Yick Man Mui. v. United States, No. 07-4963 (2d Cir. 2010)

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07-4963-pr Yick Man Mui. v. United States 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: June 4, 2009 5 Decided: July 30, 2010) Docket No. 07-4963-pr 6 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 7 YICK MAN MUI, 8 Petitioner-Appellant, 9 10 11 v. UNITED STATES OF AMERICA, Respondent-Appellee. 12 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 13 14 15 B e f o r e: 16 District Court for the Eastern District of New York (Sterling 17 Johnson, Jr., Judge) denying habeas corpus relief from a 18 conviction and prison sentence, and denying a motion under 19 Federal Rule of Civil Procedure 60(b) to reopen that decision, 20 respectively. 21 U.S. 500 (2003), to challenge the district court s refusal to 22 review ineffective assistance of counsel claims that petitioner 23 raised for the first time in the instant habeas motion. 24 25 WINTER, CALABRESI, and SACK, Circuit Judges. Appeal from two judgments entered in the United States Petitioner invokes Massaro v. United States, 538 Vacated and remanded in part. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 SALLY WASSERMAN, for PetitionerAppellant. SUSAN CORKERY, Assistant United States Attorney (Benton J. Campbell, United States Attorney, on the brief, Peter A. Norling, Assistant United States Attorney, of counsel), United States Attorney s Office for the Eastern District of New York, Brooklyn, New York, for Respondent-Appellee. WINTER, Circuit Judge: 15 Yick Man Mui appeals from Judge Johnson s denial of his 16 petition for habeas corpus brought pursuant to 28 U.S.C. § 2255, 17 and denial of his motion under Federal Rule of Civil Procedure 18 60(b) to reopen that decision. 19 conviction, Mui raised various instances of alleged ineffective 20 assistance of trial counsel. 21 more ineffective assistance claims. 22 the new ineffective assistance claims were procedurally barred 23 because appellant had not provided reasons for failing to raise 24 the claims on direct appeal and had not shown any resulting 25 prejudice or actual innocence. On direct appeal from his His Section 2255 motion raised yet The district court held that 26 We hold that a defendant who raises on direct appeal 27 ineffective assistance claims based on the strategies, actions, 28 or inactions of counsel that can be, and are, adjudicated on the 29 merits on the trial record, is precluded from raising new or 30 repetitive claims based on the same strategies, actions, or 31 inactions in a Section 2255 proceeding. 2 However, such a 1 defendant is not precluded from raising new ineffective 2 assistance claims based on different strategies, actions, or 3 inactions of counsel in a subsequent Section 2255 proceeding. 4 5 We vacate the district court order and remand for proceedings consistent with this opinion. 6 7 BACKGROUND A jury convicted appellant of committing violent crimes in 8 aid of racketeering, in violation of 18 U.S.C. 9 § 1959(a)(1). Prior to sentencing, appellant, represented by 10 new counsel, moved unsuccessfully for a new trial in part on 11 the ground that trial counsel had provided unconstitutionally 12 ineffective assistance. 13 trial counsel s: 14 counsel s opening statement; (ii) failure to present a planned 15 for defense ; (iii) failure to call petitioner as a witness; 16 (iv) failure to cross-examine the government s key cooperating 17 witness; and (v) misuse of evidence favorable to petitioner. 18 In particular, appellant attacked (i) concession of petitioner s guilt in At appellant s sentencing hearing, the district court 19 denied his motion for new trial. The court ruled that 20 appellant failed to show either that trial counsel s 21 performance fell below objectively reasonable standards or that 22 appellant had a reasonable probability of a different result 23 but for counsel s errors. 24 U.S. 668 (1984). 25 to life imprisonment followed by a consecutive five-year See Strickland v. Washington, 466 The district court then sentenced appellant 3 1 sentence on firearms charges. 2 On direct appeal, appellant again raised ineffective 3 assistance claims predicated on the same facts as those raised 4 in his motion for new trial, but with two additional 5 allegations, that trial counsel failed to object to an 6 erroneous jury charge and failed to file certain pre-trial 7 motions. 8 that rejected on the merits appellant s claims of ineffective 9 assistance of counsel. 10 11 We affirmed appellant s conviction in a summary order United States v. Mui, 159 F.3d 1349, 1998 WL 439432 (Table)(2d Cir. 1998). Thereafter, appellant filed the present Section 2255 12 proceeding, claiming various instances of ineffective 13 assistance of both trial and appellate counsel.1 14 Section 2255 motion, appellant again raised trial counsel s 15 concession in the opening statement, counsel s failure to 16 present an agreed upon defense, and counsel s failure to file 17 certain pre-trial motions. 18 of on direct appeal. 19 other allegations of ineffective assistance not raised on 20 direct appeal. 21 time that: 22 communicate with him effectively due to his Cantonese language; In his All of these claims were disposed However, appellant also raised a host of Specifically, appellant claimed for the first (i) trial and appellate counsel failed to 1 The certificate of appealability covers only the claims relating to trial counsel. Therefore, the claims relating to appellate counsel are not before us. 4 1 (ii) he had difficulty understanding any of the proceedings due 2 to the trial court interpreter s Mandarin accent; (iii) trial 3 counsel did not examine certain evidence or file pre-trial 4 motions;2 (iv) trial counsel made false assertions in his 5 opening statement; (v) trial counsel failed to investigate any 6 defense witnesses; (vi) trial counsel failed to raise 7 jurisdictional challenges; and (vii) trial counsel failed to 8 file motions to preserve or disclose exculpatory evidence. 9 The district court denied appellant s motion. It ruled 10 that appellant was procedurally barred from raising ineffective 11 trial counsel claims that he had raised on direct appeal. 12 for the ineffective assistance claims raised for the first time 13 in the Section 2255 motion, the court concluded that these 14 claims were also barred because appellant did not show cause 15 for not raising the claims on direct appeal or any prejudice 16 resulting therefrom, and that appellant could not show factual 17 innocence that would otherwise create an exception to the 18 procedural default rule. 19 2005 WL 323704 at *2-3 (E.D.N.Y. Feb. 7, 2005) (citing Bousley 20 v. United States, 523 U.S. 614, 622-23 (1998)). 21 As Mui v. United States, No. 99 CV 3627, On February 28, 2005, appellant, proceeding pro se, filed 2 While the district court recognized the failure to file pre-trial motions as a claim raised for the first time in the habeas petition, this claim appears to have in fact been alleged in a footnote on direct appeal. See Appellant Mui s Br., United States v. Mui, No. 97-1249, at 15 n.4 (2d Cir. 1998). 5 1 a motion to reconsider under Federal Rule of Civil Procedure 2 60(b), claiming, among other things, that he was entitled to 3 relief under Massaro v. United States, 538 U.S. 500 (2003). 4 asserted that Massaro constituted an [i]ntervening change in 5 law that required reconsideration of his petition. 6 district court held that Massaro was not an intervening change 7 in law and that its February 7, 2005 order was consistent with 8 Massaro. 9 He The Appellant then sought a certificate of appealability, 10 which we granted on the issue of whether appellant s 11 ineffective assistance of trial counsel claims were 12 procedurally barred in light of Massaro or were actually raised 13 and resolved on direct appeal. 14 15 DISCUSSION We review a district court s findings of fact for clear 16 error, and its denial of a Section 2255 petition de novo. 17 Rega v. United States, 263 F.3d 18, 21 (2d Cir. 2001). 18 Prisoners may seek collateral review of a federal 19 conviction or sentence that was imposed in violation of the 20 Constitution or laws of the United States. 21 2255(a). 22 society s strong interest in the finality of criminal 23 convictions, the courts have established rules that make it 24 more difficult for a defendant to upset a conviction by 25 collateral, as opposed to direct, attack. 28 U.S.C. § Because collateral challenges are in tension with 6 Ciak v. United 1 States, 59 F.3d 296, 301 (2d Cir. 1995) abrogated on other 2 grounds by Mickens v. Taylor, 535 U.S. 162 (2002). 3 In the case of a collateral challenge based on 4 constitutional claims, two separate rules regarding claim 5 preclusion based on a prior adjudication apply. 6 called mandate rule bars re-litigation of issues already 7 decided on direct appeal. 8 160, 165 (2d Cir. 2006); United States v. Minicone, 994 F.2d 9 86, 89 (2d Cir. 1993). First, the so- Burrell v. United States, 467 F.3d The mandate rule prevents re-litigation 10 in the district court not only of matters expressly decided by 11 the appellate court, but also precludes re-litigation of issues 12 impliedly resolved by the appellate court s mandate. 13 United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). 14 determine whether an issue may be reconsidered on remand, a 15 district court should look to both the specific dictates of 16 the remand order as well as the broader spirit of the mandate. 17 Id. (internal quotation marks omitted). 18 the case rule governs re-litigation of an issue at the 19 appellate level. 20 See To Of course, the law of In the context of Section 2255 proceedings involving 21 claims of ineffective assistance of counsel, we have applied 22 the mandate rule to bar claims raised and resolved on direct 23 appeal. 24 (2d Cir. 2009); Riascos-Prado v. United States, 66 F.3d 30, 33 25 (2d Cir. 1995); Douglas v. United States, 13 F.3d 43, 46 (2d See e.g., United States v. Pitcher, 559 F.3d 120, 124 7 1 Cir. 1993) (superseded by statute on other grounds); Schwamborn 2 v. United States, 492 F. Supp. 2d 155, 160-62 (E.D.N.Y. 2007). 3 We have also applied the mandate rule to bar ineffective 4 assistance claims in a Section 2255 proceeding when the factual 5 predicates of those claims, while not explicitly raised on 6 direct appeal, were nonetheless impliedly rejected by the 7 appellate court mandate. 8 (rejecting petitioner s Section 2255 ineffective assistance 9 claims because they were premised on the same facts and rest See Pitcher, 559 F.3d at 124 10 on the same legal ground as the argument made on direct 11 appeal). 12 A second rule that applies in the Section 2255 context 13 prevents claims that could have been brought on direct appeal 14 from being raised on collateral review absent cause and 15 prejudice. 16 Cir. 1993) ( In order to raise a claim that could have been 17 raised on direct appeal, a § 2255 petitioner must show cause 18 for failing to raise the claim at the appropriate time and 19 prejudice from the alleged error. ); Campino v. United States, 20 968 F.2d 187, 190 (2d Cir. 1992) ( [F]ailure to raise a claim 21 on direct appeal is itself a default of normal appellate 22 procedure, which a defendant can overcome only by showing cause 23 and prejudice. ). 24 25 See Marone v. United States, 10 F.3d 65, 67 (2d However, where as here, a petitioner s collateral challenge includes claims of ineffective assistance of counsel, 8 1 there is an important exception to the procedural default rule, 2 which requires a brief discussion of recent legal history. 3 Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993) abrogated 4 by Massaro v. United States, 538 U.S. 500 (2003), we recognized 5 that the failure to raise ineffective assistance of counsel 6 claims on direct appeal . . . should not necessarily be treated 7 similarly to a failure to raise other constitutional claims. 8 8 F.3d at 114. 9 defendant is represented on direct appeal by the same attorney In particular, we noted that: In (i) if a 10 as at trial, an ineffective assistance claim is likely to be 11 overlooked on direct appeal; and (ii) the record on direct 12 appeal may be insufficient to evaluate the merits of an 13 ineffectiveness claim. 14 contingencies, Billy-Eko applied the procedural bar to 15 ineffective assistance claims not brought on direct appeal only 16 when the defendant was represented by new appellate counsel and 17 the record was fully developed on the ineffective assistance 18 issue. 19 Id. To guard against these Id. at 114-16. However, the Supreme Court s decision in Massaro modified 20 Billy-Eko. In Massaro, the defendant was convicted and 21 sentenced on federal racketeering charges. 22 at 502. 23 not argue any claim of ineffective assistance of counsel, but 24 instead waited until a subsequent Section 2255 proceeding to 25 raise this claim. Massaro, 538 U.S. On direct appeal, defendant, under new counsel, did Id. The district court applied our then9 1 existing rule under Billy-Eko and ruled that defendant s 2 ineffective assistance claim was procedurally barred from his 3 Section 2255 proceeding. 4 Civ. 2971, S1 92 CR. 529, 2000 WL 1761038, at *4 (S.D.N.Y. Nov. 5 29, 2000). 6 App x. 26 (2d Cir. 2001). 7 We affirmed. Massaro v. United States, Nos. 97 Massaro v. United States, 27 Fed. In overturning our decision, the Supreme Court explained 8 that the Billy-Eko rule creat[ed] the risk that defendants 9 would feel compelled to raise the issue before there has been 10 an opportunity to fully develop the factual predicate for the 11 claim. 12 expressed concern that our rule would result in ineffective 13 assistance claims that would be raised for the first time in a 14 forum not best suited to assess those facts. . . . even if the 15 record contains some indication of deficiencies in counsel s 16 performance. 17 petitioner may bring an ineffective assistance of counsel claim 18 whether or not the petitioner could have raised the claim on 19 direct appeal. 20 Massaro, 538 U.S. at 504. Id. In addition, the Court Accordingly, the Court held that a Id. at 509. Unlike the petitioner in Massaro, appellant has raised 21 claims of ineffective assistance at various stages of 22 litigation: first in his motion for new trial, then on direct 23 appeal, and now in the instant Section 2255 proceeding. 24 some of the claims raised in his Section 2255 petition mirror 25 those raised in his motion for new trial and on direct appeal, 10 While 1 others do not. The district court recognized this but held 2 that all appellant s claims regarding trial counsel were 3 procedurally barred. We disagree. 4 Although Massaro rejected our procedural default rule 5 under Billy-Eko, it did not disturb our application of the 6 mandate rule to ineffective assistance claims brought in a 7 Section 2255 proceeding. 8 Section 2255 petitioner may not relitigate questions which 9 were raised and considered on direct appeal, United States v. 10 Becker, 502 F.3d 122, 127 (2d Cir. 2007), including questions 11 as to the adequacy of counsel. 12 398 F.3d 644, 649-50 (7th Cir. 2005). 13 district court did not err in dismissing those claims that had 14 been raised and decided on direct appeal. 15 Even after Massaro, therefore, a See Fuller v. United States, Accordingly, the Of course, Massaro allows a habeas petitioner to raise 16 ineffective assistance claims in a Section 2255 petition even 17 though no ineffective assistance claims were raised on direct 18 appeal. 19 not answer the question whether a Section 2255 petitioner, 20 having already raised one or more ineffective assistance claims 21 on direct appeal that were disposed of on the merits, may raise 22 additional ineffective assistance claims in a habeas 23 proceeding. 24 questions may arise in subsequent proceedings under § 2255 25 concerning the conclusiveness of determinations made on the Massaro, 538 U.S. at 508-09. However, Massaro does Although the Court in Massaro noted that certain 11 1 ineffective-assistance claims raised on direct appeal, 538 2 U.S. at 508, it declined to rule on the preclusive effect of 3 ineffective assistance claims decided on direct appeal as to 4 new such claims raised in subsequent collateral proceedings. 5 The government relies heavily on the Seventh Circuit s 6 decision in Peoples v. United States, 403 F.3d 844 (7th Cir. 7 2005), in which the court stated that all of a petitioner s 8 claims of ineffective counsel were a single ground for relief 9 no matter how many failings the lawyer may have displayed. 10 403 F.3d at 848; but see Fuller, 398 F.3d at 649 (treating 11 defendant s ineffective assistance claims regarding trial 12 counsel s performance at sentencing as a separable prong of 13 defendant s ineffective assistance claim). 14 Peoples, the government argues, a defendant must choose between 15 bringing all ineffective assistance claims on direct appeal or 16 holding them all for a Section 2255 proceeding. 17 We decline to adopt such a rule. Thus, following Preclusion rules are 18 generally designed to foster efficiency by imposing finality 19 (with some exceptions) after a party has had a full and fair 20 opportunity to obtain an adjudication of an issue. 21 Artuz, 221 F.3d 117, 122-23 (2d Cir. 2000). 22 proceeding rule in the present context furthers neither 23 efficiency nor finality. Acosta v. However, a single- 24 We recognize that, where a defendant alleges varying 25 factual predicates to support identical legal claims relating 12 1 to a particular event, all claims constitute a single ground 2 for relief for purposes of applying the mandate rule in 3 collateral proceedings. 4 1, 16 (1963) ( [I]dentical grounds may often be proved by 5 different factual allegations. ). 6 criminal defendant who makes and loses a contention that a 7 confession is involuntary because of physical coercion cannot 8 start over by adding an allegation of psychological coercion. 9 Peoples, 403 F.3d at 848. See Sanders v. United States, 373 U.S. Thus, for example, a However, the involuntary confession 10 example involves a single event - a confession - giving rise 11 to a discrete issue - the confession s admissibility. 12 Accordingly, both the need for efficiency and finality call for 13 all relevant legal and factual theories relating to the 14 confession s admissibility to be raised in a single proceeding. 15 With regard to ineffective assistance claims, it makes 16 sense to require all legal or factual arguments to be made in 17 the case of a particular strategy, action, or inaction of a 18 lawyer alleged to constitute ineffective assistance. 19 little is served by a rule that causes an adjudication of a 20 single ineffective assistance claim to preclude a later resort 21 to the Sixth Amendment involving a different strategy, action, 22 or inaction of counsel. 23 However, While all ineffective assistance claims rely upon the same 24 provision of the Constitution, the Sixth Amendment, a single 25 prosecution can give rise to ineffective assistance claims 13 1 arising at every stage of the case, based on different events, 2 and involving different counsel. 3 investigation, trial preparation, pre-trial motions or the lack 4 thereof, advising the defendant as to his or her rights, 5 opening or closing arguments, presentation of evidence or 6 omission of evidence, objections to prosecution evidence or 7 lack thereof, testimony by the defendant or lack thereof, not 8 taking an appeal, and the arguments made on appeal are among 9 the multitude of events that may give rise to ineffective Plea bargaining, pre-trial 10 assistance claims. 11 that the single common component of a citation to the Sixth 12 Amendment commands that all ineffective assistance claims be 13 raised in a single proceeding. 14 Given Massaro, it simply cannot be said Such a rule would produce little gain in efficiency. 15 Multiple adjudications of identical issues are already 16 prevented by the mandate rule. 17 habeas proceeding of a claim when the events underlying the 18 claim were the same as those underlying a claim raised and 19 decided on the merits on direct appeal. 20 in the criminal proceeding give rise to ineffective assistance 21 claims, however, the time spent in disposing of each is not 22 measurably reduced by hearing the claims in a single That rule bars the raising in a 14 Where different events 1 proceeding.3 2 yielded by a rule directing that once a claim that can be 3 decided on the record is raised and resolved on the merits on 4 direct appeal, all other claims that can be decided on the 5 record must also be raised. 6 have been raised and decided on the record on direct appeal 7 injects another issue to be litigated.4 8 may be difficult and may result in great delays caused by 9 appeals and remands. For example, no measurable efficiencies would be Deciding whether a claim could Resolving that issue Also, defendants would be encouraged to 10 seek unnecessary evidentiary hearings in order to render claims 11 eligible for a Section 2255 adjudication. 12 13 We believe it much easier simply to decide the merits of an ineffective assistance claim when raised because, while the 3 We need not, and do not, decide whether the mandate rule would allow an ineffective assistance claim disposed of on direct appeal under the second prong of Strickland -- no reasonable likelihood of affecting the verdict even assuming arguendo that it involves a departure from professional standard to be reconsidered where it is argued that the cumulative effect of various instances of such departures affected the verdict. 4 The Tenth Circuit has noticed a similar inefficiency in restricting ineffective assistance claims to a single procedure: [I]f procedural bar is raised as a defense, it embroils us in nonmerits issues which are as time consuming as if we went straight to the merits, and infinitely less productive. Applying, as we must, the cause and prejudice standard for avoiding the procedural default, we must first examine all the reasons advanced as cause, and write on the subtext after revisiting everything that happened on direct appeal, and then some. In conjunction, or as an alternative, we must examine prejudice, which is nothing less than evaluating the merits to determine whether we should evaluate the merits. Nothing productive is accomplished. United States v. Galloway, 56 F.3d 1239, 1242 (10th Cir. 1995). 15 1 claims invoke critical constitutional principles and are to be 2 taken very seriously, they are quite often the law s equivalent 3 of buyer s remorse or Monday morning quarterbacking and can 4 be quickly resolved. 5 often choices among bad alternatives that are only rarely shown 6 to be: (1) errors so serious that the defendant was deprived of 7 reasonably competent representation, (2) which cause prejudice 8 to the defense. 9 (1984). Decisions by criminal defense counsel are Strickland v. Washington, 466 U.S. 688, 687-91 Simply reaching the merits of such a claim rather than 10 first considering the failure to raise it on direct appeal is 11 likely to further both efficiency and finality and avoid 12 miscarriages of justice. 13 In fact, a single proceeding rule would probably increase 14 the time and effort needed to resolve ineffective assistance 15 claims with no gain in the administration of justice. 16 Massaro clearly allows such a claim to be raised on a Section 17 2255 motion where the record on direct appeal is not sufficient 18 to permit appellate review of that issue, the only effect of a 19 single proceeding rule would be to discourage the raising of 20 any ineffective assistance claim on direct appeal, even when 21 the record is sufficient for that adjudication. 22 ineffective assistance claims relating to trial counsel are 23 such that if appellate counsel raised such an issue on direct 24 appeal and thereby precluded later such claims, the act of 25 raising the preclusion-causing claim would itself give rise to 16 Because But most 1 a claim of ineffective assistance of appellate counsel. 2 claim would ordinarily require that the supposedly barred 3 claims be addressed on the merits to determine the professional 4 worthiness and effect of the preclusion-causing act. 5 proceeding rule thus furthers neither efficiency nor finality. 6 This A single We conclude, therefore, that the only barrier to raising 7 ineffective assistance claims in a Section 2255 proceeding 8 after raising such claims on direct appeal is the mandate rule, 9 i.e., strategies, actions, or inactions of counsel that gave 10 rise to an ineffective assistance claim adjudicated on the 11 merits on direct appeal may not be the basis for another 12 ineffective assistance claim in a Section 2255 proceeding. 13 We affirm the rejection of the claim regarding trial 14 counsel s concession in his opening statement, failure to 15 present an agreed-upon defense, and failure to file certain 16 pre-trial motions. 17 respects and remand for proceedings consistent with this 18 opinion. We vacate the judgment in all other 17

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