Bloomer v. U.S.

• Decision Date: 03 December 1998
• Docket Number: No. 96-2531,96-2531
• Citation: 162 F.3d 187
• Parties: Robert A. BLOOMER, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 187

162 F.3d 187

Robert A. BLOOMER, Jr., Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 96-2531.

United States Court of Appeals Second Circuit.

Argued Jan. 26, 1998.

Decided Dec. 3, 1998.

Monica R. Jacobson, New York City, for Petitioner-Appellant.

David V. Kirby, Chief, Criminal Division, Rutland, Vermont (Charles R. Tetzlaff, United States Attorney, Gary G. Shattuck, Assistant United States Attorney, District of Vermont, Rutland, Vermont, of counsel), for Respondent-Appellee.

Before: CARDAMONE, CABRANES, and HEANEY ^* Circuit Judges

CARDAMONE, Circuit Judge:

This appeal by petitioner, Robert A. Bloomer, Jr., stems from an order entered on June 19, 1996 in the United States District Court for the District of Vermont (Murtha, C.J.), which adopted the report and recommendation of Magistrate Judge Jerome J. Niedermeier to deny petitioner's application for habeas corpus relief from his criminal conviction, pursuant to 28 U.S.C. § 2255. We earlier affirmed Bloomer's conviction for drug-related offenses on his direct appeal. He now collaterally attacks that conviction, claiming the jury charge given at his trial was infected with constitutional error, and that because his attorney did not object to such error, he did not receive the effective assistance of counsel.

Bloomer appears to have successfully established his ineffective assistance claim. However, our cases emphasize that generally an assertedly ineffective attorney should have an opportunity to be heard and to present evidence before being declared ineffective. This issue must therefore be remanded to the district court for such a hearing.

BACKGROUND

A. Trial Proceedings Leading to Conviction

In August 1991 Bloomer was indicted for conspiracy to manufacture and distribute methamphetamine, a controlled substance, and for the substantive crime of maintaining a facility for, and manufacturing and distributing the drug. He was represented by counsel at his April 1992 trial, in the United States District Court for the District of Vermont, before Judge Franklin S. Billings, Jr.

At the conclusion of the trial, the district court included in the charge the following instructions

To support a verdict of guilty, you need not find every fact beyond a reasonable doubt. You need only find that the government has established by the evidence and beyond a reasonable doubt each and every essential element of the crime charged.

A reasonable doubt is a fair doubt, based upon the application of reason and common sense to the evidence presented.

The law does not require proof that overcomes all possible doubt. So a reasonable doubt means only a substantial doubt.

. . . . .

The law presumes that a defendant is innocent of the charges against him. The presumption of innocence last[s] throughout the trial and ends only if you, the jury, find beyond a reasonable doubt that the defendant is guilty.

Should the prosecution fail to prove the guilt of the defendant beyond a reasonable doubt, you may acquit the defendant (emphasis added).

on the basis of the presumption of innocence.

It bears underscoring that the trial court also advised the jurors--when the instructions were given originally and repeated later at the jury's request--that they could convict Bloomer only if the prosecution proved beyond a reasonable doubt each element of each crime. Neither party objected to these instructions. The jury ultimately convicted petitioner on all charges, and in December 1992 he was sentenced to an aggregate term of 121 months' imprisonment, followed by five years of supervised release.

Bloomer appealed his conviction on several grounds--not including the constitutionality of the jury instructions--using the same counsel on appeal as he had at trial. The government cross-appealed, challenging the calculation of petitioner's sentence. We affirmed the conviction, but remanded the case for resentencing. See United States v. Spencer, 4 F.3d 115 (2d Cir.1993). On remand, Judge Billings imposed a sentence of 188 months' imprisonment, followed by five years of supervised release. This sentence was affirmed in an unpublished summary order. See United States v. Bloomer, 43 F.3d 1457 (2d Cir.1994) (table).

B. Bloomer's First Habeas Petition

Meanwhile, after our August 1993 decision in Spencer, Bloomer retained the same counsel and in December 1993 moved for habeas relief pursuant to 28 U.S.C. § 2255, alleging that jurors from the local area were deliberately excluded from the jury pool. The motion was denied in an order on January 12, 1994, and no appeal was taken from that order.

Nearly two years after the first petition was filed, we decided United States v. Birbal, 62 F.3d 456 (2d Cir.1995), cert. denied, --- U.S. ----, 118 S.Ct. 256, 139 L.Ed.2d 184 (1997), a case in which the same district judge who presided at Bloomer's trial gave jury instructions including the identical passages quoted above. In reversing defendants' convictions and ordering a new trial on the ground that the jury charge was constitutionally deficient, see id. at 465, we highlighted four flaws in the instructions: (1) failure to inform the jury that "proof beyond a reasonable doubt" is proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs; (2) equating "reasonable doubt" with "substantial doubt"; (3) advising the jury that it "need not find every fact beyond a reasonable doubt" to support a guilty verdict; and (4) advising the jury that it "may" (rather than must) acquit if the government failed to prove guilt beyond a reasonable doubt. See id. at 460.

Four years earlier we had upheld a conviction where the same district court judge had given jury instructions tainted with only the first three deficiencies. See United States v. Delibac, 925 F.2d 610, 614 (2d Cir.1991) (per curiam). When the fourth element was included in the Birbal charge, we ruled that because the jury was given the unconstitutional option of convicting defendant on a lesser standard of proof than "beyond a reasonable doubt," the conviction must be set aside. See 62 F.3d at 460.

C. Bloomer's Second Habeas Petition

On November 9, 1995 after Birbal had been decided, Bloomer again moved for habeas relief under § 2255. He filed this petition pro se, contending that the jury instructions denied him due process, violated his Sixth Amendment right to a jury verdict of guilty beyond a reasonable doubt, and, because his attorney failed to object to such instructions, that he had been denied the effective assistance of counsel.

The habeas application was referred to Magistrate Judge Jerome J. Niedermeier, who recommended it be denied on the grounds that petitioner had abused the writ by filing a second § 2255 motion raising claims not earlier presented in his first motion for such relief, and that petitioner had procedurally defaulted on the points raised in his second application by not raising them at trial, on appeal, or in his first petition. The magistrate judge additionally ruled that petitioner could not succeed in his ineffective assistance of counsel claim because he could Bloomer filed a notice of appeal, and moved this court for a certificate of appealability--a certificate that the district court had declined to issue--pursuant to the Antiterrorism and Effective Death Penalty Act (AEDPA). On February 26, 1997 we issued a certificate of appealability for the limited purpose of deciding his ineffective assistance claim. On January 12, 1998 we issued an order clarifying that, pursuant to Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 2067-68, 138 L.Ed.2d 481 (1997), and United States v. Perez, 129 F.3d 255, 260 (2d Cir.1997), petitioner did not need a certificate of appealability to raise issues before us since he filed his § 2255 motion prior to the effective date of the AEDPA. As a result, we permitted Bloomer to brief any issue properly raised on appeal from the denial of his second petition for habeas relief. We turn now to those issues.

not establish the requisite prejudice resulting from his attorney's representation. Chief Judge J. Garvan Murtha adopted this report and recommendation, and, in an order entered on June 19, 1996 affirmed the magistrate judge's denial of petitioner's request for habeas relief.

DISCUSSION

Because Bloomer's instant habeas petition raises a legal claim that Bloomer did not raise in either his direct appeal or in his first habeas petition, he would generally be required to show both cause for not earlier raising this issue and prejudice resulting from it. Failure to adequately present an argument in the initial proceedings (including direct appeal) is classified as procedural default, see Murray v. Carrier, 477 U.S. 478, 489, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), while failure to present an argument on an earlier collateral attack is characterized as "abuse of the writ," see McCleskey v. Zant, 499 U.S. 467, 488, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). To excuse either, see generally id. at 493-94, 111 S.Ct. 1454, the petitioner is generally required to show (1) that "some objective factor external to the defense impeded counsel's efforts" to raise the claim at an earlier proceeding, Murray, 477 U.S. at 488, 106 S.Ct. 2639, and (2) " 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). ¹

Bloomer argued below that he was entitled to habeas relief both because (1) the trial court's erroneous reasonable doubt instruction deprived him of a fair trial and (2) his trial attorney rendered ineffective assistance of counsel by failing to object to the erroneous instruction or challenge this instruction on direct review. However, on this appeal, Bloomer only presses his claim of ineffective assistance. Thus narrowed, Bloomer's claim is not subject to the cause-and-prejudice test that...