Norris v. U.S.

• Decision Date: 13 August 1982
• Docket Number: No. 79-1673,79-1673
• Citation: 687 F.2d 899
• Parties: Charles N. NORRIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 899

687 F.2d 899

Charles N. NORRIS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 79-1673.

United States Court of Appeals Seventh Circuit.

Submitted March 25, 1982.

Decided Aug. 13, 1982. ^*

Charles N. Norris, pro se.

Daniel Webb, U. S. Atty., Chicago, Ill., for respondent-appellee.

Before CUMMINGS, Chief Judge, and CUDAHY and POSNER, Circuit Judges.

POSNER, Circuit Judge.

The appellant was convicted in 1976 of transporting and conspiring to transport forged or altered securities in interstate commerce, a federal crime. He appealed his conviction to this court, which in 1978 affirmed the conviction in an unpublished order sub nom. United States v. Greathouse, 571 F.2d 586 (7th Cir. 1978). The appellant then moved the sentencing court under 28 U.S.C. § 2255 to vacate his conviction, the court denied his motion, and this appeal followed.

The appellant's section 2255 motion raised seven issues. Three of these had been presented in the appellant's direct appeal from his conviction and decided by this court against him. No changed circumstances of fact or law are alleged that might make it possible to regard them as new grounds. In the absence of changed circumstances we will not reconsider in an appeal from the denial of a section 2255 motion an issue previously decided by us on direct appeal from the conviction. See Levine v. United States, 430 F.2d 641, 642-43 (7th Cir. 1970); cf. United States v. Scherer, 673 F.2d 176, 180 (7th Cir. 1982); United States v. Orejuela, 639 F.2d 1055, 1057 (7th Cir. 1981).

Another issue raised in the appellant's section 2255 motion-that one of the witnesses who testified against the appellant at his trial was not credible-could not properly be raised in a section 2255 motion because it could have been, but was not, raised on direct appeal. See Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947). It is true that Kaufman v. United States, 394 U.S. 217, 220, 89 S.Ct. 1068, 1070, 22 L.Ed.2d 227 n.3 (1969), limited the rule of Sunal to nonconstitutional errors; but the credibility of a witness is not a constitutional issue.

The remaining three grounds in the section 2255 motion are constitutional, and Kaufman holds that the failure to raise a constitutional issue on direct appeal does not prevent raising it later in a section 2255 motion unless the movant was deliberately bypassing the appellate process. See 394 U.S. at 220 n.3, 89 S.Ct. at 1070 n.3; Davis v. United States, 411 U.S. 233, 240, 93 S.Ct. 1577, 1581, 36 L.Ed.2d 216 (1973). Nonetheless the district court held that the appellant was barred from raising these issues in a section 2255 motion. With regard to the principal ground (unduly suggestive photo-identification), the court stated that the failure to raise it on direct appeal was "apparently because of a strategic decision" and that "a deliberate failure to raise an issue on appeal precludes its consideration under § 2255," citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Now it is true that the court held, in the alternative, that these issues were without merit; but the importance of enforcing gatekeeping procedures designed to prevent the courts from being flooded by unworthy postconviction motions every one of which must be, unless it is barred by one of those procedures, painstakingly considered on the merits has persuaded us to consider the correctness of the district judge's threshold ruling even though it raises more difficult questions than his alternative ruling on the merits.

The district judge was right to doubt that deliberate bypass is still the test for whether a failure to follow normal procedures for raising issues in criminal cases-procedures that include raising issues whenever possible in a direct appeal from the conviction rather than years later in a postconviction proceeding-is a bar to raising such an issue later in a section 2255 motion. Kaufman had gotten the standard of deliberate bypass from Fay v. Noia, 372 U.S. 391, 438-40, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963), where the Supreme Court had held that a criminal defendant's failure to appeal his conviction did not prevent a federal district court in a habeas corpus proceeding from deciding constitutional issues that he could have appealed directly, unless the failure to appeal was, in the circumstances, a deliberate bypass of the state's procedures for correcting erroneous criminal convictions. This aspect of Fay v. Noia was overruled in Wainwright v. Sykes, supra, 433 U.S. at 87, 97 S.Ct. at 2506, which holds that if a petitioner for federal habeas corpus has not fulfilled the procedural requirements under state law for judicial review of an issue, the federal court may not reach the merits of the issue unless the petitioner shows good cause for his procedural default and prejudice resulting from not being allowed to raise the issue on habeas corpus.

It is true that Wainwright involved habeas corpus for state prisoners rather than section 2255 relief for federal prisoners; and many of the reasons given by the Court for its result in Wainwright derive from the tensions that federal habeas corpus for state prisoners creates in a federal system and are therefore inapplicable to section 2255 proceedings. On the other hand, whereas enforcing a state procedural default in a federal habeas corpus proceeding bars the petitioner from what is realistically his only access to a federal forum to decide his federal claims, this is not a problem under section 2255-a remedy for people convicted in federal court in the first place. In any event, the Supreme Court's very recent decision in United States v. Frady, --- U.S. ----, ----, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816, 830 (1982), ends these speculations by extending the Wainwright test to section 2255 proceedings.

Now it may well be a fair inference to draw from Wainwright and Frady that a procedural default will bar subsequent review in a section 2255 proceeding unless good cause for and prejudice from the default are shown, even if the applicable statute or rule of procedure does not provide, as it did provide in both of those cases, that the failure to raise an issue in the fashion prescribed bars the criminal defendant from raising it later. If so, we could dispose rather quickly of two of the three remaining grounds in this section 2255 motion-that the trial judge was biased and that the jury was racially prejudiced. The appellant failed to take any steps at his trial to correct either of these alleged errors. He did not file an affidavit of bias with the trial judge, see 28 U.S.C. § 144, and he did not ask the judge to question the jury, during the voir dire, regarding their racial prejudices, see, e.g., Savage v. United States, 547 F.2d 212, 217 (3d Cir. 1976). He has presented no reason for his failure to take these steps.

But we need not decide whether these defaults at trial bar the appellant from relief under section 2255. A decision on that ground would not enable us to dispose of this appeal in its entirety, because it would leave unresolved the last ground in the appellant's motion: that a witness at the trial was prompted to identify the appellant by an unduly suggestive photographic exhibit that had been prepared by the prosecution. Because this allegation raises a constitutional issue (under the due process clause of the Fifth Amendment, see, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)), Sunal v. Large, supra, cannot be used to prevent us from considering it on the merits. And because the appellant pressed the issue at trial, we could not dispose of it on the same ground that we have suggested might be available to decide the appellant's judge and jury prejudice claims. Hence if the appellant is barred from raising this issue in a section 2255 motion, it can only be because he failed to raise it in his direct appeal from his conviction and has offered no reason for that failure, which the district court conjectured was "strategic." This means that in order to decide whether the district court was correct in holding that it did not have to reach the merits of any of the grounds for relief presented in the appellant's section 2255 motion, we must decide whether failure to raise a claim in a direct appeal bars raising it later by way of a section 2255 motion unless there is a showing of good cause for so irregular a procedure. And our answer to this question, if it is in the affirmative, will automatically resolve the question whether the district court was not required to reach the merits of the judge and jury prejudice claims either, and will therefore make it unnecessary for us to decide the additional question whether a procedural default at trial bars relief under section 2255 even if the default is not governed by a rule that provides that an issue on which the defendant has defaulted may not be raised later.

This brings us, at last, to the central issue in this case, which is whether Kaufman is still good law. If it is, the court below was wrong to hold that the appellant could not raise in his section 2255 motion issues that he could have raised but did not raise in his direct appeal; for the Supreme Court held in Kaufman that failure to raise an issue on appeal is not in and of itself a deliberate bypass of the appellate process. But after Wainwright pulled the rug out from under Kaufman (and from under Davis v. United States, supra, which repeated the holding in Kaufman, and like Kaufman preceded Wainwright ), by repudiating the deliberate bypass standard that the Court in Kaufman had gotten from Fay v. Noia, the continued survival of Kaufman has been questioned in a number of decisions. Sincox v. United States, 571 F.2d 876, 879-80 (5th Cir. 1978), held that the deliberate bypass standard of Kaufman had been superseded by the cause and prejudice standard of Wainwright. Cf. ...