Appeal from two judgments entered in the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., Judge) denying habeas corpus relief from a conviction and prison sentence, and denying a motion under Federal Rule of Civil Procedure 60(b) to reopen that decision, respectively. Petitioner invokes Massaro v. United States, 538 U.S. 500 (2003), to challenge the district court's refusal to review ineffective assistance of counsel claims that petitioner raised for the first time in the instant habeas motion.
Vacated and remanded in part.
The opinion of the court was delivered by: Winter, Circuit Judge
Before: WINTER, CALABRESI, and SACK, Circuit Judges.
Yick Man Mui appeals from Judge Johnson's denial of his petition for habeas corpus brought pursuant to 28 U.S.C. § 2255, and denial of his motion under Federal Rule of Civil Procedure 60(b) to reopen that decision. On direct appeal from his conviction, Mui raised various instances of alleged ineffective assistance of trial counsel. His Section 2255 motion raised yet more ineffective assistance claims. The district court held that the new ineffective assistance claims were procedurally barred because appellant had not provided reasons for failing to raise the claims on direct appeal and had not shown any resulting prejudice or actual innocence.
We hold that a defendant who raises on direct appeal ineffective assistance claims based on the strategies, actions, or inactions of counsel that can be, and are, adjudicated on the merits on the trial record, is precluded from raising new or repetitive claims based on the same strategies, actions, or inactions in a Section 2255 proceeding. However, such a defendant is not precluded from raising new ineffective assistance claims based on different strategies, actions, or inactions of counsel in a subsequent Section 2255 proceeding.
We vacate the district court order and remand for proceedings consistent with this opinion.
A jury convicted appellant of committing violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). Prior to sentencing, appellant, represented by new counsel, moved unsuccessfully for a new trial in part on the ground that trial counsel had provided unconstitutionally ineffective assistance. In particular, appellant attacked trial counsel's: (i) concession of petitioner's guilt in counsel's opening statement; (ii) failure to present a "planned for defense"; (iii) failure to call petitioner as a witness; (iv) failure to cross-examine the government's key cooperating witness; and (v) misuse of evidence favorable to petitioner.
At appellant's sentencing hearing, the district court denied his motion for new trial. The court ruled that appellant failed to show either that trial counsel's performance fell below objectively reasonable standards or that appellant had a reasonable probability of a different result but for counsel's errors. See Strickland v. Washington, 466 U.S. 668 (1984). The district court then sentenced appellant to life imprisonment followed by a consecutive five-year sentence on firearms charges.
On direct appeal, appellant again raised ineffective assistance claims predicated on the same facts as those raised in his motion for new trial, but with two additional allegations, that trial counsel failed to object to an erroneous jury charge and failed to file certain pre-trial motions. We affirmed appellant's conviction in a summary order that rejected on the merits appellant's claims of ineffective assistance of counsel. United States v. Mui, 159 F.3d 1349, 1998 WL 439432 (Table)(2d Cir. 1998).
Thereafter, appellant filed the present Section 2255 proceeding, claiming various instances of ineffective assistance of both trial and appellate counsel.*fn1 In his Section 2255 motion, appellant again raised trial counsel's concession in the opening statement, counsel's failure to present an agreed upon defense, and counsel's failure to file certain pre-trial motions. All of these claims were disposed of on direct appeal. However, appellant also raised a host of other allegations of ineffective assistance not raised on direct appeal. Specifically, appellant claimed for the first time that: (i) trial and appellate counsel failed to communicate with him effectively due to his Cantonese language; (ii) he had difficulty understanding any of the proceedings due to the trial court interpreter's Mandarin accent; (iii) trial counsel did not examine certain evidence or file pre-trial motions;*fn2 (iv) trial counsel made false assertions in his opening statement; (v) trial counsel failed to investigate any defense witnesses; (vi) trial counsel failed to raise jurisdictional challenges; and (vii) trial counsel failed to file motions to preserve or disclose exculpatory evidence.
The district court denied appellant's motion. It ruled that appellant was procedurally barred from raising ineffective trial counsel claims that he had raised on direct appeal. As for the ineffective assistance claims raised for the first time in the Section 2255 motion, the court concluded that these claims were also barred because appellant did not show cause for not raising the claims on direct appeal or any prejudice resulting therefrom, and that appellant could not show "factual innocence" that would otherwise create an exception to the procedural default rule. ...