United States. See id. (petitioner may bring a § 2255 motion on the ground that his sentence violates the laws of the United States).
The rule is well settled that a petitioner who fails to raise a claim on direct appeal cannot raise that claim on a § 2255 motion "unless he can establish both cause for the procedural default and actual prejudice resulting therefrom." Billy-Eko v. United States, 8 F.3d 111, 114 (2d Cir. 1993) (citing United States v. Frady, 456 U.S. 152, 167-68, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982)); see also Campino v. United States, 968 F.2d 187, 190 (2d Cir. 1992) (holding that the "cause and prejudice" requirement applies to federal prisoners seeking § 2255 relief for constitutional errors). Thus, because petitioner concedes that these seven claims were not appealed, he is barred from raising these claims unless he can demonstrate both cause and prejudice.
Petitioner argues that ineffective assistance of counsel was the cause of his failure to raise these seven claims on direct appeal.
Petitioner states that he wrote a 135-page brief, which raised various arguments, and that he sent this brief to his attorney with instructions to include these arguments in the brief that the attorney submitted to the Second Circuit. Petitioner asserts that his attorney failed to raise many of these arguments, including the seven grounds on which petitioner now seeks relief.
Ineffective assistance of counsel not only constitutes a ground for § 2255 relief, but it also can constitute cause for failure to raise an issue on direct appeal.
See Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986) ("Ineffective assistance of counsel, then, is cause for a procedural default."); Smith v. South Carolina, 882 F.2d 895, 898 (4th Cir. 1989) (recognizing that ineffective assistance of counsel constitutes cause for failure to raise an issue on direct appeal), cert. denied, 493 U.S. 1046, 107 L. Ed. 2d 838, 110 S. Ct. 843 (1990); Cantone v. Superintendent, 759 F.2d 207, 218 (2d Cir.) (same), cert. denied, 474 U.S. 835, 106 S. Ct. 109, 88 L. Ed. 2d 89 (1985). To establish ineffective assistance of counsel as the cause of a procedural default, "petitioner must show that his counsel was ineffective for the purpose of the sixth amendment." Cantone, 759 F.2d at 218; see also Smith, 882 F.2d at 898 (attorney's failure to raise a non-frivolous issue on appeal only constitutes cause for procedural default if attorney's failure fulfills the standard for ineffective assistance of counsel). Therefore, in order to determine whether petitioner has shown cause for his failure to raise these seven grounds on direct appeal, it must be determined whether his attorney's failure to raise these claims constitutes ineffective assistance of counsel.
The sixth amendment to the Constitution guarantees criminal defendants the right to counsel. As the Supreme Court has noted, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984). The right to counsel protects a defendant's right to a fair trial because "access to counsel's skill and knowledge is necessary to accord defendants . . . 'ample opportunity to meet the case of the prosecution.'" Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76, 87 L. Ed. 268, 63 S. Ct. 236 (1942)). Because counsel plays such a crucial role, the Supreme Court has recognized that "'the right to counsel is the right to the effective assistance of counsel.'" 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). Thus, if a defendant's counsel fails to render adequate legal assistance, defendant's sixth amendment rights are violated. See id. (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)).
The Supreme Court has established a two-part test for determining whether an attorney's representation constitutes ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient." 466 U.S. at 687. "Second, the defendant must show that the deficient performance prejudiced the defense." Id. Although the Strickland test was formulated to determine whether trial counsel was ineffective, "the same test is used with respect to appellate counsel." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 124 L. Ed. 2d 256, 113 S. Ct. 2347 (1993); Adburraham v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990)), cert. denied, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994).
To satisfy the first prong of the Strickland test, a defendant must show that "his attorney's performance 'fell below an objective standard of reasonableness.'" See Mayo, 13 F.3d at 533 (quoting Strickland, 466 U.S. at 688). The Supreme Court has eschewed articulating a rigid set of standards for determining whether an attorney's conduct is reasonable, stating instead that "the proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Strickland, 466 U.S. at 688.
The Supreme Court has, however, explained the method that a federal court should employ in determining whether an attorney's performance was reasonable. The Court has instructed that "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound . . . strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 100 L. Ed. 83 (1955)). The presumption is necessary because "it is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." 466 U.S. at 689 (citation omitted). Further, to prevent a federal court from second-guessing counsel's actions, a court may not use hindsight in evaluating whether an attorney's conduct was reasonable. See Id.; Mayo, 13 F.3d at 533 (citation omitted).
Moreover, the Supreme Court has examined whether counsel's failure to raise a non-frivolous issue on appeal constitutes ineffective assistance of counsel. See Jones v. Barnes, 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983). In Jones, after defendant was convicted in state court of robbery and assault, he wrote a letter to his appellate counsel "listing several claims that he felt should be raised" on appeal. Id. at 747. Defendant's attorney wrote a return letter in which he "accepted some but rejected most of the suggested claims." Id. The state appellate court affirmed defendant's convictions, and defendant exhausted his state-court remedies. See id. at 748-49. Thereafter, defendant sought a writ of habeas corpus on the ground that he had been denied effective assistance of appellate counsel because his attorney failed to raise several issues on appeal that defendant had instructed counsel to raise. See id. at 749. Although the district court rejected defendant's argument, the Second Circuit reversed, holding that if an appellant instructs his counsel to raise non-frivolous issues on appeal, "counsel must argue the additional points to the full extent of his professional ability." Barnes v. Jones, 665 F.2d 427, 433 (2d Cir. 1981) (citations omitted), rev'd, 463 U.S. 745, 77 L. Ed. 2d 987, 103 S. Ct. 3308 (1983).
The Supreme Court reversed, holding that a defendant has no constitutional right to have appellate counsel raise every nonfrivolous issue on appeal, even if defendant requests that counsel raise a specific issue. See Jones, 463 U.S. at 754. In reaching this conclusion, the Court stressed that "experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues." Id. at 751-52. Because requiring appellate counsel "to raise every 'colorable' claim suggested by a client would disserve the very goal of vigorous and effective advocacy," the Court held that counsel may exercise reasonable professional judgment in choosing which issues to raise on appeal. Id. at 754.
Recently, the Second Circuit provided additional guidance to district courts faced with the question of whether an appellate counsel's performance was deficient for failure to raise a nonfrivolous issue on appeal. See Mayo v. Henderson, 13 F.3d 528 (2d Cir.), cert. denied, 130 L. Ed. 2d 35, 115 S. Ct. 81 (1994). The Mayo court stated that "a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id. at 533. Quoting a Seventh Circuit decision, the court stated:
When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.
Id. (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1985)).
In the instant case, none of the seven claims that petitioner contends counsel should have raised is significant and obvious. Further, under prevailing professional norms, counsel did not behave unreasonably in failing to raise these claims. Each of these claims is examined in turn.
1. Illegal Search, Seizure, and Arrest
Petitioner contends that counsel should have argued on appeal that both the search warrant for petitioner's residence at 111 Undercliff Street, Yonkers, New York, and the arrest warrant for petitioner, himself, were illegal. Yet, petitioner's counsel acted reasonably in choosing not to challenge the search warrant's legality because he had unsuccessfully raised the exact same argument in a pre-trial motion. See United States v. Roberts, 1991 U.S. Dist. LEXIS 14758, No. 90 CR 913 (DNE), 1991 WL 221099 (S.D.N.Y. Oct. 17, 1991), aff'd, 9 F.3d 1537 (2d Cir. 1993) (Table), cert. denied, 114 S. Ct. 1630, 128 L. Ed. 2d 353 (1994). In deciding that motion, this Court held that "the affidavits which formed the basis of the challenged search warrants provided more than ample probable cause." Id. at *7. Further, this Court found that defendant had failed to show that the government's reliance on these warrants was unreasonable. See id. (citation omitted). Having previously failed to make a persuasive argument on this point, defendant's counsel did not act unreasonably in electing not to make this argument on appeal.
Similarly, petitioner has failed to demonstrate that his counsel acted unreasonably in choosing not to argue that the arrest warrant was illegal. Although petitioner challenges the arrest warrant by asserting that the affidavits that supported this warrant were full of lies, he does not mention what any of these lies is. Petitioner's bald assertion that the arrest warrant was illegal does not overcome the presumption that petitioner's counsel acted reasonably in choosing not to argue this point on appeal. See Strickland, 466 U.S. at 689. Neither petitioner's papers nor a review of the record indicates that the arrest-warrant argument was a "significant and obvious" issue. Mayo, 13 F.3d at 533. In fact, neither indicates that this argument has any merit. Therefore, petitioner's attorney acted reasonably in choosing not to argue this point on appeal.
2. Jury Tampering
Petitioner contends that counsel should have argued on appeal that petitioner was the victim of jury tampering. Petitioner's papers in support of his § 2255 motion do not explain how this alleged jury tampering occurred. However, appended to petitioner's motion papers is a copy of the pro se brief that he submitted to the Second Circuit, and this brief states:
The Prosecutors in case tampered with the Jury; They sneak in a bag of evidence illegally then removed it. This scheme was only caught by luck, and not on purpose. The Jury sent out a note, Asking about this "vanishing" bag.
Al though the trial transcript shows that a bag that was not in evidence was sent into the jury room, petitioner's counsel cannot be faulted for failing to raise the jury-tampering issue on appeal. An isolated error in handling evidence at trial does not demonstrate that a prosecutor tampered with a jury. Further, when it was discovered that the jury had received the bag, this Court immediately instructed the jury to disregard the bag:
The large bag you referred to in your question is not in evidence, is not a Government Exhibit, and is not a controlled substance. It should not have been sent into the deliberation room, and you should not consider it. It was sent in by mistake.
(R. at 1190, lines 7-12.)
Given the lack of evidence that supports petitioner's jury-tampering claim, this claim is not "significant and obvious," and appellate counsel did not act unreasonably in failing to make this argument in his brief to the Second Circuit.
However, courts interpret motion papers submitted by pro se litigants liberally and construe them to raise the strongest arguments presented. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co., 988 F.2d 327, 330 (2d Cir. 1993)). Therefore, this Court will examine whether petitioner's jury-tampering allegations substantiate a claim for prosecutorial misconduct.
Petitioner's allegations do not substantiate a claim for prosecutorial for three reasons. First, "as a general proposition 'defense counsel [is] as responsible as the prosecutor for seeing to it that only proper exhibits [are] sent to the jury room.'" United States v. Camporeale, 515 F.2d 184, 188 (2d Cir. 1975) (quoting United States v. Burket, 480 F.2d 568, 571 (2d Cir. 1973)). In the instant case, petitioner's counsel shares the responsibility with the prosecutor for failing to notice that a bag that was not in evidence was given to the jury. There is no evidence that this improper submission to the jury was anything other than a mistake. Thus, because defense counsel and the prosecution share the responsibility for this error, petitioner has failed to show any prosecutorial misconduct. See Burket, 480 F.2d at 571.
Second, "the failure of counsel to register a timely objection to the submission of improper evidence to the jury will be deemed a waiver . . . unless it is shown that the evidence was so prejudicial that the defendant was denied a fair trial." Camporeale, 515 F.2d at 188 (citing United States v. Strassman, 241 F.2d 784, 786 (2d Cir. 1957)). In the instant case, petitioner's counsel made no objection to the submission of the improper evidence to the jury. (R at 1190.) Therefore, any objection to the submission of the evidence was waived. In addition, as discussed in the following two paragraphs, petitioner was not denied a fair trial by the submission of this improper evidence to the jury.
Third, petitioner did not suffer substantial prejudice. In Burket, after the jury had considered various materials that were not in evidence, the Second Circuit rejected the argument that defendant's conviction should be reversed. Although the court recognized that "[a] sufficient answer to the attempt to secure reversal on this score might be that defense counsel was as responsible as the prosecutor for seeing to it that only proper exhibits were sent to the jury room," the court stated "we would not wish to affirm on this ground if we believed that Burket suffered substantial prejudice." Burket, 480 F.2d at 571. Thus, in analyzing petitioner's claim, this Court must determine whether he suffered substantial prejudice.
Three factors determine whether a defendant suffered substantial prejudice: "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of conviction absent the improper [conduct]." United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981), cert. denied, 456 U.S. 989, 73 L. Ed. 2d 1284, 102 S. Ct. 2269 (1982); see also United States v. Rivera, 22 F.3d 430, 437 (2d Cir. 1994) (citations omitted); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990). In the instant case, an analysis based on these three factors indicates that petitioner did not suffer substantial prejudice. First, the alleged misconduct was not severe. Despite petitioner's assertion that the prosecutor snuck the bag into the jury room, there is no indication that the prosecutor intentionally sought to submit the bag to the jury. See Modica, 663 F.2d at 1181 ("extent to which misconduct was intentional" should be considered when analyzing severity of misconduct). The record indicates that the bag was simply given to the jury by mistake. (R. at 1190 (the Court stated that the bag "was sent in by mistake," and defense counsel made no objection).) Second, as previously mentioned, when this mistake was discovered, this Court immediately issued a corrective instruction. (R. at 1190, lines 7-12.) This instruction not only told the jury that the bag was not in evidence but stated that the bag "is not a Government Exhibit, [and] is not a controlled substance." Id. at lines 8-9. Third, petitioner's conviction was certain even absent the allegedly improper conduct. The prosecutor's case was extremely strong. The evidence included taped telephone conversations that incriminated petitioner, substantial physical evidence seized from petitioner's home, testimony from one of petitioner's co-conspirators that incriminated petitioner, surveillance photographs, and testimony from FBI agents and New York City police officers. Accordingly, since petitioner did not suffer substantial prejudice as a result of the jury's examination of the bag that was not in evidence, petitioner's claim of prosecutorial misconduct is without merit.
Because petitioner's counsel could have ascertained that the prosecutorial-misconduct claim was meritless, counsel acted reasonably in choosing not to raise this claim on direct appeal. Thus, petitioner was not denied effective assistance of counsel when his attorney failed to argue this point on appeal.
3. Void Indictment
Petitioner contends that counsel should have argued on appeal that the indictment that named petitioner was void. Counsel certainly behaved reasonably in choosing not to raise this claim because petitioner was barred from making this argument. A defendant who fails to object to an indictment prior to trial is barred from objecting to the indictment after trial. See Davis v. United States, 411 U.S. 233, 237, 36 L. Ed. 2d 216, 93 S. Ct. 1577 (1973); see also Fed. R. Crim. P. 12(b)(2) (stating that "defenses and objections based on defects in the indictment" must be raised prior to trial). A defendant who pleads to an indictment and goes to trial without objecting to the indictment waives "any right of subsequent complaint on account thereof." Davis, 411 U.S. at 237 (citing United States v. Gale, 109 U.S. 65, 27 L. Ed. 857, 3 S. Ct. 1 (1883)). In the instant case, petitioner failed to object to the indictment prior to trial, and thus petitioner waived any objections to the indictment. In sum, this argument was not "significant and obvious," and petitioner's appellate counsel did not act unreasonably.
4. Selective Prosecution
Petitioner contends that counsel should have argued that petitioner was the victim of selective prosecution.
Petitioner claims that the nine other people who allegedly lived in his home should have been prosecuted on the same charges that petitioner faced.
To establish a claim for selective prosecution, a defendant must show two things:
(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.
United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974) (citations omitted); see also LaTrieste Restaurant & Caberet Inc. v. Village of Port Chester, 40 F.3d 587, slip op. 8150, 8155 (2d Cir. 1994) (citations omitted); United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992); United v. Moon, 718 F.2d 1210, 1229 (2d Cir. 1983), cert. denied, 466 U.S. 971, 80 L. Ed. 2d 818, 104 S. Ct. 2344 (1984). Further, the Supreme Court has held that prosecutors retain broad discretion in choosing whom to prosecute because "the decision to prosecute is particularly ill-suited to judicial review." Wayte v. United States, 470 U.S. 598, 607, 84 L. Ed. 2d 547, 105 S. Ct. 1524 (1985).
In the instant case, petitioner's claim fails both parts of the two-part test. First, others similarly situated repeatedly are prosecuted when they engaged in conduct similar to petitioner's conduct. Petitioner was prosecuted for various narcotics and weapons offenses. Given that this Circuit has been swamped with a deluge of drug cases, weapons cases, and drug-conspiracy cases, petitioner has entirely failed to show that he was singled out for prosecution. Further, because many of his co-conspirators also were prosecuted, his claim of selective prosecution is meritless. Second, petitioner entirely fails to allege any fact that would indicate that prosecutors acted in bad faith. Because petitioner's selective-prosecution claim is meritless, appellate counsel behaved reasonably in declining to raise this claim on appeal.
5. Variance at Trial
Petitioner contends that counsel should have argued "variance at trial."
Petitioner contends that the facts at trial varied from the charges in the indictment because the indictment charged the existence of a single conspiracy, while the facts at trial revealed multiple, separate conspiracies.
Petitioner's counsel did not act unreasonably in choosing not to argue this point because it would have needlessly duplicated another argument that counsel chose to make. Counsel's very first point heading in the "Argument" section of his appellate brief states: "THE TRIAL COURT SHOULD HAVE CHARGED THE JURY ON THE LAW REGARDING MULTIPLE CONSPIRACIES." Defendant-Appellant's Brief at 21, United States v. Roberts, 9 F.3d 1537 (2d Cir. 1993) (Table), cert. denied, 114 S. Ct. 1630, 128 L. Ed. 2d 353 (1994). If, as petitioner contends, the facts at trial varied from the charges in the indictment so that only multiple conspiracies could be proven, the trial court should have charged the jury on the law regarding multiple conspiracies. Because these two arguments are very similar, counsel cannot be faulted for choosing to exclude a duplicative argument from his brief. Further, petitioner has failed to demonstrate that counsel omitted a "significant and obvious" issue while pursuing an issue that was "clearly and significantly weaker." Mayo, 13 F.3d at 533.
6. Violation of Speedy Trial Act
Petitioner argues that counsel should have argued "ambush and speedy-trial violation."
This argument, however, is largely a rehash of his "void indictment" argument. Petitioner argues that the fact that his original indictment was superseded by a subsequent indictment constitutes both an "ambush" and a speedy-trial violation. Yet, petitioner pleaded not guilty to the superseding indictment, and he did not object to this indictment prior to trial. Thus, as previously discussed, petitioner is barred from objecting to this indictment because petitioner waived any objection to the superseding indictment by failing to object to it in a timely fashion. Accordingly, appellate counsel acted reasonably in electing not to argue this point.
Further, petitioner suffered no speedy trial violation. 18 U.S.C. § 3161(c)(1) states:
In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.