Opposition Brief — Chappell v. United States

| %, Bupreme Court, U.S,

& FILED

FEB 27 iam

No. 89-1040

JOSEPH F. SPANIOL, JR,

© ee

In the Supreme Court of the United States

OCTOBER TERM, 1989

ROBERT S. CHAPPELL, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

THOMAS E. BooTH

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

BEST AVAILABLE COPY

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QUESTION PRESENTED

Whether the district court correctly denied peti-

tioner’s motion to vacate his sentence under 28 U.S.C.

2255 on the ground that petitioner failed to demon-

strate cause for his failure to raise his claims on

direct appeal of his conviction.

(I)

TABLE OF CONTENTS

Page

a cumnntntennucawennibenosave 1

Jurisdiction ........... GE, Se ea 1

Ec dneapatunmsnsnnesinnsonewuness 2

EG AE ee 5

a. seennentnmncnnioocdosaebanns 13

TABLE OF AUTHORITIES

Cases:

Evitts v. Lucey, 469 U.S. 387 (1985) ...................... 6

Goodman vy. Lukens Steel Co., 482 U.S. 656

Nee sausenpssinsnavsossesivense 9

Gunn V. Newsome, 881 F.2d 949 (11th Cir.), cert.

denied, 110 S. Ct. 542 (1989) ...............000000000... 12

Kuhlmann v. Wilson, 477 U.S. 486 (1986) ............. 5

Murray Vv. Carrier, 477 U.S. 478 (1986) -.............. 6

Page vy. United States, 884 F.2d 300 (7th Cir.

a enachundonsansiboiasnecnanens 9

Smith v. Murray, 477 U.S. 527 (1986) .................... 6

Strickland v. Washington, 466 U.S. 668 (1984)....... 6

United States v. Addonizio, 442 U.S. 178 (1979).... 5

United States v. Akinseye, 802 F.2d 740 (4th Cir.

1986), cert. denied, 482 U.S. 916 (1987) -.......... 8

United States v. Aulet, 618 F.2d 182 (2d Cir.

a cccenssanennunnnins 8

United States v. Casamayor, 837 F.2d 1509 (11th

Cir. 1988), cert. denied, 109 S. Ct. 818 (1989)... 9

United States v. Chappell, 698 F.2d 308 (7th Cir.),

cert. denied, 461 U.S. 931 (1983) —...........0000000.2.. 2

United States v. Costa, 890 F.2d 480 (1st Cir.

a A 8

United States v. Cronic, 466 U.S. 648 (1984)........ 7

United States v. Cruz, 785 F.2d 399 (2d Cir.

a nshniicavtecinasosnenn 8

United States v. Cyrus, 890 F.2d 1245 (D.C. Cir

ED AES ES a ne DO 9

United States v. Frady, 456 U.S. 152 (1982) _........ 5, 6

(1IT)

IV

Cases—Continued : Page

United States v. Gutierrez, 839 F.2d 648 (10th Cir.

| RRS RR NER yas Le Ne cats SU OER 12

United States v. Lurz, 666 F.2d 69 (4th Cir. 1981),

cert. denied, 459 U.S. 843 (1982) 0.0000. 8

United States v. Myers, 892 F.2d 642 (7th Cir. —

8 SSRN Real sell ceva elton MPU Seca 1 Hose arias MATES eR 8,10

United States v. Rewald, 889 F.2d 836 (9th Cir.

IT tite tins ace teats testis trreegne et aera a 9

United States v. Sandini, 888 F.2d 300 (3d Cir.

Seg ETE Nas Caine Vesa Ral? Mik soe cB EAS SR 8

United States v. Theodoropoulos, 866 F.2d 587

(3d Cir.), mandamus denied, 109 S. Ct. 1179

ERE FRET aS See SER LEED LIN 10

United States v. Ugalde, 861 F.2d 802 (5th Cir.

1988), cert. denied, 109 S. Ct. 2447 (1989)... 8

Constitution, statutes and rule:

U.S. Const. Amend. VI ................... NRC ieea ste ARE A SORA! 6

Oe en oe 2

a era es Te Oe iach aie aacon eel passim

In the Supreme Court of the United States

OCTOBER TERM, 1989

No. 89-1040

ROBERT S. CHAPPELL, PETITIONER

OF

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 16-

18) and the order of the district court (Pet. App. 26-

29) are unreported.

JURISDICTION

The judgment of the court of appeals was entered

on June 2, 1989, and a petition for rehearing was de-

nied on September 25, 1989. Pet. App. 18. The peti-

tion for a writ of certiorari was filed on December

26, 1989 (a Tuesday following a Monday holiday).

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATEMENT

Following a jury trial in the United States District

Court for the Southern District of Indiana, petitioner

was convicted on two counts of mail fraud, in viola-

tion of 18 U.S.C. 1341. He was sentenced to three

years’ imprisonment and four years’ probation. His

conviction was affirmed on direct appeal. United

States v. Chappell, 698 F.2d 308 (7th Cir.), cert. de-

nied, 461 U.S. 931 (1983). Thereafter, petitioner

filed a motion under 28 U.S.C. 2255 to vacate his sen-

tence. The district court denied relief, Pet. App. 26-

29, and the court of appeals affirmed, Pet. App. 16-

18.

1. The evidence at trial, which is summarized in

the opinion of the court of appeals on direct appeal,

698 F.2d at 309-310, showed that in 1975 and 1976,

petitioner operated a company that drilled oil wells

in Pennsylvania. In his financing and operation of

the business, petitioner misrepresented to the in-

vestors the number of oil wells in operation, the use

of the invested funds, and the potential returns. Peti-

tioner was represented at trial by attorneys James

Bradford and Anthony Carissi, but he was repre-

sented on direct appeal of his conviction by attorneys

Richard J. Darko, and Donald Tabbert. On that ap-

peal, petitioner challenged only the sufficiency of the

evidence and the admission of certain evidence. The

court of appeals rejected both claims. 698 F.2d at

310-313.

2.a. In 1987, four years after his conviction was

affirmed on direct appeal, petitioner filed a pro se

motion under 28 U.S.C. 2255 to vacate his sentence.

Pet. App. 30-37. In that motion, petitioner raised

four new claims: (1) ineffective assistance of trial

counsel, (2) prosecutorial misconduct, (3) judicial

3

misconduct, and (4) failure to present certain de-

fense evidence to the jury. Petitioner’s claim of in-

effective assistance of counsel included allegations

that attorney Bradford was not prepared for trial,

failed to investigate the government’s case, did not

call witnesses to testify, and generally abandoned

petitioner’s interests. Pet. App. 30-32. In response,

the government contended that relief under 28 U.S.C.

2255 was unwarranted because petitioner had not

established cause for his failure to raise his claims

on direct appeal or substantial prejudice as a result

of the alleged errors.

The district court then afforded petitioner an op-

portunity to file an amended motion addressing the

question whether there was cause for his failure to

raise the issues on direct appeal of his conviction and

substantial prejudice resulting from that failure.

Petitioner’s response, however, again alleged ineffec-

tive assistance only of trial counsel, and did not ad-

dress the question whether the performance of appel-

late counsel established cause for his failure to raise

the issues on direct appeal. Pet. App. 37-61. After

considering petitioner’s response, the district court

denied relief. Pet. App. 28-29. The court recognized

that when a defendant is represented by the same

attorney at trial and on appeal, the attorney cannot

be expected to argue that his own performance at

trial was ineffective. But in this case, the court noted,

petitioner had hired new counsel on appeal.’ The

1 The court acknowledged petitioner’s assertion that Brad-

ford, petitioner’s trial counsel, was at least partially involved

in prosecuting the direct appeal, but it was unwilling to

assume that the attorneys retained for the appeal abdicated

their responsibilities by failing to raise a viable claim of

ineffective assistance of trial counsel. Pet. App. 29.

4

court also pointed out that even if it were to assume

that appellate counsel were reluctant to raise the

claim of ineffective assistance of trial counsel, that

would not provide a basis for failing to raise the other

issues that petitioner raised in his Section 2255 mo-

tion. Pet. App. 29.°

b. The court of appeals affirmed in an unpublished

order, holding that petitioner was barred from obtain-

ing relief on any of his four claims under Section

2255 because he had not established cause for his

failure to raise those claims on direct appeal. Pet.

App. 16-18. The court explained (id. at 17):

[Petitioner] argues that he established cause

in the district court by alleging that his trial

counsel was ineffective. But as the district court

noted, this does not sufficiently explain why [peti-

tioner], who was represented hy different counsel

on appeal, was precluded from raising these

issues on appeal. Unless appellate counsel was

similarly ineffective, and [petitioner] does not

claim that counsel was, the alleged ineffectiveness

of [petitioner’s] trial counsel is insufficient to

establish cause for [petitioner’s] failure to raise

these issues on appeal. Cf. United States ex rel.

Barnard v. Lane, 819 F.2d 798, 802 (7th Cir.

1987).

3. After the court of appeals ruled, petitioner filed

a second motion for relief under Section 2255, this

time alleging that his counsel on direct appeal of his

conviction were ineffective. On February 20, 1990,

the district court denied petitioner’s second motion.

United States v. Chappell, No. IP 89-1251-C (S.D.

2The court also observed that petitioner did not assert

that the evidence that was not introduced at trial was newly

discovered evidence. See Pet. App. 29 n.2.

5

Ind.). The court held that petitioner had not shown

that he was entitled to relief under Section 2255. It

explained (slip op. 6):

This Court is familiar with the trial record in

this case, even though Judge Steckler presided

over the trial. The trial transcripts, pleadings

and appellate opinion have again been examined.

Based on that examination, the Court now finds

that the failure of [petitioner’s] appellate coun-

sel to raise the issues identified in this action on

direct appeal did not constitute the ineffective-

ness of counsel. This finding is based on the

meritlessness of the issues which are now as-

serted (and which were likewise asserted in the

first Section 2255 proceeding), which would

plainly not result in a reversal of his conviction.

In addition, the court concluded that petitioner was

not entitled to relief on his second Section 2255 mo-

tion because he should have raised his claim of ineffec-

tive assistance of appellate counsel in his first motion

under that Section. Slip op. 4-5: compare Kuhlmann

vy. Wilson, 477 U.S. 486, 452-455 (1986) (opinion of

Powell, J.).

ARGUMENT

1. Section 2255 is limited to constitutional and

jurisdictional claims and to those trial errors that re-

sult in a miscarriage of justice. See United States v.

Addonizio, 442 U.S. 178, 185 (1979). Section 2255

is not a substitute for a direct appeal. 7d. at 184;

United States v. Frady, 456 U.S. 152, 165 (1982).

Accordingly, if a defendant did not raise a claim at

trial or on direct appeal, he cannot prevail on that

claim on collateral attack under Section 2255 unless

he shows “cause” for the procedural default at both

the trial and appellate levels and substantial prejudice

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7

for his failure to raise the issues on direct appeal,

petitioner’s response to that invitation discussed only

the alleged ineffectiveness of his trial counsel. See

Pet. App. 28-29. Moreover, the district court, in deny-

ing petitioner’s second Section 2255 motion, has since

rejected his contention that appellate counsel rendered

ineffective assistance. See page 5, supra.

2.a. The fourth claim raised in petitioner’s first

Section 2255 motion was that petitioner’s trial coun-

sel rendered constitutionally ineffective assistance. It

has been the position of the United States for some

time that claims of ineffective assistance of trial

counsel] ordinarily should be raised in the first in-

stance in a motion under Section 2255, rather than

on direct appeal. See United States v. Cronic, 466

U.S. 648, 667 n.42 (1984).° This is so for two rea-

sons. First, if the same attorney represents the de-

fendant both at trial and on appeal, it is unrealistic

to expect the attorney to argue on appeal that his

performance at trial was constitutionally defective.

Second, the resolution of claims of ineffective assist-

ance of trial counsel often requires consideration of

matters that are outside the record on direct appeal

and that should be considered by the district court

in the first instance. Where claims of ineffective

assistance of trial counsel are ordinarily to be raised

on collateral attack under Section 2255, a failure to

2In Cronic, the United States argued (U.S. Br. at 40-41

n.30; U.S. Reply Br. at 20 n.17) that claims of ineffective as-

sistance of trial counsel should be raised on collateral attack

under 28 U.S.C. 2255. The Court did not pass on the merits of

that contention as a general matter. It instead concluded that

the claim of ineffective assistance of trial counsel was prop-

erly presented on appeal in that case because the claim had

been raised in a timely motion for a new trial under Fed. R.

Crim. P. 33. 466 U.S. at 667 n.42.

8

raise such a claim on direct appeal would not consti-

tute a procedural default, and the defendant there-

fore would not have to establish “cause” for that

failure in order to present a claim of ineffective as-

sistance of trial counsel in a motion under Section

2255.*

A number of courts of appeals, in agreement with

our general view and our submission in Cronic, have

held or expressed a strong preference that a claim of

ineffective assistance of trial counsel should ordi-

narily be raised in a motion under Section 2255, at

least where it has not already been addressed by the

district court in a motion for a new trial or other-

wise. See, e.g., United States v. Costa, 890 F.2d 480,

482-483 (1st Cir. 1989); United States vy. Cruz, 730

F.2d 399. 404 (2d Cir. 1986); United States v.

Aulet. 618 F.2d 182, 185-186 (2d Cir. 1980): United

States y. Sandini, 888 F.2d 300, 311-312 (3d Cir.

1989): United States v. Akinseye, 802 F.2d 746, 744

(4th Cir. 1986), cert. denied, 482 U.S. 916 (1987);

United States v. Lurz, 666 F.2d 69, 78 (4th Cir.

1981). cert. denied, 459 U.S. 843 (1982); United

States v. Ugalde, 861 F.2d 802, 804 (5th Cir. 1988),

cert. denied, 109 S. Ct. 2447 (1989): United States

v. Myers, 892 F.2d 642, 648-649 (7th Cir. 1990);

‘In its brief as appellee in the court of appeals in this

ease, the government argued that petitioner must show cause

for his failure to raise any of his claims on direct appeal.

That submission was not consistent with the position of the

I'nited States insofar as petitioner’s claim of ineffective

assistance of trial counsel is concerned. As stated in the

text and in our brief in Cronic, we believe such claims ordi-

narily should be raised in a motion under Section 2255. It

follows from that position that a defendant should not have

to establish cause for his failure to raise the issue on direct

appeal.

9

United States vy. Rewald, 889 F.2d 836, 859 (9th Cir.

1989) ; United States vy. Casamayor, 837 F.2d 1509,

1516 (11th Cir. 1988), cert. denied, 109 S. Ct. 813

(1989). In the District of Columbia Circuit, if a

claim of ineffective assistance of trial counsel is

raised on direct appeal, that court ordinarily will

remand the case to the district court for resolution

of the claim before disposing of the direct appeal—

or, if the defendant has also filed a Section 2255

motion raising an ineffectiveness claim, the court

will stay proceedings on the direct appeal pending

resolution of the Section 2255 motion. United States

v. Cyrus, 890 F.2d 1245, 1247 (1989).

The approach of the Seventh Circuit, whose de-

cision is at issue here, does not appear to be firmly

established. In its unpublished order in this case,

the panel concluded that because petitioner was rep-

resented by new counsel on direct appeal, he should

have raised his claim of ineffective assistance of trial

counsel on direct appeal and therefore must now

establish cause for failing to do so in order to pre-

sent that claim in a motion under Section 2255. Pet.

App. 17.° Another panel of the Seventh Circuit

reached a similar conclusion where the defendant

likewise had new counsel on appeal. See Page v.

United States, 884 F.2d 300, 301-302 (1989).

It is not clear, however, that the Seventh Circuit is

firmly committed to that approach. Subsequent to

* Although petitioner appears to suggest (Pet. 4) that he

was represented on appeal by his trial counsel, both courts

below concluded that petitioner was. for these purposes, rep-

resented by new counsel on appeal. The concurrent determi-

nation of that factual issue by both courts below does not

warrant further review. See, e.g., Goodman v. Lukens Steel

Co., 482 U.S. 656, 665 (1987).

10

the decisions in the instant case and in Page, another

panel of the Seventh Circuit stated that claims of in-

effective assistance of trial counsel must ordinarily

be raised under 28 U.S.C. 2255. United States v.

Myers, 892 F.2d 642, 648-649 (1990). Because the

defendant in Myers itself was represented by new

counsel on appeal, the panel’s statement regarding

the preferred means for resolving ineffectiveness

claims presumably ineluded such cases. The court

in Myers nevertheless chose to allow the claim to be

considered in the proceedings on direct appeal in

that particular case—and to remand for the district

court to make factual findings on the claim-—because

the record on appeal strongly suggested that trial

counsel had been ineffective and the panel was reluc-

tant to allow the judgment of conviction to become

final until that issue was resolved. See 892 F.2d at

648-649." Thus, in light of the intervening decision

in Myers, it does not appear that the Seventh Cir-

cuit actually adheres to a rule that a claim of in-

effective assistance of trial counsel must be raised

on direct appeal where the defendant has new coun-

sel. and it therefore is not clear that the Seventh

Circuit would (as a corollary to such a rule) con-

tinue to apply the cause-and-prejudice standard

where new counsel on appeal did not raise a claim of

ineffective assistance of trial counsel.

Although we believe that the interests of the crim-

ina] justice svstem support the approach employed

by the majority of circuits—to channel claims of

‘Compare United States v. Theodoropoulos, 886 F.2d 587,

598 (3d Cir.), mandamus denied, 109 S. Ct. 1179 (1989) (hold-

ing that a claim of ineffective assistance of trial counsel should

first be presented in a motion under Section 2255, even where

the defendant had new counsel on appeal).

11

ineffective assistance of trial counsel to proceedings

under Section 2255—it would not be unfair for the

courts to follow the approach of the Seventh Circuit

in this case—nameiy, to require a defendant who

is represented by new counsel on appeal to raise any

claim of ineffective assistance of trial counsel on

direct appeal, and to apply the cause-and-prejudice

standard for excusing a procedural default if the

defendant does not do so. Under that approach, the

court of appeals would have the option of either ad-

dressing the ineffectiveness issue in the proceedings

on direct appeal (with a remand to the district court

if necessary for further proceedings on the issue)

or declining to resolve the issue on direct appeal and

remitting the defendant to a motion under Section

2255.

b. The manner in which claims of ineffective as-

sistance of trial counsel should generally be presented

does not warrant this Court’s review. Although the

courts of appeals take somewhat different approaches

to this question, they of course agree that such claims

can be raised, either on direct appeal or on collateral

attack. The courts of appeals also uniformly provide

a mechanism whereby claims of ineffective assistance

of trial ecunsel can be heard in a manner that will

assure consideration by the district court in the first

instance where necessary to allow development of «

factual record, either by remanding the claim for

consideration by the district court where it is raised

for the first time on direct appeal or by declining to

entertain the claim without prejudice to raising it in

a motion under 28 U.S.C. 2255. And no court of

appeals holds that the defendant is barred from

raising the claim on collateral attack under 28 U.S.C.

2255 if he was represented by trial counsel on ap-

12

peal, where it would be unrealistic to expect the

claim to be raised on direct review.

Thus, the precise manner in which claims of in-

effective assistance of trial counsel are heard is es-

sentially a matter of sound judicial administration

within each circuit that may appropriately be left to

the respective courts of appeals to refine. Whatever

variation there may be among the courts of appeals

on subsidiary matters concerning the presentation

of such claims does not affect the substantive rights

of the defendant or present questions of broad prac-

tical significance warranting this Court’s attention.

In particular, review by this Court of the Seventh

Circuit’s disposition of petitioner’s claim is not

warranted, because that court’s intervening decision

in Myers indicates that it has not reached a con-

cluded view on whether a claim of ineffective assist-

ance of trial counsel should ordinarily be raised on

direct appeal, even where the defendant is represented

by new counsel on appeal. Moreover, a denial of cer-

tiorari will not be unfair to petitioner, because the

district court has recently passed on petitioner’s

claims, including his claim of ineffective assistance of

trial counsel, and found them to be without merit.’

7 Petitioner waited five years—from 1982 until 1987—to

raise his claim of ineffective assistance of trial counsel in his

Section 2255 motion. At this late date, it might prove difficult

for petitioner’s trial counsel to recall all the circumstances

concerning his representation of petitioner. For that reason,

petitioner’s lengthy delay in bringing his claim furnishes an

independent ground for denying petitioner’s motion. See

Gunn V. Newsome, 881 F.2d 949, 955 n.4 (11th Cir.), cert.

denied, 110 S. Ct. 542 (1989) ; United States v. Gutierrez, 839

F.2d 648, 650-652 (10th Cir. 1988). This delay takes on added

significance in view of the fact that petitioner retained new

counsel to prosecute his direct appeal. If those attorneys be-

13

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

EDWARD S.G. DENNIS, JR.

Assistant Attorney General

THOMAS E. BooTH

Attorney

FEBRUARY 1990

lieved that trial counsel had rendered ineffective assistance

but also believed that such a claim should not be presented on

direct appeal, they could have promptly presented that claim

by filing a motion on petitioner’s behalf under Section 2255.

Tl OU. S. GOVERNMENT PRINTING OFFICE, 1990 262203 779