 441 U.S. 780 (1979). As this Court pointed out in Taylor v. United States, 177 F.2d 194, 195 (4th Cir.1949):
Prisoners adjudged guilty of crime should understand that 28 U.S.C.A. Sec. 2255 does not give them the right to try over again the cases in which they have been adjudged guilty. Questions as to the sufficiency of the evidence or involving errors either of law or of fact must be raised by timely appeal from the sentence if the petitioner desires to raise them. Only where the sentence is void or otherwise subject to collateral attack may the attack be made by motion under 28 U.S.C.A. Sec. 2255, which was enacted to take the place of habeas corpus in such cases and was intended to confer no broader right of attack than might have been made in its absence by habeas corpus.
At the outset we note that the double jeopardy claim was previously raised in a motion to correct an illegal sentence, brought pursuant to Rule 35, Federal Rules of Criminal Procedure. The district court denied the motion and a panel of this Court affirmed the judgment below. Nealy v. United States, No. 86-7121 (4th Cir. May 1, 1987) (unpublished). In the present Sec. 2255 motion Nealy contends that the Double Jeopardy Clause of the Constitution was violated by the imposition of separate sentences on both the conspiracy and the substantive counts.
Section 7206 of Title 26, United States Code provides in pertinent part:
Any person who--
* * *
(2) Aid or assistance.--Willfully aids or assists in, or procures, counsels, or advises the preparation or presentation under, or in connection with any matter arising under, the internal revenue laws, of a return, affidavit, claim, or other document, which is fraudulent or is false as to any material matter, whether or not such falsity or fraud is with the knowledge or consent of the person authorized or required to present such return, affidavit, claim, or document;
* * *
* * *
shall be guilty of a felony....
In order to prove a violation of 26 U.S.C. Sec. 7206(2) the government must only prove "(1) that [defendant] aided, assisted, procured, counseled, advised or caused the preparation and presentation of a return, (2) that the return was fraudulent or false as to a material matter, and (3) that the act of the [defendant] was willful." United States v. Gruberq, 493 F.Supp. 234, 243 (S.D.N.Y.1979) (citing United States v. Perez, 565 F.2d 1227, 1233-34 (2d Cir.1977)). Criminal agency, or concerted criminal activity, on the part of another person is not an element of the offense. The Supreme Court in Iannelli v. United States, 420 U.S. 770 (1975), held that a conspiracy may be punished separately from the substantive offense which was the object of the conspiracy. The Court noted that the exception to the general rule that a conspiracy offense does not merge with the substantive offense--
applies only to offenses that require concerted criminal activity, a plurality of criminal agents. In such cases, a closer relationship exists between the conspiracy and the substantive offense because both require collective criminal activity. The substantive offense therefore presents some of the same threats that the law of conspiracy normally is thought to guard against, and it cannot automatically be assumed that the legislature intended the conspiracy and the substantive offense to remain as discrete crimes upon consummation of the latter.
420 U.S. at 785 (emphasis in original). Under Iannelli, therefore, Nealy's separate sentences for the conspiracy and substantive counts were not improper.
The allegations of prosecutorial misconduct are also devoid of merit. In order to vacate a judgment and sentence on the ground that the conviction was obtained through the use of perjured testimony the movant has the burden of showing that (a) the testimony given was false; (b) it was material; and (c) it was knowingly and intentionally used by the prosecution in order to obtain the conviction. McBride v. United States, 446 F.2d 229, 232 (10th Cir.1971), cert. denied, 405 U.S. 977 (1972). A movant does not meet this burden merely by asserting conclusory allegations that perjured testimony was knowingly used, id., or by pointing out inconsistencies or conflicts in the testimony of a witness or witnesses. Anderson v. United States, 403 F.2d 451, 454 (7th Cir.1968) (citing United States v. Spadafora, 200 F.2d 140 (7th Cir.1952)), cert. denied, 394 U.S. 903 (1969). Nealy has not made the requisite showing in this case. It is not an uncommon occurrence of most trials that testimony by multiple witnesses may not be totally consistent. Such inconsistencies do not, however, mean that the testimony is perjured. The jury heard the contradictory testimony of the various witnesses and could evaluate their credibility. Credibility of witnesses is within the sole province of the jury and not susceptible to review. Piqford v. United States, 518 F.2d 831 (4th Cir.1975).
Nealy's contention that he was denied the effective assistance of counsel is equally groundless. Our review of this claim begins with the presumption that the lawyer was competent; the burden rests with Nealy to demonstrate that there has been a constitutional violation. See United States v. Cronic, 466 U.S. 648 (1984). In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court held the test for ineffective assistance of counsel claims to be:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.
Additionally, Strickland requires the convicted movant claiming ineffective assistance of counsel to "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." Id. at 690. The reviewing court "must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. Even if defense counsel's performance is outside the wide range of professional assistance, an error by counsel will not warrant setting aside the conviction if the error had no effect on the judgment. Id. at 694. If it is more efficient to address an ineffective assistance of counsel claim on the ground of lack of prejudice, then the court should do so. 466 U.S. at 697.
Nealy claims that his attorney was ineffective because he failed to, among other things, (a) build a defense, (b) ask certain witnesses questions that Nealy contends should have been explored, (c) call certain witnesses, (d) object to certain testimony and the introduction of allegedly irrelevant evidence, (e) investigate the background of Charlotte Adkins, (f) instruct the jury during closing arguments that two different people had testified that they had drawn property lines, and (g) object to the closing arguments made by the Government which presented the evidence in the light favorable to the Government.
We have carefully examined the record in this case with respect to Nealy's allegations of counsel ineffectiveness, including the affidavit of Nealy's trial counsel filed with the Government's response. We conclude that Nealy's counsel's performance was reasonable considering all of the circumstances and was within the wide range of reasonable professional assistance which is acceptable. Moreover, Nealy has not shown that the outcome of his trial would have been different had his counsel taken the actions that Nealy now contends should have been taken.
The allegations of ineffectiveness relating to the failure to call certain witnesses and the questioning of other witnesses all relate to tactical decisions made by counsel. It is not the proper role of this Court to second-guess a trial attorney's tactical decisions, Goodson v. United States, 564 F.2d 1071, 1072 (4th Cir.1977), except when it appears that the attorney's performance was not reasonable considering all the circumstances. Strickland, 466 U.S. at 690. We are of the opinion that the performance of Nealy's attorney in this regard was reasonable considering all of the circumstances.
Nealy's remaining claims are all without merit and we affirm their dismissal on the reasoning of the district court adopting the magistrate's report. United States v. Nealy, C/A No. 2:86-456, Cr. No. 82-36 (S.D.W.Va. Aug. 26, 1987).
Because the dispositive issues have recently been decided authoritatively, we dispense with oral argument and affirm the judgment of the district court in No. 86-7263 and No. 87-6611, and dismiss the appeals in No. 86-7264 and No. 87-8015.
Nos. 86-7263 and 87-6611, AFFIRMED;
Nos. 86-7264 and 87-8015, DISMISSED.