v., 122302 FED1, 01-2055

Docket Nº:01-2055
Party Name:v.
Case Date:December 23, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit





United States Court of Appeals

For the First Circuit

Nos. 01-2055 01-2067


Petitioner, Appellee,



Respondent, Appellant.



[Hon. Robert E. Keeton, U.S. District Judge]

[Hon. Frank H. Freedman, Senior U.S. District Judge]


Selya, Circuit Judge,

Coffin, Senior Circuit Judge,

and Howard, Circuit Judge.

Daniel S. Goodman, Appellate Section, Criminal Division, United States Department of Justice, with whom Michael J. Sullivan, United States Attorney, was on brief, for appellant.

John G.S. Flym, by appointment of the court, for appellee.

December 20, 2002

SELYA, Circuit Judge. These appeals, which have their genesis in an effort by the petitioner, Edward B. Ellis, to mount a collateral attack on his convictions for interstate transportation of a minor with intent to engage in criminal sexual activity, present challenging legal questions complicated by a strange procedural twist. That complication arose after the original trial judge denied Ellis's section 2255 petition in part and then recused himself as to the unadjudicated portion of the petition. A limited order of reassignment followed. The transferee judge, acting partly on the basis of a previously unadjudicated claim and partly on the basis of a previously adjudicated claim, proceeded to grant the petition.

The hybrid nature of this decision requires that we review its component parts separately. The first ground of decision involves the trial judge's handling of a jury note. We agree with the transferee judge's finding of error -- the original trial judge used an incorrect procedure in dealing with the jury note -- but we hold that this error was harmless under the circumstances. The second ground of decision involves whether the special seating arrangement afforded to the victim during her trial testimony offended the Confrontation Clause. We hold that under the law of the case doctrine the transferee judge should not have revisited the issue, but, rather, should have left intact the original judge's finding that no constitutional violation had occurred.

In light of these holdings, we discern no principled basis for habeas relief. Consequently, we reverse the order granting the petitioner a new trial and remand the case with directions to enter judgment for the United States.


    In 1990, a jury convicted the petitioner on three counts of interstate transportation of a minor with intent to engage in criminal sexual activity. See 18 U.S.C. § 2423. The district court imposed a twenty-five year incarcerative term. On direct appeal, we affirmed the convictions and sentence. United States v. Ellis, 935 F.2d 385 (1st Cir. 1991). We suggest that those who hunger for a more exegetic account of the crimes of conviction consult that opinion.

    For present purposes, it suffices to say that the petitioner was found guilty of repeatedly abusing (in three different states) the youthful daughter of his live-in girlfriend. Id. at 388-89. The evidence adduced against him included the testimony of his victim, E.D. (who was nine years old at the time of trial). In a preliminary discussion, it was suggested, without objection from the petitioner's counsel (Attorney Goldings), that E.D. testify while seated "in such a way that she does not look at [the petitioner]."

    Notwithstanding his initial acquiescence, Goldings objected to the special seating arrangement when E.D. was called as a witness. Judge Freedman overruled the objection. During her testimony, E.D. sat in a chair facing the jurors but facing away from the petitioner. The parties disagree both as to the exact angle between E.D. and the petitioner and as to how much of E.D.'s face the petitioner could see during her testimony. It is clear, however, that E.D., while testifying, could only have made eye contact with the petitioner by looking over her right shoulder. It is equally clear that she did not avail herself of this opportunity.

    On direct appeal, the petitioner unsuccessfully challenged the sufficiency of the evidence, various evidentiary rulings, the jury instructions, and the length of the sentence. Id. at 389-97. He did not advance any claim related either to the handling of the jury note (discussed infra) or to the special seating arrangement.

    In 1997, the petitioner moved pro se to vacate his sentence. See 28 U.S.C. § 2255. In that petition, he maintained that Goldings had rendered ineffective assistance of counsel (including a failure to present certain exculpatory evidence and impedance of his right to testify); charged Goldings with having concealed a conflict of interest; lodged a Confrontation Clause challenge to the special seating arrangement; complained of prosecutorial misbehavior; and accused Judge Freedman of judicial bias and misconduct. He also filed two motions: one seeking the appointment of counsel and the other asking Judge Freedman to step aside.

    Judge Freedman denied the motion for appointment of counsel out of hand. As for the recusal motion, he did not disqualify himself generally, but, rather, proceeded to resolve four of the petitioner's five claims. Specifically, he denied the cognate ineffective assistance of counsel claims insofar as those claims touched upon the failure to present evidence and the supposed interference with the petitioner's right to testify; found no cognizable conflict of interest; and ruled that the assertions of prosecutorial misconduct were overblown. Given the present posture of the case, we need not discuss any of these rulings.

    Judge Freedman's disposition of the Confrontation Clause claim requires some elaboration. For purposes of that analysis, Judge Freedman accepted, without deciding, that Goldings's failure to pursue the claim on direct appeal established ineffective assistance of counsel (and, therefore, established "cause" necessary to overcome the applicable procedural bar). Judge Freedman then discussed the relevant Supreme Court precedents and explained that, as the trial judge, he had made an individualized determination that a special accommodation was needed because E.D. would have to testify regarding the "heinous acts" of sexual abuse that she had endured at the hands of someone who lived with her and who had threatened to kill her and her family members. Since these facts supported the use of the special seating arrangement, Judge Freedman concluded that an appeal from the court's decision to employ the special seating arrangement would have been futile, and, therefore, that Goldings's failure to challenge the arrangement on appeal was harmless. Accordingly, he denied both the Confrontation Clause claim and the related ineffective assistance of counsel claim. See Lockhart v. Fretwell, 506 U.S. 364, 369-70 (1993) (outlining applicable prejudice requirement); Strickland v. Washington, 466 U.S. 668, 694 (1984) (same).

    Having adjudicated these four sets of claims, Judge Freedman stopped short of resolving the whole of the petition. Instead, he recused himself as to the fifth claim (the accusation of judicial bias and misconduct). See Murchu v. United States, 926 F.2d 50, 53 n.3 (1st Cir. 1991) (suggesting "that the district judge should have recused himself as to those portions of [a] section 2255 motion which alleged judicial misconduct"). Instead, he asked the chief judge to reassign the case to a new judge to "consider and render a decision on the balance of the petitioner's claims and enter judgment accordingly on those claims as well as those addressed by this court in its Memorandum and Order entered on March 2, 1998."

    The chief judge subsequently assigned the case to Judge Keeton. Judge Keeton appointed counsel to represent the petitioner and gave both parties leave to file supplementary memoranda on the allegations of judicial bias and misconduct concerning (1) the court's decision to allow a special seating arrangement; (2) certain comments and gestures supposedly made by Judge Freedman during E.D.'s testimony; and (3) Judge Freedman's handling of a note from the deliberating jury.

    Following a hearing, Judge Keeton unequivocally rejected the petitioner's claims of judicial bias (finding, inter alia, that bias played no role in the establishment of the special seating arrangement, and that Judge Freedman had made no untoward comments or gestures during the trial). He concluded, however, that Judge Freedman's exchange of notes with the jury deprived the petitioner of the assistance of counsel at a critical stage of the case (and, thus, violated the Sixth Amendment). (1) Judge Keeton then opted to revisit the petitioner's already adjudicated Confrontation Clause claim. Deeming his predecessor's findings inadequate and the petitioner's view of E.D. during trial too constrained, Judge Keeton reversed the earlier ruling and declared unconstitutional the use of the special seating arrangement. Based on this pair of conclusions, Judge Keeton granted the section 2255 petition, set aside the convictions, and ordered a new trial.

    The government thereupon filed these appeals. We treat them as one: they have been consolidated, and it would serve no useful purpose to dwell upon the technical considerations that prompted the government to file two appeals instead of one.


    Under 28 U.S.C. § 2255, a convict in federal custody may ask the sentencing court to vacate, set aside, or correct his sentence on the ground that the court had imposed the sentence in violation of federal law (including, of...

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