Appeal from the United States District Court for the Central District of California. D.C. No. CV-91-2376-RG. Richard A. Gadbois, Jr., District Judge, Presiding.
Before: James R. Browning, Robert R. Beezer, and Stephen S. Trott, Circuit Judges. Opinion by Judge Trott; Concurrence by Judge Beezer.
On June 21, 1988, Daniel Eugene Frazer was charged in a superseding indictment with fifteen counts of bank robbery in violation of 18 U.S.C. § 2113(a). Because he was indigent, an attorney was appointed to represent him.
On advice of appointed counsel, Mr. Frazer waived his right to a trial by jury, and the case was tried to the court on stipulated facts. He was convicted of eight counts and sentenced to a twenty-year term of imprisonment.
Mr. Frazer filed, but later abandoned, an appeal. Subsequently, and for substantial assistance to the Government, his sentence was reduced to fifteen years under Federal Rule of Criminal Procedure 35.
On May 2, 1991, Mr. Frazer filed a pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. He alleged inter alia that his appointed trial attorney had failed to provide for him the assistance to which he was entitled under the Sixth Amendment. Specifically, Mr. Frazer claimed in his motion that his appointed trial attorney had called him a "stupid nigger son of a bitch and said he hopes I get life. And if I continue to insist on going to trial I will find him to be very ineffective." Moreover, Mr. Frazer claimed that two deputy United States Marshals overheard his attorney's alleged outburst and advised him to get a new lawyer. Mr. Frazer alleges he tried to do so within the hour, but was rebuffed by the district court. Mr. Frazer also alleged that his appointed trial attorney refused to collect information that would have been helpful in mitigating his sentence.
Mr. Frazer's Sixth Amendment legal argument, tendered in his Response to the Government's Opposition to his § 2255 motion, was as follows: "When counsel refers/calls its client 'a stupid nigger son of a bitch' and promisses [sic] to be ineffective if Petitioner continues to insist upon going to trial rather than plead as counsel insisted a serious conflict exist [sic]." As authority for his argument, he invoked the duty of loyalty owed by an attorney to his client and cited Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), and Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
Mr. Frazer's pro se request for relief was denied by the district court on the basis of a recommendation from a magistrate Judge. Without holding an evidentiary hearing, the magistrate Judge had rejected Mr. Frazer's allegations of a fatal defect in the manner in which he had been treated by his appointed trial attorney. The magistrate Judge dismissed Mr. Frazer's claims of racial bias as "conclusory allegations . . . unsupported by any facts." The magistrate Judge also believed the record demonstrated that trial counsel's actual representation of Mr. Frazer did not demonstrate "any errors in preparing for trial or in presenting a defense," i.e., no prejudice. Thus, no evidentiary hearing was deemed necessary.
Now represented by different counsel, Mr. Frazer appeals. His primary allegation is that the district court abused its discretion in failing to hold an evidentiary hearing on whether his Sixth Amendment right to counsel at trial was violated.*fn1
We review de novo both the denial of a § 2255 motion and a determination that the prisoner was not denied his Sixth Amendment right to counsel. United States v. Moore, 921 F.2d 207, 209 (9th Cir. 1990); United States v. Birtle, 792 F.2d 846, 847 (9th Cir. 1986). The prisoner is entitled to an evidentiary hearing on his claim "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255 (1988). We review for an abuse of discretion the district court's failure to hold an evidentiary hearing under § 2255, but "when a defendant's allegations . . . are based on facts outside of the record, an evidentiary hearing is required." Doganiere v. United States, 914 F.2d 165, 168 (9th Cir. 1990) (citing United States v. Espinoza, 866 F.2d 1067, 1069 (9th Cir. 1988)), cert. denied, 499 U.S. 940 (1991) . An exception to this mandatory requirement exists when the issue of the prisoner's credibility can be "'conclusively decided on the basis of documentary testimony and evidence in the record.'" Espinoza, 866 F.2d at 1069 (quoting Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988)); see also Blackledge v. Allison, 431 U.S. 63, 75-76, 52 L. Ed. 2d 136, 97 S. Ct. 1621 (1977) (vague or palpably incredible or frivolous allegations warrant summary dismissal of a petition for habeas corpus). We have jurisdiction over this timely appeal under 28 U.S.C. § 2255, and we reverse.
The government forthrightly conceded at oral argument that in measuring for an abuse of discretion the district court's decision not to conduct an evidentiary hearing on Mr. Frazer's Sixth Amendment claim, we must accept arguendo Mr. Frazer's allegations against his appointed trial attorney as true. We then ask whether these allegations, if proved, would entitle him to the relief he seeks. See United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert. denied, 451 U.S. 938, 68 L. Ed. 2d 325, 101 S. Ct. 2018 (1981). We emphasize that no finding has yet been made supporting Mr. Frazer's claims. Our duty is to decide only whether he must be given an opportunity in the form of an evidentiary hearing to attempt to prove his allegations.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. Amend. VI. This right has come to be regarded as a sine qua non of our criminal Justice system. In 1938, the Supreme Court said:
The Assistance of Counsel . . . is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty. . . . The Sixth Amendment stands as a constant admonition that if the constitutional safeguards it provides be lost, Justice will not "still be done."
Johnson v. Zerbst, 304 U.S. 458, 462, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938).
Six years earlier, Justice Sutherland had described the importance of this right as follows:
Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. . . . He requires the guiding ...