IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA :

:

v. : No. 4:CR-96-239

:

DAVID PAUL HAMMER : (Judge Muir)

 ORDER

 June 1, 2005 

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

On November 4, 1998, this court sentenced David Paul

Hammer to die by lethal injection for the first degree murder of

Andrew Marti. The relevant history of this case since the

imposition of the sentence of death is set forth in prior opinions

and orders and we will not repeat that history other than as needed

to address certain substantive and procedural matters.

On January 27, 2005, we issued an order which granted in

part and denied in part Hammer’s motion for leave to file a

supplemental and third amended § 2255 motion (hereinafter referred

to as “the third amended motion”). The order also established a

briefing schedule with respect to the third amended motion.

Hammer filed a brief in support of the third amended

motion on February 25, 2005. The Government filed a brief in

opposition on April 20, 2005. Hammer filed a reply brief on May 9,

2005.

On May 11, 2005, we issued an order dismissing Ground 15

of the third amended motion. That order also noted that the case

was on the July, 2005, trial list for a hearing on Hammer’s third

amended motion and that the claims to be addressed at that hearing

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are set forth in Grounds 1 through 14, 16, 18, 19 and 22 of the

third amended motion.

The Government contended that many of the claims raised

in the third amended motion were untimely. Pursuant to our order

of January 27, 2005, there were three claims set forth in the third

amended motion which were provisionally permitted to proceed. We

permitted Hammer to raise provisionally claims relating to

ineffective assistance of counsel with respect to appellate

proceedings (Ground Three, page 39, ¶ 5, and Ground Eighteen of the

third amended motion). We also permitted Hammer to raise

provisionally Ground Twenty-Two. Ground Twenty-two raised an

entirely new claim of ineffective assistance of counsel.

Specifically, Hammer contends that trial counsel were ineffective

in arguing the relevance of portions of a videotape of a hypnosis

session which were excluded from evidence during the trial. 

A pretrial conference is scheduled for June 10, 2005, at

11:00 a.m. In preparing for that conference, we have again

reviewed the briefs filed relating to the third amended motion and

have concluded that all of the claims therein which were

provisionally permitted to proceed are devoid of merit.

With respect to the appellate matters, counsel cannot be

guilty of ineffective assistance of counsel because at the time of

the appeal Hammer was representing himself. United States v.

Windsor, 981 F.2d 943, 947 (7th Cir. 1992). We will, therefore,

dismiss the ineffective assistance of counsel claims relating to

the appellate proceedings as devoid of merit and untimely. 

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With regard to the excluded portions of the videotape of

the hypnosis session, Hammer contends that the portions excluded

were relevant to his claim that he suffered from Dissociative

Identity Disorder. At the time of trial, Hammer’s expert was Dr.

Sadoff. Hammer has not proffered evidence that Dr. Sadoff in 1998

informed trial counsel that the portions excluded were relevant to

demonstrate that Hammer suffered from DID or that Dr. Sadoff in

1998 was of the opinion that the portions excluded contained

evidence of DID. 

In 2004, Hammer obtained a different expert, Dr. Kluft,

who contends that the excluded portions of the videotape (36

minutes prior to the actual hypnosis session and 8 minutes after)

were relevant to the issue of whether or not Hammer suffered from

DID.

 Trial counsel in 1998 relied on a highly regarded expert,

Dr. Robert Sadoff, an expert who was familiar with DID. Counsel

cannot be guilty of ineffective assistance of counsel for relying

on Dr. Sadoff. Under the circumstances we will not permit Hammer

to proceed with Ground 22 which raises an ineffective assistance of

counsel claim. That claim is devoid of merit and untimely. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. The ineffective assistance of counsel claims relating

to appellate proceedings set forth in Ground Three, at page 39, ¶

5, and Ground 18 of the third amended motion are dismissed. 

2. Ground 22 of the third amended motion is dismissed.

3. The pretrial conference will be held in chambers.

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4. The pretrial conference will be transcribed by a

court reporter.

5. The following matters will be considered at the

pretrial conference:

5.1. whether discovery has been completed, including the

preparation and submission to opposing counsel of

expert reports;

5.2. whether counsel have prepared and exchanged 

witness and exhibit lists;

5.3. whether counsel have entered into any 

stipulations regarding the submission of evidence

or regarding specific facts that are not in dispute;

5.4. whether counsel have commenced preparation

of proposed findings of fact and conclusions of law;

5.5. the number of witnesses whom Hammer intends to call;

5.6. the number of witnesses whom the Government intends

to call;

5.7. whether any testimony will be presented by

video deposition;

5.8. the expected overall length of the hearing in trial

days; and

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5.9. any other matters which counsel for Hammer and the

Government agree the court should consider at the

pretrial conference.

6. Counsel shall mark exhibits D1, D2 or H1, H2, etc.,

and G1, G2, etc. The use of letters following the numbers of

documents, such as D1a, is prohibited. Instead exhibits should be

marked D1.1, etc. If more than one party offers an exhibit during

the hearing, only 1 letter and number shall be used for it. The

lists of exhibits shall be on a copy of the Clerk’s exhibit list

attached to this order. Multi-paged exhibits shall bear page

numbers for quick reference in court. Insofar as practicable,

counsel shall number a party’s exhibits in similar places on each

exhibit. 

7. If counsel rely on or refer to portions of the trial

transcript during the hearing, counsel shall provide the court with

photocopies of the relied on or referred to portions along with an

appropriate index so that the court will have easy access to the

relevant portions of the trial transcript. 

8. The portions of all exhibits which are to be

considered by the court shall be read aloud in open court so that

the court may grasp the important language. Only portions of

exhibits so read will be considered by the court.

9. Paragraph 3 of our order of May 11, 2005, is amended

to provided that on or before the close of the hearing counsel

shall submit proposed findings of fact and conclusions of law

addressing Grounds 1-14 (with the exception of Ground 3, page 39,

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¶ 5), 16 and 19 of Hammer’s third amended motion annotated in

accordance with paragraph 3.12 of the practice order issued in this

case on September 20, 1996.

 s/Malcolm Muir __________________________ MUIR, U.S. District Judge

MM:gs

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