United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 16, 2007 Decided January 25, 2008
No. 06-3180
UNITED STATES OF AMERICA,
APPELLEE
v.
RONALD R. HUGHES,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 93cr00097-04)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for appellant.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Jeffrey A.
Taylor, U.S. Attorney, and Roy W. McLeese, III, Mary B.
McCord, and Carolyn K. Kolben, Assistant U.S. Attorneys.
Before: BROWN and GRIFFITH, Circuit Judges, and
EDWARDS, Senior Circuit Judge.
BROWN, Circuit Judge: After being convicted of federal
crimes, Ronald Hughes raises two claims on collateral review:
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(1) a judicial bias claim, which he procedurally defaulted, and
(2) an ineffective assistance of counsel claim, which we reject.
I
A jury convicted Ronald Hughes of multiple federal crimes,
the details of which are described in our opinion affirming his
convictions. See United States v. White, 116 F.3d 903, 909–10
(D.C. Cir. 1997). Hughes filed a petition to vacate his convic-
tions pursuant to 28 U.S.C. § 2255. Hughes asserts two claims
on collateral review. First, he claims the trial judge exhibited
bias and hostility toward his trial counsel, rendering his trial
constitutionally unfair. See generally United States v. Edmond,
52 F.3d 1080, 1099–1103 (D.C. Cir. 1995) (considering a
judicial bias claim). For example, the judge told Hughes’s trial
counsel:
If you don’t like what I did, that’s your privilege as a
lawyer. You can do two things. Number one, you can
go out to the next tavern or bar and have a drink and
curse the judge, and number two, you can go to the
court of appeals and say the dumb bastard didn’t know
what he was doing. But I don’t want you to come back
day after day saying, yesterday you did something
wrong again.
Second, Hughes asserts he received constitutionally ineffective
assistance of counsel at his trial. According to Hughes, the trial
judge’s “battering of trial counsel rendered her ineffective” and
caused her “severe emotional distress.” In an effort to avoid
incurring the judge’s ire, counsel purportedly advised Hughes
not to testify, refrained from making certain mistrial motions,
and abstained from some cross-examination.
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II
A
The procedural default rule generally precludes consider-
ation of an argument made on collateral review that was not
made on direct appeal, unless the defendant shows cause and
prejudice. See, e.g., Massaro v. United States, 538 U.S. 500,
504 (2003) (citing United States v. Frady, 456 U.S. 152, 167–68
(1982)); United States v. Mathis, 503 F.3d 150, 152–53 (D.C.
Cir. 2007). This rule “respect[s] the law’s important interest in
the finality of judgments” and conserves judicial resources.
Massaro, 538 U.S. at 504.
Because Hughes did not raise his judicial bias claim on
direct appeal, the procedural default rule bars its consideration
unless an exception applies or Hughes demonstrates cause and
prejudice. Inexplicably, Hughes’s opening brief does not
acknowledge the existence of the procedural default rule; his
reply brief contains no argument whatsoever to show the cause
and prejudice requirements have been satisfied for his judicial
bias claim; and he offers no colorable reason why the procedural
default rule should not apply to this claim. Accordingly, we
need not address Hughes’s procedurally defaulted judicial bias
claim on the merits. See United States ex rel. Totten v. Bombar-
dier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily,
arguments that parties do not make on appeal are deemed to
have been waived.”); Ark Las Vegas Rest. Corp. v. NLRB, 334
F.3d 99, 108 n.4 (D.C. Cir. 2003) (an argument first raised at
oral argument was waived).
B
Hughes also raises an ineffective assistance of counsel
claim. Most ineffectiveness claims proceed under Strickland v.
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Washington’s familiar two-step framework, which requires (1)
showing “counsel’s representation fell below an objective
standard of reasonableness” and (2) demonstrating “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
466 U.S. 668, 687–88, 694 (1984); see, e.g., United States v.
Cronic, 466 U.S. 648, 659 & n.26 (1984). However, in a “very
narrow range of situations,” courts presume “actual prejudice to
the defendant.” 27 MOORE’S FEDERAL PRACTICE,
§ 644.61[3][c] (Matthew Bender 3d ed. 2007); see Cronic, 466
U.S. at 658–59 & nn.25–26; Strickland, 466 U.S. at 692.
Prejudice is presumed where counsel “entirely fail[ed] to subject
the prosecution’s case to meaningful adversarial testing” or was
“totally absent, or prevented from assisting the accused during
a critical stage of the proceeding.” E.g., Cronic, 466 U.S. at
658–59 & nn.25–26. One category of presumed prejudice cases
arises where the “[g]overnment … interferes in certain ways
with the ability of counsel to make independent decisions about
how to conduct the defense.” Strickland, 466 U.S. at 686, 692;
see Geders v. United States, 425 U.S. 80, 91 (1976) (prohibition
on attorney-client consultation during a 17-hour overnight
recess); Herring v. New York, 422 U.S. 853, 864–65 (1975) (bar
on summation after trial had been substantially interrupted);
Brooks v. Tennessee, 406 U.S. 605, 612–13 (1972) (requirement
that defendant be the first defense witness); Ferguson v.
Georgia, 365 U.S. 570, 591–96 (1961) (bar on certain
questioning of the defendant by defense counsel).
Hughes seems—somewhat unwittingly—to make a
presumed prejudice argument based on government interference
with his counsel. His brief asserts “the court’s battering of trial
counsel rendered her ineffective” and, at oral argument, he
described judicial bias as an essential predicate of his
ineffectiveness claim. However, since Hughes does not cite any
government interference cases—much less make a specific
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argument that those cases are analogous to his—he has waived
any potential government interference claim.1 See Ry. Labor
Executives’ Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6
(D.C. Cir. 1984) (refusing to resolve an issue “on the basis of
briefing which consisted of only three sentences … and no
discussion of the relevant … case law”); see also Hutchins v.
District of Columbia, 188 F.3d 531, 539–40 n.3 (D.C. Cir. 1999)
(en banc) (refusing to consider a “cursory argument[]” raised in
a footnote); United States v. South, 28 F.3d 619, 629 (7th Cir.
1994) (“Ours is an adversary system, and it is up to the party
seeking relief to sufficiently develop his arguments.” (citations
and quotation marks omitted)).
Hughes’s brief discusses Strickland’s two-pronged test,
which he refers to as “the established standard.” We can
analyze his Strickland claim because, under Massaro, 538 U.S.
at 504–09, such claims may be raised for the first time in a
§ 2255 proceeding.
Assuming counsel’s performance was deficient, Hughes’s
ineffectiveness claim fails Strickland’s second prong because he
was not prejudiced. Cf. 466 U.S. at 691–96. His counsel said
the judge’s remarks caused her to pass notes to other attorneys
asking them to pose certain questions to witnesses on her behalf.
But she could cite no specific question she referred to other
counsel. She also refrained from making certain mistrial
motions. However, she could not identify any specific motion
she failed to make, and she admitted such motions would have
been “similar to ones [she] had made before.” She advised
Hughes not to testify, but (1) she acknowledged the judge’s
1
Because Hughes waived any potential government interference
claim, we need not discuss whether the exception to the procedural
default rule announced in Massaro, 538 U.S. at 504, would apply to
government interference cases.
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conduct was only one of several factors affecting her advice, (2)
she said putting a defendant on the stand in a conspiracy case is
“always dicey,” and (3) her only specific description of
Hughes’s potential testimony shows it would have addressed a
charge for which he was acquitted.
III
For the foregoing reasons, the district court’s order denying
Hughes’s § 2255 petition is
Affirmed.