United States v. Lawrence Kearney

TAMM, Circuit Judge,

concurring in part:

The issue presented by this appeal is whether the district court erred in failing to hold a hearing on the claims presented in Kearney’s 1980 motion. I agree that the district court’s decision in this case should be affirmed. For the reasons set forth below, however, there is much in the analysis employed by the majority with which I cannot agree.

I.

It is well settled that pro se prisoners’ pleadings should be liberally construed. Haines v. Kerner, 404 U.S. 519, 520-21 , 92 S.Ct. 594, 595-96 , 30 L.Ed.2d 652 (1972). It is also manifest that timeliness is never an issue per se in section 2255 proceedings because such a motion may be filed “at any time.” 28 U.S.C. § 2255 (1976). I therefore cannot agree with the majority that some portions of Kearney’s motion should be construed to be an untimely motion for a new trial. Although I agree that the timing of Kearney’s filings is relevant to certain equitable considerations that arise in *230 section 2255 cases, I believe the majority’s discussion of motions for a new trial is irrelevant in the current context. In addition, I find no nexus between the case at hand and the majority’s discussion of claims of newly discovered evidence and claims based upon affidavits of recanting witnesses. If this case involved simply a recanting witness and a claim of newly discovered evidence, I believe that its resolution would be a simple matter. Claims of newly discovered evidence, without more, are not cognizable under section 2255. See Davis v. United States, 417 U.S. 333, 346 , 94 S.Ct. 2298, 2305 , 41 L.Ed.2d 109 (1974); Howard v. United States, 580 F.2d 716, 720 (5th Cir. 1978). See also Pelegrina v. United States, 601 F.2d 18 , 19 n.2 (1st Cir. 1979), and cases cited therein. This is not such a case, however, Kearney contends that, liberally construed, his motion presents a claim of the knowing use by the government of perjured testimony. The question we confront is whether this due process claim required a hearing.

II.

The majority finds that the evidence adduced at Kearney’s trial, even excluding Warren’s eyewitness identification testimony, showed appellant’s guilt beyond a reasonable doubt. In the face of such conclusive evidence, the majority reasons, no hearing was required on the section 2255 motion because Kearney would be entitled to no relief regardless of the truth of his allegations. If it is assumed that Kearney sufficiently alleged a due process claim of the knowing use of perjured testimony, however, the appropriate standard used to determine whether Kearney would be entitled to relief if his claim proved true is whether “the false testimony could ... in any reasonable likelihood have affected the judgment of the jury.” Napue v. Illinois, 360 U.S. 264, 271 , 79 S.Ct. 1173, 1178 , 3 L.Ed.2d 1217 (1959). This is indisputably a high standard; the majority does not employ it. I doubt whether it can be said that there is no reasonable likelihood that the testimony of an eyewitness to a murder, positively identifying the defendant as the murderer, affected the judgment of the jury. See Dupart v. United States, 541 F.2d 1148, 1150 (5th Cir. 1976). Accordingly, I cannot agree that the unavailability of ultimate relief is a proper basis for concluding that no hearing was required in this case.

III.

The majority opinion relies heavily on the denial of the prior section 2255 motion as a determination of the merits of the claim of knowing use of perjured testimony that was properly given controlling weight by the district court. I find it far from clear, however, that the 1974 denial on this issue was a “merits determination.” In 1974, the district court concluded “[t]hat the claims of error respecting manufactured evidence [and] the prosecutor’s knowing use of perjured testimony ... taken in light of the pleadings and record [were] mere conclusions without supporting facts,” and that the motions, pleadings, files and records conclusively show[ed] that petitioner [was] entitled to no relief.” Kearney v. United States, Civ. No. 74-213 (D.D.C. Feb. 12, 1974) (order denying section 2255 motion); Record (R.) at 40, pg. 2. The wording of the district court’s order makes it unclear whether the 1973 perjury claim was disposed of on its merits. On one hand, the judge found that the perjury allegation was not sufficiently pleaded to form the subject of a merits ruling; on the other hand, he appeared as well to rule that Kearney was entitled to relief on none of his claims, including, at least arguably, the perjury charge. In Sanders v. United States, 373 U.S. 1 , 83 S.Ct. 1068 , 10 L.Ed.2d 148 (1963), the Supreme Court held that a district court may give controlling weight to the denial of a prior section 2255 motion “only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and *231 (3) the ends of justice would not be served by reaching the merits of the subsequent application.” 373 U.S. at 15 , 83 S.Ct. at 1077 (emphasis added).

Assuming that the section 2255 motion filed in 1973 sufficiently alleged the knowing use of perjured testimony by the prosecutor, the district court’s holding in 1974 that the issue was conclusively resolved on the basis of the record appears to have been erroneous. A sufficiently alleged claim of the knowing use of perjured testimony involves facts outside the trial record and thus requires an evidentiary hearing. See Smith v. United States, 618 F.2d 507, 510 (8th Cir. 1980); Lindhorst v. United States, 585 F.2d 361, 365 (8th Cir. 1978); United States v. Vecchiareilo, 536 F.2d 420, 424 (D.C.Cir.1976); United States v. Maturo, 536 F.2d 427, 428 (D.C.Cir.1976). Under Sanders , it seems clear that the “interests of justice” standard would require, at the very least, some ground other than the successive motion rationale to support a denial without a hearing of the 1980 motion. On the other hand, if it is assumed that in 1974 the district court found that the due process claim had not been sufficiently alleged, then there was no “merits” determination of that issue. On this view, there having been no merits consideration, if the 1980 motion contained sufficient allegations, Sanders would require a ruling that the denial of the 1980 motion as successive was erroneous.

I believe that a good possibility exists that.the knowing use of perjury claim was not considered at all, and, if considered, that the decision in 1974 to deny the claim without a hearing was erroneous. The majority concludes that the 1974 claim was properly denied on the merits. Where, as here, the basis for the denial of a prior motion is unclear, I believe that the court is required to resolve any doubt in favor of the pro se applicant. Cf. Sanders, 373 U.S. at 16 , 83 S.Ct. at 1077 (if doubt arises whether a ground for relief alleged in a successive motion is the same ground alleged in a prior motion, doubt should be resolved in favor of the applicant). Accordingly, I believe that the majority’s extensive discussion of possible bases upon which the 1974 district court could have found that the files and records conclusively showed that Kearney was entitled to no relief to be unnecessary. It is clear to me that the 1974 ruling should not be treated as a merits determination and that this court should consider the claims raised in the 1980 motion to determine whether they required a hearing.

IV.

On appeal, court-appointed counsel has presented several serious due process claims. 1 I do not believe, however, that the claims pressed are sufficiently alleged in the motion itself. The motion states: “Denial of due process. Fifth Amenbment [sic] Violation ... That STANLEY W. WARREN’S, COnfession [sic] was coersed [sic] and obtained under duress and that it was *232 erronious [sic] and perjured testamony [sic].” United States v. Kearney, Crim. No. 1537-67, Motion to Vacate, Set Aside, or Correct Sentence at 4 (D.D.C.); R. at 43. Although the motion is supported by the affidavit of Warren stating that he committed perjury, there is no allegation whatsoever that the prosecutor was aware of the alleged perjury. The motion, therefore, does not sufficiently allege a due process violation. 2 See United States v. Conzemius, 611 F.2d 695, 697 (8th Cir. 1979); Scott v. United States, 545 F.2d 1116, 1117 (8th Cir. 1976), cert. denied, 429 U.S. 1111 , 97 S.Ct. 1128 , 51 L.Ed.2d 565 (1977). Even construing the documents to raise such a claim, there is nothing more than the bare conclusion of prosecutorial knowledge. Conclusory statements, alleging no facts in support and pointing to no facts from which supporting inferences can be drawn, are insufficient to require a hearing. See United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938 , 101 S.Ct. 2018 (1981); DeVincent v. United States, 602 F.2d 1006, 1009 (1st Cir. 1979). In addition, even if Kearney had alleged supporting facts in the 1980 motion, it is doubtful that the motion would have been saved from a fully justified denial with a hearing. See United States v. Romano, 516 F.2d 768, 771 (2d Cir.), cert. denied, 423 U.S. 994 , 96 S.Ct. 420 , 46 L.Ed.2d 368 (1975). Accordingly, I agree that the district court’s decision in this case should be affirmed.

. In addition to the knowing use of perjured testimony claim, appellant’s counsel states that “fairly read” the § 2255 motion alleges that due process was violated if, as Warren alleges, his written statement was obtained by coercion and duress. Although the use of coerced statements is abhorrent to our criminal justice system, cases that have disallowed their use are clearly distinguishable from the case at bar. The prosecutor normally attempts to admit allegedly coerced statements in order to show a prior admission of guilt by a defendant who now claims innocence, Jackson v. Denno, 378 U.S. 368 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964), or to impeach a witness whose trial testimony is at variance with a prior statement, LaFrance v. Bohlinger, 499 F.2d 29 (1st Cir. 1974). In the case at hand, however, the alleged involuntary statement was interjected into the trial by Kearney’s counsel in order to impeach the witness Warren. As the majority notes at 12, the statement was never introduced into evidence. In addition, at no time during the trial was it alleged that the statement was involuntarily given. Accordingly, the belated allegations of coercion do not affect the admissibility of Warren’s trial testimony that defense counsel unsuccessfully sought to impeach. Because no relief on this claim is available regardless of the truth of the allegation, no hearing on this issue was required.

. The majority opinion notes that the motion does not allege prosecutorial knowledge of the alleged perjury. See Majority Opinion at 222-223. Insofar as the decision rests on this determination, I concur.