John Steven Bryan v. United States

Following jury trial, appellant was convicted of violating 21 U.S.C. § 841 (a)(1), distribution of a controlled substance, and 21 U.S.C. § 846 , conspiracy to distribute a controlled substance. On appeal to this court the conviction was affirmed. United States v. Bryan, 567 F.2d 924 (9th Cir. 1978). The Supreme Court denied certiora-ri sab nom. United States v. Baker, 439 U.S. 818 , 99 S.Ct. 80 , 58 L.Ed.2d 109 (1978).

On December 10, 1979, appellant moved to vacate sentence under 28 U.S.C. § 2255 . He alleged that his Fifth and Sixth Amendment rights to effective assistance of counsel had been violated by the existence of a conflict of interest on the part of his counsel. The district court denied the motion without evidentiary hearing on the ground that the record failed to indicate an actual conflict of interest or any prejudice to appellant’s constitutional rights. This appeal followed.

Appellant’s trial had been preceded by a motion to suppress evidence on the ground that it was fruit of an unlawful search. The law firm that represented appellant *843 had, on a previous occasion in an unrelated matter, represented one Romero, who appeared at the suppression hearing as…

dissenting:

I dissent. I do not believe that the record before us is sufficient to show whether counsel’s former representation of Romero created a conflict of interest. Accordingly, *844 I would reverse and remand for an eviden-tiary hearing.

I agree with the majority that no actual conflict of interest is shown bn the present record. However, I think it impossible to conclude from this record that counsel’s former representation of Romero did not create a conflict. Under 28 U.S.C. § 2255 , an evidentiary hearing is required “[ujnless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” In United States v. Hearst, 638 F.2d 1190 (9th Cir. 1980), we stated that this standard “is essentially whether the movant has ‘stated a claim on which relief could be granted’ ... or, where affidavits have been submitted, whether summary judgment for the government is proper.” Id. at 1194 (quoting Moore v. United States, 571 F.2d 179, 184 (3d Cir. 1978)).

Here, it is certainly possible that counsel possessed privileged information which affected his examination of Romero and his conduct of the case generally. Perhaps Romero would have…

645 F.2d 842 John Steven BRYAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 80-4362. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 9, 1981. Decided May 22, 1981. Dennis M. Nerney, Asst. U. S. Atty., San Francisco, Cal., for respondent-appellee. Christina Arguedas, San Francisco, Cal., for petitioner-appellant. Appeal from the United States District Court for the Northern District of California. Before MERRILL and FLETCHER, Circuit Judges, and HANSON, * District Judge. MERRILL, Circuit Judge: 1 Following jury trial, appellant was convicted of violating 21 U.S.C. § 841 (a) (1), distribution of a controlled substance, and 21 U.S.C. § 846 , conspiracy to distribute a controlled substance. On appeal to this court the conviction was affirmed. United States v. Bryan, 567 F.2d 924 (9th Cir. 1978). The Supreme Court denied certiorari sub nom. United States v. Baker, 439 U.S. 818 , 99 S.Ct. 80 , 58 L.Ed.2d 109 (1978). 2 On December 10, 1979, appellant moved to vacate sentence under 28 U.S.C. § 2255 . He alleged that his Fifth and Sixth Amendment rights to effective assistance of counsel had been violated by the…