Kitchen, Isiah T. v. United States

In the

United States Court of Appeals

For the Seventh Circuit

No. 97-3808

Isiah Kitchen,

Petitioner-Appellant,

v.

United States of America,

Respondent-Appellee.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

Nos. 96 C 6932 (89 CR 908)--Allen Sharp, Judge.

Argued December 10, 1999--Decided September 14, 2000

Before Cudahy, Easterbrook and Rovner, Circuit Judges.

Cudahy, Circuit Judge. Isiah Kitchen appeals the

district court’s denial of his motion under 28

U.S.C. sec. 2255. We have already detailed the

facts underlying Kitchen’s arrest and conviction

in our decision on his direct appeal, see United

States v. Kitchen, 57 F.3d 516 (7th Cir. 1995),

but a very brief refresher is in order. Kitchen

was associated with the El Rukn street gang, and

in March of 1989 undercover agents posing as drug

dealers arrested Kitchen during the course of a

staged cocaine sale. Later that same day, agents

recovered two firearms from the house that

Kitchen shared with his girlfriend, Mary

Williams. Kitchen was charged with both drug and

firearm offenses, and on December 10, 1992, a

federal jury convicted him of possession of

cocaine with intent to distribute in violation of

21 U.S.C. sec. 841(a)(1) and of being a felon in

possession of a firearm in violation of 18 U.S.C.

sec. 922(g)(1). The district court sentenced

Kitchen to a total of 15 years imprisonment.

Kitchen filed a timely notice of appeal from his

conviction and sentence on April 1, 1993. On

direct appeal, this court affirmed the firearm

conviction but found the evidence insufficient to

sustain the cocaine charge. See Kitchen, supra.

Kitchen’s sentence was not changed, and he

remains incarcerated.

The events relevant to this appeal, however,

took place between his conviction in the district

court and our decision of his direct appeal. On

February 22, 1994, while his direct appeal was

pending, Kitchen filed a motion for a new trial

on the basis of newly discovered evidence under

Rule 33 of the Federal Rules of Criminal

Procedure in the district court. In that motion,

he pointed to two pieces of newly discovered

evidence that he argued entitled him to a new

trial. First, he claimed to have new information

regarding one of the government’s trial

witnesses. Second, Kitchen alleged that he had

discovered evidence that revealed a scheme by the

government to prevent Mary Williams (Kitchen’s

girlfriend) from testifying at trial. The

briefing in Kitchen’s direct appeal was stayed

for almost a year, allowing the district court to

decide Kitchen’s Rule 33 motion, which it denied

on July 25, 1994. Kitchen wanted to appeal that

denial, but his counsel (who represented him both

at trial and on direct appeal) inadvertently

failed to file a notice of appeal, thus

precluding our review of the denial of Kitchen’s

motion for a new trial. On June 7, 1995, as

noted, we decided Kitchen’s appeal of his

conviction and sentence, but without

consideration of the Rule 33 motion.

On October 23, 1996, Kitchen filed the present

motion under 28 U.S.C. sec. 2255 in the district

court. In his motion, Kitchen argued that he had

been denied his right to effective assistance of

counsel when his trial/appellate counsel failed

to file a notice of appeal from the July 25, 1994

denial of his motion for a new trial. The

district court denied Kitchen’s sec. 2255 motion.

That court assumed that Kitchen had a right to

counsel for the motion for a new trial but

concluded that Kitchen failed to establish that

he had been prejudiced by his counsel’s failure

to file a notice of appeal. This court granted

Kitchen a certificate of appealability on the

following issue:

Whether petitioner was denied effective

assistance of counsel due to his attorney’s

admitted failure "through inadvertence" to file

a notice of appeal from the district court’s

denial of [a post-trial, as opposed to a post-

appeal] motion for a new trial.

Kitchen v. United States, No. 97-3808 (7th Cir.,

Nov. 25, 1998) (order granting certificate of

appealability) (citation omitted). Kitchen

initially filed a pro se brief, and the

government responded, but on June 30, 1999,

counsel (Howard Eisenberg, dean and professor of

law at Marquette University Law School) was

appointed for Kitchen. Both sides rebriefed the

case, and we proceeded to oral argument.

We review de novo the district court’s denial

of Kitchen’s motion under 28 U.S.C. sec. 2255.

See Lanier v. United States, 205 F.3d 958, 962

(7th Cir. 2000). Deciding whether Kitchen was

denied effective assistance of counsel due to his

attorney’s failure to file a notice of appeal

from the denial of his Rule 33 motion requires us

to resolve three subsidiary issues: (1) whether

Kitchen had a right to counsel for his pre-appeal

motion for a new trial; (2) whether counsel’s

failure to file a notice of appeal was deficient

performance; and (3) whether Kitchen is entitled

to a presumption of prejudice, or, if he is not,

whether he has shown prejudice. As explained in

detail below, we hold that Kitchen had a right to

counsel for his post-trial but pre-appeal Rule 33

motion. Counsel’s failure to file a notice of

appeal was clearly deficient performance, but,

ultimately, Kitchen’s ineffective assistance

claim fails because he is not entitled to a

presumption of prejudice and cannot demonstrate

actual prejudice from the forfeited appeal.

I. Right to Counsel

Our initial inquiry in this case must be

whether Kitchen had a right to counsel for his

pre-appeal motion for a new trial because

"[w]here there is no constitutional right to

counsel there can be no deprivation of effective

assistance." Coleman v. Thompson, 501 U.S. 722,

752 (1991). See also Wainwright v. Torna, 455

U.S. 586, 587-88 (1982)./1 The Supreme Court has

established that a defendant’s right to counsel

attaches "at or after the time that judicial

proceedings have been initiated against him,"

Kirby v. Illinois, 406 U.S. 682, 688 (1972), and

once a defendant’s right to counsel attaches, the

right continues to apply "at every stage of a

criminal proceeding where substantial rights of

a criminal accused may be affected." Mempa v.

Rhay, 389 U.S. 128, 134 (1967). It is equally

well established that a criminal defendant enjoys

this right to counsel through his first appeal of

right, see Evitts v. Lucey, 469 U.S. 387, 396

(1985); Ross v. Moffit, 417 U.S. 600, 607 (1974),

but that, once the direct appeal has been

decided, the right to counsel no longer applies,

see Finley v. Pennsylvania, 481 U.S. 551, 557

(1987). See also United States v. Gramley, 915

F.2d 1128, 1137 (7th Cir. 1990) ("Our cases

establish that the right to appointed counsel

extends to the first appeal of right, and no

further.").

The timing of Kitchen’s motion for a new trial

is an important factor supporting his right to

counsel in prosecuting the motion and in an

appeal from an adverse determination in the

district court. His Rule 33 motion came well

after the initiation of criminal proceedings

(when his right to counsel attached, see Kirby,

406 U.S. at 689) and well before the decision of

his direct appeal (when his right to counsel

terminated, see Finley, 481 U.S. at 557). In

addition, under governing principles, the nature

of a motion for a new trial supports Kitchen’s

right to counsel: in a Rule 33 proceeding, a

defendant "must face an adversary proceeding

that--like a trial--is governed by intricate

rules that to a layperson would be hopelessly

forbidding. An unrepresented [defendant]--like an

unrepresented defendant at trial--is unable to

protect the vital interests at stake." Evitts,

469 U.S. at 396 (although referring specifically

to a direct appeal). Kitchen could not have

presented his new evidence for the first time in

his direct appeal without having first fully

pursued his Rule 33 motion. See United States v.

Higham, 98 F.3d 285, 293 (7th Cir. 1996). The

outcome of Kitchen’s motion for a new trial

(including the outcome of an appeal from an

adverse judgment) could have had a substantial

impact on the course of his criminal proceedings.

It would not have, under any circumstances,

entitled him to release, but were the motion to

be granted, Kitchen would have received a second

trial and an opportunity to present a

(presumably) enhanced defense.

The government, however, argues that Kitchen had

no right to counsel for his post-trial but pre-

appeal motion for a new trial by pointing to

several courts of appeals that have held, quite

explicitly, that there is no right to counsel in

Rule 33 proceedings. United States v. Tajeddini,

945 F.2d 458 (1st Cir. 1991); United States v.

Lee, 513 F.2d 423 (D.C. Cir. 1975); United States

v. Birrell, 482 F.2d 890 (2d Cir. 1973). By

relying on these cases, the government overlooks

the fact that Tajeddini, Lee and Birrell

addressed only Rule 33 motions that were decided

after the decisions in the respective defendants’

direct appeals. See Tajeddini, 945 F.2d at 460;

Lee, 513 F.2d at 424; Birrell, 482 F.2d at 891-

92. As noted, timing is critical in the present

issue, and because the Rule 33 motions in the

cited cases from other circuits were filed and

decided after the first appeal of right, they

were characterized as collateral attacks, and it

is well established that there is no

constitutional right to counsel in collateral

proceedings. See, e.g., Finley, 481 U.S. at 557.

However, it is wide of the mark to label a pre-

appeal motion for a new trial as a "collateral

attack." We have noted the converse proposition

that "[w]hen made following the outcome of a

direct appeal, a Rule 33 motion plainly is

’collateral’ in the usual sense of that term."

United States v. Woods, 169 F.3d 1077, 1078 (7th

Cir. 1999). See also United States v. Evans, No.

99-1187, 2000 WL 1171971, at *4 (7th Cir. Aug.

18, 2000) ("[A]ny motion filed after the

expiration of the time for direct appeal, and

invoking grounds mentioned in [sec. 2255(1)], is

a collateral attack for purposes of [sec.

2255(8)]."). Here, however, Kitchen’s direct

appeal had not yet been decided, so his motion

for a new trial clearly did not "follow[ ] the

outcome of [his] direct appeal."/2 Instead we

can say that his motion for a new trial was in

aid of the appeal of the conviction and sentence.

The conclusion that Kitchen’s motion for a new

trial was not a collateral attack is further

supported by the procedural consideration that,

had Kitchen’s counsel filed a notice of appeal

from the denial of the motion, the Rule 33 appeal

could have been consolidated with Kitchen’s

direct appeal. See United States v. Ellison, 557

F.2d 128, 132 (7th Cir. 1977). It would make no

sense to label a pre-direct appeal Rule 33 motion

as a "collateral attack" on the conviction, when

the appeal from such a proceeding could be

consolidated with the direct appeal of the

conviction. A properly denominated collateral

attack on a defendant’s conviction--like a sec.

2255 motion--could never be consolidated with the

direct appeal, and is not even part of the

criminal proceeding itself. See Finley, 481 U.S.

at 556-57; Fay v. Noia, 372 U.S. 391, 423-24

(1963). Therefore, because Kitchen’s motion for

a new trial was decided before our decision in

his direct appeal, it may not be deemed a

"collateral attack" on his conviction, and

Kitchen had a right to counsel in prosecuting

such a motion and in taking an appeal from its

denial.

II. Counsel’s Performance

Having determined that Kitchen had a right to

counsel, we must now determine whether his right

to effective assistance of counsel has been

violated. In order to prevail on an ineffective

assistance claim based on his counsel’s failure

to file a notice of appeal, Kitchen must satisfy

the familiar test of Strickland v. Washington,

466 U.S. 668 (1984). See Roe v. Flores-Ortega,

120 S. Ct. 1029, 1034 (2000). Under Strickland,

Kitchen must first demonstrate that his counsel’s

performance was deficient. See 466 U.S. at 687.

An attorney’s performance is deficient if, under

the circumstances, it was unreasonable under

prevailing professional norms. See id. at 688.

The government argues that Kitchen cannot show

deficient performance because Kitchen’s counsel

was partially successful on the direct appeal.

The government explains:

In a narrow sense, reasonable counsel should file

a notice of appeal from an order denying a new

trial when requested to do so by the defendant.

In a broader sense, however, failing to pursue

one issue so strongly destined to fail, in light

of counsel’s otherwise fine performance, is not

constitutionally unacceptable.

2d Gov. Br. at 17. While we think it sensible to

view Kitchen’s appeal as a whole, we are not

entirely persuaded by the government’s reasoning.

The government is correct that, as a general

matter, failing to pursue a particular issue is

not necessarily deficient performance, for there

is "[n]o particular set of detailed rules for

counsel’s conduct" Strickland, 466 U.S. at 688.

But we must consider, along with all the other

circumstances, the reason or reasons why an

attorney takes (or fails to take) a particular

action, see id. at 690. Although "strategic

choices made after thorough investigation of the

law and facts relevant to plausible options are

virtually unchallengeable," Strickland, 466 U.S.

at 690, counsel’s failure to file a notice of

appeal here was not the product of any such

strategic decision. Counsel has freely admitted

that he failed to file a notice of appeal through

"inadvertence." Forgetting to file a notice of

appeal is far from a reasonable strategy and

clearly falls "outside the wide range of

professionally competent assistance." Strickland,

466 U.S. at 690. Therefore, we reject the

government’s argument on this point: counsel’s

performance was deficient.

III. Prejudice

Merely demonstrating deficient performance,

however, is not enough to succeed on an

ineffective assistance claim. Under Strickland,

Kitchen must also show that he was prejudiced by

his counsel’s deficient performance. See 466 U.S.

at 687. Kitchen first argues that his counsel’s

failure to file a notice of appeal from the

denial of the Rule 33 motion is per se

constitutionally ineffective representation that

requires no showing of prejudice by way of a

likelihood of success on appeal. Prejudice,

however, can be presumed only in the most

egregious cases of ineffective assistance--those

where "[p]rejudice . . . is so likely that case-

by-case inquiry into prejudice is not worth the

cost," id. at 692--and "[a]ctual or constructive

denial of the assistance of counsel altogether is

legally presumed to result in prejudice." Id. See

also Penson v. Ohio, 488 U.S. 75, 88 (1988);

United States v. Cronic, 466 U.S. 648, 659

(1984). The Supreme Court recently held, in a

case in which defense counsel failed to file a

notice of appeal for direct review of a

conviction, that "when counsel’s constitutionally

deficient performance deprives a defendant of an

appeal that he otherwise would have taken, the

defendant has made out a successful ineffective

assistance of counsel claim," Flores-Ortega, 120

S. Ct. at 1039, and need not demonstrate "the

merits of his underlying claims," id. at 1038.

Prior to Flores-Ortega, we had ruled similarly in

Castellanos v. United States, 26 F.3d 717, 720

(7th Cir. 1994) (holding, in a case in which it

was undisputed that the defendant requested that

his attorney file a direct appeal, that "[a]

defendant is entitled on direct appeal to legal

aid . . . and he need not make a preliminary

showing of ’prejudice’ . . . .").

Kitchen argues that he need not show a

likelihood of success on appeal because this case

is analogous to cases like Castellanos and

Flores-Ortega. Although it is a close question,

we must ultimately reject this argument. For in

those cases in which the Supreme Court, as well

as this and other circuits, have presumed

prejudice from the failure to file a notice of

appeal, defendants have had no assistance of

counsel for any issues. See Flores-Ortega, 120 S.

Ct. at 1033; Castellanos, 26 F.3d at 718. See

also, e.g., Ludwig v. United States, 162 F.3d

456, 459 (6th Cir. 1998); Morales v. United

States, 143 F.3d 94, 97 (2d Cir. 1998). Cf.

Penson, 488 U.S. at 78-79 (defense counsel

withdrew prior to appeal). Therefore, a

presumption of prejudice has arisen when the

defendant was hampered by "the complete denial of

counsel," Flores-Ortega, 120 S. Ct. at 1038

(emphasis added), meaning that "the defendant

never receive[d] the benefit of a lawyer’s

services in constructing potential appellate

arguments," Castellanos, 26 F.3d at 718 (emphasis

added). When "[n]o one has looked at the record

with an advocate’s eye," id., possible arguments

on appeal are not even identified by an attorney,

and it would be difficult for a court to evaluate

the likelihood of success on appeal when the

potential issues on that appeal were never

identified. Cf. Castellanos, 26 F.3d at 718

(noting that although judges can

"conscientiously" try "to imagine what a lawyer

might have done, an advocate often finds things

that an umpire misses.").

Here, however, we need not employ our

imaginations to determine what appealable issues

were present in Kitchen’s case. His counsel filed

a timely notice of appeal from Kitchen’s

conviction and sentence and argued several issues

before this court on direct appeal--some with

success. Thus, one cannot characterize such a

situation as one in which Kitchen was "abandoned"

by his attorney or the denial of counsel on

appeal was "complete." His attorney’s deficient

performance did not "deprive[ ] [Kitchen] of the

appellate proceeding altogether." Flores-Ortega,

120 S. Ct. at 1038. Rather, Kitchen’s counsel,

through his deficient performance, foreclosed our

review of one issue-- whether Kitchen was

entitled to a new trial on the basis of newly

discovered evidence. This is unlike the situation

in which the possible issues on appeal have not

even been identified by an advocate, and

prejudice must be presumed. See, e.g., Penson,

488 U.S. at 88. Here, the abandoned issue has

been clearly defined, and no reason has been

offered why any prejudice resulting from its

abandonment may not be reliably determined.

We believe that Kitchen’s situation most closely

resembles one in which his counsel has failed to

preserve a particular issue for appellate

review./3 Our most recent decision addressing

the omission of one issue from an appeal is Mason

v. Hanks, 97 F.3d 887 (7th Cir. 1996). Under

Mason, a defendant must demonstrate prejudice by

showing that the "omitted issue ’may have

resulted in a reversal of the conviction, or an

order for a new trial,’" 97 F.3d at 893 (quoting

Gray v. Greer, 800 F.2d 644, 646 (7th Cir.

1986)), and only if the defendant makes that

showing, will we deem the lack of effective

assistance prejudicial, see id. Thus, to

determine whether Kitchen was prejudiced by his

counsel’s deficient performance we must look at

the possible merits of the appeal from Kitchen’s

denied Rule 33 motion./4 If there was merit to

Kitchen’s Rule 33 motion, his appeal from its

denial would probably have been successful and

Kitchen has demonstrated prejudice. If, however,

his appeal would not likely have resulted in

reversal, Kitchen has not demonstrated prejudice,

and his ineffective assistance claim fails.

Kitchen presented two pieces of newly-discovered

evidence that he argues entitled him to a new

trial. We address each in turn.

In his Rule 33 motion, Kitchen first claimed to

have new evidence regarding Lawrence Griffin, who

testified for the government at trial about the

staged cocaine purchase. (Kitchen does not press

this portion of the motion on appeal, but, for

the sake of completeness, we briefly discuss it.)

This piece of claimed new evidence concerned

Griffin’s receipt of allegedly unauthorized

payments that constituted undisclosed benefits

from the government. Apparently, the government

had been paying Griffin fees for "decoding"

various taped conversations and only completely

disclosed this fact on the last day of the

trial./5 This certainly would have been useful

for impeachment of Griffin’s testimony by tending

to show bias,/6 but we have clearly stated that

"impeachment evidence cannot provide the basis

for a new trial." United States v. Austin, 103

F.3d 606, 609 (7th Cir. 1997). See also United

States v. Young, 20 F.3d 758 (7th Cir. 1994).

Accordingly, the new evidence about Griffin would

not have entitled Kitchen to a new trial, and had

Kitchen argued this issue, his argument would

have failed for lack of demonstrated prejudice.

Kitchen’s argument to us focuses exclusively on

the second piece of newly-discovered evidence

that he raised in his Rule 33 motion. Kitchen

claims to have uncovered evidence that the

government intimidated one of his potential

witnesses, Mary Williams, who, on this account,

did not testify. Had Ms. Williams testified, she

would have explained that the guns that formed

the basis of Kitchen’s sec. 922(g) conviction

were hers and her cousin’s, not Kitchen’s. The

intimidation of Ms. Williams, claims Kitchen,

involves a second search of her home and her

arrest in 1992, that was, allegedly, engineered

by Assistant U.S. Attorney Hogan (Kitchen’s

prosecutor). Another factor was Hogan’s decision

to ask her incriminating questions if she took

the stand. Williams did not testify at trial, and

in an affidavit submitted by Kitchen with his

sec. 2255 motion, she claims that:

Mr. Hogan cautioned me against testifying for

Isiah Kitchen. In addition, the agents who

searched my home on October 5, 1989 made what I

considered were threats against my home, car,

possessions, and, most importantly, children. The

agents had indicated to me that if I did not

cooperate with them (and I took that to mean if

I did not say the guns belonged to Mr. Kitchen)

I would be harmed by them, harmed in the sense

that they would attempt to take my home and

children away from me.

Williams’s Aff. para. 21. Of course, a prosecutor

may properly "caution" a defense witness about

the risks of testifying--e.g., the danger of

self-incrimination--but the prosecution cannot

"interfere[ ] with a defense witness’ free and

unhampered choice to testify." United States v.

Jackson, 935 F.2d 832, 846 (7th Cir. 1991). Thus,

"[w]here . . . the substance of what the

prosecutor communicates to a witness is ’a threat

over and above what the record indicate[s] was

timely, necessary, and appropriate,’ the

inference that the prosecutor sought to coerce a

witness into silence is strong." Id. at 847

(quoting United States v. Simmons, 670 F.2d 365,

369 (D.C. Cir. 1982). But, Kitchen’s claim of

witness coercion falters because he cannot show

that these alleged threats by Hogan or by other

government agents had any effect on Ms.

Williams’s willingness to testify. See United

States v. Hooks, 848 F.2d 785, 802 (7th Cir.

1988) (rejecting witness coercion claim, in part

because "[w]e have found no government

interference with the defense witnesses’ choice

not to testify"); United States v. Viera, 839

F.2d 1113, 1115 (5th Cir. 1988) (en banc)

(rejecting witness coercion claim because "[n]o

showing had been made that a prospective witness

was intimidated or that he refused to testify");

United States v. Blackwell, 694 F.2d 1325, 1343

(D.C. Cir. 1982) ("Where, as here, the witness

herself never refuses to testify, the nexus

between the error and the loss of her testimony

to the defendant is inevitably attenuated . . .

.").

Far from demonstrating that she was intimidated

by the alleged scheme orchestrated by the

government, Ms. Williams’s affidavit shows that

she was totally unfazed. We have, at most,

allegations of a failed attempt to coerce a

witness. In her affidavit, Williams explains that

Kitchen’s counsel attempted to reach an

"understanding" with the court and the government

that no punitive action would be taken against

her./7 She further explains that "[a]lthough no

understanding was reached, I still wanted to get

on the stand and tell the truth about the

ownership of the guns." Williams’s Aff. para. 23.

Thus, it is quite apparent from Ms. Williams’s

affidavit that she was ready, willing and able to

testify despite the alleged threats. See also id.

para. 23 ("When the time for Mr. Kitchen’s trial

arrived, I wanted to testify on his behalf.");

id. para. 25 ("If I ever had the opportunity to

take the stand regarding the issue of ownership

and possession of the guns . . . I would testify

. . . ."). The alleged conduct of the government

actors may have been egregiously inappropriate

(accepting, of course, Williams’s allegations),

but in the face of her clear statements that it

had no effect on her willingness to testify, the

alleged behavior (even if true) cannot be the

basis of a witness coercion claim. We need

evidence not only that there was an attempt to

coerce a witness but also that the attempted

coercion actually influenced the witness’s

decision to testify or not to testify. On the

basis of the allegations, Kitchen asks us to

"infer" that Williams was coerced and to remand

the issue for a hearing. We will not do this

because Ms. Williams’s own affidavit flat out

refutes Kitchen’s desired inference that she was

dissuaded from testifying.

Then why did Ms. Williams not take the stand

during Kitchen’s trial? Simply put, because the

defense decided not to call her as a witness.

Kitchen’s brief explains:

As a result of [the 1992] search, Williams was

charged in the state court with several offenses.

Defense counsel wanted to call Ms. Williams to

testify that she had these weapons in her home in

1992 to show that, unrelated to Petitioner, she

regularly kept weapons in her home./8 The U.S.

Attorney responded by saying that if Williams

testified about the 1992 weapons, he would cross

examine her about whether she was selling drugs

with [Kitchen] in 1989.

Originally defense counsel was concerned that

questioning Williams would raise Fifth Amendment

problems as to her pending 1992 state court

charges. After the prosecutor mentioned the

possibility of cross examining Williams about

events that occurred in 1989, Judge Sharp and the

U.S. Attorney began discussing possible Fifth

Amendment issues relating to acts that occurred

in 1989. Defense counsel then decided not to call

Williams because of problems she might face on

her Fifth Amendment privilege.

Appellant’s Br. at 19-20 (citations and

quotations omitted) (emphasis and footnote

added). The defense counsel deciding not to call

Williams because she ran the risk of

incriminating herself (or asserting her Fifth

Amendment right not to testify) on either direct

or cross-examination is a far cry from Williams’s

refusing to testify because she had been

intimidated by the government. And surely Mr.

Hogan should properly have been free to cross-

examine Ms. Williams regarding her activities

with Kitchen in 1989. It bears repeating that

Williams, despite the risk of self-incrimination,

"still wanted to get on the stand and tell the

truth about the ownership of the guns" at the

trial. Williams’s Aff. para. 23. In her

affidavit, Williams states that "[i]t had always

been my understanding that I was not called to

the stand because of Mr. Kitchen’s concern for my

own welfare." Williams’s Aff. para. 24. He

possibly did Williams a great service by keeping

her off the stand, but Kitchen cannot now excuse

his decision not to call Williams by alleging

that she was coerced. Accordingly, Kitchen’s

witness coercion argument fails.

In sum, Kitchen had a right to counsel in the

appeal from his motion for a new trial, which was

denied by the district court before our decision

in his direct appeal. Counsel’s failure to file

a notice of appeal from the district court’s

denial of the Rule 33 motion was deficient

performance. However, Kitchen was not entitled to

a presumption of prejudice, and his ineffective

assistance of counsel motion ultimately fails

because he cannot show that his counsel’s failure

to appeal prejudiced him. Therefore, we Affirm the

district court’s denial of Kitchen’s sec. 2255

motion.

/1 We note for the sake of completeness that this

circuit has confronted this factual situation

before in Perez v. United States, 124 F.3d 204,

1997 WL 534459 (7th Cir. Aug. 25, 1997)

(unpublished order). In that case, Perez filed a

sec. 2255 motion arguing that he had been denied

his right to effective assistance of counsel when

his attorney failed to file a notice of appeal

from the denial of his Rule 33 motion. Just as in

the present case, Perez’s counsel had already

timely filed a notice of appeal from Perez’s

conviction and sentence and that appeal had yet

to be argued. In Perez, the panel addressed the

merits of Perez’s ineffective assistance claim--

rejecting it because he failed to show prejudice-

-and thereby implicitly concluded that Perez did

have a right to counsel in the Rule 33

proceedings. However, both because Perez is

unpublished and because it contains no analysis

of the right to counsel issue, we do not rely on

it here.

/2 The Supreme Court has also used the decision of

the direct appeal as the temporal boundary that

defines a collateral attack for which a defendant

has no right to counsel. In Finley v.

Pennsylvania, the Court stated that a motion for

postconviction relief is a "collateral attack

that normally occurs only after the defendant has

failed to secure relief through direct review of

his conviction." 481 U.S 551, 557 (1987).

/3 This analogy is bolstered by the fact that had

his counsel filed a timely notice of appeal from

the denial of his motion for a new trial, that

appeal would have been consolidated with

Kitchen’s direct appeal. See United States v.

Ellison, 557 F.2d 128, 132 (7th Cir. 1977). We

also note that our previous analysis of counsel’s

performance jibes with the performance analysis

used when counsel fails to appeal a particular

issue: "when appellate counsel omits (without

legitimate strategic purpose) ’a significant and

obvious issue,’ we will deem his performance

deficient." Mason v. Hanks, 97 F.3d 887, 893 (7th

Cir. 1996) (quoting Gray v. Greer, 800 F.2d 644,

646 (7th Cir. 1986)).

/4 Because we must consider the hypothetical appeal,

we must keep in mind that we review the district

court’s denial of a motion for a new trial under

Rule 33 for abuse of discretion only. See United

States v. Austin, 103 F.3d 606, 608 (7th Cir.

1997).

/5 The government had already disclosed that Griffin

had been paid fees for "decoding," but on the

last day of trial added (1) that someone in the

United States Attorney’s office had recently had

a conversation with a paralegal in which the

paralegal admitted arranging for Griffin to

receive fees in prior months when, in fact,

Griffin had not been working on tapes and (2)

that Griffin and another government paralegal had

a drink together while waiting for lunch one day.

/6 At a hearing outside of the jury’s presence,

Kitchen’s attorney was given the opportunity to

voir dire Griffin about the additional

information. The district court then denied the

defense request to reopen testimony and recall

Griffin for further cross-examination in front of

the jury. See United States v. Kitchen, 832 F.

Supp. 217, 220 (N.D. Ill. 1993).

/7 Presumably, this "understanding" was some sort of

immunity.

/8 The fact that defense counsel wanted to call Ms.

Williams to testify that she had these weapons in

her home in 1992 undermines Kitchen’s intimation

that the 1992 search and arrest were part of the

scheme to coerce Williams. As the district court

noted, "[i]t is difficult for this court to

ascribe prosecutorial misconduct where the events

allegedly engineered inured to the benefit of the

defense." United States v. Kitchen, 858 F. Supp.

782, 792 (N.D. Ill. 1994).