The opinion of the court was delivered by: WRIGHT
This matter came on for hearing on petitioner's motion pursuant to 28 U.S.C. § 2255 to set aside his conviction. The court, having considered the evidence adduced and the arguments of both sides, makes the following findings of fact and conclusions of law.
1. Petitioner, Samuel N. Poe, a 22-year-old indigent with minimal education, was charged by indictment with the commission of six felonies. The indictment charged three counts of house-breaking and three counts of grand larceny. (Tr. 3).
3. Some time prior to the date of trial, the District Court appointed counsel from the Legal Aid Agency to represent petitioner. Before trial, trial counsel, with the assistance of petitioner, prepared a defense to the charges. That defense consisted of testimony to be given by petitioner at trial.
4. Prior to August 27, 1963, petitioner had never experienced a criminal trial before judge and jury. He was not familiar with the practice and procedure of a criminal trial.
5. Petitioner was advised, in general, of his right to take or not to take the stand in his own behalf at his own trial. Petitioner informed counsel that he wanted to take the stand. Trial counsel agreed that petitioner should take the stand and that this was the only available defense.
6. The trial opened at 10:00 A.M. on August 27, 1963. (Tr. 1.) An opening statement was made on behalf of the Government. (Tr. 14-19.) Trial counsel for petitioner reserved the opening statement, but because it later turned out that no defense was presented, no opening statement was made on behalf of petitioner. (See Tr. 19 and 160 et seq.)
7. The Government called eight witnesses -- three police officers, three victims of the housebreakings and larcenies, and the night porter and the custodian of the building in question.
8. Near the end of the Government's case in chief, the District Court ruled inadmissible certain statements allegedly made by petitioner. (Tr. 152.) The Government then rested. (Tr. 160.)
9. It was about 4:00 P.M. when the Government concluded its case. (Tr. 160-162.) At this point, trial counsel for petitioner was uncertain as to whether the statements previously ruled inadmissible could be used by the Government for purposes of impeachment if petitioner took the stand to testify in his own behalf. Trial counsel sought a ruling on this point from the District Court, but the court refused the request for the ruling, stating that counsel was seeking 'an advisory opinion.' (Tr. 160-161.)
10. Under the applicable law in effect at that time, petitioner could have taken the stand, denied all the elements of the crimes for which he was charged, and the Government would not have been able to use, for the purpose of impeachment, the statements previously ruled inadmissible.
11. Trial counsel for petitioner felt impelled to make a quick decision on whether to call the petitioner as a defense witness. It was already late in the day. Counsel felt that the court wanted to conclude the trial and submit the case to the jury that afternoon. (See Tr. 150, 162.) Apparently the court was to be closed on the following day because of the Civil Rights March on Washington.
12. Trial counsel for petitioner immediately conferred with petitioner. He strongly urged petitioner not to take the stand on the ground that the inadmissible statements might be used by the Government for purposes of impeachment. Trial counsel did not inform petitioner that he could take the stand and deny the elements of the crimes without giving the ...