Lindhorst v. United States

¶6INGRAHAM, Senior Circuit Judge.

¶7Appellant Richard Bernard Lindhorst, Jr., a federal prisoner incarcerated at Leavenworth, Kansas, appeals from the district court’s denial of his motion for post-conviction relief under 28 U.S.C. § 2255 (1970). Appellant was convicted by a jury of robbing a federally insured bank, in violation of 18 U.S.C. § 2113(d) (1970), and sentenced to twenty years in prison. The conviction was affirmed on direct appeal. Lindhorst v. United States, No. 75-1928 (8th Cir. May 13, 1976). Appellant pro se filed a motion to vacate the sentence pursuant to 28 U.S.C. § 2255 (1970). The district court summarily denied the motion for post-conviction relief without an evidentiary hearing. We hold that the district court erred in summarily dismissing appellant’s motion and remand the case for an evidentiary hearing.

¶8Appellant was indicted for the December 20, 1974, robbery of the Farmers Savings Bank in Wever, Iowa. Mr. Clark Holmes was appointed counsel for appellant. On appellant’s motion prior to trial, the district court ordered a psychiatric examination of appellant, the results of which led the court to find appellant competent to stand trial. On the day set for jury selection, November 3, 1975, appellant moved to dismiss Mr. Holmes as counsel on the ground that he had not adequately prepared for trial. The district court and prosecution persuaded appellant to proceed with Mr. Holmes as counsel.1

¶9At the trial, the only two government witnesses who could positively identify appellant with the crime were Thomas and James DeSherlia, appellant’s brothers-in-law, who allegedly participated in the robbery with appellant. In return for Thomas DeSherlia’s testimony, the United States Attorney’s office promised to drop bank robbery charges against him, to assist him in securing a transfer from the Florida State Penitentiary, and to recommend against imposition of the death penalty in an Alabama murder trial. In return for James DeSherlia’s testimony, the government agreed to drop bank robbery charges against him and to recommend dismissal of a first degree murder charge in the Alabama murder case. The terms of the agreements were disclosed to Mr. Holmes and the court and stipulations briefly describing the agreements were read to the jury.2

¶10*364The jury rendered a guilty verdict on November 7, 1975. When appellant questioned the adequacy of his pre-trial psychiatric examination at his sentencing, the district court informed appellant that the issue should be raised by motion for post-conviction relief. Appellant was sentenced to twenty years imprisonment.

¶11On December 9,1975, appellant filed both a notice of appeal and a § 2255 motion to vacate sentence. The motion for post-con-vietion relief alleged that the pre-trial psychiatric examination was inadequate in that appellant’s history of mental disorders was not accounted for. The district court dismissed this motion as premature, because of the pending appeal of his conviction. The conviction was affirmed on May 13, 1976.3

¶12Appellant pro se filed the § 2255 motion at issue here on September 8, 1976. Pour grounds for relief were alleged: (1) the prosecution’s knowing use of perjured testimony of Thomas and James DeSherlia; (2) newly discovered evidence, affidavits of Thomas and James DeSherlia admitting to perjury at trial; (3) ineffective assistance of counsel due to Mr. Holmes’ failure to conduct pre-trial investigation; and (4) the prosecution’s failure to produce evidence under the Jencks Act, 18 U.S.C. § 3500 (1970).

¶13Appellant’s motion rested in large part upon the sworn affidavits of Thomas and James DeSherlia wherein they claim to have falsely accused appellant at trial because of threats and promises made by the prosecution and that the prosecution knew their trial testimony was false. The government’s response to appellant’s motion rested largely upon affidavits of the then United States Attorney and Assistant United States Attorney who prosecuted appellant and of the attorneys who were appointed to represent Thomas and James DeSherlia in appellant’s case. Appellant subsequently submitted interrogatories to Thomas and James DeSherlia concerning the circumstances of their trial testimony. In their sworn answers filed with the court, they restated their admissions to perjury and provided more specific details than they had in their affidavits.4

¶14On cross-motions for summary judgment the district court on July 14,1977, ruled for the government and dismissed appellant’s § 2255 motion without an evidentiary hearing. The reasons for the district court’s summary disposition of the motion were the credibility attributed to the affidavits submitted by the government and the district court’s earlier observation of the demeanor of the recanting witnesses at trial.5

¶15The district court erred in concluding, without the benefit of an evidentiary hearing, that the government did not knowingly use perjured testimony. “While the general rule is that a hearing is necessary prior to the disposition of all § 2255 motions presenting factual issues, (citations omitted), this requirement is subject to the statutory qualification that the files and records of the case may be sufficient alone to dispose of the motion where they ‘conclusively show that the prisoner is entitled to no relief.’ ” Cain v. United States, 271 F.2d 337, 338 (8th Cir. 1959); accord Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 36 L.Ed.2d 169 (1973).6

¶16*365Neither the motion nor the files and records of the instant case “conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255 (1970). The motion specifically alleges with supporting affidavits government use of perjured material testimony with knowledge of its falsity. Cf. Daniels v. United States, 295 F.2d 238, 239 (8th Cir. 1961), cert. denied, 368 U.S. 1001, 82 S.Ct. 633, 7 L.Ed.2d 540 (1962); Harshaw v. United States, 542 F.2d 455, 457 (8th Cir. 1976).

¶17The district court erroneously treated the affidavits submitted by the government as part of the “files and records of the case.” In effect, the court credited the government’s affidavits denying the knowing use of perjured testimony and discredited the appellant’s affidavits alleging the same. As the Second Circuit has declared: “[A]n opposing affidavit by the Government is not part of ‘the files and records of the case’ which can be taken to ‘conclusively show that the prisoner is entitled to no relief,’ within 28 U.S.C. § 2255. The principle was established by the Supreme Court as long ago as Walker v. Johnston, 312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941), and Waley v. Johnston, 316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942).” Taylor v. United States, 487 F.2d 307, 308 (2nd Cir. 1973); accord Pennsylvania ex rel Herman v. Claudy, 350 U.S. 116,123, 76 S.Ct. 223,100 L.Ed. 126 (1956); Machibroda v. United States, 368 U.S. 487, 494, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962).7 The Supreme Court observed in a similar case: “It is true that they [appellant’s allegations] are denied in the [government] affidavits filed with the return to the rule, but the denials only serve to make the issues which must be resolved by evidence taken in the usual way. They can have no other office. The witnesses who made them must be subjected to examination ore tenus or by deposition as are all other witnesses.” Walker v. Johnston, 312 U.S. 275, 286-87, 61 S.Ct. 574, 579, 85 L.Ed. 830 (1941).

¶18This is not the kind of case which the district judge “could completely resolve by drawing upon his own personal knowledge or recollection.” Machibroda v. United States, 368 U.S. at 494, 82 S.Ct. at 514. The district judge cannot credit the recanting witnesses’ trial testimony and discredit their affidavits without affording appellant an opportunity to prove the allegations. Although recantations are generally viewed with suspicion, see Johnson v. United States, 291 F.2d 150,154 (8th Cir. 1961), the contention that the “allegations are improbable and unbelievable cannot serve to deny him an opportunity to support them by evidence.” Walker v. Johnston, 312 U.S. at 287, 61 S.Ct. at 579. An evidentiary hearing is required to determine whether the government knowingly used perjured material testimony.

¶19On the basis of the disposition of the perjury allegation the district court rejected the related arguments of newly discovered evidence and ineffective assistance of trial counsel. Although some of the same facts undergird the allegations of knowing use of perjury, newly discovered evidence,8 and ineffective assistance of *366counsel,9 the allegations are independent grounds for post-conviction relief. Inasmuch as we are reversing and remanding for an evidentiary hearing on the perjury issue, and since appellant’s claims of newly discovered evidence and ineffective assistance of counsel are not devoid of merit, these issues should be addressed in the evidentiary hearing as well. See Wilwording v. Swenson, 502 F.2d 844, 847 n.4 (8th Cir. 1974).

¶20Appellant’s claim that the government failed to produce evidence under the Jencks Act, 18 U.S.C. § 3500 (1970), is not cognizable in a § 2255 proceeding. Houser v. United States, 508 F.2d 509, 515 (8th Cir. 1974). Appointed counsel on this appeal has argued that appellant’s pro se motion should be read broadly, see Hill v. Wyrick, 570 F.2d 748 (8th Cir. 1978), and that appellant as a layman misclassified as Jencks Act evidence that evidence which the prosecution must disclose under Brady v. Maryland, 373 U.S. 83, 86-88, 83 S.Ct. 1194,10 L.Ed.2d 215 (1963). The failure to disclose Brady evidence is cognizable in a § 2255 proceeding. Houser v. United States, 508 F.2d at 517-18. In the interest of fairness and judicial economy, we instruct the district court to permit appellant to amend his motion to clarify the nature of the evidence which allegedly should have been but was not disclosed by the government.

¶21For the same reasons, appellant will be permitted to amend his motion to include as a ground for post-conviction relief his allegation of incompetency to stand trial. See Schutz v. United States, 432 F.2d 25, 29 (10th Cir.), cert. denied, 401 U.S. 1002, 91 S.Ct. 1245, 28 L.Ed.2d 535 (1970).

¶22Neither the motion nor the files and records of the case conclusively show that appellant is entitled to no relief. Accordingly, we reverse the district court’s summary denial of appellant’s motion to vacate sentence and remand for an evidentiary hearing.

¶23REVERSED AND REMANDED.