Petition — Johnson v. United States

‘2 Bupreme Court, US, |

EILED |

SEP 5 1979

In THE

Supreme Court of the Gnited States

Ocroser Term, 1979

79-979

L. V. JOHNSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ALLAN A. ACKERMAN

100 North LaSalle Street

Suite 611

Chicago, Illinois 60602

(312) 332-2863

Attorney for Petitioner

Midwest Law Printing Co., Chicago 60601, Financial 6-3988

TABLE OF CONTENTS

PAGE

OPINION BELOW

JURISDICTION

QUESTIONS PRESENTED

CONSTITUTIONAL PROVISIONS AND STAT-

UTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT .................. 10

CONCLUSION 23

¢~*" *P APPENDIX A—Decision Below A-1

APPENDIX B—Order Denying Rehearing, August

10, 1979 A-6

APPENDIX C—Order Granting Stay of Mandate,

Pending Certiorari, August 20, 1979 . A-7

GROUP APPENDIX D—Ind. No. 77 CR 33—Peti-

tioner’s Indictment, March 10, 1977 A-8

GROUP APPENDIX E—Original Complaint Filed by

DEA Agent Before Federal Magistrate in Chicago

on January 13, 1977 A-10

APPENDIX F—Motion for Leave to File Post-Con-

viction Pleadings, July 18, 1978 A-12

GROUP APPENDIX G—Memorandum Order Deny-

ing Relief and Granting Summary Judgment in Fa-

vor of Government, December 4, 1978 A-12

TABLE OF AU'THORITIES

Cases

Coolidge v. New Hampshire, 403 U.S. 443, 481 (1971) ”

sa eh Oe

Davis v. Alabama, 596 F.2d 1214 (C.A. 5, 1979) -........... 19

Dorman v. U.S., 140 U.S., App.D.C. 3113, 435 F.2d 385

(1970) 15

Dunaway v. New York, ...... US. ......, 99 S.Ct. 2248

(1979) 15

Friedman v. U.S., 588 F.2d 1010 (C.A. 5, 1979) .......... 19, 21

Geders v. U.S., 425 U.S. 80 (1976) .........-......-.-ccecessscereesees 19

Gerstein v. Pugh, 420 U.S. 103, 113, N.13 (1975) .... 2, 10, 11

Giglio v. U.S., 405 U.S. 151 (1972) | 16

Herring v. New York, 422 U.S. 853 (1975) 19

Holloway v. Arkansas, 435 U.S. 475 (1978) 19

Johnson v. U.S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436

(1948) 13

Jones v. U.S., 357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257,

2 L.Ed.2d 1514 (1958) 11

Katz v. U.S., 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967) 15

Lindhorst v. U.S., 585 F.2d 361 (C.A. 8, 1978) .............. 22

Machibroda v. U.S., 368 U.S. 483 (1962) 18

Mincy v. Arizona, ...... US. ......, 98 S.Ct. 2408 (1978) .... 15

Stoner v. California, 376 U.S. 483-490, 84 S.Ct. 889, 11

L.Ed.2d 856 (1964) 13

Vance v. State of North Carolina, 432 F.2d 984 (4th

Cir., 1970) 15

USS. v. Anderson, 533 F.2d 1210 (D.C. Cir., 1976) .......... 14

U.S. v. Chadwick, ...... U.S. ....... 97 S.Ct. 2476, 53 L.Ed.

2d 538 (1977) 15

US. v. Diebolt, Inc., 369 U.S. 654 (1962) 18

iii

US. v. Disston, 582 F.2d 1108 (C.A. 7, 1978) 00.0.2... 22

U.S. v. Gaines, 529 F.2d 1038 (C.A. 7, 1976) 18

US. v. Griffith, 537 F.2d 900 (C.A. 7, 1976) 13

US. v. Guerra, 583 F.2d 519 (C.A. 5, 1979) 2. 20

U.S. v. Horton, ...... IP xia , 1979 (C.A. 7, 477-2187)

(Pet. Rehg. Pending) .. . 9, 16

US. v. Jeffers, 342 U.S. at 51-52, 72 S.Ct. 93 0. 13

US. v. Killebrew, 560 F.2d 729 (C.A. 6, 1977) 0... 14

U.S. v. Marzgliano, 588 F.2d 395 (C.A. 3d, 1978) .......... 19

U.S. v. Murrie, 534 F.2d 695 (6th Cir., 1976) 0... 15

US. v. Nelson, 459 F.2d 884 (6th Cir., 1972) 15

U.S. v. Payner, 572 F.2d 144 at 145-146 (C.A.6,1978) . 7

US. v. Prescott, 581 F.2d 1343 (C.A. 9, 1978) ......... 3, 10, 11

U.S. v. Reed, 572 F.2d 412 (C.A. 2, 1978) 00. 3, 10, 12

US. v. Santana, 427 U.S. 38 (1976) 2, 10, 11

US. v. Shye, 492 F.2d 886 (6th Cir., 1974) 15

U.S. v. Stoner, 487 F.2d 651 (6th Cir., 1973) 15

U.S. v. Watson, 423 U.S. 411, 418 N.6 (1976) 0... 2, 10, 11

Constitutional Provisions

United States Constitution, Fourth Amendment ............ 3

United States Constitution, Sixth Amendment .............. 3, 4

Statutes, Rules, And Texts

28 U.S.C. §$1254(1) ...... 2

28 U.S.C. §2255 4, 18, 20, 22

21 U.S.C. §841(A)(1) and §846 5

Rule 33, Fed.R.Crim.Proe. 16

Rule 56, Fed.R.Civ.Proe. 18

a

In THE

Supreme Court of the United States

Octroper Trrm, 1979

No.

L. V. JOHNSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

L. V. Johnson, petitions for Writ of Certiorari to

review the Judgment of the United States Court of

Appeals for the Seventh Circuit.

OPINION BELOW

The Opinion (order) of the Court of Appeals is not yet

reported and same is appended as Group Appendix A,

infra.

oe oe

JURISDICTION

The Opinion (order) of the Court of Appeals for the

Seventh Circuit affirming the conviction and sentence

was entered on July 11, 1979. A timely petition for

rehearing was filed, same being denied on the 10th day

of August, 1979.! This petition is filed within thirty (30)

days of that date and this Court’s jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether the warrantless nighttime entry into a

motel room on less than probable cause, to arrest

unknown persons, was in defiance of the Fourth

Amendment .. . especially where the trial court ex-

pressly took the view that the entry into the motel room

was similar to a car stop . . . as opposed to a home?

(a) Whether the warrantless entry onto private

premises to arrest and or search is of exceptional

importance in light of the Court’s express reservation of

the issue, cf., U.S. v. Santana, 427 U.S. 38 (1976); U.S. v.

Watson, 423 U.S. 411, 418, n. 6 (1976); Gerstein v. Pugh,

420 U.S. 108, 1138, n. 18 (1975); and Coolidge v. New

Hampshire, 403 U.S. 448, 481 (1971)?

' The order affirming is set forth as Group Appendix A, in-

fra. The order denying rehearing is reproduced as Appendix

B, infra. On August 20, 1978 the Court of Appeals stayed

petitioner’s mandate pending disposition of certiorari. The

government had no opposition to same (Appendix C, infra).

a. ee

(b) Whether the question is of exceptional impor-

tance in light of the split in circuits (U.S. v. Reed, £72

F.2d 412 (C.A. 2, 1978) and U.S. v. Prescott, 581 F.2d

1343 (C.A. 9, 1978) . . . finding suppression to be the

answer while in this case the Seventh Circuit finds to

the contrary)?

2. Whether the trial court erred in granting summary

judgment in favor of the government where, during the

pendency of the direct appeal, the petitioner filed a

verified 2255 petition alleging ineffective right of

counsel based upon trial counsel’s refusal to call a

critical witness . . . where the attorney claimed to the

petitioner that the witness could not be called because of

an “inter office conflict of interest”?

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

see

Amendment IV:

The right of the people to be secure in their

persons, houses, papers, and effects, against unrea-

sonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable

cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

Amendment VI:

In all criminal prosecutions, the accused shall

enjoy the right toas y and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law, and

to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

teil jam

against him; to have compulsory process for ob-

taining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

28 U.S.C. § 2255, in part, states:

A prisoner in custody under sentence of a court

established by Act of Congress claiming the right to be

released upon the ground that the sentence was im-

posed in violation of the Constitution or laws of the

United States, or that the court was without

jurisdiction to impose such sentence, or that the

sentence was in éxcess of the maximum authorized

by law, or is otherwise subject to collateral attack,

may move the court which imposed the sentence to

vacate, set aside or correct the sentence.

A motion for such relief’may be made at any

time.

Unless the motion and the files and records of the

case conclusively show that the prisoner is entitled

to no relief, the court shall cause notice thereof to

be served upon the United States attorney, grant a

prompt hearing thereon, determine the issues and

make findings of fact and conclusions of law with

respect thereto. If the court finds that the judgment

was rendered without jurisdiction, or that the

sentence imposed was not authorized by law or

otherwise open to collateral attack, or that there has

been such a denial or infringement of the con-

stitutional rights of the prisoner as to render the

judgment vulnerable to collateral attack, the court

shall vacate and set the judgment aside and shall

discharge the prisoner or resentence him or grant a

new trial or correct the sentence as may appear ap-

propriate.

ie

STATEMENT OF THE CASE

L. V. Johnson (hereafter petitioner) was indicted in

Chicago in March, 1977. The two (2) count indictment?

charged petitioner with conspiring to sell heroin on

January 12, 1977 (Count I) and with distributing ap-

proximately two (2) ounces of heroin on January 12,

1977 (Count II). Each count was claimed to violate 21

U.S.C. § 841(a(1) and § 846.5 Petitioner, was enlarged

on bond and represented by private counsel.

Petitioner was tried to the Court commencing

November 28, 1977. The government’s proof indicated

that prior to January 12, 1977, Chicago-DEA was utiliz-

ing an informer named Fisher (Tr. 14-16). During the

afternoon of January 12, 1977, DEA gave the informer

$2400.00, and the informer went to the home of Horton

(Tr. 16). At about 9:30 p.m. the informer and Horton

drove to a motel in Chicago where Horton went into the

motel and came out with two (2) ounces of heroin. Hor-

ton gave the informer the two (2) ounces of heroin and

about 11:00 p.m. the informer left Horton and gave a

DEA agent the two (2) ounces of heroin that came from

Horton (Tr. 16-18, 19-20, 27, 55). After the DEA agent

* Petitioner reproduces the indictment, 77 CR 33, as Grp.

App. D, infra.

’ In pertinent part, 21 U.S.C. § 841(a)(1) reads:

(a) ene as authorized by this subchapter, it shall be

unlawful for any person knowingly or intentionally—(1

. . . distribute, or dispense, . . . a controlled substance;’

In pertinent part, 21 U.S.C. § 846 reads:

“Any person who attempts or conspires to commit any

offense defined in this yt ped is punishable by im-

prisonment or fine or both which may not exceed the max-

imum punishment prescribed for the offense, the commis-

sion of which was the object of the attempt or conspiracy.”

—$—

received the heroin—the receiving agent called his

fellow surveillance agents advising them that the in-

former had delivered to him a small quantity of heroin

(Tr. 20, 27).

The government presented the testimony of Agent

Hill. He saw Horton enter and exit the motel room at

about 10:20 p.m. on January 12, 1977 (Tr. 53-55).

Thereafter Hill spoke to other DEA agents that were

at the motel and “we decided to enter the room” around

11:15 p.m. (Tr. 55-57). Hill had no search warrant and

observed no crimes. As to the reason that Hill entered

the motel room, absent a warrant, the following appears

of record:

“Q. Then the only basis for your effectuating an

entrance of that room was an order from a superior?

A. That is correct.

Q. The same would apply to Agent Weinstein

and Fullett; is that correct?

A. I don’t know.” (Tr. 73)

The entry into the room was effected by using a lady

that had just exited the room to knock on the door. Upon

the door being opened the lady (and a man, both used as

a guise to enter the room) were pushed aside (Tr. 67-68).

DEA Agent Weinstein testified that he was at the

same motel and at approximately 11:15 p.m. he was

listening at the door of Room 233 and he heard a male

voice say ‘Hey, man, we're done. Let’s get out of here.”

(Tr. 87). After that Agent Weinstein went back to his

car, then several minutes later returned and entered the

motel room where he assisted in the arrest of seven (7)

or eight (8) men and a woman (Tr. 87).‘

‘ Why Weinstein and his fellow agents didn’t simply wait by

the door for the parties to exit the room escapes our imagina-

tion in light of what he had heard. . . “we’re done, let’s get out

of here” (Tr. 87).

~~ =

Fisher, the DEA informer, testified that on January

12, 1977, after meeting with the DEA agent ... he

went to Horton’s home (Tr. 106-07). About 9:30 p.m.

Fisher and Horton left for the motel (Tr. 117). Once at

the motel Fisher watched Horton walk into Room 233 of

that motel and return with what later turned out to be

two (2) ounces of heroin (Tr. 118). After that Fisher and

Horton leit and returned to Horton’s home (Tr. 119).

Eventually Fisher left Horton’s home somewhere around

11:00 p.m., met with two (2) DEA agents and gave them

both the “package” and a non-functioning body recorder

(Tr. 119).

After the testimony of Fisher the government rests

and the court proceeds to hear argument both on the

question of suppression and on a motion for judgment of

acquittal (Tr. 129-152). Inter alia, the court denies the

motion to suppress, reasoning:

“In this court’s opinion, there was probable cause to

enter the motel room at the time that it was done;

and as to why there wee not a warrant, the

testimony as to the conversation, ‘Hey, man, we are

done. Let’s get out of here.’ I consider the positive test

for heroin, and I consider the fact, without saying

how I would have ruled if it were a permanent

home, I am not going to reach out for rulings and

matters that are not before me for decision; but this

was a motel room, and this may be a degree of

similarity or parallel to the search of an automobile

without a warrant. An automobile is movable. A

motel room is temporary quarters, as distinguished

from a rented apartment or from a home.” (Tr. 141%

5 The trial court, at the sugeestion of petitioner’s counsel,

combined both the trial and the suppression question (Tr. 2).

This practice was specifically condemned in U.S. v. Payner,

572 F.2d 144 at 145-146 (C.A. 6, 1978).

—s—

The petitioner offered his own testimony (Tr. 234-265)

as well as the testimony of others that were in the motel

room at the time DEA entered (warrantless and at gun-

point]. The thrust of the defense evidence was that there

was an on-going gambling game (Tr. 183-5; 199-200; 235-

6). Petitioner further testified that he made no oral ad-

missions post-arrest, to DEA. Petitioner’s Appendix E,

infra, is the original complaint filed before the federal

magistrate on January 13, 1977. There is no indication

within the magistrate’s complaint of any oral ad-

missions by petitioner (cf., Appendix E, infra).

On November 29, 1977, the Court, following argu-

ment, finds that there was no dice game and that

petitioner was guilty (Tr. 337-338). On January 12, 1978,

petitioner was sentenced to two (2) years in custody (R.

21). Petitioner was enlarged on bond pending appeal

and the Court of Appeals stayed its mandate pending

disposition of this petition (App. C, infra).

During the pendency of the direct appeal (78-1101,

C.A. 7) petitioner filed a verified § 2255 petition (App.

F, infra). Same was filed with the trial judge on July 8,

1978. The proceedings in the Court of Appeals were

stayed pending disposition of the § 2255 petition. The

gravamen of this petition was that the 6th Amendment

was thwarted as to the petitioner at bar . . . in that he

was denied the opportunity to call a critical defense

witness . . . by virtue of trial counsel’s refusal to call the

defense witness . . . because of a “conflict of interest”

(R. 5-6, ‘rec. #78-2635, C.A. 7). Thus, the petitioner

charged, that he was denied the effective assistance of

counsel in that his trial counsel was ineffective . . . for

refusing to call a key and critical defense witness...

~

not as a trial tactic . . . but because of a conflict of in-

terest.®

The Government filed a motion for summary judg-

ment (R. 7-8, #78-2635). The Government filed no

counter-affidavit(s). The Court granted the government’s

motion. On December 4, 1978 . . . the trial court dis-

missed the verified § 2255 absent any hearing ...

characterizing the action taken as the grant of a sum-

mary judgment against petitioner (R. 12-13, #78-2635).

On consolidated appeal ... the Court of Appeals af-

firmed the § 2255 dismissal . . . absent any hearing. In

that Petitioner deems the dismissal contrary to law...

this Petition requests review and reversal.

6 Petitioner wanted to call Mr. Horton. . . the alle seller

of Heroin to the DEA informer as his witness (R. 5, 6). Horton

was available to be called (Tr. 108-111). Petitioner's trial

counsel told petitioner the — of interes ed call-

ing Horton as a defense pines ( 2 Toon), He ned had

been tried, convicted and pas ec OTSA v. Horton, ..... F.2d

‘nian #77-2187 (C.A. 7, 1979). Horton’s islel Ge counsel as

well as Petitioner's trial counsel shared ig ry in Chicago as

—10—

REASONS FOR GRANTING THE WRIT

1.

Whether the warrantless nighttime entry into a motel

room on less than probable cause, to arrest unknown

persons, was in defiance of the Fourth Amendment... .

especially where the trial court expressly took the view

that the entry into the motel room was similar to a car

stop .. . as opposed to a home?

(a) Whether the warrantless entry onto private

premises to arrest and/or search is of exceptional impor-

tance in light of the Court’s express reservation of the

issue, cf., U.S. v. Santana, 427 U.S. 38 (1976); U.S. v.

Watson, 423 U.S. 411, 418, n. 6 (1976); Gerstein v. Pugh,

420 U.S. 108, 113, n. 13 (1975); and Coolidge v. New

Hampshire, 403 U.S. 443, 481 (1971)?

(b) Whether the question is of exceptional impor-

tance in light of the split in circuits (U.S. v. Reed, 572

F.2d 412 (C.A. 2. 1978) and U.S. v. Prescott, 581 F.2d

1348 (C.A. 9, 1978) . . . finding suppression to be the

answer while in this case the Seventh Circuit finds to

the contrary).

The exceptional importance of the questions presented

is demonstrated by both the spiit in circuits and the

Courts’ reservation on the questions now presented. In

Gerstein v. Pugh, 420 U.S. at 114, n. —, 95 S.Ct. 854 at

863, n.13, the Court observed:

“The issue of warrantless arrest that has generated

the most controversy, and that remains unsettled, is

whether and under what circumstances an officer

may enter a suspect’s home to make a warrantless

arrest. See Coolidge v. New Hampshire, 403 U.S.

443, 474-481, 91 S.Ct. 2022, 2042-2045, 29 L.Ed. 564

EE

a

(1971); id., at 510-512 and n. 1, 91 S.Ct. at 2060-

2061 (White, J., dissenting); Jones v. United States,

357 U.S. 493, 499-500, 78 S.Ct. 1253, 1257, 2

L.Ed.2d 1514 (1958).”

Similarly, in U.S. v. Watson, 423 U.S. at 418, n. ., 96

S.Ct. at 825, n.6 (1976) the Court noted:

“In the case before us the Court of Appeals re-

lied heavily, but mistakenly, on Coolidge v. New

Hampshire, 403 U.S. 448, 480-481, 91 S.Ct. 2022,

2045-2046, 29 L.Ed.2d 564 (1971), for as we noted in

Gerstein v. Pugh, 420 U.S., at 113 n. 18, 95 S.Ct., at

863, the still unsettled question posed in that part of

the Coolidge opinion was “whether and under what

circumstances an officer may enter a suspect’s

home to make a warrantless arrest.” Watson’s mid-

day public arrest does not present that question.”

In U.S. v. Prescott, 581 F.2d 1343 (C.A. 9, 1978) the

court reversed a conviction under charges brought pur-

suant to 18 U.S.C. § 3. While discussing the agents’

warrantless entry into Prescott’s premises, that court

stated:

“The Supreme Court has never resolved this issue. Ii

has held that police need no warrant to arrest a

felony suspect on probable cause in a public place;

United States v. Watson, 1976, 423 U.S. 411, 96

S.Ct. 820, 46 L.Ed.2d 598; United States v. Santana,

1976, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300.

However, the Court has expressly reserved, on

numerous occasions, the “grave constitutional ques-

tion” of whether an “entry into a dwelling to arrest

a person reasonably believed within, upon probable

cause that he had committed a felony, under cir-

cumstances where no reason appears why an arrest

warrant could not have been sought, is consistent

with the Fourth Amendment.” [Cites omitted] In

Coolidge the Court stated in dicta that “the notion

that the warrantless entry of a man’s house in order

to arrest him on probable cause is per se legitimate

pilin:

is in fundamental conflict with the basic principle

of Fourth Amendment law that searches and

seizures inside a man’s house without warrant are

per se unreasonable in the absence of some one of a

number of well defined ‘exigent circumstances.’

403 U.S. 477-78, 91 S.Ct. 2044” (581 F.2d at 1348).

In U.S. v. Reed, 572 F.2d 412 (C.A. 2, 1978) the Court

reversed a federal drug conviction. The Court, on

appeal, found that the seizure of certain evidence was

impermissible. The evidence was obtained based on a

warrantless entry onto private premises for the purpose

of arresting Ms. Reed. While reversing the court noted:

“The central question presented by this case, of

course, is not whether the agents had statutury

authority to make probable cause arrests, nor is it

whether the method of entry into Reed’s apartment

was within the agents’ statutory powers; rather,

THE QUESTION IS THE CONSTITUTIONALITY OF THE

ENTRY ITSELF” (572 F.2d at 518, n. 2).

The text of the Reed decision speaks also to statutory

authority as follows:

“The question thus presented is whether and under

what circumstances the Fourth Amendment per-

mits federal law enforcement officers to enter a

suspect’s home in order to effect a felony arrest for

which the officers have both statutory authority and

probable cause but no warrant. Surprisingly,

neither the Supreme Court nor the Second Circuit

has squarely decided this issue. We hold that

warrantless felony arrests by federal agents

effected in the suspect’s home, in the absense of ex-

tigent circumstances, even when based upon

statutory authority and probable cause, are uncon-

stitutional” (572 F.2d at 417-18, ft.nts. omitted;

emphasis supplied).

Of course, as the statement of facts offers, petitioner

and others were in a motel room during the late evening

oo

hours of January 12, 1977. The trial judge likened the

entry to a car-stop (Tr. 141). The trial judge declined to

offer his thoughts on what the situation would be had

the entry, arrest and search. . . taken place in a private

home. The trial Judge in this case stated:!*?

“and I consider the fact, without saying how I would

have ruled if it were a permanent home, I am not

going to reach out for rulings and matters that are

not before me for decision; but this was a motel room,

and this may be a degree of similarity or parallel to

the search of an automobile without a warrant. An

automobile is movable. A motel room is temporary

quarters, as distinguished from a rented apartment

or from a home.” (Tr. 141) (emphasis ours)

As may be clear . . . the trial court was incorrect and

the court of appeals perpetuated the constitutional error

. .. notwithstanding their contrary decision in U.S. v.

Griffith, 537 F.2d 900 (C.A. 7, 1976). In Griffith the

court reversed a federal drug conviction and reviewed

this Court’s decisions as they relate to searching motel-

hotel rooms. The Griffith court cited:

“The government suggests that it was proper for

the officers to gather together defendant’s

belongings and take them to the police station, in-

ventorying them in the process, just as if he had

been arrested on the street with those belongings in

his possession. This presupposes that for purposes of

the application of the Fourth Amendment the motel

room is not to be viewed as a dwelling. The Supreme

Court has held otherwise. Stoner v. California, 376

U.S. 483-490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964);

United States v. Jeffers, supra, 342 U.S. at 51-52, 72

S.Ct. 93; Johnson v. United States, 333 U.S. 10, 68

S.Ct. 367, 92 L.Ed. 436 (1948). The officers had no

greater right to remove or search defendant’s per-

sonal belongings that were not on his person or

within his immediate control than they would have if

—

they had made the arrest in his house.” (537 F.2d at

905; emphasis supplied)

When the agents made their night-time-warrantless

entry over an hour had passed from the time Horton left

the motel room (Tr. 19-20, 27, 55). The agents had no

knowledge who was in the motel room . . . or whether

the $2400.00 in pre-recorded money. . . was still there.’

After Horton left the motel ... unidentified persons

were seen entering and leaving the same motel room

(Tr. 67-68).

The inquiry then is simply whether the warrantless.

night-time and unannounced entry into the motel room

to arrest unknown persons and search for unknown

things was legal. Our answer is in the negative. WE

URGE THIS COURT TO BE MINDFUL THAT THE

GOVERNMENT HAD ABSOLUTELY NO INFOR-

MATION THAT THERE WERE OTHER NAR-

COTICS IN THE MOTEL ROOM (IF THERE WERE

ANY AT ALL) OR, ANY EVIDENCE OF ANY

CRIME IN THAT MOTEL ROOM.

In U.S. v. Killebrew, 560 F.2d 729 (C.A. 6, 1977) the

court reversed a federal firearms conviction finding that

the trial court erred in refusing to suppress evidence

seized following the warrantless entry into a motel

room. While reversing the Killebrew court reasoned:

7 The informer, Fisher, had been given $2400.00 in pre-

recorded money by DEA ring the afternoon of Jan. 12, 1977

(Tr. 16). None of the agents knew that the $2400 was even

an y in the motel room in that no one witnessed Horton

getting the 2 ounces of heroin (Tr. 30-38).

8 In U.S. v. Anderson, 533 F.2d 1210 (D.C. Cir., 1976) the

Court reversed a weapons conviction based upon an imper-

missible seizure of certain evidence and observed that the

aera posed to this Court has yet to be ruled on by the

upreme Court (533 F.2d 1214 at n.6).

weblion:

“If the entry into the motel room is characterized as

an entry for purposes of effectuating an arrest, as

opposed to any entry for purposes of conducting a

search, the warrantless entry under the facts of the

present case violate the Fourth Amendment rights

of Killebrew. United States v. Shye, 492 F.2d 886

(6th Cir., 1974); Vance v. State of North Carolina,

432 F.2d 984 (4th Cir., 1970); Dorman v. United

States, 140 U.S. App. D.C. 313, 435 F.2d 385 (1970).

The result is the same if the warrantless entry is

characterized as for the purpose of conducting a

search, as opposed to an entry for the purpose of

making an arrest. The facts of the present case do

not come within any of the well delineated excep-

tions to the fourth amendment requirement for a

search warrant. See United States v. Chadwick, .....

USS. ....., 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); Katz

v. United States, 389 U.S. 347, 88 S.Ct. 507, 19

L.Ed.2d 576 (1967); United States v. Murrie, 534

F.2d 695 (6th Cir., 1976); United States v. Stoner,

487 F.2d 651 (6th Cir., 1973); United States v.

Nelson, 459 F.2d 884 (6th Cir., 1972).” (560 F.2d at

733)

Thus, the 6th circuit has joined the 2nd and 9th cir-

cuits, in denouncing warrantless entries to arrest and/or

search. This Court has not passed on the questions (Qu.

1(aXb)) presented herein. Under the questions presented

we respectfully urge that Certiorari be granted.’

* * kK *

2.

Whether the trial court erred in granting summary

judgment in favor of the government where, during the

® The Courts’ decisions in Mincy v. Arizona, ..... US. ....., 98

S.Ct. 2408 ees and Dunaway v. New York, ..... US. ....., 99

S.Ct. 2248 (1979) make no reference to the warrantless entry-

arrest-search-trilogy .. . as offered in this petition.

—16—

pendency of the direct appeal, the petitioner filed a

verified 2255 petition alleging ineffective right of

counsel based upon trial counsel’s refusal to call a

critical witness . . . where the attorney claimed to the

petitioner that the witness could not be called because of

an “inter office conflict of interest”?

The petitioner sought § 2255 relief..° Specifically,

petitioner requested a hearing before the trial court on

matters not set forth in the trial record. Petitioner bot-

tomed his claim on the 6th Amendment. Petitioner

claimed he suffered the vice of “ineffective counsel” by

virtue of trial counsel depriving him of a critical

witness. That witness, Horton, played a key role in the

January 12, 1977 episode. As already portrayed Horton

was with the informer from the middle-afternoon . . . on

that date . . . until the late evening hours. Horton went

into the motelroom and came out with the 2 ounces of

heroin. Horton gave the heroin to the informer. Horton

also gave the $2400.00 in pre-recorded monies to

someone in the motelroom. One of the persons arrested

in that motelroom, Adams, had $1600.00 of the pre-

recorded monies while petitioner was in possession of

$520.00 commingled with other monies (Tr. 94, 98-99). All

told DEA arrested everyone in the motelroom (some 8

persons. . . Tr. 61). Only petitioner was indicted.!! Dur-

In Giglio v. U.S., the Court, Sub Silentio, approved at-

tacking the conviction collaterally . . . during the Penson of

the direct appeal, 405 U.S. at 152-153, 92 S.Ct. at 765 (19 2).

Petitioners post-conviction gree were invoked under bot

§ 2255 and rule 33 (App. F, infra and R. 5-6, #78-2635).

'! Horton was separately indicted. His conviction was recent-

ly affirmed, U.S. v. Horton, ..... fee (C.A. 7, 1979, #77-

187 . . . decided July 2, 1979), (pet. rehg. pending).

a

ing the motelroom search several thousand dollars were

taken by DEA (Tr. 292-295).

During the preliminary hearing (January 20, 1977)

petitioner was represented by attorney Genson.'!”

Post indictment petitioner was represented by at-

torney S. Adams" however, on April 14, 1977 Adams

wads given leave to withdraw in favor of attorney L. Fox."

We add, at this point, that Horton, while separately

indicted, was represented by attorney Ms. A. Hubbard."

Horton did not appear as a defense witness. Petitioner

was convicted on November 29, 1977 and was sentenced

on January 12, 1978 (R. 21. . . 78-1101). On January 26,

1978 petitioner sought post trial relief (R. 23... 78-

1101).'* On February 3, 1978 petitioner sought bail pend-

ing appeal (R. 1 . . . 78-2635). An exhibit to the motion

for bond pending appeal is a formal motion in the dis-

trict court under 78 CR 34 wherein James Dunn is ask-

ing for the return of several thousand dollars. That

money was seized in the motel room upon the arrest of

petitioner and the others on the night of January 12,

2 Offices at 184 North LaSalle St., Suite 300-306, Chicago,

Il. 60602.

18 Offices at 134 North LaSalle St., Suite 300-306, Chicago,

Il. 60602.

4 Offices at 184 North LaSalle St., Suite 300-306, Chicago,

Il. 60602. (R. 6, 78-1101).

‘6 Offices at 134 North LaSalle St., Suite 300-306, Chicago,

I]. 60602. Horton’s appeal is before the court in 77-2187 (7th

Cir., Pet. Rehearing pending).

‘6 Attorney Genson filed said motion for petitioner. Attorney

Fox new seems to be out of the picture. Johnson’s Notice of

Appeal is “pro se” although the address on the Notice of

Appeal is the mutual address of each defense attorney in these

cases (R. 22, . . . 78-1101).

lives

1977.'7 Against this background. . . a hearing, in accor-

dance with 28 U.S.C. § 2255 was requested. Same was

denied in the trial court and the Appellate Court

affirmed (App. A. 4, 5). The denial of any hearing was

manifest error.’ In Machibroda v. U.S., 368 U.S. 483

(1962) the Court vacated the denial of § 2255 relief

where the trial court dismissed the motion and affidavit,

absent any hearing. The Court, by Justice Stewart,

stated:

This was not a case where the issues raised by the

motion were conclusively determined either by the

motion itself or by the “files and records” in the

trial court. The factual allegations contained in the

petitioner’s motion and affidavit, and put in issue

by the affidavit filed with the Government’s

response, related primarily to purported oc-

currences outside the courtroom and upon which

the record could, therefore, cast no real light. Nor

were the circumstances alleged of a kind that the

District Judge could completely resolve by drawing

upon his own personal knowledge or recollection.

* * * *k *

‘7 Dunn under 77 CR 34 was not indicted. Attorney Genson

represented Dunn on the motion for the return of the money.

R. 1, Exh. A... 78-2635). In United States v. Gaines, 529

.2d 1038 (7th Cir. 1976) this court granted Gaines a new

trial based on “conflict of interest”. Judge Tone pointed out

that some of the post-trial motions in that case ge grt | had

the same typing and the same Blueback (529 F.2d at 1042). In

this case each and every motion filed was seemingly typed

with the same typewriter and the address for each attorney is

Sa (R. 5, 16, 19, 22, 23 and 24... 78-1101; R. 1...

'8 The trial Court’s decision granting the government’s mo-

tion to dismiss and treating the motion to dismiss as a motion

for summary judgment is reproduced as App. G, infra. The

trial Court was clearly erroneous in granting summary judg-

ment where the petitioner’s verified § 2255, with a second af-

fidavit attached (R. 5-6, #78-2635) put facts in issue that clear-

ly didn't occur within the Courtroom. . ., in accord., U.S. v.

Diebold Inc., 369 U.S. 654 at 655 (1962) (granting summary

judgment im — where pleadings raised material factual

questions, Rule 56, Fed. R. Civ. Proc.).

-—-

—19—

“Not by the pleadings and the affidavits, but by the

whole of the testimony, must it be determined

whether the petitioner has carried his burden of

proof and shown his right to a discharge. The

Government’s contention that his allegations are im-

probable and unbelievable cannot serve to deny him

an opportunity to support them by evidence. On this

record it is his right to be heard.” Walker v. John-

son, 312 U.S. 275, at 287, 61 S.Ct. 574, 579. (363

U.S. at 494-494)

The circuits have almost uniformly interpreted

Machibroda as requiring an evidentiary hearing. Peti-

tioner’s pleadings ... verified that his trial

counsel refused to call a defense witness . . . based on a

conflict of interest (R. 5-6). The petitioner named that

witness and there is no dispute as to the fact that the

witness was available.'® The petition (verified) spoke to

the “ineffective counsel” question. The 6th amendment

was pleaded.” The Government didn’t contradict the

factual allegations (R. 7-8, #78-2635). THE GOVERN-

MENT SOUGHT DISMISSAL AND SUMMARY

JUDGMENT BASED ON “TRIAL TACTICS” which

were without any support whatsoever in the trial record

(Cf., R. 7-8).

In U.S. v. Marzgliano, 588 F.2d 395 (C.A. 3rd, 1978)

the court vacated the denial of § 2255 relief, absent a

'9 The petitioner, in the court below, offered no statement as

to what Horton might have testified to ... this is hardl

fatal. A § 2255 searing cannot be denied for this reason, U.S.

v. Friedman, 588 F.2d 1010 at 1017 (C.A. 5, 1979).

20 The Court recently resolved these 6th amendment cases

. .. without compelling the Fgpre ose: to show prejudice

. . . Geders v. U.S., 425 U.S. 80 (1976); Herring v. New York,

422 U.S. 853 (1975); Hollaway v. Arkansas, 435 U.S. 475

(1978). Each of the above demonstrated that the constitutional

violation under the 6th amendment required no showing of

rejudice. (Cf., Davis v. Alabama, 596 F.2d 1214, CA. 5, 1979)

analyzing 6th amendment right to effective counsel).

cialis

hearing where that petitioner alleged his guilty plea was

wrongfully induced by his retained counsel. While

remanding for an evidentiary hearing the court stated:

The alleged misrepresentations which form the

basis of Mogavera’s section 2255 motion took place

at out-of-court meetings between Mogavera and his

attorney. Also, the fact that no agreement actually

existed between the district court judge and

Mogavera’s attorney, a fact which would be within

the personal knowledge of the district court, is not

relevant to the issue of whether or not Mogavera’s

guilty plea was induced by a false promise from his

attorney. McAleney v. United States, 539 F.2d at

284. Thus, by alleging activities which took place out-

side the courtroom and _ beyond the _ personal

knowledge of the district court judge, Mogavera

brings himself squarely within the Machibroda stan-

dards. Accord, Brown v. United States, 565 F.2d

862, 863 & n.2 (3d Cir. 1977); Moorhead v. United

States, 456 F.2d at 995 (petitioner is entitled to a

hearing where the motion alleges ‘matters outside

the record which, if true, cast serious doubt upon

the voluntariness of the guilty plea’.” (588 F.2d at

399, emphasis supplied)

In U.S. v. Guerra, 588 F.2d 519 (C.A. 5, 1979) the

court vacated the denial of § 2255 relief absent any

hearing. The issue offered on 2255 related to effective

right to counsel under the 6th amendment. Whiie

vacating and ordering an evidentiary hearing the Court

noted:

“We begin our discussion by heeding the

legislative command that the district court shall

conduct a hearing on a petitioner’s allegations

‘{{ulnless the motion and the files and records of the

case conciusively show that the prisoner is entitled

to no relief.’ 28 U.S.C.A. § 2255” (emphasis sup-

plied). (588 F.2d at 520)

* * kk *

“Because petitioner raises serious questions as to

the effectiveness of his counsel at trial, we reverse

pe AT OOO OR a

—

and remand for a full hearing on the merits of his

allegations.

« The Sixth Amendment guarantees a defendant in

a federal criminal trial the right to ‘counsel reason-

ably likely to render and rendering reasonably

effective assistance.’ Where, as in the present case,

the defendant is represented by retained counsel, in

order to establish a Sixth Amendment violation it

must be shown that the incompetency of retained

counsel was so obvious that a reasonably attentive

government official connected with the criminal

proceeding should have been aware of it and could

have taken corrective action.” (588 F.2d at 521, cites

omitted)

In Friedman v. U.S., 588 F.2d 1010 (C.A.-5, 1979) the

court vacated and remanded for full evidentiary

hearings from the denial of § 2255 relief after that

petitioner filed verified pleading setting forth short-

comings by his appointed trial counsel. The Court, while

remanding for full hearings offered the following ex-

~pressions:

“In this case, the limited hearing conducted by the

District Court on petitioner Leroy Friedman’s

§ 2255 motion was not adequate to conclusively deter-'

mine his claims that he had been tried and convicted

without the reasonably effective assistance of counsel

guaranteed him by the Sixth Amendment. We

therefore vacate and remand this cause to the Dis-

trict Court to consider it again after having con-

ducted a fuller evidentiary hearing.” (588 F.2d at

1012)

** * * *

“Where, however, the petitioner supports his claims

of inadequate preparation, attorney indifference,

failure to call witnesses, etc., with plausible factual

allegations and evidence sufficient to raise a sub-

stantial doubt that his attorney’s in-court perfor-

mance was not as effective as it might seem to

odes

third-party observers, the court is obligated to delve

behind the scenes and ascertain whether the at-

torney, either by inaction or through ill-taken ac-

tion, failed to meet the standards of a reasonably

competent and devoted advocate, to the ultimate

prejudice of the petitioner.” 588 F.2d at 1016,

emphasis supplied)

In U.S. v. Disston, 582 F.2d 1108 (C.A. 7, 1978) the

court vacated and remanded for full evidentiary

hearings where that petitioner alleged that government

misconduct precluded him from receiving a fair trial.

While reversing the dismissal of § 2255 relief, absent

any hearing, the court noted:

Whether with an evidentiary hearing Disston can

demonstrate any prejudice which he could not with

only the tapes themselves remains to be seen. We

are concerned at the present moment with his hav-

ing the opportunity to try. (582 F.2d at 1111,

emphasis supplied)

In Lindhorst v. U.S., 585 F.2d 361 (C.A.*8, 1978) the

Court vacated the denial of § 2255 relief absent any

evidentiary hearing where that petitioner raised govern-

ment misconduct in suborning perjury during his bank

robbery trial. 7

“Neither 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 af-

fidavits government use of perjured material

ped with knowledge of its falsity.” (585 F.2d

at

* ee * *

“This is not the kind of case which the district

judge ‘could completely resolve by drawing upon

his own personal knowledge or _ recollection’

Machobroda v. United States, 368 U.S. at 494, 82

S.Ct. at 514. The district judge cannot credit the

me eS ee fe tt

¥

—23—

recanting witnesses’ trial testimony and discredit

their affidavits without affording appellant an op-

portunity to prove the allegations. An evidentiary

hearing is required to determine whether the govern-

ment knowingly used perjyured material testimony.”

(585 F.2d at 365, emphasis supplied)

We have pointed out that under the precedent(s) of

this Court Machibroda and those cases from the 3rd,

5th, 7th and 8th circuits . . . the petitioner at bar was

deprived of that which is mandated . . . an evidentiary

hearing. Petitioner has not offered a frivolous issue.

Rather, an issue that strikes at the very heart of any

federal criminal trial . . . witnesses . . . for the defense.

CONCLUSION

The Petitioner at bar, L. V. JOHNSON, respectfully

prays that the Court grant his petition for certiorari as

to each question presented.

Respectfully submitted,

ALLAN A. ACKERMAN

100 North LaSalle Street

Suite 611

Chicago, [Illinois 60602

(312) 332-2863

Attorney for Petitioner

APPENDICES

A—tgrp) ... Decision below, July 11, 1979

B—Order ... denying rehearing, August 10, 1979

C—Order ... granting stay of mandate, pending

certiorari, August 20, 1979

D—terp)... Ind. 77CR 33... Petitioner's indict-

ment, Mareh 10, 1977

E—tgerp)... Original complaint filed by DEA a-

gent before Federal magistrate in Chicago on

January 13, L977

F— Motion for leave to file post-conviction pleadings,

July 18, 1978

G—(grp)... Memorandum order. . . denying relief

and granting summary judgment in favor of

Government, December 4, 1978

A-1

GROUP APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

[Unpublished Order Not To Be Cited Per Circuit Rule 35]

Argued: May 31, 1979

July 11, 1979.

Before

Hon. Luther M. Swygert, Circuit Judge

Hon. Walter P. Gewin, Senior Circuit Judge*

Hon. Robert A. Sprecher, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 78-1101 and 78-2635 vs.

L. V. JOHNSON,

Defendant-A ppellant.

Appeals from the United States District Court for the

Northera District of Illinois, Eastern Division.

No. 77 CR 33—Alfred Y. Kirkland, Judge.

ORDER

-Defendant L. V. Johnson was indicted for a conspiracy

to distribute, and for distribution of heroin in violation

of 21 U.S.C. $§ 841(a)(1) and 846. After a bench trial de-

* Honorable Walter P. Gewin, Senior Circuit Judge of the United

States Court of Appeals for the Fifth Circuit, is sitting by desig-

nation.

———— SS ee ee

A-2

fendant was found guilty and was sentenced to two years

imprisonment followed by a three year special parole term.

He has appealed on the grounds (1) that evidence result-

ing from a warrantless search of a hotel room should have

been suppressed; (2) that defendant’s written jury waiver

was invalid; and (3) that the evidence was insufficient.

Thereafter defendant filed a petition under 28 U.S.C.

§ 2255 claiming ineffective assistance of counsel, which the

trial judge disposed of by means of a summary judgment

for the government. The defendant also appealed from this

judgment and the two appeals have been consolidated. We

affirm.

I

On January 12, 1977, Drug Enforcement Administration

Agent Labik, after searching informant Fisher and con-

firming the absence of narcotics, money or weapons, placed

a kel set electronic transmitter on Fisher’s body and gave

him $2,400 in pre-recorded funds.

Fisher went to the home of Willie Horton, an unindicted

conspirator, from whence Horton made a telephone call to

Room 233 at Michigan Inn Motel and counted Fisher’s

$2,400. Horton and Fisher then drove to the motel, where

Horton proceeded to Room 233, remained in the room for

a few minutes and returned to Fisher, waiting in the auto-

mobile, with two ounces of heroin. Fisher gave Horton the

$2,400, which Horton took back to Room 233. Horton re-

turned to the car and he and Fisher went back to Horton’s

house.

Fisher examined the ae of heroin, departed, and

met with D.E.A. agents, who field tested the heroin with

positive results. Several agents who had maintained sur-

veillance of Room 233 then approached the room, where

they heard a male voice inside say, ‘‘Hey man, we’re done.

Let’s get out of here.’’ The agents saw two persons, one

a woman, emerge from Room 233 and persuaded one of

them to seek readmittance. The woman knocked on the door

and when it opened the agents entered.

A-3

The room contained seven men and one woman, including

the defendant, who had drawn a gun from his pocket but

threw it on the floor as the agents entered. The agents ar-

rested the eight occupants of 233 and upon searching the

room found several plastic bags with narcotics and several

thousands of dollars in money. The defendant was searched

at the time of his arrest and had in his possession $520

of the pre-recorded funds.

After receiving Miranda warnings, the defendant signed

a waiver of rights form and told the agents: ‘‘I know it

was Willie who set me up because he is the only one I

sold to tonight.’’

II

The defendant first argued that the evidence seized

should have been suppressed. At defense counsel’s sug-

gestion and agreement of the parties the motion to sup-

‘press was heard simultaneously with the bench trial.

Congress has empowered D.E.A. Agents to:

(3) make arrests without warrant (A) for any of-

fense against the United States committed in his pres-

ence, or (B) for any felony, cognizable under the laws

of the United States, if he has probable cause to believe

that the person to be arrested has committed or is

committing a felony;

(4) make seizures of property pursuant to the provi-

sions of this subchapter;...

21 U.S.C. § 878. See also, 26 U.S.C. § 7607.

The agents had probable cause and there were exigent

circumstances sufficient to make the arrests and the sub-

sequent search of the room and the defendant. United

States v. Lozaw, 427 F.2d 911 (2nd Cir. 1970); United

States v. Frierson, 299 F.2d 763 (7th Cir. 1962) (unan-

nounced but peaceful entry warranted where agents heard

‘‘Get rid of the stuff’’ from inside apartment). There was

scarcely time to procure a warrant once the voice from the

motel room announced, ‘‘Let’s get out of here.’’ A quick

A4

disposition of narcotics and even of the marked money

became quite probable.

It

The next argument of defendant was that the written

jury waiver was invalid.

The written waiver was signed by the defendant, his

counsel, government counsel and the court on November

28, 1977. On August 31, 1978, we held in United States v.

Scott, 583 F.2d 362, 364 (7th Cir. 1978) that effective one

month after the date of that decision we would require

that before a district court accepts a waiver of jury trial

the court should interrogate the defendant to insure that

he understands his right to a jury trial and the conse-

quences of waiver. In Scott however, we also held on the

basis of Estrada v. United States, 457 F.2d 255 (7th Cir.

1972) and United States v. Kidding, 560 F.2d 1303 (7th

Cir. 1977) that until 30 days after August 31, 1978, the

Seventh Circuit did not require such interrogation when

a written waiver was filed. Thus the old rule applied when

this defendant filed his waiver.

IV

The defendant contended that he was deprived of a fair

trial because of his trial counsel’s apparent conflict of

interest. This conflict was alleged to exist because the

defendant wished to call Willie Horton as a witness, defend-

ant’s counsel ‘‘refused’’ to do so, and Horton’s lawyer

maintained an office in the same suite of offices as did

defendant’s counsel. It is common knowledge in this legal

community that many criminal defense attorneys maintain

offices in the same suite with other defense attorneys yet

are completely independent and unaffiliated.

We begin with a presumption that counsel was conscious

of his duties and that he sought conscientiously to dis-

charge those duties. Matthews v. United States, 518 F.2d

1245 (7th Cir. 1975). Alleged failure to call a witness is a

A-5

question of trial tactics which is not sufficient to establish

ineffective assistance of counsel. United States ex rel.

Williams v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975).

Defendant did not make a sufficient showing to warrant

an evidentiary hearing on the subject.

Finally the defendant has argued that the evidence was

insufficient to support his conviction. We have examined

the record as well as the briefs and find that the con-

viction is supported by substantial evidence.

The judgments appealed from are affirmed.

A-6

APPENDIX B

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

August 10, 1979

Before

Hon. Luther M. Swygert, Circuit Judge

Hon. Walter P. Gewin, Senior Circuit Judge*®

Hon. Robert A. Sprecher, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 78-1101 and 78-2635 vs.

L. V. JOHNSON,

Defendant-A ppellant.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77 CR 33—Alfred Y. Kirkland, Judge.

ORDER

On consideration of the petition for rehearing and sug-

gestion for rehearing in banc filed in the above-entitled

cause by L. V. Johnson, defendant-appellant, no judge in

active service has requested a vote thereon, and all of the

judges on the original panel have voted to deny a rehear-

ing. Accordingly,

It Is Ordered that the aforesaid petition for rehearing

be, and the same is hereby, Denied.

* Honorable Walter P. Gewin, Senior Circuit Judge of the United

States Court of Appeals for the Fifth Circuit, is sitting by desig-

nation.

A-7

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

August 20, 1979

Before

Hon. Luther M. Swygert, Circuit Judge

\

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

Nos. 78-1101 and 78-2635 vs.

L. V. JOHNSON,

Defendant-A ppellant.

Appeals from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 77 CR 33—Alfred Y. Kirkland, Judge.

On consideration of the ‘‘Unopposed Motion, With Sup-

porting Affidavit, As Per Cir.R. 17(a) To Stay Mandate

Pending The Timely Filing Of A Petition For Writ Of

Certiorari (Same To Be Filed With The Clerk Of The

Supreme Court On Or Before September 10, 1979)’’ filed

herein on August 15, 1979, by counsel for the defendant-

appellant,

It Is Ordered that said motion be and the same is hereby

Granted, and the mandate of this court is stayed up to and

including September 10, 1979, pending the filing of a peti-

tion for a writ of certiorari in the Supreme Court by the

defendant-appellant.

A8

GROUP APPENDIX D

UNITED STATES DISTRICT CCURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 77 CR 33

UNITED STATES OF AMERICA

V.

L. V. JOHNSON

Violation: Title 21, United States Code,

Sections 841(a)(1) and 846

The March 1977 Grand Jury charges:

Beginning on or about January 12, 1977, and continuing

thereafter up to and including the filing of this indict-

ment, at Chicago, in the Northern District of Ilinois, East-

ern Division, L. V. Johnson, defendant herein, wilfully and

knowingly did combine, conspire, confederate and agree

together, with Willie Horton, named as an unindicted co-

conspirator, but not as a defendant herein, and with divers

other persons who are to the grand jury unknown, to com-

mit an offense against the United States, to wit: to know-

ingly and intentionally distribute a quantity of a mixture

containing heroin, a Schedule I Narcotic Drug Controlled

Substance, in violation of Title 21, United States Code,

Section 841(a) (1).

It was part of said conspiracy that the defendant would

cause to be distributed and did distribute at Chicago, in

the Northern District of Illinois, a quantity of a mixture

containing heroin.

A-9

It was further a part of said conspiracy that the defend-

ant would misrepresent, conceal and hide, and cause to be

misrepresented, concealed and hidden, the purposes of and

acts done in furtherance of said conspiracy.

In furtherance of said conspiracy and to effect the ob-

jects thereof, at the times hereinafter mentioned, the de-

fendant would and did commit the following:

OVERT ACTS

1. The grand jury realleges and incorporates by refer-

ence the acts set forth in Count Two of this indictment, as

though fully set forth herein as overt acts.

2. On or about January 12, 1977, at Chicago, the de-

fendant had a meeting with Willie Horton.

All in violation of Title 21, United States Code, Sec-

tion 846.

COUNT TWO

The March 1977 Grand Jury further charges:

On or about January 12, 1977, at Chicago, in the North-

ern District of Illinois, Eastern Division, L. V. Johnson,

defendant herein, knowingly and intentionally did distrib-

ute approximately .22 grams of a mixture containing

heroin, a Schedule I Narcotic Drug Controlled Substance;

In violation of Title 21, United States Code, Section

841(a)(1).

A True Bill:

/s/ George O. Weiner

Foreman

/s/ Samuel K. Skinner

United States Attorney

SKS :ja

A-10

GROUP APPENDIX E

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 77 CR 33

UNITED STATES OF AMERICA

v.

L. V. JOHNSON and FRANK ADAMS

COMPLAINT FOR VIOLATION

of U.S.C. Title 21, Section 841(a) (1)

Before Olga Jurco, 219 South Dearborn, Chicago, Illinois,

The undersigned complainant being duly sworn states:

That on or about January 12, 1977, at Chicago in the

Northern District of Illinois, Eastern Division, L. V. John-

son and Frank Adams did knowingly and intentionally

distribute a quantity of heroin, a Schedule I Narcotics

Drug Controlled Substance; in violation of Title 21, United

States Code, Section 841(a)(1).

And the complainant states that this complaint is based

on the following:

1. Affiant is a Special Agent of the Drug Enforcement

Administration and has been so employed for approxi-

mately 514 years.

2. On January 12, 1977, affiant met with a confidential

informant (CI) of the Drug Enforcement Administra-

tion whom affiant had observed meet with an individual

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outside the Michigan Inn Motel, 3536 South Michigan

Avenue, Chicago. The CI has previously purchased

narcotics for the Drug Enforcement Administration on

three occasions.

. The CI gave affiant approximately two ounces of a

brown powdery substance which, when field tested by

affiant, produced a positive reaction for the presence

of heroin. The CI informed affiant that the CI had given

the individual with whom he met $2,400 of previously

recorded United States currency at about 10:15 p.m. and

in return received the two ounces of heroin.

Said individual was observed by affiant and other DEA

agents enter the Michigan Inn Motel and Special Agent

Eddie Hill has informed affiant that the individual en-

tered Room 233 of said motel at approximately 10:15

p.m. prior to the last meeting with the CI.

. At approximately 11:00 p.m., Special Agent Saul Wein-

stein walked past Room 233 and heard an unknown male

say, ‘‘Hey, man, let’s get out of here, we’re done.’’ At

approximately 11:15 p.m., Drug Enforcement Admin-

istration agents entered Room 233 and announced their

office.

. L. V. Johnson was found to have $510 in his posses-

sion which currency matched the lists of pre-recorded

funds affiant gave to the CI. Frank Adams was found

to have $1,600 in his possession which currency matched

the lists of pre-recorded funds affiant gave to the CI.

/s/ Kenneth J. Labik

Special Agent,

Drug Enforcement Administration

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APPFNDIX F

Name of Presiding Judge,

Honorable Alfred Kirkland

Cause No. 77 CR 33 Date July 18, 1978

Title of Cause: USA -v- L. V. Johnson

Brief Statement of Motion: Motion for leave to file §2255

petition, instanter and treat same as a Rule 33 motion.

Names and Addresses of moving counsel: Allan A. Acker-

man, 100 North LaSalle Street, Chicago, Illinois.

Representing: L. V. Johnson

Names and Addresses of other counsel entitled to notice

and names of parties they represent: L. Nixon and

Al Moran, both AUSA, 219 S. Dearborn Sireet, 15th

Floor, Chgo., Ill. 60604.

GROUP APPENDIX G

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 77 CR 33

UNITED STATES OF AMERICA, Plaintiff-Respondent,

V.

L. V. JOHNSON, Defendant-Petitioner.

MEMORANDUM OPINION AND ORDER

This matter is before the Court on petitioner’s Motion

to Vacate Sentence and on respondent’s Motion to Dis-

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miss pursuant to Rule 12(b)(6), Federal Rules of Civil

Procedure. Jurisdiction is predicated on 28 U.S.C. §2255.

Because respondent’s Motion to Dismiss is pursuant to

Rule 12(b)(6), and because matters outside the pleadings

were presented and not excluded by the Court, this Court

treats respondent’s Motion to Dismiss as one for Sum-

mary Judgment, as provided in Rule 56, Federal Rules of

Civil Procedure.

On January 12, 1978, petitioner was sentenced by this

Court to a two year custodial sentence with a three year

special parole term to follow. Petitioner now seeks vaca-

tion of the judgment of conviction.

Petitioner contends that he was denied due process and

his right to a fair trial. Petitioner claims that he received

an unfair trial because he was denied ‘‘effective and con-

flict free’’ counsel in violation of the Sixth Amendment to

the United States Constitution.

Petitioner alleges that his attorney told him that an eye-

witness could not testify because of a conflict of interest

with the attorney’s office. Because the eyewitness failed to

testify, petitioner claims that his counsel was ineffective.

A motion to vacate sentence pursuant to 28 U.S.C. $2255

may not be granted on a party’s unsupported allegations.

As the Court noted in Catalano v. United States, 185 F.

Supp. 463, 464 (E.D. N.Y. 1959) :

Since the creation of Title 28 U.S.C. $2255, certain

rules of interpretation have become clear. ... A peti-

tioner’s allegations supported only by his own asser-

tions are insufficient. United States v. Mathison, 159

F.Supp. 811, 813 (E.D. Wis. 1958).

Although petitioner’s claim is presented as a constitu-

tional issue which is cognizable under Section 2255, the

claim is not supported by factual allegations. In fact, the

affidavit attached to petitioner’s motion specifically states

that there was no conflict of interest between any eyewit-

ness and petitioner’s attorney’s law firm.

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Without facts to support petitioner’s allegations of a

‘‘conflict of interest,’’ this claim rests solely on the al-

legation that counsel was ineffective because the eyewit-

ness was not called to testify. A petitioner asserting a lack

of effective assistance of counsel in a criminal case must

prove that his counsel’s performance did not meet ‘‘a

minimum standard of professional representation.’’ United

States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir.

1975) ; Matthews v. United States, 518 F.2d 1245 (7th Cir.

1975) ; United States ex rel. Ortiz v. Sielaff, 542 F.2d 377

(7th Cir. 1976). 1

In the Williams case, the Seventh Circuit refused to

establish a presumption of failure to meet the constitu.

tional guarantee of assistance of counsel merely because

a defendant’s attorney makes ‘‘egregious errors, tactical

or strategic,’’ in not calling potential witnesses. United

States ex rel. Williams v. Twomey, supra at 640. Without

such a presumption, petitioner must offer proof that in

failing to call a witness his trial counsel did not meet this

‘‘minimum standard of professional representation.’’

Here, petitioner has offered no such evidence beyond

his mere allegations. Further, an alleged failure to call a

witness is a question of trial tactics, and generally, a post-

conviction attack as to such tactics cannot be found to

constitute an unconstitutional deprivation of effective as-

sistance of counsel. Moran v. Hogan, 494 F.2d 1220 (1st

Cir. 1974). Here, plaintiff demonstrates no reason to de-

part from this rule. Thus, the failure to call an eyewitness

does not entitle petitioner to a new trial even though the

witness would have provided an alibi. United States ex

rel. Miller v. Pate, 342 F.2d 646 (7th Cir.), reversed on

other grounds, 386 U.S. 1 (1965); see Estelle v. Williams,

425 U.S. 501 (1976).

Petitioner also alleges that a Government witness tes-

tified falsely at trial. However, before perjured testimony

can provide grounds for vacating a conviction petitioner

must establish that the testimony was false, that it was

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material and that it was knowingly and intentionally used

by the Government to obtain a conviction. Steel v. United

States, 400 F.Supp. 41 (E.D. Okla. 1975). Petitioner has

the burden of establishing the existence of the foregoing

elements. Holt v. United States, 303 F.2d 791, 794 (8th

Cir. 1962).

Even assuming the testimony of this witness was false,

petitioner does not allege that the perjured testimony was

knowingly, willfully and intentionally used by the prose-

cution. His allegations, therefore, are insufficient to im-

pose any obligation on the Court to conduct an evidentiary

hearing. Scott v. United States, 545 F.2d 1116 (8th Cir.

1976), cert. denied, 429 U.S. 1111 (1977); see also Harris

v. United States, 436 F.2d 591 (10th Cir. 1971).

Petitioner’s final claim, that he did not make a knowing

and intelligent waiver of a jury trial, is currently on direct

appeal to the Seventh Circuit. ‘‘It is firmly established that

the remedy provided by Title 28 U.S.C.A. §2255 cannot be

used to serve the functions and purposes of an appeal.’’

Holt v. United States, supra, at 793; see also Campbell v.

United States, 355 F.2d 394 (7th Cir. 1966) and United

States v. Duhart, 511 F.2d 7, 8 (6th Cir. 1975).

Accordingly, petitioner’s Motion to Vacate Sentence is

denied. Respondent’s Motion to Dismiss, treated as a Mo-

tion for Summary Judgment, is granted.

Enter:

/s/ Alfred Y. Kirkland

Judge

Dated: Dec. 4, 1978