Billy-Eko v. U.S.
| Decision Date | 25 October 1993 |
| Docket Number | D,P,BILLY-EK,No. 990,990 |
| Citation | 8 F.3d 111 |
| Parties | Johnetitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 91-2456. |
| Court | U.S. Court of Appeals — Second Circuit |
Michele L. Adelman, New York City (Fried, Frank, Harris, Shriver, & Jacobson, of counsel), for petitioner-appellant.
Emily Berger, Asst. U.S. Atty. E.D.N.Y. (Zachary W. Carter, U.S. Atty., E.D.N.Y., of counsel), for respondent-appellee.
Before: PIERCE and ALTIMARI, Circuit Judges, and KEENAN, District Judge. *
Petitioner-appellant John Billy-Eko appeals from a judgment of the United States District Court for the Eastern District of New York (Nickerson, J.), denying petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 and denying his motion for reconsideration. The district court denied the petition on the merits. We affirmed the district court's denial of the writ on the ground that Billy-Eko procedurally defaulted his habeas claims by failing, without cause, to raise them on direct appeal from his conviction. 968 F.2d 281 (2d Cir.1992). This decision was vacated by the United States Supreme Court, and remanded to this Court "for further consideration in light of the position asserted by the Acting Solicitor General in his brief for the United States." --- U.S. ----, 113 S.Ct. 2989, 125 L.Ed.2d 685 (1993). After considering not only that position but the arguments of counsel for both Billy-Eko and the United States Attorney for the Eastern District, we hold that Billy-Eko's claims of ineffective assistance are not procedurally defaulted for failure to raise them on direct appeal. We also hold, however, that those claims are without merit, and affirm the judgment of the district court dismissing the petition for habeas corpus.
The evidence at trial established the following. On April 15, 1987, Billy-Eko arrived at John F. Kennedy International Airport ("JFK") as a passenger aboard Nigeria Airways Flight No. 850, from Lagos, Nigeria. Billy-Eko was a pilot for that airline, but was not part of the crew for that flight. He did, however, travel in full uniform and passed through customs along with the crew. At trial, the government argued that his presence in uniform was based on his anticipation that crew members would not be searched upon disembarking. On that day, though, customs inspectors at JFK decided to search both the passengers and crew of the Nigeria Airways flight. Upon searching Billy-Eko Billy-Eko was subsequently arrested and charged with importing heroin into the United States, in violation of 21 U.S.C. §§ 952(a) & 960(b)(1), and with possessing heroin with the intent to distribute, in violation of 21 U.S.C. §§ 841(a) & 841(b)(1)(A)(i). After a five-day jury trial during which Billy-Eko was represented by counsel, Billy-Eko was convicted as charged. He was thereafter sentenced to two concurrent ten-year terms of imprisonment, to be followed by two concurrent five-year terms of supervised release, and was ordered to pay a special assessment on each count.
who initially protested the search, inspectors discovered over three pounds of heroin concealed in his carry-on bag and over four pounds of heroin in the pockets of his raincoat.
Billy-Eko thereafter appealed his conviction, represented by new counsel. On direct appeal, Billy-Eko contended that the district court abused its discretion by disallowing certain testimony and by allowing the jury to handle the heroin found in Billy-Eko's bag and raincoat. This court affirmed the conviction in an unpublished summary order. United States v. Billy-Eko, 863 F.2d 46 (2d Cir.1988) (mem.).
Two years later, Billy-Eko, proceeding pro se, filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in the United States District Court for the Eastern District of New York (Nickerson, J.). In his motion, Billy-Eko raised several claims of ineffective assistance of trial counsel and prosecutorial misconduct, none of which were raised on direct appeal. The district court denied the motion on the merits and denied a subsequent motion for reconsideration, although the court also amended Billy-Eko's sentence by substituting a term of special parole for the previously imposed term of supervised release.
Billy-Eko appealed the district court's denial of the motion, now represented by counsel previously uninvolved in any prior aspect of his case. On appeal, he again raised claims of ineffective assistance of trial counsel and of prosecutorial misconduct. His claims of ineffective assistance, however, were largely different from those brought before the district court. We did not reach the merits of his claims, holding that his failure to raise the claims on direct appeal without cause constituted a procedural default preventing us from considering their merits. Billy-Eko, 968 F.2d at 283.
Specifically, we relied upon our holding in Campino v. United States, 968 F.2d 187 (2d Cir.1992), which adopted the "cause and prejudice" test to determine whether a federal defendant has waived a constitutional claim under § 2255 by failing to raise it on direct review. Billy-Eko, 968 F.2d at 283. Applying this test, we found that Billy-Eko could not establish cause for his failure to raise his ineffective assistance claims on direct appeal. Id., at 283. We did not reach the merits of his claims.
This holding was vacated by the Supreme Court. Billy-Eko v. United States, --- U.S. ----, 113 S.Ct. 2989, 125 L.Ed.2d 685 (1993). The Court remanded for "further consideration in light of the position asserted by the Acting Solicitor General in his brief for the United States filed May 28, 1993." Id. In contrast to its prior practice, see, e.g., Gibson v. United States, 329 U.S. 338, 344 n. 9, 67 S.Ct. 301, 304 n. 9, 91 L.Ed. 331 (1946); United States v. Young, 315 U.S. 257, 258-59, 62 S.Ct. 510, 511, 86 L.Ed. 832 (1946), the Court did not undertake an independent assessment of whether our judgment was correct, but, following its more recent practice, see, e.g., Diaz-Albertini v. United States, 498 U.S. 1061, 111 S.Ct. 776, 112 L.Ed.2d 839 (1991); Alvarado v. United States, 497 U.S. 543, 110 S.Ct. 2995, 111 L.Ed.2d 439 (1990), simply remanded so that we might consider the views of the Solicitor General. We are now presented directly with the question whether a § 2255 petitioner, raising under the Sixth Amendment an ineffective assistance of counsel challenge to his federal conviction, is procedurally barred from making that challenge for failure to raise the issue on direct appeal.
It is well-settled that where a petitioner does not bring a claim on direct appeal Campino dealt with a challenge brought under the Fourth Amendment. In the first Billy-Eko opinion, we relied on Campino in holding that Billy-Eko's Sixth Amendment claims were subject to the cause and prejudice test because of his failure to raise them on direct appeal. Billy-Eko, 968 F.2d at 283.
he is barred from raising the claim in a subsequent § 2255 proceeding unless he can establish both cause for the procedural default and actual prejudice resulting therefrom. See United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). In Campino, we applied this "cause and prejudice" requirement to federal prisoners seeking relief under § 2255 for even constitutional errors. See Campino, 968 F.2d at 190
The failure to raise ineffective assistance of counsel claims on direct appeal, however, should not necessarily be treated similarly to a failure to raise other constitutional claims. As the Solicitor General pointed out in his brief to the Supreme Court, there are several justifications for allowing ineffective assistance claims to be brought on collateral attack even if not brought on direct appeal, or even for establishing a preference that the claims be brought on collateral attack. See United States v. Cronic, 466 U.S. 648, 667 n. 42, 104 S.Ct. 2039, 2051 n. 42, 80 L.Ed.2d 657 (1984) (). In many instances, an accused will be represented by the same counsel at trial and during direct appeal. In such cases, it would be unrealistic to expect that trial counsel would be eager to pursue an ineffective assistance claim. Moreover, even the scrupulous attorney searching the record in good faith would likely be blind to his derelictions at the trial level.
Primarily, though, ineffective assistance claims are appropriately brought in § 2255 petitions even if overlooked on direct appeal because resolution of such claims often requires consideration of matters outside the record on direct appeal. See United States v. Matos, 905 F.2d 30, 32 (2d Cir.1990) (). Ineffective assistance claims are often based on assertions that trial counsel made errors of omission, errors that are difficult to perceive from the record: for example, neglecting to call certain witnesses or introduce certain evidence. The claims might also be based on a conflict of interest not apparent at trial. Proof is sometimes provided in attorney-client correspondence, or in other documents not introduced at trial. Even if a new attorney represents the accused on direct appeal, she might not come across reasons to suspect ineffective assistance in preparing a direct appeal. See, e.g., United States v. Taglia, 922 F.2d 413, 418 (7th Cir.) ("[I]n the usual case extrinsic evidence is necessary to prove that counsel's assistance was ineffective, because without such evidence counsel's apparent pratfalls will be presumed...
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