United States v. Miller

• Decision Date: 28 December 2018
• Docket Number: No. 17-2053,17-2053
• Parties: UNITED STATES of America, Appellee, v. David MILLER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

911 F.3d 638

UNITED STATES of America, Appellee,

v.David MILLER, Defendant, Appellant.

No. 17-2053

United States Court of Appeals, First Circuit.

December 28, 2018

Robert Herrick, Cambridge, MA, with whom Nicholson Herrick LLP was on brief, for appellant.

Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Barron and Selya, Circuit Judges, and Katzmann,^* Judge.

SELYA, Circuit Judge.

Defendant-appellant David Miller pleaded guilty to violating the Mann Act, 18 U.S.C. § 2423(a), by transporting his thirteen-year-old¹ adopted daughter across state lines in 1995 for immoral sexual purposes. The defendant had not yet been charged and the limitations period for his Mann Act violation was still open when Congress elongated the statute of limitations in 2003. "The mills of justice grind slowly, but they grind exceedingly fine," Vineberg v. Bissonnette, 548 F.3d 50, 59 (1st Cir. 2008), and the government eventually charged the defendant with the Mann Act violation in 2016. By then, the old statute of limitations had expired, but the new statute of limitations had not. The defendant entered a guilty plea, and the district court sentenced him to a 327-month term of immurement.

Represented by a new lawyer, the defendant argues for the first time on appeal that he received ineffective assistance of counsel in derogation of the Sixth Amendment because his trial attorney (now deceased) did not mount a defense premised on the statute of limitations in effect at the time of the offense.² But this argument runs headlong into a potential obstacle: the general rule is that such a claim must first be raised in the district court, either during the proceedings leading to the defendant's direct appeal or after the conclusion of that appeal (typically, through a petition for post-conviction relief pursuant to 28 U.S.C. § 2255 ). Here, however, the claim was never raised at all in the district court. Consequently, our first task is to determine whether this case qualifies for an exception to the general rule. Because it is uncertain whether the 2003 amendment applies retrospectively to the defendant's conduct and because the record is opaque as to why trial counsel elected not to raise a limitations defense below, we conclude that the defendant's ineffective assistance of counsel claim ought not to be aired for the first time on direct appeal. Thus, we affirm the defendant's conviction and sentence; without prejudice, however, to his right to raise his claim of ineffective assistance of counsel in a collateral proceeding brought pursuant to 28 U.S.C. § 2255. We do not decide the limitations issue.

I. BACKGROUND

We briefly rehearse the relevant facts. On November 30, 2016, a federal grand jury sitting in the District of Maine charged the defendant with two counts of transporting a minor with the intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). Specifically, the indictment charged that in June and July of 1995, the defendant knowingly transported a child across state lines with the intent to sexually assault her.

In 1995, the statute of limitations for the charged crime allowed prosecution until the victim reached twenty-five years of age. See 18 U.S.C. § 3283 (1994). Since the victim in this case would have turned twenty-five no later than sometime in 2007, the statute of limitations would have expired during that year. The legal landscape shifted in 2003, when Congress extended the statute of limitations for Mann Act violations to allow prosecution for the duration of the life of the child victim. See id. (2003).

The defendant originally maintained his innocence. During the pretrial proceedings, his attorney demonstrated an awareness that the applicable statute of limitations had changed mid-stream and indicated that he "wanted to look at the statute of limitations issue one final time." Ultimately, the attorney eschewed a limitations defense and, on June 1, 2017, the defendant entered a guilty plea to one of the charged counts. The district court sentenced the defendant to 327 months in prison and, at the same time, dismissed the remaining count lodged in the indictment. The defendant timely appealed, and at his request, this court appointed new counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A.

II. ANALYSIS

We begin with constitutional bedrock: the Sixth Amendment guarantees "the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) ). The Supreme Court has crafted a two-pronged inquiry as a means of evaluating ineffective assistance of counsel claims: "[f]irst, the defendant must show that counsel's performance was deficient," and "[s]econd, the defendant must show that the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. 2052. This two-pronged inquiry has equal relevance with respect to ineffective assistance claims in both tried cases and cases resolved by guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

To establish deficient performance by an attorney in a criminal case, the defendant must show that the attorney's representation was "outside the wide range of professionally competent assistance." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. Pertinently, when "an attorney fails to raise an important, obvious defense without any imaginable strategic or tactical reason for the omission, his performance falls below the standard of proficient representation that the Constitution demands." Prou v. United States, 199 F.3d 37, 48 (1st Cir. 1999). To satisfy the prejudice requirement, the defendant must show "a reasonable probability that, but for counsel's errors, he would not have pleaded guilty." Hill, 474 U.S. at 59, 106 S.Ct. 366.

Here, however, there is an antecedent question as to timing — a question that asks whether, as a prudential matter, the defendant should be allowed to raise his ineffective assistance of counsel claim for the first time on appeal. The general rule is that "fact-specific claims of ineffective assistance cannot make their debut on direct review of criminal convictions, but, rather, must originally be presented to, and acted upon by, the trial court." United States v. Mala, 7 F.3d 1058, 1063 (1st Cir. 1993). Thus, a criminal defendant who wishes to pursue a claim of ineffective assistance not advanced in the trial court is ordinarily required to defer that claim to collateral proceedings. See id.; see also 28 U.S.C. § 2255.

This general rule — like most general rules — admits of exceptions. The exception that the defendant attempts to invoke provides that "where the critical facts are not genuinely in dispute and the record is sufficiently developed to allow reasoned consideration of an ineffective assistance claim, an appellate court may dispense with the usual praxis and determine the merits of such a contention on direct appeal." United States v. Natanel, 938 F.2d 302, 309 (1st Cir. 1991). Since the applicability of this exception must be gauged case by case, we turn next to the particulars of the defendant's ineffective assistance claim.

Stripped of rhetorical flourishes, the defendant's position is that his trial counsel was ineffective because the defendant had available a meritorious limitations defense but counsel turned a winner into a loser by neglecting to raise that defense.³ So, the defendant says, this case fits the exception because no further development of the record is needed: any lawyer worth his salt would have advanced such a limitations defense.

In weighing this claim, a useful starting point is to consider whether it can be said with assurance that the amended version of the statute of limitations (enacted in 2003 and which had not yet expired when the defendant was charged) applies to the defendant's 1995 offense. If so, further development of the record would be a waste of time and the Natanel exception would be available. Cf. Vieux v. Pepe, 184 F.3d 59, 64 (1st Cir. 1999) ("Obviously, counsel's performance was not deficient if he declined to pursue a futile tactic."). If, however, it is less than certain that the amended version of the statute of limitations was available to the government, a material question would persist as to why the defendant's trial counsel did not raise a limitations defense; the vitality of the ineffective assistance claim would depend on idiosyncratic facts (including trial counsel's justification, if any, for failing to mount such a defense); and the availability of the Natanel exception would hinge on whether the information in the record was sufficient to permit a reasoned evaluation of the defendant's ineffective assistance claim. See, e.g., United States v. Leahy, 473 F.3d 401, 410 (1st Cir. 2007) (finding that "narrow" Natanel exception did not apply where record "contain[ed] nothing approaching an adequate elaboration of why counsel adopted the course that he followed"); United States v. McGill, 952 F.2d 16, 19 (1st Cir. 1991) (finding Natanel exception inapplicable where "[t]he relevant facts, especially those concerning the reasons behind trial counsel's adoption of certain strategies, [we]re unclear").

Against this backdrop, we turn to the statutory construction question. Applying a statute of limitations enacted in 2003 to conduct that occurred in 1995 requires a retrospective application of the 2003 statute. Following the Supreme Court's lead, see Landgraf v. USI Film Products, 511 U.S. 244, 280, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), we assess the validity of such an application through a two-step approach.

The first step in the Landgraf approach involves "determin[ing] whether Congress has expressly prescribed the statute's proper reach." Id. If Congress has clearly prescribed an intention to give...