Appeal From the District Court of the Virgin Islands Division of St. Croix
Before: HUNTER, WEIS and ROSENN, Circuit Judges
1. On March 3, 1977, appellant Henry C. Bradshaw was convicted of first degree murder and sentenced to life imprisonment following a jury trial in the United States District Court of the Virgin Islands. This court upheld that conviction on direct review. Government of the Virgin Islands v. Bradshaw, 569 F.2d 777 (3d Cir.), cert. denied, 436 U.S. 956, 57 L. Ed. 2d 1121, 98 S. Ct. 3070 (1978).Bradshaw then moved in the district court, pursuant to 28 U.S.C. § 2255 (1976), to set aside his conviction. His motion alleged that his trial attorney had failed to render effective legal assistance. The district court determined that Bradshaw's motion could be resolved on the basis of the allegations in the motion and the materials already on file in the district court. Bradshaw's motion to set aside the conviction was denied, and this appeal followed. For the reasons set forth below, we will affirm the order of the district court denying Bradshaw's motion.
2. Ineffective assistance of counsel is the only ground that Bradshaw advances for setting aside his conviction. His motion asserts three separate allegations in support of his claim of ineffective assistance:
(1) His attorney refused to locate and interview two alibi witnesses whose proposed testimony is described in Bradshaw's motion.
(2) His attorney failed to suggest appropriate questions for voir dire, as a result of which the fiancee of the officer who arrested him was empaneled on the jury.
(3) His attorney waived the right to exercise an additional five peremptory challenges, as a result of his mistaken view of the state of the law at the time of trial.
Bradshaw urges that his conviction should be set aside on the basis of matters already contained in the record, but he argues in the alternative that it was error for the district court to refuse to order an evidentiary hearing to develop the facts underlying his ineffective assistance claim. See United States v. Baynes, 622 F.2d 66, 68 (3d Cir. 1980) (review of refusal to grant an evidentiary hearing).
3. We recognize at the outset that Bradshaw bears the burden of proving his claim of ineffective assistance of counsel. Id. at 69. Bradshaw must demonstrate that the representation he received at trial was "constitutionally inadequate," United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 48 L. Ed. 2d 823, 96 S. Ct. 2214 (1976), and that he was prejudiced by his attorney's inadequacies, United States v. Swinehart, 617 F.2d 336, 340 (3d Cir. 1980). The constitutional right to effective assistance of counsel demands that the defendant's attorney exercise "the customary skill and knowledge which normally prevails at the time and place" of trial. Johnson, 531 F.2d at 174 (quoting Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970)).
4. The question whether to order an evidentiary hearing is committed to the sound discretion of the district court. Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972). In exercising that discretion, however, the district court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record. United States v. Williams, 615 F.2d 585, 591 (3d Cir. 1980). Further, the court must order an evidentiary hearing to determine the facts "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." Id.; see 28 U.S.C. § 2255 (1976).
5. These requirements do not mean that an evidentiary hearing must be held whenever the movant's ineffective assistance claim presents a close question. The district court need only supplement the factual record when the merits of the section 2255 motion may turn on the truth of a non-frivolous allegation. In this case, we strictly adhere to our prior case law and evaluate Bradshaw's motion under the assumption that all his allegations are factually correct. Under that ...