Supplemental Brief — Natelli v. United States

| Supreme Cou, U.

FILED

1491 MAY 12 i977

No. 76-

=e

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1976

ANTHONY M. NATELLI,

UNITED STATES OF AMERICA

PHILIP A. LACOVARA

Hughes Hubbard & Reed

1660 L Street, N.W.

Washington, D.C. 20036

JOHN S. MARTIN, JR.

Martin, Obermaier & Morvillo

1290 Avenue of the Americas

New York, New York 10019

Attorneys for Petitioner

Wasrinqren OC © CLO PUBLIGHERD + LAW PRINETENG CO « (702) 399-0625

IN THE

Supreme Court of the Anited States

OCTOBER TERM. 1976

No. 76-1491

ANTHONY M. NATELLI.

UNITED STATES OF AMERICA

SUPPLEMENTAL BRIEF

IN SUPPORT OF PETITION

FOR A WRIT OF CERTIORARI

Pursuant to Rule 24(5) of the Rules of this Court, petitioner

submits this supplemental brief to bring to this Court’s attention

the applicability to his pending petition of this Court’s recent

decision in Blackledge v. Allison, No. 75-1693, decided May 2,

1977.

In the petition filed on April 27, 1977, petitioner is seeking

review of a judgment affirming the denial without evidentiary

hearing of his motion for relief under 28 U.S.C. §2255.

Petitioner's § 2255 motion sought relief on the ground, inter alia,

that critical statements made by the prosecutor to the jury were

shown to be inaccurate and misleading by sworn testimony of a

government witness in a subsequent prosecution. The court of

appeals affirmed the summary denial of petitioner's motion,

observing that petitioner “assumes, of course, that [the witness’ ]

testimony was accurate.” App. A, p. Sa. The court below,

however, impermissibly went to the other extreme and assumed

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that this subsequent testimony relied upon by petitioner was not

accurate.

As argued in Point II of the petition, the denial of petitioner’s

§2255 motion without an evidentiary hearing was patently

improper under this Court’s decisions in Fontaine v. United

States, 411 U.S. 213 (1973), and Machibroda v. United States,

368 U.S. 487 (1962), since an allegation of prosecutorial

misstatement, if established at an evidentiary hearing, would

clearly have entitled petitioner to a reversal of his conviction.

In its recent decision in Blackledge v. Allison, supra, this

Court has reaffirmed the holdings of Machibroda and Fontaine

issues cannot be resolved against a §2255 movant summarily.

Yet this was precisely the error committed by the court below

when it assumed away the credibility of testimony by a

government witness in a trial subsequent to petitioner's merely

because that witness had a prior conviction. In Blackledge v.

§2255 motion was contradicted by “|sjolemn declarations in

open court [which] carry a strong presumption of verity.” Slip

op. at 10. Petitioner, in contrast, presented the sworn testimony

of a government witness in support of his §2255 motion.

In Blackledge this Court observed that under the newly

may be submitted in opposition to a §2255 motion but

emphasized that “|wjhen the issue is one of credibility,

resolution on the basis of affidavits can rarely be conclu-

sive .... ™' In petitioner's case, no affidavits were submitted

in opposition to the motion. Neither the district judge—who had

no prior connection with the case—nor the court of appeals had

any evidentiary basis to discount the testimony. Both courts

1 Stip op. at 19 n.25, quoting Advisory Committee Notes to Rule 7, Rules

Governing Habeas Corpus Proceedings, quoting Raines v. United States, 423

F.2d 526, 530 (4th Cir. 1970).

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simply assumed that the sworn testimony of the government

witness was “at best questionable.” App. A, p. 6a.”

The transcript of testimony adduced by the government at a

later related prosecution established a “strong presumption of

verity” against government efforts to disclaim the accuracy of the

testimony, and certainly precluded summary rejection of the

testimony. If the government wishes to impeach the accuracy of

the testimony it forecasted and adduced at the subsequent trial,

then there is clearly a “genuine issue of fact to be resolved by the

District Court.” Blackledge v. Allison, slip op. at 17.

Accordingly, the petition should be granted and the judgment

summarily reversed on the authority of Blackledge v. Allison.

Respectfully submitted.

PHILIP A. LACOVARA,

Hughes Hubbard & Reed

JOHN S. MARTIN, JR.

Martin, Obermaier & Morvillo

May 12, 1977

?In Blackledge, the Court noted that, although §2255 and federal habeas

corpus are to be “exactly commensurate” remedies, they may be “ administered

in a somewhat different fashion” because a § 2255 motion is normally referred

to the original sentencing judge whose personal “recollection of the events may

enable him summarily to dismiss a §2255 motion . . .” Slip op. at 10 n.4. In

the present case, however, the judge who had presided at petitioner's trial had

resigned from the bench in the interim, and the § 2255 motion was referred to a

district judge who had no other contact with either petitioner's trial or with the

subsequent related trial at which the testimony forming the basis for the motion

was given.