Petition — Jeffers v. United States

‘ a Supreme Court, U.S.

“a” ° 599 0 FILED

a nT 14 1980

MICHAEL RODAK, JR., CLER}

In the

Supreme Couwt of the United States

OctoserR TERM, 1980

GARLAND P. JEFFERS,

Petitioner,

vB.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

JOHN W. CONNIFF STEPHEN BOWER

343 South Dearborn Street Kentland, Indiana 47951

21st Floor (219) 474-5121

Chicago, Illinois 60604

(312) 726-2999

Counsel for Petitioner

AERA SETAT I AUMERE S RI RSRRREN e oe E

UNITED STATES LAW PRINTING CO., CHIGAGO, ILLINOIS 60618 (312) 525-6581

QUESTIONS PRESENTED FOR REVIEW

(1) Whether Petitioner, with little formal education

and untrained in law, was denied effective assistance of

counsel and due process of law where (A) his lawyer rep-

resented nine other persons in complex criminal conspiracy

(21 USC §846) and continuing criminal enterprise (21

USC §848) cases arising out of the same transactions, (B)

the interests of the other nine persons represented were

not the same as Petitioner, (C) the District Court failed

to inquire with respect to the joint representation, and Peti-

tioner’s lawyer failed to advise the court of potential prej-

udice and (D) Petitioner suffered actual prejudice as a

result of the multiple representation, viz, the lawyer’s

waiver of his fundamental constitutional right against

double jeopardy.

(2) Whether Petitioner’s lawyer, by opposing trial to-

gether of a greater offense with a lesser included offense

as a perceived tactical decision on behalf of numerous de-

fendants whom he also represented in the same case, could

effect waiver of Petitioner’s fundamental constitutional

right against double jeopardy, without a record of Peti-

tioner’s voluntary, knowing, and intelligent acquiescence.

%

ill

TABLE OF CONTENTS

PAGE

Questions Presented for Review .0220..0....0.00..ceccccceseeeeeeeseeee i

a ETD 1

a sccuisinesnscnantnaetinaboas 1

Constitutional Provisions, Ete., Involved ...0..0.00000....... 2

ESE Ee 2

Reasons for Allowing the Writ 200....0..cccecceeeseseeeeeeeee 5

SEES 9

Appendix—

A—Decision of the Seventh Circuit Court of

ESS App. 1

B—Decision of the United States District Court,

Northern District of Indiana ......020.000000....... App. 6

C—Order denying Petition for Rehearing, June

a a oi anid soasepicuseubhnineccsnecavensés App. 16

D—ABA Standards on Defense I'unction (2d

a scscesenssnsnssae App. 17

E—Rule 44 (c), Fed. R. Crim. Po oo... esenee App. 17

| PREVIOUS PAGE WAS BLANK

iv

AUTHORITIES CITED

Cases

PAGE

Benton v. Maryland, 395 U.S. 784 (1969) .....0.0.00022000... 8

Glasser v. United States, 315 U.S. 60 (1942) 0.0 .. 6

Holloway v. Arkansas, 435 U.S. 475 (1979) -22022..... 6

Jeffers v. United States, 532 F.2d 1101 (7th Cir. 1976),

aff’d im part, vac, nm part, 432 U.S. 187 (1977) .... 3,6

Johnson v. Zerbst, 304 U.S. 458 (1938) ...000000 0. 8

Simmons v. United States, 390 U.S. 377 (1977) ........ 8

United States v. Martorano, 610 F2d 36 (1st Cir.

SIUTTTEE chasis diechanpiidesiicahdbcitiincasat jcseidishalechcikhdielshartins Aeaccbacneaaih 5

United States v. Mavrick, 601 F2d 921 (7th Cir. 1978) 5

United States v. Medina-Herrera, 606 F'2d 770 (7th Cir.

ee Nae SUS VEE Se Meal on eR oes ION 5

Rule

ee GE 1G), PO NRE ss | sreecibietiinisinmcpcetaete 5

Other Authorities

ABA Standards, Defense Function §3.5 0000000000000... 5

Fifth Amendment to United States Constitution ........ 7

In the

Supreme Court of the United States

OctToser ‘l'erM, 1980

No.

GARLAND P. JEFFERS,

Petitioner,

VS.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

CITATIONS TO COURTS BELOW

The decision of the Seventh Circuit Court of Appeals

is unreported and is Hxhibit A in the Appendix. The de-

cision of the United States District Court, Northern Dis-

trict of Indiana is unreported and is Exhibit B in the

Appendix.

JUKISDICTION

Jurisdiction is proper in this Court pursuant to 28 USC

§ 1254 (1). The judgment of the Seventh Circuit Court of

Appeals was entered on June 3, 1980. Petitioner’s peti-

tion for rehearing was denied on August 12, 1980.

2

CONSTITUTIONAL PROVISIONS, ETC. INVOLVED

Sixth Amendment, U.S. Constitution:

‘‘In all criminal prosecutions, the accused shall .. .

have the Assistance of Counsel for his defense.’’

Fifth Amendment, U.S. Constitution:

‘*No person shall . . . be deprived of life, liberty or

property without due process of law.’’

American Bar Association Standards on Defense Func-

tion (2d Ed.) Section 3.5. (The text is reprinted in

Appendix as Exhibit D)

Rule 44 (c), Fed. R. Crim. P. (The text is reprinted in

Appendix as Exhibit E)

STATEMENT OF CASE

On March 18, 1974, Petitioner Garland Jeffers was

charged in a one-count indictment with conspiracy to dis-

tribute heroin and cocaine in alleged violation of 21 USC

§ 846. Nine other persons were also indicted with Jeffers

as co-conspirators. All were represented by the same

lawyer.

On the same date, Jeffers alone was charged in a second

indictment with continuing criminal enterprise in alleged

violation of 21 USC § 848. Jeffers was represented by the

same lawyer who represented all defendants (including

Jeffers) in the conspiracy case.

The District Court failed to raise any issue of potential

prejudice to Jeffers arising out of multiple representation.

Jeffers’ counsel failed to raise any potential prejudice

before the District Court. Jeffers has little formal educa-

tion, commencing time in reformatories during grade

school, and he is untrained in law.

3

Prior to trial in the conspiracy case, the Government

moved for trial together of (a) the conspiracy charge

against all defendants and (b) the continuing criminal

enterprise charges against Jeffers alone. The lawyer for

all defendants (including Jeffers) opposed consolidation

on the ground that all defendants would be prejudiced by

the jury’s consideration of the continuing criminal enter-

prise charge with the conspiracy charge. Jeffers was not

consulted concerning the motion, and was not advised of

the implications of such opposition to him personally. The

District Court refused to consolidate the cases. Jeffers was

then convicted by a jury of the conspiracy charge, and he

was sentenced to fifteen years imprisonment, three years

special parole term, and a fine of $25,000.

Prior to trial on the continuing criminal enterprise

charge, Jeffers moved (through new appointed counsel

representing Jeffers alone) to dismiss the indictment on

double jeopardy grounds, alleging that his prior convic-

tion on the conspiracy charge precluded his prosecution

on the continuing criminal enterprise charge. The District

Court denied the motion. Jeffers was then convicted by

a jury of the continuing criminal enterprise charge. He

was sentenced to life imprisonment, and a fine of $100,000.

The Seventh Cireuit Court of Appeais affirmed. (532

2d 1101 (7th Cir. 1976)). This Court granted certiorari,

and affirmed in part and vacated in part. (482 US 137

(1977)). In ruling on the double jeopardy issue, this Court

held that trial together of the conspiracy and continuing

criminal enterprise charges could have taken place without

undue prejudice to Jeffers’ Sixth Amendment right to a

fair trial, since if the charges had been tried in one pro-

ceeding, a lesser included offense instruction could have

been given, the refusal of which instruction could have

4

been preserved by proper objection. This Court, attribut-

ing the waiver effected by the lawyer to Jeffers, concluded

that this course of action should have been followed by

Jeffers, and that his action in opposing consolidation de-

prived him of any right he might have had under the

double jeopardy clause against consecutive trials.

On October 21, 1977, Jeffers filed a motion under 28 USC

§ 2255 raising assistance of counsel and fair trial issues.

On December 5, 1978, the District Court denied the peti-

tion without hearing. On June 3, 1980, the Seventh Circuit

Court of Appeals affirmed. On August 12, 1980, Jeffers’

petition for rehearing was denied.

0

REASONS FOR ALLOWING THE WRIT

1. This case presents a situation where a criminal de-

fendant, having little formal education and untrained in

the law, suffered actual prejudice as a result of his law-

yer’s decision to represent Petitioner and nine other per-

sons in complex conspiracy and continuing criminal enter-

prise charges brought by the Government under 21 USC

$§ 846 and 848.*

2. The decision of the Seventh Circuit Court of Appeals

in this case, and in United States v. Medina-Herrera, 606

F2d 770 (7th Cir. 1979) and United States v. Mavrick, 601

F2d 921 (7th Cir. 1978) are directly in conflict with the

decision of the First Circuit Court of Appeals in United

States v. Martorano, 610 F2d 36 (1st Cir. 1979), concern-

ing whether a defendant jointly represented must be per-

sonally advised by the court of his right to effective as-

sistance of counsel, including separate representation.

3. The decision of the Seventh Circuit Court of Ap-

peals in this case is directly in conflict with proposed Rule

44 (c), Fed. R. Crim. P., which requires that in every com-

mon representation situation, ‘‘the court shall promptly

inquire with respect to such joint representation and shall

personally advise each defendant of his right to effective

assistance of counsel, including separate representation.”’

4. The decision of the Seventh Circuit Court of Ap-

peals in this case is directly in conflict with American Bar

Association Standards on Defense Function, § 3.5 con-

cerning multiple representation.

5. The decision of the Seventh Cireuit Court of Ap-

peals in this case conflicts with previous decisions of this

* The case does not involve any claim of per se prejudice arising

from multiple representation. The case does not involve prior issues

raised or decided by the Seventh Circuit Court of Appeals or this

Court, either on direct appeal or in any collateral proceeding.

6

Court concerning multiple representation. E.g., Glasser v.

United States, 315 U.S. 60 (1942); Holloway v. Arkansas,

435 U.S. 475 (1979). This is not a case involving a conten-

tion that multiple representation is per se violative of

constitutional guarantees of effective assistance of coun-

sel, but a case where Petitioner suffered actual prejudice

as a result of common representation.

6. The potential prejudice to a criminal defendant in

being represented by a lawyer who also represents numer-

ous co-defendants was realized here. Jeffers had little for-

mal education, and was untrained in law. His lawyer under-

took representation of nine other persons, in addition to

Jeffers, in two complex criminal cases arising out of the

same transactions. His lawyer failed to advise the court

of any potential prejudice arising out of the multiple rep-

resentation. The court failed to make any inquiry con-

cerning the joint representation, and failed to personally

advise Petitioner of his right to separate representation.

7. Jeffers suffered actual prejudice as a result of com-

mon representation, his lawyer failing to protect a funda-

mental constitutional right. His lawyer, in opposing con-

solidation of the continuing criminal enterprise charge

(which related to Jeffers alone) with the conspiracy charge

(which related to ten persons, including Jeffers), did so

having in mind the interest of the nine other persons he

represented in the conspiracy case, who would be preju-

diced by tria! of the continuing criminal enterprise charge

with the conspiracy charge.” In short, the interests of

* “When the Government attempted to obtain a joint trial on all

the charges against all the defendants, the attorney representing all

the Defendants resisted the Government motion. He did so largely

hecause of the possible prejudice to petitioner’s codefendants, and

gave relatively little emphasis to arguments relating to petitioner

alone.” (Dissent, Jeffers v. United States, 432 U.S. 137 (1977),

Fn.4)

be

7

those nine persons, and the interests of Jeffers were not

the same. The interest of Jeffers demanded that he not

participate in opposition to consolidation, and permit all

other defendants in the conspiracy case to oppose consoli-

dation. In order to take this course, the interest of Jeffers

in maintaining the procedural position created by the Goy-

ernment in indicting separately should have been assert-

ed.* The decision was not made, and could not have been

made, due to the common representation and obvious in-

ability of one lawyer to effectively consider the paramount

interests of each of his clients. This Court, moreover,

should not be forced to speculate concerning the harm

accruing to Jeffers from this fundamental error. In fact,

Jeffers suffered actual prejudice, viz, waiver of his funda-

mental constitutional right against double jeopardy, a

right which would have been preserved but for the actions

of his lawyer arising out of multiple representation. This

does not merely involve ‘‘tactical’’ action which operated

to Jeffers’ disadvantage.

8. Moreover, Jeffers’ lawyer, by opposing a motion to

consolidate a greater offense with a lesser included offense

as a perceived tactical decision on behalf of numerous de-

fendants whom he also represented in the same case, could

not thereby effect a waiver of Jeffers’ fundamental con-

stitutional right against double jeopardy, without a record

of his voluntary, knowing and intelligent acquiescence. The

guarantee against double jeopardy contained in the Fifth

Amendment, U.S. Constitution, is a fundamental right.

*It is extremely significant that shortly after Jeffers obtained

separate appointed counsel, a motion was immediately filed in his

behalf which recognized the lesser offense-greater offense issue,

and the double jeopardy issues created by the Governments’ choice #.

of separate indictments.

8

E..g., Benton v. Maryland, 395 U.S. 784 (1969). Fundamen-

tal constitutional rights, such as the double jeppardy guar-

antee, can be waived, but only by a defendant acting know-

ingly, voluntarily and irtelligently. E.g., Johnson v. Zerbst,

304 U.S. 458 (1938).

9. The waiver issue presented here was not previously

decided by the Seventh Circuit Court of Appeals, or by

this Court. Four members of this Court, in ruling on the

double jeopardy issue, considered a different waiver issue,

viz, surrender of one constitutional right in order to assert

another. E.g., Simmons v. United States, 390 U.S. 377

(1977).

10. The Seventh Cirevit Court of Appeals here incor-

rectly assumed that Petitioner himself ‘‘retained primary

control’’ of the choice in opposing consolidation. There

is nothing in the record to support that assumption. (See

Appendix A, p. 2)

11. The Seventh Circuit Court of Appeals here also in-

correctly assumed that ‘‘an allegedly detrimental decision

was made upon considerations which would have influenced

even wholly independent counsel.’’ In fact, when Petition-

er obtained wholly independent counsel, the detrimental

decision was immediately recognized. (See Appendix A,

p. 5)

12. The District Court failed to consider the multiple

representation issue raised here (see Appendix B). The

issue presented here differs from previous ineffective as-

sistance of counsel issues presented by Jeffers in the Dis-

trict Court and in the Seventh Circuit Court of Appeals.”

* The Seventh Circuit Court of Appeals is obviously wrong.

"when it states that solely because

Petitioner has raised previous ineffective

assistance issues (on other grounds),

the District Court properly concluded it

was not required to consider the issue

raised here. (App. 4)"

CONCLUSION

For all of the foregoing reasons, Petitioner Garland P.

Jeffers respectfully asks that this Honorable Court grant

his Petition for Writ of Certiorari to review the judgment

of the United States Court of Appeals for the Seventh

Circuit entered on June 3, 1980.

Respectfully submitted,

JoHN W. Connirr

343 South Dearborn Street

21st Floor

Chicago, Illinois 60604

(312) 726-2999

STEPHEN Bower

Kentland, Indiana 47951

(219) 474-5121

Counsel for Petitioner

Garland P. Jeffers

APPENDIX

APPENDIX A

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

(Submitted: April 15, 1980) *

June 3, 1980.

Before

Hon. Thomas EK. Fairchild, Chief Judge

Hon. Wilbur F. Pell, Jr., Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

UNITED STATES OF AMBRICA,

Plaintiff-Appellee,

No. 79-1027 vs.

GARLAND P. JEFFERS,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division.

Nos. H Cr 74-56, H Cr 74-57

Allen Sharp, Judge.

ORDER

On October 20, 1977, Jeffers filed a motion to vacate

sentence pursuant to 28 U.S.C. § 2255. The pro se petition

* After preliminary examination of the briefs, the court notified

the parties that it had tentatively decided that oral argument was

unnecessary. The notice provided that any party could file a

“Statement as to Need of Oral Argument.” See Fed. R. App. P.

34(a); Circuit Rule 14(f). The appe’lant has filed such a state-

ment. Upon consideration of that statement, the briefs, and the

record, the request for oral argument is denied and the appeal is

submitted on the briefs and the record.

App. 2

and supporting memorandum challenged the finding that

Jeffers ‘‘waived’’ his protection against double jeopardy,

and alleged that he had been denied effective assistance of

counsel. The motion was denied without a hearing. For

the reasons given below, we affirm.’

Although in the district court he challenged the finding

that he ‘‘waived’’ his protection against Double Jeopardy

on several grounds, in this court Jeffers argues only that

his attorney’s opposition to the Government’s motion to

consolidate greater and lesser included offenses in one pro-

ceeding did not effect a waiver of Jeffers’ constitutional

protection against Double Jeopardy, absent Jeffers’ volun

tary, knowing, and intelligent acquiescense. The Govern-

ment responds that this claim implicitly was rejected by

the Supreme Court on direct appeal and, therefore, may not

be relitigated in a § 2255 proceeding.

The short answer to both parties is that the permissibill-

ty of Jeffers’ second trial does not depend on his knowing,

voluntary and intelligent waiver. The determinative consid-

eration is whether Jeffers retained primary control over

the course to be followed after the Government moved for

a trial together. Cf. United States v. Dinitz, 424 U.S, 600,

609, n.11 (1976). On direct appeal, a Supreme Court

plurality believed that in this case, as in Dinitz, Jeffers

was ‘‘solely responsible for the successive prosecutions

[and, there*ore, was] deprived of any right that he might

have had against consecutive trials.’’ Jeffers v. United

States, 432 U.S. 137, 154 (1977). We agree. Moreover,

because a majority of the Court rejected Jeffers’ claim

1 The lengthy procedural history of this case is adequately recited

in the district court’s memorandum and need not be repeated here.

See Jeffers v. United States, 461 F. Supp. 300, 301-03 (N.D. Ind.

1978).

App. 3

that his second conviction was barred by Double Jeopardy,’

he was properly foreclosed from relitigating that claim. Cf.

Sanders v. United States, 373 U.S. 1 (1963); See Davis

v. United States, 417 U.S. 333, 342-47 1974); Kaujman v.

United States, 394 U.S. 217, 227, n.8 (1969); Wiley v. Dag-

gett, 551 F.2d 776, 777, n.3 (8th Cir.) cert. denied, 434 U.S.

844 (1977); Boecknhaupt v. United States, 5387 F.2d 1182

(4th Cir.); cert. denied, 429 U.S. 863 (1976); Webb v.

United States, 510 F.2d 1097 (Sth Cir. 1975); Pantico v.

United States, 412 F.2d 1151 (2d Cir. 1969), cert. denied,

397 U.S. 921 (1970).

Jeffers’ contention that he was denied effective assistance

of counsel is an attack upon the representation he received

during his first trial insofar as it affected his Double

Jeopa dy claim. Utilizing 20/20 hindsight, Jeffers now

contends that his attorney was unconstitutionally deficient

because he failed to elect the procedure which the Supreme

Court plurality suggested he should have followed. 432

U.S., at 153, n.21. Jeffers contends that his attorney failed

to do so because his loyalty was divided.

2 As discussed above, the Supreme Court plurality explicitly re-

jected Jeffers’ Double Jeopardy claim. Justice White’s terse con-

currence is less clear. It may be read as an acceptance of this

court’s ruling that Jeffers’ second trial was not barred because

Tanelli v. United States, 420 U.S. 770 (1975), created an exception

to the normal Double Jeopardy analysis for complex statutory crimes.

432 U.S., at 158; 532 F.2d 1101, 1108 (7th Cir. 1976). It is more

likely that Justice White accepted the plurality’s view that Janelli,

rather than being constitutionally based, was decided as a matter

of federal criminal law, See 432 U.S., at 146; Janelli, supra, at 782,

785, n.17, but believed that the two offenses of which Jeffers was

convicted were different under Janelli. In either case, Justice

White necessarily rejected Jeffers’ Double Jeopardy claim because,

of course, the law requires that convictions barred by Double Jeop-

ardv must be reversed, and he voted to affirm Jeffers’ second con-

viction. Remarks in the dissent support this reading of the con-

currence. See 432 U.S., at 160, n.7.

App. 4

This is Jeffers third attack upon his original trial coun-

sel. On direct appeal from his first conviction this court

rejected Jeffers’ argument that his counsel’s failure to

conduct a thorough cross-examination, because of an al-

leged conflict of interests stemming from his firm’s prior

representation of the witness, required a reversal of the

conviction. 520 F.2d, at 1262-1266. In affirming the dis-

trict court’s denial of a subsequent § 2255 motion, this

court held that Jeffers’ attorney was not unconstitutionally

ineffective because of the alleged incomplete cross-examina-

tion and because he failed to discover the identity of Gov-

ernment witnesses. No. 76-1532 (November 24, 1976).

Therefore, the district court properly concluded that it was

not required to entertain the instant attack upon Jeffers’

original trial counsel. See Sanders, supra.

Moreover, Jeffers claim is simply untenable. Common

representation itself is not a violation of the sixth amend-

ment. United States v. Mandell, 525 F.2d 671 (7th Cir.

1975), cert. denied, 423 U.S. 1049 (1976). Where, as here,

an allegedly detrimental decision was made upon consid-

erations which would have influenced even wholly inde-

pendent counsel, the defendant has not been denied effec-

tive assistance of counsel simply because his attorney rep-

resented multiple defendants. See, e.g., English v. United

States, No. 79-1817 (7th Cir. March 13, 1980). It is much

too easy at this point to criticize the decision to oppose

the Government’s motion to consolidate the two charges,

however, that decision must be put in perspective. The

basis of the opposition to consolidation was the contention

that the two offenses were different. 432 U.S., at 144, n.8.

To this day, the correctness of this contention has not been

determined definitively. 432 U.S., at 150, n.15. Therefore,

while it may now appear that a better course of action was

App. 5

open to him, we cannot say that the action which Jeffers’

attorney took fell below ‘‘a minimum standard of profes-

sional representation.’’ United States ex rel. Williams v.

Twomey, 510 F.2d 634, 641 (7th Cir.), cert. denied sub-nom.,

Stelaff v. Williams, 423 U.S. 876 (1975).

Accordingly, the order of the district court is affirmed.

ia iii

App. 6

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

GARLAND JEFFERS

Plaintiff

Vv. No. H 77-372

UNITED STATES OF AMERICA

Defendant

MEMORANDUM AND ORDER

On March 18, 1974, the Petitioner, Garland P. Jeffers,

and 12 other individuals were charged in a one-count in-

dictment in the United States District Court for the North-

ern District of Indiana under Cause Number H Cr 74-56

with conspiring over a two and a half year period to dis-

tribute heroin and cocaine in violation of Title 21, United

States Code, Section 846. On that date, the Petitioner was

also separately indicted under Cause Number H Cr 74-57

for having engaged during the same period in a continu-

ing criminal narcotics enterprise, in violation of Title 21,

United States Code, Section 848. The United States sought

to consolidate the indictments for purposes of trial. The

Petitioner at that time objected to consolidation on the

grounds, among others, that the two offenses were not the

same and that consolidation would be prejudicial. The Dis-

trict Court denied the Government’s motion and ordered

that the charges be tried separately.

App. 7

In June 1974, after a jury trial, the Petitioner and six

co-defendants were convicted as charged under the con-

spiracy indictment. The Petitioner was sentenced to fifteen

years imprisonment, three years special parole term and

a fine of $25,000.00. From that conviction and sentence,

the Petitioner filed a direct appeal.

The principal question raised upon direct appeal by the

attorneys who had acted as trial counsel was whethe~ the

failure of the defense counsel to conduct a thorough cross-

examination of a former client who testified as a prosecu-

tion witness required reversal of that conviction, challeng-

ing as specific error the refusal of the Court to grant a

motion to withdraw made by counsel because of a pur-

ported inability to cross-examine government witness,

James Berry, because of an alleged conflict of interest re-

sulting from that prior representation. The Seventh Cir-

cuit Court of Appeals aftirmed, United States v. Jeffers,

520 F. 2d 1256 (7th Cir. 1975), and the Supreme Court of

the United States denied a Petition for Writ of Certiorari.,

Jeffers v. United States, 423 U.S. 1066 (1975).

The Petitioner, Garland P. Jeffers, and his co-defendants

subsequently filed a motion pursuant to Title 28, United

States Code, Section 2255 to set aside their convictions in

that case on the principal ground of ineffective assistance

of counsel. The District Court denied the Motion and the

Court of Appeals affirmed (United States Court of Appeals

for the Seventh Circuit Number 76-1532, unpublished opin-

ion dated November 24, 1976) (See Appendix A). Petition

for Writ of Certiorari was denied from that decision by

the Supreme Court of the United States, Number 76-5974,

court order dated March 21, 1977. In the first § 2255 Mo-

tion filed under that cause, the Petitioner and his co-defen-

dants took a clue from the original appellate decision and

attempted to charge their trial counsel with ineffective as-

App. 8

sistance of counsel. In view of the new allegations that

are now made it is important to note the portion of the

unpublished order of the Seventh Circuit in their review

of the denial of the first § 2255 Motion:

‘‘it is important to note, also, that when this Court

said that: ‘Misjudged his ethical responsibilities,’ 2d.

at 1266, it was not saying that: was an ‘ineffective’

counsel. Cohen’s decision was based upon sound tacti-

cal reasons and although in hindsight it may have been

an unwise strategy, it did not result in prejudicial er-

ror. Moreover, this Court stated elsewhere that the

mere fact that ‘an attorney is unable to pursue one

line of inquiry does not mean, however, that the De-

fendant is receiving inadequate representation’ id. at

1265, and that it found Cohen’s ‘competence unchal-

lenged and . . . demonstrated by the record’ id. at

1263.’’ Garland Jeffers v. United States of America,

United States Court of Appeals for the Seventh Cir-

cuit, Number 76-1532, unpublished opinion at p. 3 (No-

vember 24, 1976)

In March 1975, after another jury trial, the Petitioner

was convicted as charged under the continuing criminal

enterprise indictment in Cause Number EH Or 75-5/. Prior

to that second trial, Jeffers, through his new court-ap-

pointed counsel, filed a Motion to Dismiss the continuing

criminal enterprise indictment on the grounds that it was

barred by his conviction on the lesser included charge of

conspiracy to distribute narcotics. The District Court de-

nied that motion and the United States Court of Appeals

for the Severth Circuit affirmed, United States v. Jeffers,

532 F. 2d 1101 (7th Cir. 1976), holding that while double

jeopardy would have attached under traditional rules,

Iannelli v. United States, 420 U.S. 770 (1975), created a

new exception. The Seventh Circuit held that Jannelli had

established a ‘‘new double jeopardy approach towards

complex statutory crimes’’, an approach that, in the

App. 9

Court’s view, disregards earlier tests for identity of of-

fenses and focuses instead on whether Congress intended

the statutes in question to prohibit and punish different

types of conduct. It concluded that under this new ap-

proach the second prosecution was permitted.

Jeffers then petitioned the Supreme Court of the United

States for Writ of Certiorari which was granted by the

Court, 429 U.S. 815 (1976). Although the Petitioner’s

Brief on Writ of Certiorari was unavailable to the United

States Attorney at the time of this writing, it is clear from

the Brief of the Soliciter General of the United States that

Petitioner alternatively argued to the Supreme Court of

the United States that he did not knowingly waive his

double jeopardy rights under the standard enunciated in

Johnson v. Zerbst, 304 U.S. 458 (1938).

The Supreme Court of the United States held in part:

‘*If the Defendant expressly asks for separate trials

on the greater and lesser offenses, or, in conjunction

with his opposition to trial together, fails to raise the

issue that one offense might be a lesser included of-

fense of the other, another exception to the Brown

Rule [of double jeopardy] emerges .. . in this case,

trial together of the conspiracy and continuing crimi-

nal enterprise charges could have taken place without

undue prejudice to petitioner’s Sixth Amendment

right to a fair trial. ... Nevertheless, petitioner did

not adopt that course. Instead, he was solely respon-

sible for the successive prosecutions for the conspiracy

offense and the continuing criminal enterprise offense.

Under the circumstances, we hold that his action de-

prived him of any right that he might have had against

consecutive trials. It follows, therefore, that the Gov-

ernment was entitled to prosecute petitioner for the

§ 848 offense ...’’ Jeffers v. United States, 97 S. Ct.

2207 at 2217-18 (1977) (cases omitted; emphasis

added)

App. 10

On October 21, 1977, the Petitioner filed this motion

under § 2255, Title 28 of the United States Code, to col-

laterally attack his convictions in the United States Dis-

trict Court for the Northern District of Indiana.

The Petitioner now seeks by this § 2255 Motion to chal-

lenge the waiver by claiming a denial of effective assistance

of counsel. Additionally, he claims that by the alleged

failure of the District Court and the Prosecutor to ‘‘dis-

charge and perform their respective duties’’ in failing to

advise him of the impact of his action in requesting sepa-

rate trials upon his constitutional rights denied him a fair

trial as guaranteed under the Constitution.

Under § 2255, Title 28 of the United States Code, a fed-

eral prisoner may seek habeas corpus relief on three spe-

cific grounds: that his sentence violates the Constitution,

laws or treaties of the United States, that the Court lacked

jurisdiction to impose sentence, or that the sentence ex-

ceeds the maximum authorized by law. 28 U.S.C. § 2255

(1970); see, Davis v. Umted States, 417 U.S. 333, 348

(1974) ; United States v. Hayman, 342 U.S. 205, 219 (1952).

The Petitioner raises neither of the two latter grounds.

Rather, he attempts to claim a violation of his constitu-

tional right to double jeopardy and to a fair trial, the

latter complaint being a tortured construction of alleged

error into constitutional proportions.

A motion to vacate a sentence under this section relat-

ing to collateral attack on federal convictions was not

intended to broaden or narrow the scope of collateral at-

tack available to a petitioner prior to the enactment of this

section through Writs of Quorum Novis (sic) and Habeas

Corpus. United States v. McNicholas, 298 F. 2d 914 (4th

Cir. 1962), cert. den. 369 U.S. 878 (1962). This section

does not previde routine review of the convictions and

sentences at the whim of a prisoner who is dissatisfied with

App. 11

his sentence but is available only in the extraordinary and

unusual case. Smith v. United States, 277 F. 2d 850 (Md.

D. Ct. 1967), aff’d 401 I’. 2d 773. These principles are di-

rectly applicable to his claims directed to the claimed in-

action of the District Court and the Prosecutor providing

the basis for grounds two and three of his petition.

In summary, the Petitioner claims that both the Court

and the Prosecutor were obliged to advise him of the

impact of the decision te oppose the Motion for Joinder

of causes for the purposes of trial as constituting a waiver

of his right against double jeopardy. Presupposing such

a duty to be imposed upon the District Court and the

Prosecutor, it is only when there has been a denial of the

substance of a fair trial that the validity of the proceed-

ings may be collaterally attacked or questioned by a mo-

tion under the statutory review proceeding by a prisoner

in federal custody. United States v. Re, 372 F. 2d 641 (2d

Cir. 1967), cert. den. 388 U.S. 912. Anything less than a

matter so inherently prejudicial as to constitute a subver-

sion of a fair trial would ordinarily represent a general

trial instant, required to be challenged in proceedings on

direct appeal from the conviction rather than by a Motion

to Vacate the Sentence, Ellis v. United States, 353 F. 2d

402 (8th Cir. 1965). The Petitioner does not attack the

substance of the trial following which he was convicted of

engaging in a criminal narcotics enterprise, let alone any

action or course of conduct during the trial itself as being

inherently prejudicial. Rather the Petitioner claims that

he should not have been subjected to a second trial at all.

Thus, his claim of error fails to fall within the constitu-

tional rights he has sought to articulate with respect to

the claimed inaction by the District Court or the Prosecu-

tor.

The unpublished order of the Seventh Circuit on a prior

§ 2255 Motion of this Petitioner (Appendix A) provides

guidance disposition of this claim:

App. 12

‘*Petitioners’ suggestion that the trial judge should

have made a record that they ‘waived’ their right to

effective counsel at that point in the trial where the

alleged ‘conflict’ situation arose is indicrous. To force

such an affirmative duty on a judge would result in

his constantly interrupting the progress of a trial at

each and every junction of a tactical decision.’’ See

Appendix A at pp. 45.

Such unpublished order is a part of the law of this case. |

Moreover, the Supreme Court of the United States dis-

posed of this claim as to the duties of the District Court

and the Prosecutory in their opinion on the direct appeal

of this matter.

‘*Footnote 22. Petitioner’s position is not strength-

ened merely because no one raised the multiple prose-

cution point during the first proceeding. Since the

Government’s posture throughout this case has been

that § 846 and § 848 are separate offenses, it could

not have been expected on its own to elect between

them when its Motion for Trial Together was denied.

The right to have both charges resolved in one pro-

ceeding, if it exists, was petitioner’s; it was therefore

his responsibility to bring the issue to the District

Court’s attention.’’ Jeffers v. United States, 97 S. Ct.

2207 at 2218 (1977).

Thus, not only has the issue now raised by the Defen-

dant as to the Prosecutor and the District Court been re-

solved by an earlier decision in this matter and thus

barred by principles of res judicata, the opinion of the

Supreme Court establishes that the law is adverse to the

Petitioner on this point.

The crux of the Petitioner’s complaint is directed to

the question of whether he received effective assistance of

counsel, which in turn is based upon his claim that he did

not personally intelligently, knowingly and voluntarily

aia a aaa ec

App. 13

waive his double jeopardy rights. Both aspects of the

issue he raises have been previously litigated. As indi-

cated in the Statement of Facts, Jeffers has already at-

tacked the competency of his trial counsel on a prior §

2255 Motion attacking his conviction under Hammond

Criminal Number 74-56. As indicated by the quoted lan-

guage, the Seventh Circuit Court of Appeals found the

trial counsel, Mr. Max Cohen, to be both competent and

effective in all respects, an opinion based upon the record

of the entire proceedings, not affected by perhaps ‘‘ tactical

mistakes’’.

Secondly, the Supreme Court implicitly disposed of his

argument founded upon the principles enunciated in

Johnson v. Zerbst, 304 U.S. 458. Although the Supreme

Court’s opinion does not explicitly state that they found

the action of defense counsel directly attributable to the

Petitioner, thus binding him to the tactical decision made

by defense counsel, the Supreme Court did have before it

this argument by the Defendant and the Government when

it held ‘the was solely responsible for the successive prose-

cutions’’. Jeffers, at 2218.

While the doctrine of res judicata is not applicable to

motions under § 2255, Bennett v. United States, 413 F. 2d

, 237 (7th Cir. 1969), the Supreme Court in Sanders vy.

United States, 385 U.S. 1, 10 (1963), has formulated basic

rules to guide the lower federal courts in their interpreta-

tion of the statutory provision that the sentencing court

shall not be required to entertain a seccnd or successive

motion for similar relief on behalf of the same prisoner.

The Court held in Sanders that controlling weight may be

given to denial of a prior application for § 2255 relief if

(1) the same ground presented in the subsequent applica-

tion was determined adversely to the applicant on the

prior application, (2) the prior determination was on the

merits, and (3) the ends of justice would not be served

App. 14

by reaching the merits of the subsequent application. Thus

in DeWelles v. United States, 372 F. 2d 67 (7th Cir. 1967,

cert. den. 388 U.S. 919, the Court of Appeals for this Cir-

cuit held that relitigation of the issues presented at trial

and on direct appeal, go under different labels or on ex-

panded allegations that could have been made in the first

instance, were not contemplated by § 2255. In that case

the Seventh Circuit held that the Petit:oner’s prior claim

on direct appeal that substituted counsel was not per-

mitted sufficient time for the preparation of defense though

a timely request for a continuance of the trial date was

made, his subsequent claim on a § 2255 Motion that he

was denied effective assistance of counsel were found to

be the same and held that the District Court properly de-

nied relief without affording the prisoner an evidentiary

hearing. See, DeMaro v. Willingham, 401 F. 2d 105 (7th

Cir. 1968). Likewise, the Seventh Circuit held in Bennett

v. United States, 413 F. 2d 237 (7th Cir. 1969), cert. den.

397 U.S. 996, that where a Petitioner’s contentions were

contained in a prior § 2255 Motion which was denied and

that decision became final, the District Court was correct

in refusing to rule upon those contentions in a later § 2255

Motion. But see, Hilbrich v. United States, 406 F. 2d 850

(7th Cir. 1969), cert. den. 396 U.S. 936, where, although an

earlier § 2255 Motion sought relief on the ground that the

Petitioner’s confession was obtained in violation of his

constitutional rights, but on substantially different factual

bases, of consideration of the merits of the petition must

be made by the District Court.

The Petitioner having failed to carry forth his burden

to show that the end of justice would be served by rede-

termination of this ground, Sanders v. United States,

supra, it is within the power of this Court to deny this

Petitioner’s § 2255 Motion without a hearing. See, Steph-

ens v. United States, 341 F. 2d 100 (10th Cir. 1965).

App. 15

In United States v. Dinitz, 96 S. Ct. 1075 (1976), it

states:

‘‘The Respondent characterizes a Defendant’s Mis-

trial Motion as a waiver of ‘his right not to be placed

twice in jeopardy’ and argues that to be valid the

waiver must meet the knowing, intelligent and volun-

tary standards set forth in Johnson v. Zerbst. This

approach erroneously treats the Defendant’s interest

in going forward before the first jury as a constitu-

tional right comparable to the right to counsel. It

fails to recognize that the protection against the bur-

den of multiple prosecutions underlying the Constitu-

tional prohibition against double jeopardy may be

served by a mistrial declaration and comitant relin-

quishment of the opportunity to obtain a verdict from

the first jury. This Court has implicitly rejected the

contention. . . .’’ United States v. Dinitz, supra, at

1081, fn. 11 (cites omitted).

In other words, unlike the right to counsel and other

constitutional rights to which the Johnson v. Zerbst stan-

dard is applicable, the right to double jeopardy may be

waived by defense counsel without inquiry of the defen-

dant himself because other interests—i.e., the right of

society—must be given consideration at the effective time

of the waiver. Even if the Johnson v. Zerbst standard were

otherwise applicable in double jeopardy cases, Petitioner’s

deliberate, tactical decision to oppose a single trial on both

indictments would preclude him from invoking it. See,

Henry v. Mississippi, 379 U.S. 443, 450-453.

On the basis of the foregoing, the Petitioner’s request

that this Court vacate and set aside all proceedings had in

Cause Number H Cr 74-57 and order Jeffers released

from all strain of said conviction be in all things denied

without recourse to evidentiary hearing. So Ordered.

Enter December 5, 1978.

/s/ Allen Sharp

Judge, United States District Court.

Nay

App. 16

APPENDIX C

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

August 12, 1980.

Before

Hon. Thomas E. Fairchild, Chief Judge

Hon. Wilbur F. Pell, Jr., Circuit Judge

Hon. Richard D. Cudahy, Circuit Judge

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 79-1027 vs.

GARLAND P. JEFFERS,

Defendant-Appellant.

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Div’ on.

Nos. H Cr 74-56, H Cr 74-57

Allen Sharp, Judge

On consideration of the petition for rehearing filed in

the above-entitled cause by Garland P. Jeffers, defendant-

appellant, all of the judges on the original panel having

voted to deny the same,

IT IS HEREBY ORDERED that the aforesaid petition

for rehearing be, and the same is hereby DENIED.

App. 17

APPENDIX D

American Bar Association Standards on Defense

Function, § 3.5(b)

(b) Except for preliminary matters such as initial

hearings or applications for bail, a lawyer or lawyers

who are associated in practice should not undertake

to defend more than one defendant in the same criminal

case if the duty to one of the defendants may conflict

with the duty to another. The potential for conflict

of interest in representing multiple defendants is so

grave that ordinarily a lawyer should decline to act

for more than one of several co-defendants except in

unusual situations when, after careful investigation,

it is clear that no conflict is likely to develop and when

the several defendants give an informed consent to

such multiple representation.

APPENDIX E

Rule 44(c), Fed.R.Crim.P. :

**(c) Jot representation. Whenever two or more

defendants have been jointly charged pursuant to

Rule 8(b) or have been joined for trial pursuant to

Rule 13, and are represented by the same retained or

assigned counsel or by retained or assigned counsel

who are associated in the practice of law, the court

shall promptly inquire with respect to such joint rep-

resentation and shall personally advise each defen-

dant of his right to the effective assistance of counsel,

including separate representation. Unless it appears

that there is good cause to believe no conflict of in-

terest is likely to arise, the court shall take such

measures as may be appropriate to protect each de-

fendant’s right to counsel.’’