McKee v. U.S.

• Decision Date: 02 February 1999
• Docket Number: Docket Nos. 97-2671
• Citation: 167 F.3d 103
• Parties: Frederick W. McKEE, Petitioner-Appellee-Cross-Appellant, v. UNITED STATES of America, Respondent-Appellant-Cross-Appellee. (L), 97-2711.
• Court: U.S. Court of Appeals — Second Circuit

Page 103

167 F.3d 103

Frederick W. McKEE, Petitioner-Appellee-Cross-Appellant, v. UNITED STATES of America, Respondent-Appellant-Cross-Appellee.

Docket Nos. 97-2671(L), 97-2711.

United States Court of Appeals,

Second Circuit.

Argued Sept. 17, 1998.

Decided Feb. 2, 1999.

Ian Weinstein, New York, NY, for Petitioner-Appellee-Cross-Appellant.

David V. Kirby, Chief, Criminal Division (Charles R. Tetzlaff, U.S. Attorney for District of Vermont, Gary G. Shattuck, Asst. U.S. Atty., Rutland, VT, on the brief), for Respondent-Appellant-Cross-Appellee.

Before: KEARSE, Circuit Judge, and BRIEANT ^* and JOHNSON ^**, District Judges ^***.

KEARSE, Circuit Judge:

These appeals focus on two aspects of an order of the United States District Court for the District of Vermont, J. Garvan Murtha, Chief Judge, ruling on motions by petitioner Frederick W. McKee pursuant to 28 U.S.C. § 2255 to vacate his conviction or, alternatively, to reduce his 20-year sentence. Both of the district court's rulings must be vacated in light of more recent decisions of this Court. Respondent United States appeals from so much of the district court's order as granted McKee's motion for a reduction in sentence on the ground that the sentence had been enhanced on a basis ruled impermissible in United States v. Collado, 106 F.3d 1097 (2d Cir.1997) ("Collado "). Because Collado was overruled by this Court in United States v. Ortiz, 143 F.3d 728, 729 (2d Cir.), cert. denied, --- U.S. ----, 119 S.Ct. 252, 142 L.Ed.2d 207 (1998), we reverse the ruling that McKee was entitled to a reduction in sentence. McKee cross-appeals from so much of the district court's order as denied his motion to set aside his conviction on the ground that his Sixth Amendment right to effective assistance of counsel was violated by the failure of his prior attorney to challenge, on direct appeal, the trial court's instructions to the jury as to the government's burden of proof and the jury's obligation to acquit if the government failed to meet its burden. The district court ruled that the instructions as a whole were adequate, that an appellate challenge would not have resulted in a reversal, and that McKee thus did not show that counsel's failure prejudiced him. In light of our recent decision in Bloomer v. United States, 162 F.3d 187 (2d Cir.1998), holding that the failure on direct appeal to challenge jury instructions containing errors identical to those at issue here was prejudicial, we vacate so much of the district court's order as denied McKee's motion to set aside his conviction, and we remand for further exploration of the level of counsel's performance in accordance with the standard set by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ("Strickland ").

I. BACKGROUND

In 1991, McKee was indicted and tried on several counts of unlawful trafficking in controlled substances, in violation of 21 U.S.C. §§ 841 and 846, and 18 U.S.C. § 2. At his trial before Judge Franklin S. Billings, Jr., the charge to the jury included 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 lasts 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 on the basis of the presumption of innocence.

(Trial Transcript, December 12, 1991, at 13-14 (emphasis added).) There was no objection to these instructions. McKee was convicted on all counts.

Although the imprisonment range recommended by the Sentencing Guidelines ("Guidelines") would ordinarily have been 168-210 months, the government had served an information pursuant to 21 U.S.C. § 851 prior to trial, requesting that McKee, if convicted, be given increased punishment because of his prior conviction of a narcotics felony in California. Following the jury's verdict, the district court enhanced McKee's sentence pursuant to the § 851 information, imposing a prison term of 20 years. See 21 U.S.C. § 841(b); Guidelines § 5G1.1(b).

On appeal, represented by new counsel, McKee challenged, inter alia, the enhancement of his sentence, arguing that § 851 was not applicable if the charges leading to the prior conviction were not prosecuted pursuant to an indictment, and pointing out that his California offense was prosecuted instead pursuant to an information. Counsel did not, however, argue that there was any error in the trial court's instructions to the jury. We found no merit in any of the arguments advanced, and we affirmed. See United States v. Harwood, 998 F.2d 91, 93 (2d Cir.1993), cert. denied, 510 U.S. 1077, 114 S.Ct. 893, 127 L.Ed.2d 86 (1994).

In 1996, after another change of counsel, McKee moved pursuant to 28 U.S.C. § 2255 to vacate his conviction on the ground that he had received ineffective assistance of counsel on his direct appeal because his attorney had not challenged the trial court's reasonable-doubt instructions. McKee argued that the jury charge "incorrectly defined the key concept of proof beyond a reasonable doubt" and that it "nullified the required verdict of guilt beyond a reasonable doubt by instructing jurors that they 'may' rather than 'must' acquit if they had a reasonable doubt." (Petition for Writ of Habeas Corpus dated July 3, 1996 at 3.) In addition, following our January 1997 decision in Collado, in which we vacated a sentence enhancement based on a prior felony conviction because the felony had not been prosecuted following an indictment or a waiver of indictment, see 106 F.3d at 1103, McKee amended his petition to request, alternatively, a sentence reduction, renewing arguments made on his direct appeal.

In a decision dated August 1, 1997 ("District Court Decision"), the district court granted McKee's request for resentencing on the basis of Collado. It denied, however, McKee's petition to vacate his conviction on the basis of ineffective assistance of counsel, concluding that McKee had failed to establish the second prong of the test established by Strickland, i.e., that a petitioner must show (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that he suffered prejudice in the sense that there was a reasonable probability that, but for the deficiency, the outcome of the proceeding would have been different. See 466 U.S. at 687-96, 104 S.Ct. 2052.

As to the level of counsel's performance, the district court noted that the instructions here challenged by McKee have been held to constitute plain error, see United States v. Birbal, 62 F.3d 456, 463 (2d Cir.1995), cert. denied, --- U.S. ----, 118 S.Ct. 256, 139 L.Ed.2d 184 (1997), and that most of these instructions had previously been criticized by this Court in United States v. Delibac, 925 F.2d 610, 614 (2d Cir.1991) (per curiam), some 10 months prior to McKee's trial. The court concluded that, in light of these precedents, the performance of McKee's first appellate counsel was constitutionally deficient.

The district court ruled, however, that McKee had failed to establish prejudice because the instructions as a whole were adequate, and an appellate challenge to the flawed instructions thus would not have led to a reversal:

The Court finds Petitioner has not shown a reasonable likelihood the jury

would have failed to understand the correct standards for conviction despite the infirm jury charge.... [T]he Court instructed the jury numerous times on the government's burden to prove the defendants guilty beyond a reasonable doubt. The instructions also emphasized that the jury must find the defendants not guilty if the government failed to carry its burden. As in Delibac, an appeal of the instruction in this case would likely have drawn a rebuke from the Second Circuit, but the instruction as a whole "adequately convey[ed] the concept of reasonable doubt." Delibac, 925 F.2d at 614

District Court Decision at 10. An order was entered accordingly, denying McKee's motion to set aside his conviction, but granting his motion to reduce his sentence.

The government has appealed from so much of the district court's order as ruled that McKee is entitled to a sentence reduction on the basis of Collado. Because Collado was expressly overruled in United States v. Ortiz, 143 F.3d at 729, the basis for the district court's sentence-reduction decision has been eliminated, and we accordingly reverse that part of the district court's order.

We need discuss further only McKee's cross-appeal.

II. DISCUSSION

McKee contends that the district court erred in concluding that he was not prejudiced by the failure of his appellate counsel to challenge the trial court's incorrect definition of reasonable doubt and its incorrect statement that the jury could convict even if there was a reasonable doubt. The government opposes the cross-appeal, contending both that the district court's finding of no prejudice was correct and that the district court erred in concluding that the performance of McKee's appellate counsel was less than objectively reasonable. In light of our recent decision in Bloomer v. United States, 162 F.3d 187 ("Bloomer "), we conclude that McKee has established prejudice, and we remand for further proceedings in accordance with the Strickland standard as to the level of counsel's performance.

A. The Strickland Standard

To prevail on a claim of...