Edward J. Dillon v. United States

307 F.2d 445 Edward J. DILLON, Appellant, v. UNITED STATES of America, Appellee. No. 17692. United States Court of Appeals Ninth Circuit. Aug. 22, 1962. Edward J. Dillon, appellant, in pro. per. Sidney I. Lezak, Acting U.S. Atty., and William B. Borgeson, Asst. U.S. Atty., Portland, Or., for appellee. Before POPE, BARNES and BROWNING, Circuit Judges. BROWNING, Circuit Judge. 1 Appellant was charged with the armed robbery of a federally insured bank in violation of 18 U.S.C. 2113(a). He pleaded guilty and was sentenced. A motion to vacate sentence was filed under 28 U.S.C. 2255, alleging in substance that appellant's plea was induced by the misrepresentations of an Assistant United States Attorney. The District Court ordered a hearing, at which appellant requested the court to appoint counsel to assist him. The request was denied. We hold that, in the circumstances of this case, denial of appellant's request for counsel was error. 2 * The mandatory requirement of the Sixth Amendment regarding right to counsel 1 does not apply to indigent movants under 28 U.S.C. 2255. This is the general view, 2 it seems soundly based on the underlying purposes of the Amendment. 3 3 As this court…

Appellant was charged with the armed robbery of a federally insured bank in violation of 18 U.S.C. § 2113 (a). He pleaded guilty and was sentenced. A motion to vacate sentence was filed under 28 U.S.C. § 2255 , alleging in substance that appellant’s plea was induced by the misrepresentations of an Assistant United States Attorney. The District Court ordered a hearing, at which appellant requested the court to appoint counsel to assist him. The request was denied. We hold that, in the circumstances of this case, denial of appellant’s request for counsel was error.

I

The mandatory requirement of the Sixth Amendment regarding right to counsel 1 does not apply to indigent movants under 28 U.S.C. § 2255 . This is the general view, 2 it seems soundly based on the underlying purposes of the Amendment.

As this court has pointed out, the appointment of counsel may sometimes *447 be mandatory even in those areas in which the Sixth Amendment does not apply. This is true when the circumstances of a defendant or the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel. Compliance with the due process…

(dissenting).

I respectfully dissent. The theory of the majority is that the district court is given a token and meaningless discretion to determine if a question raised by petitioner is simple or complex, or whether “the difficulties involved in presenting a particular matter are such that a fair and meaningful hearing cannot be had without the aid of counsel.” In other words, this court purports to set itself up as better qualified to pass on whether an issue is simple or complex — whether the hearing is meaningful or unfair— than is the trial judge. This enables the majority to find support in United States ex rel. Wissenfeld v. Wilkins, 2 Cir. 1960, 281 F.2d 707 . I do not differ with the Wilkins’ rule on the facts present in Wilkins; I do not find the same or similar facts existing in this case, therefore, I do not think it controlling.

Without going so far as to say due process required the appointment of counsel in this case, the majority hold that the district court judge did not exercise “proper” discretion. In other words, that he had abused that discretion. And because, says the majority, there was this clear error of judgment, they reverse. I say such a ruling on the…