Eddie G. Javor v. United States

Petitioner-appellant Eddie G. Javor was convicted in 1965 on two counts of an indictment charging possession and sale of heroin in violation of 21 U.S.C. § 174 after a two-week jury trial in which he was one of three defendants. He was sentenced to seven years imprisonment.

His direct appeal from this conviction resulted in a decision remanding his case for further proceedings in the district court. Javor v. United States, 403 F.2d 507 (9th Cir.1968). When petitioner’s judgment of conviction was reinstated by the district court, his appeal was unsuccessful and the judgment was affirmed. United States v. Rice, 435 F.2d 836 (9th Cir.1970), cert. denied, 404 U.S. 864 , 92 S.Ct. 44 , 30 L.Ed.2d 107 (1971).

On December 14, 1971, petitioner filed a motion pursuant to 28 U.S.C. § 2255 for relief from the district court judgment. Three months later he filed a second motion for a new trial and a motion for reduction of sentence. Though his motion for a new trial was denied, the district court reduced his sentence from seven to five years’ imprisonment. On February 3, 1972, it denied petitioner’s motion for postconviction relief under 28 U.S.C. § 2255 . The ruling was affirmed by this…

dissenting:

With all due respect, I would affirm.

It is inappropriate, in my view, for this court to adopt a per se rule in this situation. Per se rules often create more mischief than benefit. Whether or not a defendant has been prejudiced by the conduct or misconduct of counsel should remain a part of the basic factual equation in determining whether there has been ineffective assistance of counsel. Applying that rationale here, I would affirm the factual findings of the magistrate as being supported by credible substantial evidence and hold that they are not clearly erroneous. Fed.R.Civ.P. 52(a).

This court has determined that in order to establish a denial of the constitutional right to counsel, “[djefense counsel’s errors or omissions must reflect a failure to exercise the skill, judgment, or diligence of a reasonably competent criminal defense attorney.” Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1979), cert. denied, 440 U.S. 974 , 99 S.Ct. 1542 , 59 L.Ed.2d 793 (1979). Our determination also included a requirement that these errors or omissions result directly in prejudice to the defendant. Id. This second requirement is necessary because the fact of error alone…

724 F.2d 831 Eddie G. JAVOR, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. No. 81-5532. United States Court of Appeals, Ninth Circuit. Argued July 8, 1982. Submitted Aug. 20, 1983. Decided Jan. 26, 1984. Eddie G. Javor, in pro. per. Daniel Gonzalez, Asst. U.S. Atty., Los Angeles, Cal., for respondent-appellee. Appeal from the United States District Court for the Central District of California. Before ANDERSON, FERGUSON and REINHARDT, Circuit Judges. FERGUSON, Circuit Judge: 1 Petitioner-appellant Eddie G. Javor was convicted in 1965 on two counts of an indictment charging possession and sale of heroin in violation of 21 U.S.C. Sec. 174 after a two-week jury trial in which he was one of three defendants. He was sentenced to seven years imprisonment. 2 His direct appeal from this conviction resulted in a decision remanding his case for further proceedings in the district court. Javor v. United States, 403 F.2d 507 (9th Cir.1968). When petitioner's judgment of conviction was reinstated by the district court, his appeal was unsuccessful and the judgment was affirmed. United States v. Rice, 435 F.2d 836 (9th Cir.1970), cert. denied, 404 U.S. 864 , 92 S.Ct. 44…