Ellis v. United States

United States Court of Appeals
For the First Circuit

Nos. 01-2055
01-2067

EDWARD B. ELLIS,

Petitioner, Appellee,

v.

UNITED STATES OF AMERICA,

Respondent, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]
[Hon. Frank H. Freedman, Senior U.S. District Judge]

Before

Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Daniel S. Goodman, Appellate Section, Criminal Division,
United States Department of Justice, with whom Michael J. Sullivan,
United States Attorney, was on brief, for appellant.
John G.S. Flym, by appointment of the court, for appellee.

December 20, 2002
 SELYA, Circuit Judge. These appeals, which have their

genesis in an effort by the petitioner, Edward B. Ellis, to mount

a collateral attack on his convictions for interstate

transportation of a minor with intent to engage in criminal sexual

activity, present challenging legal questions complicated by a

strange procedural twist. That complication arose after the

original trial judge denied Ellis's section 2255 petition in part

and then recused himself as to the unadjudicated portion of the

petition. A limited order of reassignment followed. The

transferee judge, acting partly on the basis of a previously

unadjudicated claim and partly on the basis of a previously

adjudicated claim, proceeded to grant the petition.

The hybrid nature of this decision requires that we

review its component parts separately. The first ground of

decision involves the trial judge's handling of a jury note. We

agree with the transferee judge's finding of error — the original

trial judge used an incorrect procedure in dealing with the jury

note — but we hold that this error was harmless under the

circumstances. The second ground of decision involves whether the

special seating arrangement afforded to the victim during her trial

testimony offended the Confrontation Clause. We hold that under

the law of the case doctrine the transferee judge should not have

revisited the issue, but, rather, should have left intact the

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original judge's finding that no constitutional violation had

occurred.

In light of these holdings, we discern no principled

basis for habeas relief. Consequently, we reverse the order

granting the petitioner a new trial and remand the case with

directions to enter judgment for the United States.

I. BACKGROUND

In 1990, a jury convicted the petitioner on three counts

of interstate transportation of a minor with intent to engage in

criminal sexual activity. See 18 U.S.C. § 2423. The district

court imposed a twenty-five year incarcerative term. On direct

appeal, we affirmed the convictions and sentence. United States v.

Ellis, 935 F.2d 385 (1st Cir. 1991). We suggest that those who

hunger for a more exegetic account of the crimes of conviction

consult that opinion.

For present purposes, it suffices to say that the

petitioner was found guilty of repeatedly abusing (in three

different states) the youthful daughter of his live-in girlfriend.

Id. at 388-89. The evidence adduced against him included the

testimony of his victim, E.D. (who was nine years old at the time

of trial). In a preliminary discussion, it was suggested, without

objection from the petitioner's counsel (Attorney Goldings), that

E.D. testify while seated "in such a way that she does not look at

[the petitioner]."

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 Notwithstanding his initial acquiescence, Goldings

objected to the special seating arrangement when E.D. was called as

a witness. Judge Freedman overruled the objection. During her

testimony, E.D. sat in a chair facing the jurors but facing away

from the petitioner. The parties disagree both as to the exact

angle between E.D. and the petitioner and as to how much of E.D.'s

face the petitioner could see during her testimony. It is clear,

however, that E.D., while testifying, could only have made eye

contact with the petitioner by looking over her right shoulder. It

is equally clear that she did not avail herself of this

opportunity.

On direct appeal, the petitioner unsuccessfully

challenged the sufficiency of the evidence, various evidentiary

rulings, the jury instructions, and the length of the sentence.

Id. at 389-97. He did not advance any claim related either to the

handling of the jury note (discussed infra) or to the special

seating arrangement.

In 1997, the petitioner moved pro se to vacate his

sentence. See 28 U.S.C. § 2255. In that petition, he maintained

that Goldings had rendered ineffective assistance of counsel

(including a failure to present certain exculpatory evidence and

impedance of his right to testify); charged Goldings with having

concealed a conflict of interest; lodged a Confrontation Clause

challenge to the special seating arrangement; complained of

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prosecutorial misbehavior; and accused Judge Freedman of judicial

bias and misconduct. He also filed two motions: one seeking the

appointment of counsel and the other asking Judge Freedman to step

aside.

Judge Freedman denied the motion for appointment of

counsel out of hand. As for the recusal motion, he did not

disqualify himself generally, but, rather, proceeded to resolve

four of the petitioner's five claims. Specifically, he denied the

cognate ineffective assistance of counsel claims insofar as those

claims touched upon the failure to present evidence and the

supposed interference with the petitioner's right to testify; found

no cognizable conflict of interest; and ruled that the assertions

of prosecutorial misconduct were overblown. Given the present

posture of the case, we need not discuss any of these rulings.

Judge Freedman's disposition of the Confrontation Clause

claim requires some elaboration. For purposes of that analysis,

Judge Freedman accepted, without deciding, that Goldings's failure

to pursue the claim on direct appeal established ineffective

assistance of counsel (and, therefore, established "cause"

necessary to overcome the applicable procedural bar). Judge

Freedman then discussed the relevant Supreme Court precedents and

explained that, as the trial judge, he had made an individualized

determination that a special accommodation was needed because E.D.

would have to testify regarding the "heinous acts" of sexual abuse

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that she had endured at the hands of someone who lived with her and

who had threatened to kill her and her family members. Since these

facts supported the use of the special seating arrangement, Judge

Freedman concluded that an appeal from the court's decision to

employ the special seating arrangement would have been futile, and,

therefore, that Goldings's failure to challenge the arrangement on

appeal was harmless. Accordingly, he denied both the Confrontation

Clause claim and the related ineffective assistance of counsel

claim. See Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993)

(outlining applicable prejudice requirement); Strickland v.

Washington, 466 U.S. 668, 694 (1984) (same).

Having adjudicated these four sets of claims, Judge

Freedman stopped short of resolving the whole of the petition.

Instead, he recused himself as to the fifth claim (the accusation

of judicial bias and misconduct). See Murchu v. United States, 926

F.2d 50, 53 n.3 (1st Cir. 1991) (suggesting "that the district

judge should have recused himself as to those portions of [a]

section 2255 motion which alleged judicial misconduct"). Instead,

he asked the chief judge to reassign the case to a new judge to

"consider and render a decision on the balance of the petitioner's

claims and enter judgment accordingly on those claims as well as

those addressed by this court in its Memorandum and Order entered

on March 2, 1998."

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 The chief judge subsequently assigned the case to Judge

Keeton. Judge Keeton appointed counsel to represent the petitioner

and gave both parties leave to file supplementary memoranda on the

allegations of judicial bias and misconduct concerning (1) the

court's decision to allow a special seating arrangement; (2)

certain comments and gestures supposedly made by Judge Freedman

during E.D.'s testimony; and (3) Judge Freedman's handling of a

note from the deliberating jury.

Following a hearing, Judge Keeton unequivocally rejected

the petitioner's claims of judicial bias (finding, inter alia, that

bias played no role in the establishment of the special seating

arrangement, and that Judge Freedman had made no untoward comments

or gestures during the trial). He concluded, however, that Judge

Freedman's exchange of notes with the jury deprived the petitioner

of the assistance of counsel at a critical stage of the case (and,

thus, violated the Sixth Amendment).1 Judge Keeton then opted to

revisit the petitioner's already adjudicated Confrontation Clause

claim. Deeming his predecessor's findings inadequate and the

petitioner's view of E.D. during trial too constrained, Judge

Keeton reversed the earlier ruling and declared unconstitutional

the use of the special seating arrangement. Based on this pair of

1
Although the handling of the jury note reflects error, not
misconduct, this is an essentially semantic difference for purposes
of the case at bar. What matters is that, under the limited order
of reassignment, the jury note claim was properly within Judge
Keeton's adjudicatory purview.

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conclusions, Judge Keeton granted the section 2255 petition, set

aside the convictions, and ordered a new trial.

The government thereupon filed these appeals. We treat

them as one: they have been consolidated, and it would serve no

useful purpose to dwell upon the technical considerations that

prompted the government to file two appeals instead of one.

II. DISCUSSION

Under 28 U.S.C. § 2255, a convict in federal custody may

ask the sentencing court to vacate, set aside, or correct his

sentence on the ground that the court had imposed the sentence in

violation of federal law (including, of course, the Constitution).

Brackett v. United States, 270 F.3d 60, 63 (1st Cir. 2001). In

essence, then, section 2255 is a surrogate for the historic writ of

habeas corpus. See Davis v. United States, 417 U.S. 333, 344

(1974).

When an appeal is taken from an order under 28 U.S.C. §

2255, we examine the district court's legal conclusions de novo and

scrutinize its findings of fact for clear error. Familia-Consoro

v. United States, 160 F.3d 761, 764-65 (1st Cir. 1998). When the

district court dismisses claims without holding an evidentiary

hearing, we take as true the sworn allegations of fact set forth in

the petition unless those allegations are merely conclusory,

contradicted by the record, or inherently incredible. Mack v.

-8-
United States, 635 F.2d 20, 26-27 (1st Cir. 1980); see also United

States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

Only the jury note and seating arrangement claims are in

issue here. The petitioner has neither prosecuted a cross-appeal

nor otherwise challenged Judge Freedman's disposition of his other

section 2255 claims. This narrowed scope of review, together with

the absence of a cross-appeal, dictates that we focus on the

rulings of the successor judge. We proceed in two steps. First,

we discuss Judge Keeton's assessment of the jury note claim. We

then consider his assessment of the Confrontation Clause claim

(concentrating, for reasons that will soon become apparent, on his

authority to revisit Judge Freedman's earlier adjudication of that

claim).

We preface our analysis with an acknowledgment that one

court has flatly rejected the concept of partial recusal. See

United States v. Feldman, 983 F.2d 144, 145 (9th Cir. 1992)

("[W]hen a judge determines that recusal is appropriate it is not

within his discretion to recuse by subject matter or only as to

certain issues and not others."). The majority view, however,

supports the availability of such a case-management device. See,

e.g., Pashaian v. Eccelston Prop., Ltd., 88 F.3d 77, 84-85 (2d Cir.

1996); United States v. Kimberlin, 781 F.2d 1247, 1258-59 (7th Cir.

1985). While we have not spoken directly to the subject, we

indicated our approval of the praxis in Murchu, 926 F.2d at 53 n.3,

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56-57. See also Warner v. Rossignol, 538 F.2d 910, 914 n.6 (1st

Cir. 1976) (finding no loss of capacity to rule on retained issues

even after recusal from other issues). Today, we make that

approval explicit: we hold that a judge may, in an appropriate

case, decide certain issues and recuse himself or herself as to

others. This was an appropriate case, and we therefore hold that

Judge Freedman's partial recusal was a valid exercise of judicial

authority. Under the circumstances, it constituted a sound method

of dealing with the prickly problem of balancing the demands of

section 2255 — a statute that evinces a strong preference for post-

conviction review by the judge who presided at the defendant's

trial — with the demands of the recusal statute, 28 U.S.C. §

455(a). We add, moreover, that the chief judge responded

appropriately to this partial recusal by entering a limited order

of reassignment.

Although limited orders of reassignment may — as in this

case — be necessary and proper, they place unaccustomed restraints

on the transferee judge. When a court assumes jurisdiction for a

limited purpose, it ordinarily should confine itself to that

purpose. Cf. United States v. Erwin, 155 F.3d 818, 825 (6th Cir.

1998) (holding that a magistrate judge may not overstep the bounds

of an order of reference); King v. Ionization Int'l, Inc., 825 F.2d

1180, 1185-86 (7th Cir. 1987) (same). Observing the restrictions

implied in such an order promotes the efficient operation of the

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courts and facilitates the winnowing of issues throughout

successive stages of litigation. See Erwin, 155 F.3d at 825. By

the same token, courts that carefully observe the boundaries of

their assignments help stabilize the decisionmaking process, assure

the predictability of results, and nourish proper working

relationships between judicial units. United States v. Rivera-

Martinez, 931 F.2d 148, 151 (1st Cir. 1991). This case illustrates

the wisdom of adherence to these prudential policies.

A. The Jury Note.

Judge Keeton's first ground of decision arises out of the

petitioner's allegation that, three and one-half hours after jury

deliberations had begun, the jurors sent Judge Freedman a note

asking: "Does it have to be unanimous to be not guilty on a [sic]

indictment if the vote come [sic] out uneven?" Without consulting

either side, the judge sent back a written response stating: "The

verdict on all counts must be unanimous. All 12 jur[ors] must

agree." Approximately thirty minutes later, the jury found the

petitioner guilty on all charges.

Although Judge Keeton discerned no evidence of judicial

bias or partiality in Judge Freedman's conduct, he concluded that

his predecessor had erred in handling the jury note and that the ex

parte exchange between judge and jury had deprived the petitioner

of his Sixth Amendment right to the assistance of counsel at a

critical stage in the proceedings. He found this error

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prejudicial, stating: "Given the timing and substance of the ex

parte communication, I conclude that it is likely that the trial

judge's response had substantial and injurious effect or influence

in determining the jury's verdict." In this regard, he theorized

that the jury could have misunderstood the comment that "[t]he

verdict on all counts must be unanimous" to preclude a partial

verdict, an ambiguity that consultation with counsel could have

prevented.

We agree with Judge Keeton that Judge Freedman erred by

failing to consult the parties before responding substantively to

the deliberating jury's request for a supplementary instruction.

See Rogers v. United States, 422 U.S. 35, 38-39 (1975); United

States v. Parent, 954 F.2d 23, 25 (1st Cir. 1992). The incidence

of error, however, does not end our inquiry. Because the

petitioner did not raise any challenge to this supplemental

instruction in his direct appeal, the claim is procedurally

defaulted. It is, therefore, unreviewable on collateral attack

unless the petitioner can show (1) cause sufficient to excuse his

failure to raise it on direct appeal, and (2) actual prejudice.

See Bousley v. United States, 523 U.S. 614, 622 (1998); Derman v.

United States, 298 F.3d 34, 45 (1st Cir. 2002).2

2
There is arguably a further exception for evidence showing
actual innocence, see Bousley, 523 U.S. at 622, but the petitioner
does not invoke that exception here.

-12-
 Judge Keeton found cause sufficient to excuse the

procedural default. We assume, for argument's sake, the

supportability of that finding. After all, the notes were not

indexed on the district court's docket sheet, and the petitioner

says that he did not learn of them until 1995 (when a friend

discovered them in the case file). Thus, this ground of appeal

arguably was unavailable to the petitioner at the time of his

direct appeal. Cf. Satterwhite v. Texas, 486 U.S. 249, 255 (1988)

(finding that mere placement of ex parte orders in court file does

not yield constructive notice satisfying the Sixth Amendment).

The question reduces, therefore, to whether any

cognizable prejudice resulted from the error. Quoting Brecht v.

Abrahamson, 507 U.S. 619, 637-38 (1993), Judge Keeton described the

test as whether the error exerted a "substantial and injurious

effect or influence in determining the jury's verdict." The

petitioner resists this description; citing United States v.

Cronic, 466 U.S. 648, 659 (1984), he argues that such errors can

never be harmless because they necessarily involve the denial of

counsel at a critical stage of a criminal trial. This argument

lacks force.

The Supreme Court recently has emphasized how seldom

circumstances arise that justify a court in presuming prejudice

(and, concomitantly, in forgoing particularized inquiry into

whether a denial of counsel undermined the reliability of a

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judgment). See Mickens v. Taylor, 122 S. Ct. 1237, 1241 (2002);

Bell v. Cone, 122 S. Ct. 1843, 1850-51 (2002). We, too, have

stressed this point. See, e.g., Scarpa v. Dubois, 38 F.3d 1, 12,

15 (1st Cir. 1994). The only Sixth Amendment violations that fit

within this narrowly circumscribed class are those that are

pervasive in nature, permeating the entire proceeding. See Roe v.

Flores-Ortega, 528 U.S. 470, 483 (2000) (collecting cases). In

other words, the doctrine of per se prejudice applies to "a

wholesale denial of counsel," whereas conventional harmless error

analysis applies to a "short-term, localized denial of counsel."

Curtis v. Duval, 124 F.3d 1, 5-6 (1st Cir. 1997).

Here, the petitioner does not posit that he lacked the

effective assistance of counsel throughout the proceedings but only

at a specific point in the trial (when the jury sent the note in

question and the judge responded). This is a difference "not of

degree but of kind" in terms of whether the court's error can be

deemed per se prejudicial. Cone, 122 S. Ct. at 1851. We conclude,

therefore, that prejudice cannot be presumed on the basis of the

momentary lapse that occurred in this case.3 Cf. Rushen v. Spain,

3
The petitioner's argument is not bolstered by his reliance on
French v. Jones, 282 F.3d 893, 901 (6th Cir. 2002) (affirming the
grant of a state prisoner's habeas petition on the ground that the
state courts "unreasonably applied harmless error analysis to
French's deprivation of counsel during the supplemental
instruction"). The Supreme Court recently vacated the Sixth
Circuit's decision in French and remanded the case "for further
consideration in light of Bell v. Cone[]." Jones v. French, 122 S.
Ct. 2324 (2002).

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464 U.S. 114, 117-19 & n.2 (1983) (per curiam) (holding that an ex

parte discussion between judge and juror can be harmless error);

Coleman v. Alabama, 399 U.S. 1, 10-11 (1970) (remanding for

harmlessness determination when court had improperly denied

defendant counsel at preliminary hearing).

Clarifying that there is no presumption of prejudice does

not doom the petitioner's quest. It simply means that the trial

court's mishandling of the jury note does not lead automatically to

the vacation of his convictions. We still must decide whether the

error affected his substantial rights.

Although we have left open the proper standard for

gauging harmlessness when such a claim of error is raised on direct

appeal, see, e.g., Parent, 954 F.2d at 25 n.5, the instant claim

not only arises on collateral attack but also is procedurally

defaulted. In such circumstances, it is settled in this circuit

that a reviewing court must apply the "actual prejudice" standard

delineated in Brecht, 507 U.S. at 637-38. See Sustache-Rivera v.

United States, 221 F.3d 8, 18 (1st Cir. 2000); Curtis, 124 F.3d at

6-7.4 This standard requires us to ask whether the error had a

4
To be sure, one court has used the more rigorous "harmless
beyond a reasonable doubt" standard in circumstances similar to
those presented in this case. See Starr v. Lockhart, 23 F.3d 1280,
1291-92 (8th Cir. 1994). We reject that view as contrary both to
circuit precedent and to the overwhelming weight of authority
elsewhere. See, e.g., Bains v. Cambra, 204 F.3d 964, 976-77 (9th
Cir. 2000) (collecting cases); Lyons v. Stovall, 188 F.3d 327, 335
(6th Cir. 1999); Hogue v. Johnson, 131 F.3d 466, 498-99 (5th Cir.
1997) (collecting cases).

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substantial and injurious effect or influence on the outcome of the

proceedings. Brecht, 507 U.S. at 637-38. In answering that query,

the burden of proof as to harmlessness falls on the government.

O'Neal v. McAninch, 513 U.S. 432, 438-44 (1995).

Having established the ground rules, we return to the

particulars of the case at hand. Judge Keeton identified the

correct test for gauging prejudice in this type of situation. In

our view, however, he misapplied the test in hypothesizing that the

phrase, "The verdict on all counts must be unanimous," was "subject

to interpretation" in an incorrect way (i.e., that the jurors must

reach unanimous agreement on all counts combined, rather than on

each count separately) and that it was "likely" to have influenced

the verdict. When the Brecht standard is properly applied in the

context of this case, the record reflects that the government has

carried the devoir of persuasion.

The impetus for the standard articulated in Brecht is

that the bar should be held fairly high on post-conviction review.

Such proceedings are meant to afford relief only to those who have

been grievously wronged, not to those who show merely a possibility

— even a reasonable possibility — of harm. See Brecht, 507 U.S. at

637; see also Singleton v. United States, 26 F.3d 233, 237 n.9 (1st

Cir. 1994). This applies with even greater force to procedurally

defaulted claims raised for the first time on collateral review.

See United States v. Frady, 456 U.S. 152, 166 (1982) (requiring

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such claims to clear a significantly higher hurdle on collateral

attack than on direct review); Knight v. United States, 37 F.3d

769, 772-73 (1st Cir. 1994) (same).

The bottom line is that a court cannot grant collateral

relief on "mere speculation that the defendant was prejudiced by

trial error; the court must find that the defendant was actually

prejudiced by the error." Calderon v. Coleman, 525 U.S. 141, 146

(1998). The error identified by Judge Keeton does not pass through

this screen; our review of the instant record convinces us that it

is highly improbable that the ex parte supplemental instruction had

any effect on the verdict.

A jury instruction cannot be read in a vacuum, but,

rather, must be taken in light of the charge as a whole. See Cupp

v. Naughten, 414 U.S. 141, 146-47 (1973); United States v. Cintolo,

818 F.2d 980, 1003 (1st Cir. 1987). In this instance, the jurors

previously had received explicit instruction that "[i]t's possible

that you could find the government has proved its case as to all

three counts, failed to prove it as to all three counts, or proved

it as to one or more counts and not on the others." In framing the

question to which Judge Freedman responded, the jurors asked, "Does

it have to be unanimous to be not guilty on a indictment . . . ?"

This use of the article "a" indicates that they understood the

court's earlier instruction. Because the context in which the

jurors asked for supplemental instructions strongly suggests that

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they understood the independence of each count, we deem it highly

probable that the jury interpreted the trial judge's relatively

simple reply in the manner in which it was intended: as an

admonition that, to render a verdict on any count, the jury must be

unanimous as to that count. See Boyde v. California, 494 U.S. 370,

381-82 (1990) (employing similar analysis on direct review);

Curtis, 124 F.3d at 8 (using comparable inquiry to assess allegedly

improper jury instruction).

Nor does the timing of the verdict counsel persuasively

in favor of a different conclusion. In some cases, a time line

permits a reasonable inference that the error "had a causal effect

on a verdict returned within minutes of the court's action."

Curtis, 124 F.3d at 7 n.2. Here, however, we do not think that

much weight can be placed on the fact that the jury returned its

verdict some thirty-five minutes after Judge Freedman's response.

We must consider the timing in the gross and scope of the entire

record. See Derman, 298 F.3d at 46. The record reveals that the

jury deliberated for only four hours in total. In that relatively

short period, this was the deliberating jury's third note; in other

words, it asked for, and received, two other responses during that

interval. When put in this context, a third question more than

half an hour before reaching a verdict does not strike us as

significant.

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 We are fortified in our conclusion that the error was

benign by the strength of the prosecution's case. The government

adduced more than adequate evidence to support the jury's verdict

on all three counts. As we stated on direct review, the evidence

of the petitioner's guilt "was overwhelming." Ellis, 935 F.2d at

390. Any suspicion that the supplemental instruction improperly

drove the verdict is therefore highly implausible. See United

States v. Bullard, 37 F.3d 765, 768 (1st Cir. 1994); Rogers v.

Carver, 833 F.2d 379, 385 n.1 (1st Cir. 1987).

To sum up, the petitioner's argument that the

supplemental instruction tipped the scales is woven from gossamer

strands of speculation and surmise. Notwithstanding the error, we

remain confident of the integrity of the verdict — especially in

view of the apparent clarity of the charge as a whole and the

robust evidence of the petitioner's guilt. Consequently, we find

no actual prejudice. See Calderon, 525 U.S. at 146; Brecht, 507

U.S. at 637. It follows that Judge Keeton's first ground of

decision does not justify habeas relief.

B. The Confrontation Clause Claim.

While the resolution of the jury note claim was plainly

within the transferee judge's adjudicatory purview, the

Confrontation Clause claim arguably was not. We briefly

recapitulate the relevant facts (which are uncontradicted). After

resolving the majority of the petitioner's section 2255 claims

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(including the Confrontation Clause claim), Judge Freedman granted

in part the petitioner's motion to recuse and transferred the case

so that another judge could hear and determine the fifth claim for

relief (alleging judicial bias and misconduct). The successor

judge resolved all the transferred claims against the petitioner

(save only for the jury note claim, discussed supra). Yet,

notwithstanding the limited scope of the transfer order, he

ventured into other areas. Once there, he reconsidered, and

overruled, his predecessor's prior adjudication of the

Confrontation Clause claim. The government says that Judge Keeton

exceeded his authority in revisiting that claim. The petitioner

demurs.

This conundrum implicates the law of the case doctrine.

This doctrine has two branches. One branch involves the so-called

mandate rule (which, with only a few exceptions, forbids a lower

court from relitigating issues that previously were decided — or

could have been decided — by a higher court at an earlier stage of

the same case). See, e.g., United States v. Bell, 988 F.2d 247,

250 (1st Cir. 1993); Rivera-Martinez, 931 F.2d at 150. The other

branch, applicable here, is somewhat more flexible. It provides

that "unless corrected by an appellate tribunal, a legal decision

made at one stage of a civil or criminal case constitutes the law

of the case throughout the pendency of the litigation." Flibotte

v. Pa. Truck Lines, Inc., 131 F.3d 21, 25 (1st Cir. 1997). This

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means that a court ordinarily ought to respect and follow its own

rulings, made earlier in the same case. See Arizona v. California,

460 U.S. 605, 618 (1983) (explaining that "when a court decides

upon a rule of law, that decision should continue to govern the

same issues in subsequent stages in the same case"). This branch

of the doctrine frowns upon, but does not altogether prohibit,

reconsideration of orders within a single proceeding by a successor

judge. E.g., Flibotte, 131 F.3d at 25. This appeal requires us to

trace the contours of the exceptions that apply to this second

branch of the law of the case doctrine.

The presumption, of course, is that a successor judge

should respect the law of the case. The orderly functioning of the

judicial process requires that judges of coordinate jurisdiction

honor one another's orders and revisit them only in special

circumstances. See Stevenson v. Four Winds Travel, Inc., 462 F.2d

899, 904-05 (5th Cir. 1972) (collecting cases); TCF Film Corp. v.

Gourley, 240 F.2d 711, 713-14 & n.2 (3d Cir. 1957) (collecting

cases); 18B Charles A. Wright et al., Federal Practice and

Procedure § 4478, at 670 (2d ed. 2002). This limitation is

anchored in a sea of salutary policies. See generally Joan

Steinman, Law of the Case: A Judicial Puzzle in Consolidated and

Transferred Cases and in Multidistrict Litigation, 135 U. Pa. L.

Rev. 595, 602-05 (1987). For one thing, the law of the case

doctrine affords litigants a high degree of certainty as to what

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claims are — and are not — still open for adjudication. See Best

v. Shell Oil Co., 107 F.3d 544, 546 (7th Cir. 1997); see also

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816-17

(1988). For another thing, it furthers the abiding interest shared

by both litigants and the public in finality and repose. See

Wyoming v. Oklahoma, 502 U.S. 437, 446 (1992). Third, it promotes

efficiency; a party should be allowed his day in court, but going

beyond that point deprives others of their days in court, squanders

judicial resources, and breeds undue delay. See Christianson, 486

U.S. at 819; Rivera-Martinez, 931 F.2d at 151. Fourth, the

doctrine increases confidence in the adjudicatory process:

reconsideration of previously litigated issues, absent strong

justification, spawns inconsistency and threatens the reputation of

the judicial system. See Geoffrey C. Hazard, Jr., Preclusion as to

Issues of Law: The Legal System's Interest, 70 Iowa L. Rev. 81, 88

(1984) (collecting cases). Finally, judges who too liberally

second-guess their co-equals effectively usurp the appellate

function and embolden litigants to engage in judge-shopping and

similar forms of arbitrage. See Erwin, 155 F.3d at 825; see also

White v. Higgins, 116 F.2d 312, 317-18 (1st Cir. 1940); 18B Wright

et al., supra § 4478.1, at 695.

These concerns are heightened in the federal habeas

context. In the first place, the presumption against

reconsideration is even stronger when the challenge arises on

-22-
collateral attack of a criminal conviction (and, therefore,

implicates society's reasonable reliance on the finality of a

criminal conviction). See Strickland, 466 U.S. at 697 (observing

that "the presumption that a criminal judgment is final is at its

strongest in collateral attacks"). In the second place, a section

2255 petition ordinarily must be brought before the trial judge.

See 28 U.S.C. § 2255; see also Gregory v. United States, 585 F.2d

548, 550 (1st Cir. 1978). This is not an idle gesture, for that

judge has a unique knowledge of what transpired at trial and of

what effect errors may have had. See McGill, 11 F.3d at 225;

Panico v. United States, 412 F.2d 1151, 1155-56 (2d Cir. 1969); see

also Rule 4(a), Rules Governing Sec. 2255, advisory committee's

note. For these reasons, a successor judge should be particularly

hesitant to revisit portions of a section 2255 petition already

adjudicated before the original trial judge. This is especially so

in a case — like this one — in which the successor judge is

operating under a limited transfer order.

Even so, there are times when the law of the case may

give way. The question of what circumstances justify revisiting a

ruling previously made in the same proceeding by a judge of

coordinate jurisdiction is case-specific. Christianson, 486 U.S.

at 817; TCF Film Corp., 240 F.2d at 714. The resolution of that

question is guided, however, by certain general principles. We

enumerate those principles.

-23-
 First, reconsideration is proper if the initial ruling

was made on an inadequate record or was designed to be preliminary

or tentative. E.g., Peterson v. Lindner, 765 F.2d 698, 704 (7th

Cir. 1985); cf. Times Mirror Magazines, Inc. v. Las Vegas Sports

News, L.L.C., 212 F.3d 157, 160 (3d Cir. 2000) (emphasizing

district court’s authority to reconsider matters previously decided

on preliminary injunction). Second, reconsideration may be

warranted if there has been a material change in controlling law.

E.g., Tracey v. United States, 739 F.2d 679, 682 (1st Cir. 1984);

Crane Co. v. Am. Standard, Inc., 603 F.2d 244, 248 (2d Cir. 1979).

Third, reconsideration may be undertaken if newly discovered

evidence bears on the question. E.g., Fisher v. Trainor, 242 F.3d

24, 29 n.5 (1st Cir. 2001); Pit River Home & Agric. Coop. Ass'n v.

United States, 30 F.3d 1088, 1096 (9th Cir. 1994). Lastly,

reconsideration may be appropriate to avoid manifest injustice.

Christianson, 486 U.S. at 817. In that regard, however, neither

doubt about the correctness of a predecessor judge's rulings nor a

belief that the litigant may be able to make a more convincing

argument the second time around will suffice to justify

reconsideration. See Fogel v. Chestnutt, 668 F.2d 100, 109 (2d

Cir. 1981); White, 116 F.2d at 317-18. For this purpose, there is

a meaningful difference between an arguably erroneous ruling (which

does not justify revisitation by a co-equal successor judge) and an

-24-
unreasonable ruling that paves the way for a manifestly unjust

result.

We employ this framework in assessing Judge Keeton's

decision to revisit Judge Freedman's adjudication of the

petitioner's Confrontation Clause claim. In so doing, we recognize

the desirability of according the successor judge a modicum of

flexibility. Thus, we review a successor judge's decision to

reconsider a coordinate judge's earlier ruling for abuse of

discretion. Delta Sav. Bank v. United States, 265 F.3d 1017, 1027

(9th Cir. 2001); Loumar, Inc. v. Smith, 698 F.2d 759, 763 (5th Cir.

1983).

Judge Keeton did not say why he opted to reopen the

Confrontation Clause issue. It is apparent, however, that the

first three conditions that might justify reconsideration are

plainly absent here. Judge Freedman made his Confrontation Clause

ruling based on full briefing, oral argument, and an examination of

the record as a whole (the same record that was before Judge

Keeton). In addition, he had the advantage of having presided over

the trial and having witnessed the child's testimony at first hand.

His rescript, filed on March 2, 1998, gives no indication that his

Confrontation Clause ruling was meant to be tentative or

preliminary. To the contrary, he instructed Judge Keeton to enter

it as part of the final judgment upon completion of the

proceedings, thereby signaling that he intended his ruling to be

-25-
definitive. Finally, the petitioner neither presented new facts

before Judge Keeton nor identified any intervening change in the

law.

In short, the record fails to suggest any reason why

Judge Keeton should have revisited Judge Freedman's Confrontation

Clause ruling unless he discerned a manifest injustice. That

standard is difficult to achieve: a finding of manifest injustice

requires a definite and firm conviction that a prior ruling on a

material matter is unreasonable or obviously wrong.5 See Arizona,

460 U.S. at 618 n.8; see also Dobbs v. Zant, 506 U.S. 357, 358-59

(1993) (indicating that the previous ruling must be called into

"serious question"); Reed v. Rhodes, 179 F.3d 453, 473 (6th Cir.

1999) (finding that reconsideration did not constitute abuse of

discretion when original judge's ruling was ill-explained and based

on obviously unsound legal analysis). A mere "doctrinal

disposition" to decide the issue differently will not suffice.

Agostini v. Felton, 521 U.S. 203, 236 (1997).

We have examined the record with great care. Fairly

viewed, the special seating arrangement devised by Judge Freedman

for the victim's testimony was not obviously outside the compass of

5
A finding of manifest injustice also requires a finding of
prejudice. Dobbs v. Zant, 506 U.S. 357, 359 (1993); United States
v. Crooker, 729 F.2d 889, 890 (1st Cir. 1984). Because we conclude
that Judge Freedman's refusal to grant habeas relief premised on
the use of the special seating arrangement was neither unreasonable
nor obviously wrong, see text infra, we do not reach the question
of what (if any) prejudice inured.

-26-
Supreme Court precedent. Because the record does not support a

finding of manifest injustice, Judge Keeton was bound to defer to

Judge Freedman's ruling on that issue. His failure to do so

constitutes an abuse of discretion.

To begin, it is important to set the stage (and, thus,

establish the appropriate frame of reference). The petitioner

concedes that he failed to advance, on direct appeal, his claim

that the special seating arrangement violated the Confrontation

Clause. Accordingly, the claim is procedurally defaulted. In

order to have succeeded on a collateral attack, therefore, he had

to have shown both cause and prejudice. See McCleskey v. Zant, 499

U.S. 467, 493 (1991); Derman, 298 F.3d at 45. Assuming, without

deciding, that the petitioner had demonstrated cause sufficient to

excuse his procedural default — a debatable proposition on this

record — he still had to demonstrate a reasonable probability that,

but for his counsel's failure to raise the Confrontation Clause

issue on direct appeal, the outcome of that appeal would have been

different. See Strickler v. Greene, 527 U.S. 263, 289 (1999).

Phrased another way, he had to show that his attorney's alleged

blunder worked to his actual and substantial disadvantage, thereby

undermining confidence in the fairness of the proceedings that

-27-
culminated in his conviction.6 Kyles v. Whitley, 514 U.S. 419, 434

(1995); Frady, 456 U.S. at 170.

Next, we knit the cause and prejudice standard and the

manifest injustice standard together. Judge Freedman found no

error in the use of the special seating arrangement (and, thus, no

prejudice). In order to revisit and reverse that ruling, Judge

Keeton had to determine that Judge Freedman's finding was

manifestly unjust (that is, that the finding was unreasonable or

obviously wrong). It is that determination, necessarily implicit

in Judge Keeton's actions, that we must review.

Our inquiry is channeled by a pair of Supreme Court

opinions. Two years before the petitioner's conviction, the Court

held unconstitutional, as violative of a defendant's Sixth

Amendment right to confrontation, an Iowa statute that allowed the

placement of an opaque screen between a defendant charged with

sexual assault and his minor victims (there, two thirteen-year-old

girls). Coy v. Iowa, 487 U.S. 1012, 1020-21 (1988). Although the

Court described face-to-face confrontation as instrumental in

testing the veracity of a witness and integral to a fair trial, id.

6
Because the quantum and kind of prejudice that must be shown
in connection with an ineffective assistance of counsel claim is
identical to that necessary to relieve a habeas petitioner from the
effects of a procedural default, see Prou v. United States, 199
F.3d 37, 49 (1st Cir. 1999), we have no need to undertake a
separate analysis of the petitioner's ineffective assistance of
appellate counsel claim. See Strickland, 466 U.S. at 694 (holding
that prejudice is an essential element of an ineffective assistance
of counsel claim); Scarpa, 38 F.3d at 14-15 (same).

-28-
at 1016-20, it specifically reserved the question of whether

exceptions to the right of face-to-face confrontation might be

recognized when "necessary to further an important public policy,"

id. at 1021. To the extent that such exceptions might exist, the

Court cautioned, they could not rest on generalized theses (such as

those contained in the Iowa statute); rather, exceptions would

require "individualized findings" as to particular witnesses and

circumstances. Id.

Six weeks after the jury convicted the petitioner, the

Supreme Court decided Maryland v. Craig, 497 U.S. 836 (1990). The

Craig Court upheld a Maryland statute that allowed child abuse

victims to testify via one-way closed circuit television upon the

trial court's determination that face-to-face confrontation with

the alleged abuser was likely to cause serious emotional distress.

Id. at 855. Justice O'Connor, writing for the majority, emphasized

that the right to face-to-face confrontation is not an absolute

requirement of the Confrontation Clause. Id. at 847-50. An

alternative arrangement is permissible as long as the arrangement

is in furtherance of an important public policy — such as the

protection of minors who have been victimized by sexual predators

— and the reliability of the testimony is otherwise assured. Id.

at 854-55. Even so, the trial court must make individualized,

case-specific findings, and, in doing so, must address the

-29-
particular child's susceptibility to the particular defendant. Id.

at 855-60.

In addressing the section 2255 petition, Judge Freedman

reviewed these precedents. He concluded that the special seating

arrangement used in the petitioner's trial passed constitutional

muster. Based on his supportable findings anent the need for

special treatment of the child witness, this conclusion is neither

unreasonable nor obviously wrong.

In his post-conviction rescript, Judge Freedman carefully

documented the considerations that had prompted him to resort to a

modified seating arrangement.7 He found that, given the nature of

E.D.'s testimony, the child — who was nine years old at the time of

trial — likely would have difficulty testifying in a public forum,

and that she might reasonably fear testifying in front of the

petitioner.

The petitioner asserts that Judge Freedman's findings are

inadequate to meet the Craig criteria. While this is a close

question, we think that the findings suffice to withstand a claim

7
Although Judge Freedman and the parties discussed E.D.'s
seating arrangement at a conference in advance of the criminal
trial, the judge neither conducted a hearing on the matter nor made
contemporaneous findings as to the effect of the petitioner's
presence on E.D. Since the petitioner did not request a hearing
and did not object to the lack of contemporaneous findings, we
accept Judge Freedman's later statement of his reasons in lieu of
contemporaneous findings. Cf. California v. Sharp, 36 Cal. Rptr.
2d 117, 124 & n.4 (Cal. Ct. App. 1994) (extrapolating findings from
the record where defendant failed to ask the trial court for
findings).

-30-
of manifest injustice. In the first place, the less the intrusion

on Sixth Amendment rights, the less detail is required in a trial

court's findings. See California v. Lord, 36 Cal. Rptr. 2d 453,

455 (Cal. Ct. App. 1994); Brandon v. Alaska, 839 P.2d 400, 409-10

(Alaska Ct. App. 1992). In all events, Judge Freedman's rescript

mentions specifically that the petitioner had threatened E.D. with

harm if she told what he had done. This finding, in conjunction

with other facts of record (such as the fact that the petitioner

arguably had made menacing gestures during the pretrial

proceedings, that he had struck E.D. before, and that he repeatedly

had violated a "no contact" order after his arrest), leads us to

conclude that the use of a special seating arrangement was

justified. See Vigil v. Tansy, 917 F.2d 1277, 1279-80 (10th Cir.

1990) (allowing pre-Craig trial court to justify moderate

restriction on right to confront child witness on less rigorous

individualized findings).8

In our view, the adequacy of Judge Freedman's findings is

buttressed by the hallmarks of testimonial reliability made

8
To be sure, Judge Freedman's findings fell short of an
express determination that E.D. ran a serious risk of trauma from
testifying in front of the defendant — a type of determination
suggested by Craig, 497 U.S. at 856. Given that the petitioner's
conviction pre-dated Craig, however, we think that the findings
were adequate to justify the modest measures instituted in this
case. See Hardy v. Wigginton, 922 F.2d 294, 299-300 (6th Cir.
1990) (explaining that, in the interim between Coy and Craig, trial
courts could not be expected to make Craig-type findings that were
complete in every detail); Vigil, 917 F.2d at 1279-80 (similar).

-31-
manifest by the record. See Craig, 497 U.S. at 851 (listing

competence, administration of an oath, full opportunity for cross-

examination, and full visibility of the child witness's body

language and demeanor before judge, jury, and defendant as "other

elements of the confrontation right"). These include the absence

of any opaque physical barrier and the fact that the witness was

required to give live testimony, under oath, in the presence of

both the defendant and the jury. See id. To the extent that

nervousness, body language, demeanor, and the like are important

indicia of credibility, the jurors' entirely unimpaired view of the

witness is persuasive. See Morales v. Artuz, 281 F.3d 55, 62 (2d

Cir. 2002); Stanger v. Indiana, 545 N.E.2d 1105, 1113 (Ind. Ct.

App. 1989). In addition, the petitioner had ample opportunity to

cross-examine E.D. and to offer any evidence and arguments that

might impugn her credibility. These are weighty factors. See

Louisiana v. Brockel, 733 So. 2d 640, 646 (La. Ct. App. 1999);

Boatright v. Georgia, 385 S.E.2d 298, 302-03 (Ga. Ct. App. 1989).

Despite these circumstances, the petitioner argues that

Coy demands a different result. We do not agree. The seating

arrangement there was statutorily driven, not custom-tailored to

fit the exigencies of a particular case. Moreover, it involved an

opaque physical barrier. In contrast, no physical barrier

separated E.D. from the petitioner during the instant trial. Many

courts have found the absence of such a barrier to be of decretory

-32-
significance in rejecting Confrontation Clause challenges. See,

e.g., N. Dakota v. Miller, 631 N.W.2d 587, 594 (N.D. 2001); Smith

v. Arkansas, 8 S.W.3d 534, 537 (Ark. 2000); Utah v. Hoyt, 806 P.2d

204, 209 (Utah Ct. App. 1991); Ortiz v. Georgia, 374 S.E.2d 92, 95-

96 (Ga. Ct. App. 1988); see also Morales, 281 F.3d at 58-59

(pointing out that neither Craig nor Coy expatiate on unobstructed,

in-court testimony); Cumbie v. Singletary, 991 F.2d 715, 721 (11th

Cir. 1993) (suggesting that Coy is inapplicable when child

testifies in presence of defendant); see generally Bruce E.

Bohlman, The High Cost of Constitutional Rights in Child Abuse

Cases — Is the Price Worth Paying?, 66 N.D. L. Rev. 579, 589 (1990)

(stating that seating arrangements not involving artificial

barriers "are apparently permissible under Coy"). Given these

marked differences, Coy is readily distinguishable.

Nor are these the only bases for distinction. Unlike in

Coy, the record here contains no evidence suggesting that what the

petitioner actually saw of E.D.'s face at trial was substantially

less than what he would have seen had she testified from the

witness stand (and, indeed, Judge Freedman's description of the

courtroom layout makes clear that E.D. would not have had to face

the petitioner directly even if she had testified from the witness

stand). The significance of this circumstance is reinforced by

Judge Freedman's specific finding that the petitioner had a

sufficient view of E.D.'s "demeanor." This finding is not clearly

-33-
erroneous, and, thus, deserves our respect. See Familia-Consoro,

160 F.3d at 764-65; McGill, 11 F.3d at 225. Both of these factors

tend to support the constitutionality of the special seating

arrangement. See Smith, 8 S.W.3d at 537-38 (collecting cases);

Brockel, 733 So. 2d at 646.

In a further effort to denigrate the use of the special

seating arrangement, the petitioner notes the lack of eye contact

between him and E.D. We agree that the opportunity for eye

contact, whether or not the witness chooses to act on it, is an

important integer in the Sixth Amendment calculus. Coy, 487 U.S.

at 1019. But a defendant does not have a constitutional right to

force eye contact with his accuser, id., and we refuse to fashion

a bright-line rule that the lack of such an opportunity, in and of

itself, automatically translates into a constitutional violation.

Most other courts that have considered the question have reached a

similar conclusion.9 E.g., Hoyt, 806 P.2d at 210; Ortiz, 374

S.E.2d at 95-96. Moreover, some courts have found that the lack of

an easy opportunity for eye contact is palliated to a sufficient

9
We are aware that the Massachusetts Supreme Judicial Court
has found the lack of eye contact fatal under an analogous — but
differently worded — provision of the Massachusetts Declaration of
Rights. See Massachusetts v. Amirault, 677 N.E.2d 652, 662 (Mass.
1997) (terming it "a non sequitur to argue from the proposition
that, because the witness cannot be forced to look at the accused
during his face-to-face testimony, that therefore this aspect of
the art. 12 confrontation right is dispensable"). We decline to
import so rigid a requirement into the jurisprudence of the Sixth
Amendment.

-34-
degree by a seating arrangement such as the one employed in this

case (which preserves the line of sight and allows a witness to

turn to make eye contact with the defendant). See California v.

Sharp, 36 Cal. Rptr. 2d 117, 125 (Cal. Ct. App. 1994); Boatright,

385 S.E.2d at 301.

We summarize succinctly. Although the lack of eye

contact weighs in the petitioner's favor, all the other

Confrontation Clause safeguards were present here. Mindful, as we

are, that trial judges have some leeway to move a witness around a

courtroom as long as those shifts retain an unobstructed line of

sight between the defendant and the witness, cf. Coy, 487 U.S. at

1023 (O'Connor, J., concurring) (suggesting that "many such

procedures may raise no substantial Confrontation Clause problem

since they involve testimony in the presence of the defendant"), we

cannot say that Judge Freedman's core conclusion — that no

Confrontation Clause violation occurred — was either unreasonable

or obviously wrong.

In a further attempt to justify reconsideration, the

petitioner submits that Judge Freedman erroneously denied him the

assistance of counsel for his section 2255 petition. He argues, in

effect, that his "inartful" pro se presentation before Judge

Freedman may have influenced the court's rulings, freeing the

successor judge to review them de novo. That argument is

unavailing. A convicted criminal has no constitutional right to

-35-
counsel with respect to habeas proceedings. Pennsylvania v.

Finley, 481 U.S. 551, 555 (1987). It is true that the petitioner

could not raise his ineffective assistance of counsel claim until

collateral review, see Knight, 37 F.3d at 774; United States v.

Mala, 7 F.3d 1058, 1063 (1st Cir. 1993), but this makes no

difference. We fail to see how an adscititious ineffective

assistance claim entitles a criminal defendant to the assistance of

counsel on subsequent collateral review. See Moran v. McDaniel, 80

F.3d 1261, 1271 (9th Cir. 1996); see also Lattimore v. Dubois, 311

F.3d 46, 55-56 (1st Cir. 2002). Although we have indicated that,

in certain circumstances, the appointment of counsel for a section

2255 petitioner might be warranted, such cases are few and far

between. See Mala, 7 F.3d at 1063-64. The circumstances of the

petitioner's case are not such as to demand the appointment of

counsel.10 It follows that Judge Keeton could not reconsider a

prior ruling merely because the presence of counsel might have

produced new or better arguments. United States v. Velez Carrero,

140 F.3d 327, 329-30 (1st Cir. 1998).

10
The fact that Judge Keeton appointed counsel to handle the
remainder of the petitioner's claims is not dispositive. While
such an appointment was within Judge Keeton's discretion, it does
not follow that Judge Freedman's contrary decision constituted an
abuse of discretion. This variation merely serves to illustrate
what every lawyer already knows: that two judges can decide
discretionary matters differently without either judge abusing his
or her discretion. See, e.g., United States v. Nickens, 955 F.2d
112, 125-26 (1st Cir. 1992); Williams v. Giant Eagle Mkts., Inc.,
883 F.2d 1184, 1190 (3d Cir. 1989); United States v. Stubblefield,
408 F.2d 309, 311 (6th Cir. 1969).

-36-
 We need go no further. Finding no manifest injustice, we

are constrained to hold that Judge Keeton abused his discretion in

redeciding and countermanding Judge Freedman's previous

adjudication of the Confrontation Clause claim.

III. CONCLUSION

Although it is true that the law must always be vigilant

to protect the rights of those who are convicted of serious crimes,

our system of justice guarantees a fair trial, not a perfect one.

See United States v. Hasting, 461 U.S. 499, 508 (1983); United

States v. Polito, 856 F.2d 414, 418 (1st Cir. 1988). Nowhere is

this principle more venerated than on collateral review. See,

e.g., Williams v. Taylor, 529 U.S. 362, 374-75 (2000) (holding that

habeas relief under the AEDPA, 28 U.S.C. § 2254(d)(2), is reserved

for unreasonable applications of Supreme Court precedent, not

merely to remedy incorrect state court decisions). In this

instance, the petitioner's trial may not have been perfect, but it

was most assuredly fair. Accordingly, we reverse the order

granting a new trial and remand the matter to the district court

with directions to enter judgment for the United States and,

concomitantly, to reinstate the petitioner's convictions.

Reversed.

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