that's true, but other than that, your Honor, I never did do anything.
Sentencing Tr. at 11-12 (emphasis added).
In light of the above, and given the "strong presumption that counsel's challenged conduct falls within the wide range of reasonable professional assistance," Reese, 946 F.2d at 257; Moore, 946 F.2d at 246; Hull, 932 F.2d at 167; Gray, 878 F.2d at 710, it cannot be said that Schutzman's representation of Barber was either deficient or prejudicial. Barber has not demonstrated either that Schutzman's representation fell below an objective standard of reasonableness or that, but for Schutzman's alleged errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 688; see also Kimmelman, 477 U.S. at 381; Hull, 932 F.2d at 167. Barber has not demonstrated, therefore, that Schutzman's representation was insufficient under the Strickland test. 466 U.S. at 687.
Finally, the Supreme Court's warning that "every effort be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time," Strickland, 466 U.S. at 689, is particularly appropriate in this case. There is no question that Schutzman's and Barber's testimony and sworn statements directly contradict each other. Significantly, however, Schutzman's current representations are consistent with his actions and his representations during the pre-trial and trial period. Both then and now, for instance, Schutzman indicated numerous attempts were made to discuss the case with Barber, particularly the possibility of a plea bargain, but Barber would not consider pleading guilty. In contrast, Barber's current objection to Schutzman's representation is not consistent with his prior conduct. As discussed previously, Barber has failed until now to express a single objection to Schutzman's representation. Indeed, the pre-trial proceedings, the trial, the Sentencing Hearing and the Appeal all passed without an objection by Barber.
When viewed from the time of their occurrence, Schutzman's and Barber's behavior counsel against a finding of ineffective assistance.
C. Evidentiary Hearing Requirement
Although a full evidentiary hearing was granted, such a hearing was not required given the extensive case record and the written submissions of the parties.
The question of whether to order a hearing on a claim for ineffective assistance is in the discretion of the district court. Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). The standard is provided by 28 U.S.C § 2255. Forte, 865 F.2d at 62; Virgin Islands v. Zepp, 748 F.2d 125, 133 (3d Cir. 1984).
Generally, a district court must hold an evidentiary hearing on a claim for ineffective assistance if the defendant has alleged facts which, if proved, would entitle the defendant to relief and an evidentiary hearing is necessary to establish the truth of those allegations. 28 U.S.C. § 2255; Wells, 941 F.2d at 259; Zettlemoyer, 923 F.2d at 301 (citing Smith v. Freeman, 892 F.2d 331, 338 (3d Cir. 1989)).
To merit a hearing, however, a claim for ineffective assistance of counsel must satisfy both prongs of the Strickland test, accepting the veracity of the defendant's allegations. Wells, 941 F.2d at 259-60. Mere assertions and conclusory allegations "do not provide sufficient ground to warrant requiring the state to respond to discovery or to require an evidentiary hearing." Id. (citing Mayberry v. Petsock, 821 F.2d 179, 185 (3d Cir.), cert. denied, 484 U.S. 946, 98 L. Ed. 2d 362, 108 S. Ct. 336 (1987) and Barry v. United States, 528 F.2d 1094, 1101-02 (7th Cir.), cert. denied, 429 U.S. 826, 50 L. Ed. 2d 88, 97 S. Ct. 81 (1976)).
Where the pre-existing record is sufficient to allow determination of an ineffective assistance of counsel claim, an evidentiary hearing to develop the facts is not required. United States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991); Zepp, 748 F.2d at 133; see also 28 U.S.C. § 2255 (no evidentiary hearing required when files and records in case conclusively show that prisoner is not entitled to relief).
In this case, no evidentiary hearing was required. The pre-trial and trial record is extensive and conclusively establishes that Barber is not entitled to relief on his claim for ineffective assistance of counsel. In addition, Barber's written submissions do nothing more than make unsupported assertions as to the conduct of Schutzman. Barber submitted no evidence with his motion papers, apart from his own self-serving affidavit, which is barely two double-spaced pages long. No supporting documents or statements from Barber's family, from Pugach or from the trial and pretrial record were submitted or cited to by Barber to support the assertions in his moving brief.
See Moving Brief at 1-9. Barber even failed to submit a reply brief.
Barber's conclusory assertions are contradicted by both the record in this case and the affidavits submitted by the Government. It also is observed that Barber's own submissions are, at times, internally inconsistent. For instance, while the Moving Brief states in sweeping terms that "Schutzman never met with his client prior to trial," Moving Brief at 7 (emphasis in original), Barber's own affidavit concedes that Schutzman "did appear in court with me before trial. " Barber Aff., P 5.
On the basis of the above, Barber was not entitled to an evidentiary hearing on his claim for ineffective assistance, although such a hearing was granted in the interest of providing Barber with fullest due process possible. New Trial Hrg. Tr. at 6.
For the reasons set forth above, the Barber motion for a new trial is denied. An order accompanies this opinion.
Dated: 9 November 1992