The opinion of the court was delivered by: KEECH
This case is before the Court on the defendant's fourth motion to vacate sentence and set aside the judgment convicting him of assault with a dangerous weapon.
The record shows that the defendant was arrested on September 4, 1948, shortly after the assault occurred. Thereafter, being unable to make bond, he was confined continuously prior to and during his trial, and was committed immediately upon conviction. On November 2, 1948, an indictment was returned by the grand jury, a copy of which was served on the defendant personally at the Jail on November 3. On November 5, the defendant was arraigned and pleaded not guilty, at which time counsel of the defendant's choice entered his appearance. At the time of arraignment, the trial date was fixed as November 23, 1948. On November 23, the trial occurred, resulting in a jury verdict of guilty. On December 10, 1948, the defendant was sentenced. Throughout the trial and at the time of sentence, the defendant was represented by the same counsel of his own selection.
On December 29, 1948, the defendant filed the first of a series of motions, drawn by him personally, in which he attacked the validity of his arrest, indictment, trial, conviction, and sentence. This motion was based on allegations of illegal arrest and search; illegal detention prior to hearing; invalidity of the indictment; and failure to produce at the trial the weapon alleged to have been used in the assault. The motion was argued in open court and denied, the defendant being represented at the request of the court by his trial attorney. Subsequently, on January 14, 1949, the defendant filed a motion for new trial, based on substantially the same grounds. This motion also was set down for hearing in court and denied after argument. At the time of this hearing the defendant's original attorney withdrew and the defendant was represented by another attorney of his own selection. The second attorney then filed a motion for reduction of sentence, which was heard and denied.
On February 17, 1949, the defendant filed a petition for writ of habeas corpus, naming the Attorney General as respondent (H. C. 3507), which was dismissed on April 14, 1949, by Judge Pine. On May 12, 1949, Judge McGuire denied a motion to amend the petition.
On April 8, 1949, the defendant again filed a motion to vacate sentence and set aside the judgment, reiterating his contentions in the prior motions and adding charges that the witnesses who testified before the grand jury and at the trial committed perjury, and that the police permitted the defendant's apartment to be destroyed, damaged, and rifled after defendant's arrest, This motion was denied without oral hearing, under the provision of 28 U.S.C. § 2255 that 'The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner.'
On April 27, 1949, the defendant filed a second petition for writ of habeas corpus, naming the Superintendent of the District of Columbia Jail as respondent (H.C. 3534). This petition was dismissed and the rule to show cause discharged on May 13, 1949, by Judge McGuire.
On November 16, 1951, the defendant filed another motion under 28 U.S.C. § 2255, alleging as grounds: (1) that the defendant had been deprived of the right to testify in his own behalf at the trial; (2) that defendant was denied effective assistance of counsel at the trial, in that he was not granted sufficient time for conference and preparation, and that counsel failed to protect his rights; and (3) that defendant was denied the right to subpoena witnesses to testify in his behalf at the trial. No facts were alleged in support of these conclusions. At this time the defendant also filed an affidavit of bias and prejudice against the trial judge. Both the motion to vacate sentence and the affidavit of bias and prejudice were denied without hearing on November 21, 1951. On December 6, 1951, this court denied defendant's application to appeal in forma pauperis from the action of November 21.
Thereafter, the defendant applied to the United States Court of Appeals for the District of Columbia for leave to appeal in forma pauperis from the action of November 21, 1951. This proceeding terminated in an order dated August 14, 1952, denying the defendant's application for leave to appeal in forma pauperis, 'without prejudice to petitioner's right to move again in the United States District Court by an amended motion to vacate sentence setting forth with sufficient detail the facts upon which the claim for relief is predicated.' For the first time, on February 29, 1952, in a motion filed in the Court of Appeals, the defendant made the detailed allegations on which he bases the motion now pending.
The amended motion to vacate sentence and set aside judgment now before this court, filed August 26, 1952, was referred to the trial judge on October 27, 1952. Pursuant to the defendant's request for appointment of counsel to argue his motion, the court named an able and experienced member of the bar. The motion was set down for argument and testimony on November 14, 1952, at which time, after the case was called, the defendant represented to the court that he had pending a petition for writ of habeas corpus and requested that the hearing on the motion be postponed for a sufficient period of time to permit disposition of the habeas corpus proceeding. Thereupon, the motion was continued to November 26. On that date it was reported to the court that an application by defendant to file a petition for writ of habeas corpus in forma pauperis had been denied on November 13, by Judge Youngdahl, and that no further action had been taken in the matter. The court then devoted approximately three and one-half hours to the hearing of testimony in connection with the motion and full argument thereof.
Considering the grounds of the amended motion to vacate in order, Paragraph 1 alleges:
'Prior to his trial, defendant had been afforded conference with his attorney for no more than five (5) minutes. Counsel visited defendant only twice at the District of Columbia Jail prior to his trial and those two (2) occasions were predominately taken with counsel's instructions to defendant to solicit him business in the District of Columbia Jail. Prior to the trial, defendant's wife made every possible effort to have defendant's former counsel confer with him at the District of Columbia Jail, without success.'
The testimony adduced at the hearing showed that defendant was represented by counsel of his own selection, who had successfully defended him on other occasions, including a charge of simple assault in the Municipal Court related to the offense of which defendant was convicted in this court; that counsel conferred with defendant and his wife on a number of occasions, both as to the Municipal Court case and the District Court case, and on four occasions visited the defendant at the Jail, as shown by its records. Defendant's acquittal of the charge in Municipal Court which grew out of the same altercation as the charge here involved, indicates counsel's knowledge of the facts and preparation for trial in both cases.
Paragraph 2 of the amended motion alleges:
'At the time of the trial on November 27, 1948, before being taken to the Court-room, defendant requested the U.S. Marshal then on duty in the 'bullpen' to contact his attorney, in order that defendant could confer with his attorney before going to trial. This request was denied, due to the fact that the trial was ready to commence. Prior ...