# Petition — Jeffers v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0614%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1981 - **Citation:** 449 U.S. 1079 ## Text ‘ 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.’’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0614%3A1. Public record. Not legal advice.