Forrest Gustave v. United States

This is an appeal from an order denying appellant Gustave’s motion under 28 U.S.C. § 2255 to vacate and set aside the sentence entered upon his conviction for bank robbery. Essentially, appellant claims he was denied effective assistance of counsel.

After a three-day jury trial held in April, 1968, petitioner and co-defendant, Winters, were convicted of robbing a national bank. A motion for a new trial was filed by counsel for both defendants. Petitioner, pro se, also filed a motion for a new trial and demanded a new attorney. The motion for a new trial was granted and different attorneys were appointed for each defendant.

Gustave was again convicted by a jury in the second trial in August, 1968. Judge Albert L. Stephens, Jr. imposed a fifteen year sentence. Thereafter, Judge Stephens, at petitioner’s request, appointed new counsel for appeal purposes. This court affirmed the conviction. United States v. Gustave, 424 F.2d 539 (9th Cir. 1970).

By a § 2255 proceeding filed in 1971, petitioner raised the question that the jury was unconstitutionally drawn in that blacks were excluded from the jury. This claim was rejected by the court by order dated January 26, 1972. There was no…