Efran Vizcarra-Delgadillo v. United States

395 F.2d 70 Efran VIZCARRA-DELGADILLO, Appellant, v. UNITED STATES of America, Appellee. No. 21571. United States Court of Appeals Ninth Circuit. April 26, 1968. Donald L. Ungar (argued) of Phelan, Simmons & Ungar, San Francisco, Cal., for appellant. James Simonelli (argued), Asst. U.S. Atty., John P. Hyland, U.S. Atty., Sacramento, Cal., Steve Suffin, Immigration & Naturalization Service, San Francisco, Cal., for appellee. Before MADDEN, Judge of the United States Court of Claims, and KOELSCH and BROWNING, Circuit Judges. KOELSCH, Circuit Judge. 1 Efran Vizcarra-Delgadillo, convicted on his plea of guilty to a charge of aiding and abetting the alteration and possession of a false immigration document (18 U.S.C. 1546 and 2), commenced this proceeding, pursuant to 28 U.S.C. 2255, to set aside the judgment. 1 His contention was that he did not have the effective assistance of counsel: in particular, that his court-appointed attorney did not make an independent investigation of the case sufficient to give appellant an 'informed opinion' on the question of what plea to enter. Von Moltke v. Gillies, 332 U.S. 708, 721 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948). The district court,…

(dissenting) :

The judgment of conviction should be set aside on two grounds.

First, appellant did not receive the effective assistance of counsel guaranteed by the Sixth Amendment. Before appellant entered his plea, he was “entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708, 721 , 68 S.Ct. 316, 322 , 92 L.Ed. 309 (1948). Appellant’s counsel did not discharge these responsibilities. He failed to inform himself on the facts and the law. He acted “in default of knowledge that reasonable inquiry would have produced, and hence in default of any judgment at all.” Brubaker v. Dickson, 310 F.2d 30, 39 (9th Cir. 1962), and authorities cited. See also Wilson v. Rose, 366 F.2d 611, 614-615 (9th Cir. 1966).

*73 Appellant’s principal concern was that he might lose his status as an alien lawfully admitted for permanent residence, and be deported. Appellant’s counsel thought the sentencing judge could spare appellant from deportation. He testified, “the main thing I was banking on was trying to get sympathy…

Efran Vizearra-Delgadillo, convicted on his plea of guilty to a charge of aiding and abetting the alteration and possession of a false immigration document [ 18 U.S.C. §§ 1546 and 2], commenced this proceeding, pursuant to 28 U.S.C. § 2255 , to set aside the judgment. 1 His contention was that he did not have the effective assistance of counsel: in particular, that his court-appointed attorney did not make an independent investigation of the case sufficient to give appellant an “informed opinion” on the question of what plea to enter. Von Moltke v. Gillies, 332 U.S. 708, 721 , 68 S.Ct. 316 , 92 L.Ed 309 (1948). The district court, following an evidentiary hearing, denied him relief. We affirm.

Prior to appellant’s entry of plea, appellant’s attorney (hereinafter “counsel”) consulted with appellant on at least two occasions; he also discussed the case with the district attorney in charge of the prosecution and the immigration officer; and he reviewed their files, to which he was permitted free access. He did not interview any prospective prosecution witnesses. He frankly acknowledged that his investigation consisted of what he learned from appellant plus the information secured…