U.S. v. Rashad

• Decision Date: 10 June 2003
• Docket Number: No. 02-3010.,02-3010.
• Parties: UNITED STATES of America, Appellee, v. Rasheed RASHAD, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 908

331 F.3d 908

UNITED STATES of America, Appellee, v. Rasheed RASHAD, Appellant.

No. 02-3010.

United States Court of Appeals, District of Columbia Circuit.

Argued January 21, 2003.

Decided June 10, 2003.

Appeal from the United States District Court for the District of Columbia (No. 01cr00159-01).

Michael S. Fried, appointed by the court, argued the cause for appellant. With him on the briefs was Daniel H. Bromberg, appointed by the court.

Thomas S. Rees, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher and Thomas J. Tourish, Jr., Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and ROGERS and TATEL, Circuit Judges.

Opinion for the court filed by Chief Judge GINSBURG.

GINSBURG, Chief Judge:

Rasheed Rashad appeals his conviction on the ground that his lawyer's advice to reject a plea offer constituted ineffective assistance of counsel. Invoking this court's procedure for cases in which the defendant raises on appeal a colorable and previously unexplored claim of ineffective assistance, Rashad with the aid of new counsel seeks an evidentiary hearing in the district court. The Government argues that the limitation upon successive petitions for habeas corpus contained in the Anti-Terrorism and Effective Death Penalty Act counsels against this case, and that further factual development of Rashad's claim would be futile. We disagree and hence remand the record to the district court for further proceedings.

I. Background

Rashad was the target of a sting operation involving "controlled buys" by a government informant. On two occasions in 2001 the informant arranged to purchase cocaine from Rashad while under surveillance by the Bureau of Alcohol, Tobacco, and Firearms. BATF agents recorded telephone conversations in which Rashad set up the sales and they equipped the informant with a hidden video camera and a microphone to capture audio and video recordings of the transactions. At the culmination of the second deal, agents arrested Rashad and recovered the agreed-upon amount of cocaine.

The grand jury returned a 10-count indictment and the parties entered into plea negotiations. The record is silent as to the details of the talks. We know only, from the prosecutor's statement at sentencing, that "[t]he plea paperwork [was] drawn up, and it appeared as though this case would be resolved. [But] Mr. Rashad ... had a change of heart."

Rashad's allegation of ineffective assistance emerges from the shadows of the plea bargaining. He claims his trial counsel assured him that the evidence against him could not support a conviction and that he faced a maximum sentence of 10 to 15 years in prison. Rashad says he rejected the Government's plea offer based upon that advice.

At trial the Government presented the testimony of the informant and of several BATF agents, as well as the recordings of the transactions. The jury found Rashad guilty of two counts of distributing more than 50 grams of cocaine, in violation of 21 U.S.C. § 841, and of one count of distributing cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a). The district court sentenced Rashad to 235 months in prison — almost 20 years — to be followed by 10 years of supervised release. With new counsel, Rashad appeals, claiming he was denied the effective assistance of counsel guaranteed under the Sixth Amendment to the Constitution of the United States.

II. Analysis

In order to succeed on a claim of ineffective assistance of counsel, a criminal defendant

must show two things: that his lawyer made errors "so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," and that counsel's deficient performance was prejudicial, i.e., that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."

United States v. Gaviria, 116 F.3d 1498, 1512 (D.C.Cir.1997) (quoting Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984)). Due to the fact-intensive nature of the Strickland inquiry and the likelihood, when a defendant asserts his sixth amendment claim for the first time on direct appeal, that the relevant facts will not be part of the trial record, see Massaro v. United States, ___ U.S. ___, ___, 123 S.Ct. 1690, 1694, 155 L.Ed.2d 714 (2003) ("The evidence introduced at trial ... will be devoted to issues of guilt or innocence, and the resulting record in many cases will not disclose the facts necessary to decide either prong of the Strickland analysis"), this court's "general practice is to remand the claim for an evidentiary hearing" unless "the trial record alone conclusively shows" that the defendant either is or is not entitled to relief. United States v. Fennell, 53 F.3d 1296, 1303-04 (D.C.Cir. 1995); cf. Massaro, 123 S.Ct. at 1696 (noting circumstances in which further factual development is unnecessary).

Rashad does not argue that he is entitled to relief upon the basis of the existing record; he wants an opportunity to put on evidence about the circumstances surrounding his plea negotiations. The Government responds, first, that Rashad should be required to pursue his claim in a petition for a writ of habeas corpus. Alternatively, the Government maintains that the present record conclusively establishes that Rashad was not prejudiced by the alleged errors of counsel.

A.

The Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) limits a defendant's ability to file successive motions for habeas corpus relief as follows: "A second or successive motion must be certified ... by a panel of the appropriate court of appeals to contain ... newly discovered evidence ... or ... a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court." 28 U.S.C. § 2255. The Government suggests that a claim of ineffective assistance of counsel requiring factual development is no different from a collateral attack upon a conviction, and that to allow a defendant to litigate that type of claim on remand from the court of appeals, rather than requiring him to raise it in a § 2255 motion, permits the defendant to avoid the limitations of the AEDPA.

Although we have not previously addressed this precise argument, we have — in decisions post-dating the enactment of the AEDPA — recognized that unlike some circuits we generally do not require a defendant to raise an ineffective assistance claim collaterally. See United States v. Todd, 287 F.3d 1160, 1164 (D.C.Cir.2002); United States v. Weaver, 281 F.3d 228, 233-34 (D.C.Cir.2002); United States v. Geraldo, 271 F.3d 1112, 1115-16 (D.C.Cir. 2001); but cf. United States v. Richardson, 167 F.3d 621, 626 (D.C.Cir.1999) (directing defendant to pursue habeas petition because court could not resolve ineffective assistance claim on existing record; no indication that defendant sought or court considered remand).

The Government does not argue that we should abandon our practice in deference to the AEDPA. Rather, the Government would have us limit the practice to cases in which the ineffective assistance claim is not the sole issue on appeal; that is, we should not grant a remand in a case in which the defendant raised "no substantive issues about the conduct of the trial," lest we give him the functional equivalent of a habeas petition that would not count as his first bite at the apple under the AEDPA.

We see no justification for thus treating single and multiple-issue appeals differently. If remanding the record to permit a defendant to litigate an ineffective assistance claim in the district court sidesteps the limitations of § 2255, then it does so regardless whether that claim was joined with other issues in the direct appeal. The most to be said for the Government's proposed approach is that it might reduce the opportunities for such "circumvention," but even that proposition is dubious. It is rare that appellate counsel, with a client determined to appeal, cannot find some purported error about which to complain; that is no doubt why in the past five years this court has received only a handful of motions pursuant to Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967) (appointed counsel may withdraw only upon determination that appeal would be "wholly frivolous"). By the same token, we doubt that many defendants would be unable to meet the Government's multiple-issue requirement.

More fundamentally, we reject the Government's premise that our remand practice on direct appeal should be curtailed in order to give effect to the statutory restriction upon a defendant's ability to launch...