07-4963-pr
Yick Man Mui. v. United States
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2008
4 (Argued: June 4, 2009 Decided: July 30, 2010)
5 Docket No. 07-4963-pr
6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
7 YICK MAN MUI,
8 Petitioner-Appellant,
9 v.
10 UNITED STATES OF AMERICA,
11 Respondent-Appellee.
12 - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
13 B e f o r e: WINTER, CALABRESI, and SACK, Circuit Judges.
14
15 Appeal from two judgments entered in the United States
16 District Court for the Eastern District of New York (Sterling
17 Johnson, Jr., Judge) denying habeas corpus relief from a
18 conviction and prison sentence, and denying a motion under
19 Federal Rule of Civil Procedure 60(b) to reopen that decision,
20 respectively. Petitioner invokes Massaro v. United States, 538
21 U.S. 500 (2003), to challenge the district court’s refusal to
22 review ineffective assistance of counsel claims that petitioner
23 raised for the first time in the instant habeas motion.
24 Vacated and remanded in part.
25
1 SALLY WASSERMAN, for Petitioner-
2 Appellant.
3
4 SUSAN CORKERY, Assistant United
5 States Attorney (Benton J.
6 Campbell, United States Attorney,
7 on the brief, Peter A. Norling,
8 Assistant United States Attorney,
9 of counsel), United States
10 Attorney’s Office for the Eastern
11 District of New York, Brooklyn, New
12 York, for Respondent-Appellee.
13
14 WINTER, Circuit Judge:
15 Yick Man Mui appeals from Judge Johnson’s denial of his
16 petition for habeas corpus brought pursuant to 28 U.S.C. § 2255,
17 and denial of his motion under Federal Rule of Civil Procedure
18 60(b) to reopen that decision. On direct appeal from his
19 conviction, Mui raised various instances of alleged ineffective
20 assistance of trial counsel. His Section 2255 motion raised yet
21 more ineffective assistance claims. The district court held that
22 the new ineffective assistance claims were procedurally barred
23 because appellant had not provided reasons for failing to raise
24 the claims on direct appeal and had not shown any resulting
25 prejudice or actual innocence.
26 We hold that a defendant who raises on direct appeal
27 ineffective assistance claims based on the strategies, actions,
28 or inactions of counsel that can be, and are, adjudicated on the
29 merits on the trial record, is precluded from raising new or
30 repetitive claims based on the same strategies, actions, or
31 inactions in a Section 2255 proceeding. However, such a
2
1 defendant is not precluded from raising new ineffective
2 assistance claims based on different strategies, actions, or
3 inactions of counsel in a subsequent Section 2255 proceeding.
4 We vacate the district court order and remand for
5 proceedings consistent with this opinion.
6 BACKGROUND
7 A jury convicted appellant of committing violent crimes in
8 aid of racketeering, in violation of 18 U.S.C.
9 § 1959(a)(1). Prior to sentencing, appellant, represented by
10 new counsel, moved unsuccessfully for a new trial in part on
11 the ground that trial counsel had provided unconstitutionally
12 ineffective assistance. In particular, appellant attacked
13 trial counsel’s: (i) concession of petitioner’s guilt in
14 counsel’s opening statement; (ii) failure to present a “planned
15 for defense”; (iii) failure to call petitioner as a witness;
16 (iv) failure to cross-examine the government’s key cooperating
17 witness; and (v) misuse of evidence favorable to petitioner.
18 At appellant’s sentencing hearing, the district court
19 denied his motion for new trial. The court ruled that
20 appellant failed to show either that trial counsel’s
21 performance fell below objectively reasonable standards or that
22 appellant had a reasonable probability of a different result
23 but for counsel’s errors. See Strickland v. Washington, 466
24 U.S. 668 (1984). The district court then sentenced appellant
25 to life imprisonment followed by a consecutive five-year
3
1 sentence on firearms charges.
2 On direct appeal, appellant again raised ineffective
3 assistance claims predicated on the same facts as those raised
4 in his motion for new trial, but with two additional
5 allegations, that trial counsel failed to object to an
6 erroneous jury charge and failed to file certain pre-trial
7 motions. We affirmed appellant’s conviction in a summary order
8 that rejected on the merits appellant’s claims of ineffective
9 assistance of counsel. United States v. Mui, 159 F.3d 1349,
10 1998 WL 439432 (Table)(2d Cir. 1998).
11 Thereafter, appellant filed the present Section 2255
12 proceeding, claiming various instances of ineffective
13 assistance of both trial and appellate counsel.1 In his
14 Section 2255 motion, appellant again raised trial counsel’s
15 concession in the opening statement, counsel’s failure to
16 present an agreed upon defense, and counsel’s failure to file
17 certain pre-trial motions. All of these claims were disposed
18 of on direct appeal. However, appellant also raised a host of
19 other allegations of ineffective assistance not raised on
20 direct appeal. Specifically, appellant claimed for the first
21 time that: (i) trial and appellate counsel failed to
22 communicate with him effectively due to his Cantonese language;
1
The certificate of appealability covers only the claims relating to
trial counsel. Therefore, the claims relating to appellate counsel are not
before us.
4
1 (ii) he had difficulty understanding any of the proceedings due
2 to the trial court interpreter’s Mandarin accent; (iii) trial
3 counsel did not examine certain evidence or file pre-trial
4 motions;2 (iv) trial counsel made false assertions in his
5 opening statement; (v) trial counsel failed to investigate any
6 defense witnesses; (vi) trial counsel failed to raise
7 jurisdictional challenges; and (vii) trial counsel failed to
8 file motions to preserve or disclose exculpatory evidence.
9 The district court denied appellant’s motion. It ruled
10 that appellant was procedurally barred from raising ineffective
11 trial counsel claims that he had raised on direct appeal. As
12 for the ineffective assistance claims raised for the first time
13 in the Section 2255 motion, the court concluded that these
14 claims were also barred because appellant did not show cause
15 for not raising the claims on direct appeal or any prejudice
16 resulting therefrom, and that appellant could not show “factual
17 innocence” that would otherwise create an exception to the
18 procedural default rule. Mui v. United States, No. 99 CV 3627,
19 2005 WL 323704 at *2-3 (E.D.N.Y. Feb. 7, 2005) (citing Bousley
20 v. United States, 523 U.S. 614, 622-23 (1998)).
21 On February 28, 2005, appellant, proceeding pro se, filed
2
While the district court recognized the failure to file pre-trial
motions as a claim raised for the first time in the habeas petition, this
claim appears to have in fact been alleged in a footnote on direct appeal.
See Appellant Mui’s Br., United States v. Mui, No. 97-1249, at 15 n.4 (2d Cir.
1998).
5
1 a motion to reconsider under Federal Rule of Civil Procedure
2 60(b), claiming, among other things, that he was entitled to
3 relief under Massaro v. United States, 538 U.S. 500 (2003). He
4 asserted that Massaro constituted an “[i]ntervening change in
5 law” that required reconsideration of his petition. The
6 district court held that Massaro was not an intervening change
7 in law and that its February 7, 2005 order was consistent with
8 Massaro.
9 Appellant then sought a certificate of appealability,
10 which we granted on the issue of whether appellant’s
11 ineffective assistance of trial counsel claims were
12 procedurally barred in light of Massaro or were actually raised
13 and resolved on direct appeal.
14 DISCUSSION
15 We review a district court’s findings of fact for clear
16 error, and its denial of a Section 2255 petition de novo. Rega
17 v. United States, 263 F.3d 18, 21 (2d Cir. 2001).
18 Prisoners may seek collateral review of a federal
19 conviction or sentence that was “imposed in violation of the
20 Constitution or laws of the United States.” 28 U.S.C. §
21 2255(a). Because collateral challenges are in “tension with
22 society’s strong interest in the finality of criminal
23 convictions, the courts have established rules that make it
24 more difficult for a defendant to upset a conviction by
25 collateral, as opposed to direct, attack.” Ciak v. United
6
1 States, 59 F.3d 296, 301 (2d Cir. 1995) abrogated on other
2 grounds by Mickens v. Taylor, 535 U.S. 162 (2002).
3 In the case of a collateral challenge based on
4 constitutional claims, two separate rules regarding claim
5 preclusion based on a prior adjudication apply. First, the so-
6 called mandate rule bars re-litigation of issues already
7 decided on direct appeal. Burrell v. United States, 467 F.3d
8 160, 165 (2d Cir. 2006); United States v. Minicone, 994 F.2d
9 86, 89 (2d Cir. 1993). The mandate rule prevents re-litigation
10 in the district court not only of matters expressly decided by
11 the appellate court, but also precludes re-litigation of issues
12 impliedly resolved by the appellate court’s mandate. See
13 United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). To
14 determine whether an issue may be reconsidered on remand, a
15 district court “should look to both the specific dictates of
16 the remand order as well as the broader spirit of the mandate.”
17 Id. (internal quotation marks omitted). Of course, the law of
18 the case rule governs re-litigation of an issue at the
19 appellate level.
20 In the context of Section 2255 proceedings involving
21 claims of ineffective assistance of counsel, we have applied
22 the mandate rule to bar claims raised and resolved on direct
23 appeal. See e.g., United States v. Pitcher, 559 F.3d 120, 124
24 (2d Cir. 2009); Riascos-Prado v. United States, 66 F.3d 30, 33
25 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46 (2d
7
1 Cir. 1993) (superseded by statute on other grounds); Schwamborn
2 v. United States, 492 F. Supp. 2d 155, 160-62 (E.D.N.Y. 2007).
3 We have also applied the mandate rule to bar ineffective
4 assistance claims in a Section 2255 proceeding when the factual
5 predicates of those claims, while not explicitly raised on
6 direct appeal, were nonetheless impliedly rejected by the
7 appellate court mandate. See Pitcher, 559 F.3d at 124
8 (rejecting petitioner’s Section 2255 ineffective assistance
9 claims because they were “premised on the same facts and rest
10 on the same legal ground” as the argument made on direct
11 appeal).
12 A second rule that applies in the Section 2255 context
13 prevents claims that could have been brought on direct appeal
14 from being raised on collateral review absent cause and
15 prejudice. See Marone v. United States, 10 F.3d 65, 67 (2d
16 Cir. 1993) (“In order to raise a claim that could have been
17 raised on direct appeal, a § 2255 petitioner must show cause
18 for failing to raise the claim at the appropriate time and
19 prejudice from the alleged error.”); Campino v. United States,
20 968 F.2d 187, 190 (2d Cir. 1992) (“[F]ailure to raise a claim
21 on direct appeal is itself a default of normal appellate
22 procedure, which a defendant can overcome only by showing cause
23 and prejudice.”).
24 However, where as here, a petitioner’s collateral
25 challenge includes claims of ineffective assistance of counsel,
8
1 there is an important exception to the procedural default rule,
2 which requires a brief discussion of recent legal history. In
3 Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) abrogated
4 by Massaro v. United States, 538 U.S. 500 (2003), we recognized
5 that “the failure to raise ineffective assistance of counsel
6 claims on direct appeal . . . should not necessarily be treated
7 similarly to a failure to raise other constitutional claims.”
8 8 F.3d at 114. In particular, we noted that: (i) if a
9 defendant is represented on direct appeal by the same attorney
10 as at trial, an ineffective assistance claim is likely to be
11 overlooked on direct appeal; and (ii) the record on direct
12 appeal may be insufficient to evaluate the merits of an
13 ineffectiveness claim. Id. To guard against these
14 contingencies, Billy-Eko applied the procedural bar to
15 ineffective assistance claims not brought on direct appeal only
16 when the defendant was represented by new appellate counsel and
17 the record was fully developed on the ineffective assistance
18 issue. Id. at 114-16.
19 However, the Supreme Court’s decision in Massaro modified
20 Billy-Eko. In Massaro, the defendant was convicted and
21 sentenced on federal racketeering charges. Massaro, 538 U.S.
22 at 502. On direct appeal, defendant, under new counsel, did
23 not argue any claim of ineffective assistance of counsel, but
24 instead waited until a subsequent Section 2255 proceeding to
25 raise this claim. Id. The district court applied our then-
9
1 existing rule under Billy-Eko and ruled that defendant’s
2 ineffective assistance claim was procedurally barred from his
3 Section 2255 proceeding. Massaro v. United States, Nos. 97
4 Civ. 2971, S1 92 CR. 529, 2000 WL 1761038, at *4 (S.D.N.Y. Nov.
5 29, 2000). We affirmed. Massaro v. United States, 27 Fed.
6 App’x. 26 (2d Cir. 2001).
7 In overturning our decision, the Supreme Court explained
8 that the Billy-Eko rule “creat[ed] the risk that defendants
9 would feel compelled to raise the issue before there has been
10 an opportunity to fully develop the factual predicate for the
11 claim.” Massaro, 538 U.S. at 504. In addition, the Court
12 expressed concern that our rule would result in ineffective
13 assistance claims that “would be raised for the first time in a
14 forum not best suited to assess those facts. . . . even if the
15 record contains some indication of deficiencies in counsel’s
16 performance.” Id. Accordingly, the Court held that a
17 petitioner may bring an ineffective assistance of counsel claim
18 whether or not the petitioner could have raised the claim on
19 direct appeal. Id. at 509.
20 Unlike the petitioner in Massaro, appellant has raised
21 claims of ineffective assistance at various stages of
22 litigation: first in his motion for new trial, then on direct
23 appeal, and now in the instant Section 2255 proceeding. While
24 some of the claims raised in his Section 2255 petition mirror
25 those raised in his motion for new trial and on direct appeal,
10
1 others do not. The district court recognized this but held
2 that all appellant’s claims regarding trial counsel were
3 procedurally barred. We disagree.
4 Although Massaro rejected our procedural default rule
5 under Billy-Eko, it did not disturb our application of the
6 mandate rule to ineffective assistance claims brought in a
7 Section 2255 proceeding. Even after Massaro, therefore, a
8 Section 2255 petitioner may not “relitigate questions which
9 were raised and considered on direct appeal,” United States v.
10 Becker, 502 F.3d 122, 127 (2d Cir. 2007), including questions
11 as to the adequacy of counsel. See Fuller v. United States,
12 398 F.3d 644, 649-50 (7th Cir. 2005). Accordingly, the
13 district court did not err in dismissing those claims that had
14 been raised and decided on direct appeal.
15 Of course, Massaro allows a habeas petitioner to raise
16 ineffective assistance claims in a Section 2255 petition even
17 though no ineffective assistance claims were raised on direct
18 appeal. Massaro, 538 U.S. at 508-09. However, Massaro does
19 not answer the question whether a Section 2255 petitioner,
20 having already raised one or more ineffective assistance claims
21 on direct appeal that were disposed of on the merits, may raise
22 additional ineffective assistance claims in a habeas
23 proceeding. Although the Court in Massaro noted that “certain
24 questions may arise in subsequent proceedings under § 2255
25 concerning the conclusiveness of determinations made on the
11
1 ineffective-assistance claims raised on direct appeal,” 538
2 U.S. at 508, it declined to rule on the preclusive effect of
3 ineffective assistance claims decided on direct appeal as to
4 new such claims raised in subsequent collateral proceedings.
5 The government relies heavily on the Seventh Circuit’s
6 decision in Peoples v. United States, 403 F.3d 844 (7th Cir.
7 2005), in which the court stated that all of a petitioner’s
8 claims of ineffective counsel were a “single ground for relief
9 no matter how many failings the lawyer may have displayed.”
10 403 F.3d at 848; but see Fuller, 398 F.3d at 649 (treating
11 defendant’s ineffective assistance claims regarding trial
12 counsel’s performance at sentencing as a separable “prong” of
13 defendant’s ineffective assistance claim). Thus, following
14 Peoples, the government argues, a defendant must choose between
15 bringing all ineffective assistance claims on direct appeal or
16 holding them all for a Section 2255 proceeding.
17 We decline to adopt such a rule. Preclusion rules are
18 generally designed to foster efficiency by imposing finality
19 (with some exceptions) after a party has had a full and fair
20 opportunity to obtain an adjudication of an issue. Acosta v.
21 Artuz, 221 F.3d 117, 122-23 (2d Cir. 2000). However, a single-
22 proceeding rule in the present context furthers neither
23 efficiency nor finality.
24 We recognize that, where a defendant alleges varying
25 factual predicates to support identical legal claims relating
12
1 to a particular event, all claims constitute a single “ground”
2 for relief for purposes of applying the mandate rule in
3 collateral proceedings. See Sanders v. United States, 373 U.S.
4 1, 16 (1963) (“[I]dentical grounds may often be proved by
5 different factual allegations.”). Thus, for example, a
6 criminal defendant who “makes and loses a contention that a
7 confession is involuntary because of physical coercion cannot
8 start over by adding an allegation of psychological coercion.”
9 Peoples, 403 F.3d at 848. However, the involuntary confession
10 example involves a single event –- a confession –- giving rise
11 to a discrete issue –- the confession’s admissibility.
12 Accordingly, both the need for efficiency and finality call for
13 all relevant legal and factual theories relating to the
14 confession’s admissibility to be raised in a single proceeding.
15 With regard to ineffective assistance claims, it makes
16 sense to require all legal or factual arguments to be made in
17 the case of a particular strategy, action, or inaction of a
18 lawyer alleged to constitute ineffective assistance. However,
19 little is served by a rule that causes an adjudication of a
20 single ineffective assistance claim to preclude a later resort
21 to the Sixth Amendment involving a different strategy, action,
22 or inaction of counsel.
23 While all ineffective assistance claims rely upon the same
24 provision of the Constitution, the Sixth Amendment, a single
25 prosecution can give rise to ineffective assistance claims
13
1 arising at every stage of the case, based on different events,
2 and involving different counsel. Plea bargaining, pre-trial
3 investigation, trial preparation, pre-trial motions or the lack
4 thereof, advising the defendant as to his or her rights,
5 opening or closing arguments, presentation of evidence or
6 omission of evidence, objections to prosecution evidence or
7 lack thereof, testimony by the defendant or lack thereof, not
8 taking an appeal, and the arguments made on appeal are among
9 the multitude of events that may give rise to ineffective
10 assistance claims. Given Massaro, it simply cannot be said
11 that the single common component of a citation to the Sixth
12 Amendment commands that all ineffective assistance claims be
13 raised in a single proceeding.
14 Such a rule would produce little gain in efficiency.
15 Multiple adjudications of identical issues are already
16 prevented by the mandate rule. That rule bars the raising in a
17 habeas proceeding of a claim when the events underlying the
18 claim were the same as those underlying a claim raised and
19 decided on the merits on direct appeal. Where different events
20 in the criminal proceeding give rise to ineffective assistance
21 claims, however, the time spent in disposing of each is not
22 measurably reduced by hearing the claims in a single
14
1 proceeding.3 For example, no measurable efficiencies would be
2 yielded by a rule directing that once a claim that can be
3 decided on the record is raised and resolved on the merits on
4 direct appeal, all other claims that can be decided on the
5 record must also be raised. Deciding whether a claim could
6 have been raised and decided on the record on direct appeal
7 injects another issue to be litigated.4 Resolving that issue
8 may be difficult and may result in great delays caused by
9 appeals and remands. Also, defendants would be encouraged to
10 seek unnecessary evidentiary hearings in order to render claims
11 eligible for a Section 2255 adjudication.
12 We believe it much easier simply to decide the merits of
13 an ineffective assistance claim when raised because, while the
3
We need not, and do not, decide whether the mandate rule would allow an
ineffective assistance claim disposed of on direct appeal under the second
prong of Strickland -- no reasonable likelihood of affecting the verdict even
assuming arguendo that it involves a departure from professional standard –-
to be reconsidered where it is argued that the cumulative effect of various
instances of such departures affected the verdict.
4
The Tenth Circuit has noticed a similar inefficiency in restricting
ineffective assistance claims to a single procedure:
[I]f procedural bar is raised as a defense, it
embroils us in nonmerits issues which are as time
consuming as if we went straight to the merits, and
infinitely less productive. Applying, as we must, the
cause and prejudice standard for avoiding the
procedural default, we must first examine all the
reasons advanced as cause, and write on the subtext
after revisiting everything that happened on direct
appeal, and then some. In conjunction, or as an
alternative, we must examine prejudice, which is
nothing less than evaluating the merits to determine
whether we should evaluate the merits. Nothing
productive is accomplished.
United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995).
15
1 claims invoke critical constitutional principles and are to be
2 taken very seriously, they are quite often the law’s equivalent
3 of “buyer’s remorse” or “Monday morning quarterbacking” and can
4 be quickly resolved. Decisions by criminal defense counsel are
5 often choices among bad alternatives that are only rarely shown
6 to be: (1) errors so serious that the defendant was deprived of
7 reasonably competent representation, (2) which cause prejudice
8 to the defense. Strickland v. Washington, 466 U.S. 688, 687-91
9 (1984). Simply reaching the merits of such a claim rather than
10 first considering the failure to raise it on direct appeal is
11 likely to further both efficiency and finality and avoid
12 miscarriages of justice.
13 In fact, a single proceeding rule would probably increase
14 the time and effort needed to resolve ineffective assistance
15 claims with no gain in the administration of justice. Because
16 Massaro clearly allows such a claim to be raised on a Section
17 2255 motion where the record on direct appeal is not sufficient
18 to permit appellate review of that issue, the only effect of a
19 single proceeding rule would be to discourage the raising of
20 any ineffective assistance claim on direct appeal, even when
21 the record is sufficient for that adjudication. But most
22 ineffective assistance claims relating to trial counsel are
23 such that if appellate counsel raised such an issue on direct
24 appeal and thereby precluded later such claims, the act of
25 raising the preclusion-causing claim would itself give rise to
16
1 a claim of ineffective assistance of appellate counsel. This
2 claim would ordinarily require that the supposedly barred
3 claims be addressed on the merits to determine the professional
4 worthiness and effect of the preclusion-causing act. A single
5 proceeding rule thus furthers neither efficiency nor finality.
6 We conclude, therefore, that the only barrier to raising
7 ineffective assistance claims in a Section 2255 proceeding
8 after raising such claims on direct appeal is the mandate rule,
9 i.e., strategies, actions, or inactions of counsel that gave
10 rise to an ineffective assistance claim adjudicated on the
11 merits on direct appeal may not be the basis for another
12 ineffective assistance claim in a Section 2255 proceeding.
13 We affirm the rejection of the claim regarding trial
14 counsel’s concession in his opening statement, failure to
15 present an agreed-upon defense, and failure to file certain
16 pre-trial motions. We vacate the judgment in all other
17 respects and remand for proceedings consistent with this
18 opinion.
17