JERRY L. WORD, PETITIONER V. UNITED STATES OF AMERICA No. 90-6128 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The United States In Opposition OPINION BELOW The opinion of the court of appeals (Pet. App. 1-2) is unreported, but the judgment is noted at 912 F.2d 466 (Table). JURISDICTION The judgment of the court of appeals was entered on August 29, 1990. The petition for a writ of certiorari was filed on November 1, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court erred in summarily dismissing petitioner's motion to vacate his sentence under 28 U.S.C. 2255, which alleged that he had been denied effective assistance of counsel in connection with a prior motion to vacate his sentence. STATEMENT Following a jury trial in the United States District Court for the Middle District of Tennessee, petitioner, a licensed physician, was convicted on 45 counts of conspiracy to distribute controlled substances, distribution of controlled substances for other than a legitimate medical purpose, and attempted distribution of controlled substances for other than a legitimate medical purpose, in violation of 21 U.S.C. 841(a)(1) and 846. He was sentenced to 25 years' imprisonment. The court of appeals affirmed. United States v. Word, 806 F.2d 658 (6th Cir. 1986), cert. denied, 480 U.S. 922 (1987). 1. Following his direct appeal, petitioner filed a motion to vacate his sentence under 28 U.S.C. 2255. In the motion, petitioner alleged that his trial counsel had been ineffective; that the government had failed to disclose exculpatory evidence; that the government had intentionally suppressed evidence vital to his defense; that the district court had erred in denying his motion for a new trial; that the government had knowingly caused the introduction of perjured testimony; that the district court had erred in admitting the testimony of a handwriting expert; that the government had coerced witnesses into testifying against him; and that there was insufficient evidence to support the jury's verdict. After appointing counsel to represent petitioner and conducting an evidentiary hearing, the district court denied the motion. The court of appeals affirmed. Gov't C.A. Br. App. 1-2. 2. Petitioner then filed a second motion under 28 U.S.C. 2255, alleging that he had been denied effective assistance of counsel because the attorney who was appointed to represent him in connection with his first Section 2255 motion had not properly investigated and presented his claims. C.A. App. 4-9. The district court dismissed petitioner's motion without a hearing. C.A. App. 49. The court stated that it had "observed the performance" of petitioner's counsel, and that the lawyer "did the best he could do with what he had to work with," but that petitioner's previous motion was "groundless." The court concluded that it was apparent from petitioner's motion and the prior proceedings that petitioner was not entitled to relief and that summary dismissal was appropriate under Rule 4(b) of the Rules Governing Proceedings Under Section 2255. /1/ Accordingly, the court dismissed the motion. C.A. App. 49. 3. The court of appeals affirmed. Pet. App. 1-2. The court agreed with the district court that "the record shows conclusively that (petitioner) was not entitled to relief." Ibid. The court of appeals noted that petitioner's claim that he had been denied effective assistance of counsel in connection with his earlier motion to vacate his sentence was "(a)n attack on a previous collateral proceeding" that is "not cognizable under Section 2255," and that therefore the district court properly dismissed petitioner's motion without a hearing. Ibid. ARGUMENT Petitioner renews his contention (Pet. 6-7) that the performance of the attorney who was appointed to represent him in connection with his first motion under 28 U.S.C. 2255 was so deficient as to deny petitioner his constitutional right to the effective assistance of counsel. That claim is without merit. This Court has made clear that prisoners have no constitutional right to counsel in pursuing collateral attacks on their convictions. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); see also Johnson v. Avery, 393 U.S. 483, 488 (1969). A motion under Section 2255 is not part of the movant's original criminal proceeding, but is an "independent civil suit." Heflin v. United States, 358 U.S. 415, 418 n.7 (1959). Thus, the right to counsel afforded by the Sixth Amendment "(i)n all criminal prosecutions" has no application to Section 2255 motions. Rauter v. United States, 871 F.2d 693, 695 (7th Cir. 1989); see Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir. 1988) ("the Sixth Amendment right to effective assistance of counsel does not attach to post-conviction proceedings because they are civil in nature"). /2/ Because petitioner had no constitutional right to counsel in connection with his first motion under 28 U.S.C. 2255, the alleged deficiencies in his attorney's performance could not have deprived him of any right to the effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-588 (1982) (per curiam); see Evitts v. Lucey, 469 U.S. 387, 396 n.7 (1985) ("Of course, the right to effective assistance of counsel is dependent on the right to counsel itself."). For this reason, courts routinely reject motions for post-conviction relief that allege ineffective assistance of counsel in prior collateral proceedings. See, e.g., United States v. Angelone, 894 F.2d 1129, 1130 (9th Cir. 1990) (prisoner could not raise in motion under Section 2255 claim that counsel was ineffective in failing to notify him of denial of prior Section 2255 motion); Green v. McGougan, 744 F.2d 1189, 1190 (5th Cir. 1984) (prisoner's claim that he was denied effective assistance of counsel in state post-conviction proceedings would not be considered on federal habeas review); Williams v. Lockhart, 849 F.2d 1134, 1139 (8th Cir. 1988) (same). Because petitioner plainly was not entitled to relief on his claim that he was deprived of a constitutional right to the effective assistance of counsel, the district court properly exercised its authority to dismiss his motion under Rule 4(b). /3/ CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General NINA GOODMAN Attorney FEBRUARY 1991 /1/ Rule 4(b) provides, in pertinent part: If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the movant to be notified. /2/ Petitioner's alternative argument (Pet. 8) that the Due Process Clause of the Fifth Amendment affords him a right to effective assistance of counsel in proceedings under 28 U.S.C. 2255 was not presented to the court of appeals, and is not supported by any authority. /3/ Even if petitioner had had a constitutional right to be represented by counsel on his Section 2255 motion, there is no reason to doubt the district court's determination that petitioner's counsel "did the best he could do with what he had to work with," and that petitioner's "previous petition was groundless as is this one." C.A. App. 49. The district court had already determined that "the evidence in this case was overwhelming," and that petitioner "convicted himself by his own testimony." See 806 F.2d at 667 (quoting district court's statement denying motion for a new trial).