Kitchen v. U.S.A.

• Citation: 227 F.3d 1014
• Decision Date: 14 September 2000
• Docket Number: No. 97-3808,97-3808
• Parties: (7th Cir. 2000) Isiah Kitchen, Petitioner-Appellant, v. United States of America, Respondent-Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1014

227 F.3d 1014 (7th Cir. 2000)

Isiah Kitchen, Petitioner-Appellant, v. United States of America, Respondent-Appellee.

No. 97-3808

In the United States Court of Appeals For the Seventh Circuit

Argued December 10, 1999

Decided September 14, 2000

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. [Copyrighted Material Omitted] 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, 224 F.3d 670, 673, (7th Cir.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...