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No. 04-692

In the Supreme Court of the United States

CARLTON L. CHANEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Acting Solicitor General
Counsel of Record
CHRISTOPHER A. WRAY
Assistant Attorney General
WILLIAM C. BROWN
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals properly affirmed the district court's denial of petitioner's motion under 28 U.S.C. 2255 on a claim of ineffective assistance of counsel on the alternative ground, raised sua sponte, that petitioner could not establish prejudice from counsel's allegedly deficient performance.

In the Supreme Court of the United States

No. 04-692

CARLTON L. CHANEY, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals (Pet. App. 1-11) is not published in the Federal Reporter, but is reprinted in 101 Fed. Appx. 160. The order of the district court (Pet. App. 15-29) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on June 14, 2004. A petition for rehearing was denied on August 23, 2004 (Pet. App. 12). The petition for a writ of certiorari was filed on November 19, 2004. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Southern District of Indiana, petitioner was convicted of one count of armed bank robbery, in violation of 18 U.S.C. 2113(a); one count of carjacking, in violation of 18 U.S.C. 2119(1); and two counts of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c). Following a separate jury trial, he was also convicted of one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). He was sentenced to a total of 430 months of imprisonment, to be followed by five years of supervised release, and was ordered to pay $40,299.76 in restitution. On direct review, the court of appeals affirmed. App., infra, 10a-18a. Petitioner then filed a motion to vacate his convictions and sentence under 28 U.S.C. 2255. The district court initially denied the motion, App., infra, 5a-9a, but the court of appeals vacated and remanded, id. at 1a-2a. On remand, the district court again denied the motion, Pet. App. 15-29, and the court of appeals affirmed, id. at 1-11.

1. On the morning of April 18, 1997, three masked men, armed with handguns, robbed a bank in Indianapolis. One of the robbers carried a pink and white pillowcase, into which he put around $28,000 in cash (including $250 in bills with recorded serial numbers). The robbers escaped in a Cadillac; two bystanders, James Nulf and Donna Dauby, followed the robbers in separate cars. The robbers stopped a short distance away; two of the robbers dropped off the third (petitioner) and drove away in the Cadillac. Dauby lost sight of the robbers when they stopped their car. When Dauby again caught sight of the Cadillac, a Chevrolet Suburban driven by petitioner swerved around the Cadillac, crashed into Dauby's truck, and then careened into the back of a neighboring house. Petitioner then broke into the nearby home of Mary and William Howe, stole the keys to their Oldsmobile at gunpoint, and drove away in the Oldsmobile. Pet. App. 2; App., infra, 11a-12a; C.A. App. 3-4.

When police recovered the Suburban, they found a pink and white pillowcase with around $16,000 in cash (including the bills with the recorded serial numbers), along with a black mask and a roll of duct tape. They also found an Indiana identification card with petitioner's picture, bearing the name "Jesse James," and various car-repair documents, some bearing the name "Troy Smith." They also found six fingerprints, later identified as petitioner's, on the inside of the driver's window. When police recovered the Cadillac, they found a piece of duct tape, the end of which matched the end of the roll found in the Suburban. Pet. App. 2; App., infra, 11a-12a; C.A. App. 4.

Two weeks later, police went to arrest petitioner at an apartment that he was leasing under the name of Michael Troy Smith. When petitioner left the apartment in his girlfriend's car, police followed him; when they stopped him, he pointed a gun at them and then drove away at high speed. After police finally apprehended petitioner, they found on his person an Indiana driver's license with his picture, bearing the name "Troy Smith." In searching the car, police also found a gun, which witnesses later testified resembled the gun used in the bank robbery and carjacking. Pet. App. 2-3; App., infra, 12a-13a; C.A. App. 5.

The police sought to determine whether the Howes could identify the individual who broke into their home and stole their car. Although William Howe could not identify the intruder, Mary Howe (who had a better view during the incident) tentatively identified petitioner in a photographic array and from the picture on the Indiana identification card found in the Suburban. App., infra, 12a; C.A. App. 4.

2. a. Petitioner was indicted in the Southern District of Indiana on one count of armed bank robbery, in violation of 18 U.S.C. 2113(a); one count of carjacking, in violation of 18 U.S.C. 2119(1); two counts of carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c); and two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. 922(g). Petitioner moved for a separate trial on the last two counts in order to exclude evidence concerning his criminal history from his trial on the other counts. The district court granted petitioner's motion. The government subsequently dropped one of the last two counts. Before and during the trial on the first four counts, petitioner moved to suppress the eyewitness identification testimony by Mary Howe. The district court denied those motions, and Mary Howe subsequently testified that she was certain that petitioner was the individual who had broken into her home and stolen her Oldsmobile. After separate jury trials, petitioner was convicted of all of the five remaining counts. He was sentenced to 430 months of imprisonment, to be followed by five years of supervised release, and was ordered to pay $40,299.76 in restitution. Pet. App. 3; App., infra, 12a, 13a, 15a.

b. On direct review, the court of appeals affirmed. App., infra, 10a-18a. Petitioner's sole contention on appeal was that the district court erred by taking insufficient curative measures when petitioner's father referred during his testimony to petitioner's previous incarceration. Id. at 15a. The court of appeals noted that the district court had immediately stricken the testimony and later "specifically and emphatically" instructed the jury to disregard it. Id. at 16a. The court then held that, "[e]ven if the trial court's striking of the comment and instructions to the jury did not fully cure the impact of [the father's] comment, the evidence of [petitioner's] guilt was so overwhelming that there is no doubt that the jury would still have convicted [petitioner] if the comment had not been made." Id. at 17a. The court cited the numerous items found in the Suburban; Mary Howe's identification of petitioner; and the gun found when petitioner was eventually arrested. Ibid. The court concluded that "the record [was] replete with evidence of [petitioner's] involvement with the bank robbery and carjacking," and that any error in petitioner's father's testimony was therefore harmless. Id. at 17a-18a.

3. a. Petitioner filed a motion to vacate his convictions and sentence under 28 U.S.C. 2255, alleging that his trial counsel was constitutionally ineffective because (1) trial counsel had failed to move for a judgment of acquittal on the bank-robbery count; (2) counsel had failed to object to the imposition of a sentence beyond the statutory maximum on the carjacking count; and (3) counsel had failed to object to a two-level upward adjustment for obstruction of justice under Sentencing Guidelines § 3C1.2. App., infra, 7a-8a. The district court denied the motion. Id. at 5a-9a. The court reasoned that (1) any motion for a judgment of acquittal would have been futile because, as the court of appeals had previously noted, "the record [was] replete with evidence of [petitioner's] involvement with the bank robbery"; (2) petitioner's sentence did not actually exceed the statutory maximum; and (3) under then- prevailing Seventh Circuit law, counsel's failure to object to the two-level upward adjustment was not prejudicial because it had an insignificant effect on petitioner's overall sentence. Id. at 6a-8a.

b. The court of appeals initially denied petitioner's motion for a certificate of appealability. App., infra, 3a-4a. After petitioner moved for reconsideration, however, this Court held in Glover v. United States, 531 U.S. 198 (2001), that any increase in a Guidelines sentence is prejudicial for purposes of a claim of ineffective assistance at sentencing. The court of appeals thereafter granted petitioner's motion for reconsideration, granted a certificate of appealability, summarily vacated the decision below, and remanded for reconsideration in light of Glover. App., infra, 1a-2a.

4. a. On remand, petitioner filed a "Pro Se Petition (And Accompanying Brief) To Present Newly Discovered Evidence Of Counsel's Ineffective Assistance," in which he alleged that counsel was ineffective for three additional reasons: (1) that appellate counsel had failed to challenge the district court's decision not to suppress Mary Howe's identification of petitioner; (2) that trial and appellate counsel had failed to challenge the indictment as deficient for providing inadequate notice of the offense of aiding and abetting; and (3) that trial and appellate counsel had failed to contend that carrying a firearm during and in relation to a crime of violence was a lesser included offense of armed bank robbery. Pet. App. 5, 17 n.2.

The district court again denied petitioner's Section 2255 motion. Pet. App. 15-29. As a preliminary matter, the court held that the only claim it could consider on remand was petitioner's claim, from his original motion, that trial counsel was ineffective in failing to object to the two-level upward adjustment for obstruction of justice, since that claim was the only one potentially affected by this Court's intervening decision in Glover. Id. at 16-21. In so holding, the court rejected petitioner's contention that he was entitled to amend his original motion under Rule 15 of the Federal Rules of Civil Procedure. Id. at 20 n.5. On the merits of the remaining claim, the court held that, although the two-level upward adjustment was incorrectly applied, it ultimately had no effect at all on petitioner's total offense level (and thus his sentencing range), because the adjusted offense level for another group of counts was higher than for the group affected by the adjustment. Id. at 24.1

b. The court of appeals granted a certificate of appealability on the issue "whether [petitioner] received ineffective assistance of counsel," and ordered the parties "also" to address whether "analysis of counsel's assistance properly may be limited to counsel's performance in just one aspect of the case." Pet. App. 13-14. In an unpublished, per curiam order, the court of appeals subsequently affirmed. Id. at 1-11. The court noted that, on appeal, petitioner had abandoned his original three claims of ineffective assistance and was pursuing only the additional claims advanced for the first time on remand. Id. at 6-7. The court reasoned that, "whether theories of ineffective assistance of counsel comprise one or multiple claims," petitioner was required to amend his Section 2255 motion in order to advance any new theories. Id. at 7. The court of appeals concluded that the district court had erred by holding that it lacked the discretion under Rule 15 to allow petitioner to amend his Section 2255 motion, though the court of appeals indicated that "[t]he lateness of [petitioner's] new submissions seems to be one reason why the district court could have acted within its discretion in not permitting an amendment." Id. at 9.

The court of appeals, however, ultimately affirmed the district court's denial of petitioner's Section 2255 motion on the alternative ground that "the proposed new theories are frivolous." Pet. App. 9. Specifically, the court held that (1) petitioner could not establish prejudice "when his attorney failed to object to unreliable witness [identification] testimony," because the court had previously concluded that overwhelming evidence supported his convictions; (2) aiding and abetting need not be pleaded in an indictment, and the statutory provision on aiding and abetting was in any event expressly cited in the bank-robbery count; and (3) the lesser-included-offense argument had been repeatedly rejected by other courts. Id. at 9-10.

ARGUMENT

Petitioner contends (Pet. 5-18) that the court of appeals violated due process by affirming the district court's rejection of his ineffective-assistance claim based on the alternative ground, raised sua sponte, that petitioner could not establish prejudice. The court of appeals' decision does not conflict with any decision of this Court or of another court of appeals. Further review is therefore unwarranted.

1. Petitioner first contends (Pet. 5-12) that the court of appeals acted improperly by raising on its own, and then deciding, a mixed question of law and fact. That contention is erroneous.

a. It is well established that an appellate court, including this Court, may affirm the decision of a lower court on any ground that the law and record permit. See, e.g., Thigpen v. Roberts, 468 U.S. 27, 29-30 (1984); Smith v. Phillips, 455 U.S. 209, 215 n.6 (1982); Dandridge v. Williams, 397 U.S. 471, 475 n.6 (1970). The court of appeals acted consistently with that principle in affirming the district court's decision on the alternative ground that petitioner's additional ineffective-assistance claims, including his claim concerning the admission of the identification evidence, lacked merit. In order to establish ineffective assistance of counsel under the Sixth Amendment, a defendant must show both deficient performance and prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish prejudice, a defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Based on the record -which it had previously reviewed on direct appeal- the court of appeals held that petitioner could not make that showing on his claim concerning the admission of the identification evidence, in light of the "overwhelming evidence" of his guilt. Pet. App. 10. The court of appeals properly exercised its appellate jurisdiction by affirming the district court's decision on a ground permitted by the law and record.

b. Nothing in Singleton v. Wulff, 428 U.S. 106 (1976), alters that conclusion. In Singleton, the district court dismissed the relevant count for lack of standing. Id. at 110-111. The court of appeals reversed, concluding not only that the plaintiffs had standing, but also (at the plaintiffs' urging) that the plaintiffs were entitled to prevail on the merits. Id. at 111-112. This Court reversed and remanded, agreeing that the plaintiffs had standing but reasoning that the court of appeals had improperly exercised its jurisdiction by reaching the merits. Id. at 119-121.

As a preliminary matter, Singleton dealt only with the situation in which a court of appeals reverses a district court's decision on a ground not addressed below -not the situation, as here, in which a court of appeals affirms on such a ground. Even assuming that the reasoning of Singleton applies equally in the latter situation, however, the court of appeals' reasoning in this case is consistent with it. In Singleton, the Court seemingly recognized a presumption against resolving on appeal an issue not addressed below, based on the principle that parties should have the opportunity to offer all relevant evidence on the issue. 428 U.S. at 120. The Court, however, ultimately refused to adopt a general rule, concluding instead that "[t]he matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases." Id. at 121. And the Court specifically concluded that a court of appeals could resolve an issue not addressed below when "the proper resolution [of the issue] is beyond any doubt." Ibid. This case falls squarely into that category of cases, because the court of appeals expressly determined that petitioner's contention that he suffered prejudice from any failure to challenge the identification evidence was "frivolous." Pet. App. 10.2

c. Petitioner repeatedly suggests that the court of appeals erred in concluding that his contention was "frivolous" because, absent the allegedly tainted identification evidence, the remaining evidence supporting his convictions was not overwhelming. See, e.g., Pet. 2 (alleging that the identification evidence was "[t]he linchpin of the government's case"); Pet. 4 n.3 (contending that the identification evidence "likely tipped the scales"); Pet. 15 (asserting that "it could not be 'frivolous' for [petitioner] to contend that he was prejudiced in this case"). That issue is entirely factbound and has no prospective importance. Especially in light of this Court's confirmation in Singleton that courts of appeals have discretion to determine what issues to resolve for the first time on appeal, see 428 U.S. at 121, any claim that the court of appeals erred in holding that "the proper resolution is beyond any doubt," ibid., does not warrant further review.

In any event, such a claim would lack merit. As the court of appeals noted in its earlier decision on direct review, petitioner was directly linked to the Suburban seen by one of the eyewitnesses to the bank robbery, in which the pillowcase with cash from the robbery was found: petitioner's fingerprints were found on the inside of the vehicle, along with an identification card bearing petitioner's picture and car-repair documents bearing an alias later traced to petitioner. App., infra, 17a. When police attempted to arrest petitioner, he threatened officers with a gun that witnesses later testified resembled the gun used in the bank robbery and carjacking. Ibid. In light of those and other facts, the court of appeals correctly concluded that overwhelming evidence supported petitioner's convictions, and thus that petitioner could not show prejudice from any failure to challenge the identification evidence.3

d. Petitioner errs by asserting (Pet. 5-9) that appellate courts can properly exercise appellate jurisdiction to resolve only pure questions of law, and not mixed questions of law and fact, sua sponte. Nothing in Singleton supports such a limitation. To the contrary, appellate courts have suggested that they can properly exercise appellate jurisdiction as long as "the record pertinent to resolution of [the] issue can be developed no further." E.g., United States v. Krynicki, 689 F.2d 289, 291-292 (1st Cir. 1982).4 Such a rule is consonant with the underlying rationale of Singleton: namely, to allow parties the opportunity to offer all relevant evidence on an issue before it is decided. 428 U.S. at 120. Petitioner's proffered rule, on the other hand, cannot be reconciled with a line of cases in which appellate courts have engaged in harmless-error analysis sua sponte, where the harmlessness of the claimed error was clear. See, e.g., United States v. Adams, 1 F.3d 1566, 1575-1576 (11th Cir. 1993), cert. denied, 510 U.S. 1198 and 510 U.S. 1206 (1994); Lufkins v. Leapley, 965 F.2d 1477, 1481 (8th Cir.), cert. denied, 506 U.S. 895 (1992); United States v. Rodriguez Cortes, 949 F.2d 532, 542-543 (1st Cir. 1991).

In this case, the record on the issue of prejudice was complete, and the strength of the evidence against petitioner had already been before the court of appeals on direct review. The court of appeals thus properly exercised its discretion to reach, and resolve, the prejudice issue on collateral review.5

2. Finally, petitioner contends (Pet. 12-18) that the court of appeals violated due process by addressing the merits of his ineffective-assistance claim. The rule of Singleton, however, was itself predicated on principles of due process, see, e.g., 428 U.S. at 120, and petitioner cites no authority for the proposition that the sua sponte resolution of issues by an appellate court presents discrete due-process concerns. Even assuming that it does, petitioner cannot advance a colorable due- process claim. This Court has frequently reiterated that "[t]he fundamental requisite of due process of law is the opportunity to be heard." Grannis v. Ordean, 234 U.S. 385, 394 (1914). Petitioner had the opportunity to address the prejudice issue in his briefs before the court of appeals, and failed to do so-notwithstanding the fact that the court of appeals had broadly authorized appeal on the issue "whether [petitioner] received ineffective assistance of counsel." Pet. App. 13. And although the court of appeals did not allow petitioner to file a supplemental brief on the prejudice issue, petitioner did have the opportunity to address that issue in his petition for rehearing, and did in fact do so (albeit without elaboration). See, e.g., C.A. Pet. for Reh'g 9-10. Because petitioner received all the process to which he was entitled, further review is not warranted.6

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Acting Solicitor General
CHRISTOPHER A. WRAY
Assistant Attorney General
WILLIAM C. BROWN
Attorney

FEBRUARY 2005

1 For reasons not stated, the district court proceeded to consider yet another ineffective-assistance claim, advanced for the first time in briefing on remand: specifically, a claim that trial counsel should have objected to a three-level upward adjustment for assaulting a law enforcement officer in the course of committing the offense, on the ground that it constituted "double counting." Pet. App. 17 n.3, 25-26. The district court rejected this claim on the merits, id. at 25-28, as did the court of appeals, id. at 10-11.

2 Contrary to petitioner's suggestion (Pet. 12 n.5), the court of appeals stated only that "the proposed new theories [of ineffective assistance of counsel] are frivolous," Pet. App. 9 (emphasis added); it did not in any way imply that the entire Section 2255 motion should have been dismissed as frivolous, see 28 U.S.C. 1915(e)(2)(B)(i).

3 In questioning the court of appeals' conclusion that there was overwhelming evidence to support his convictions, petitioner contends that the court of appeals omitted any mention of the alibi defense that he mounted at trial. Pet. 4 n.3. In its earlier decision, however, the court of appeals recognized, and necessarily discounted, that defense. App., infra, 13a.

4 One of the articles on which petitioner relies asserts that courts have indicated only (and unsurprisingly) that they are "more likely to raise pure questions of law * * * sua sponte." Barry A. Miller, Sua Sponte Appellate Rulings, 39 San Diego L. Rev. 1253, 1281 (2002) (emphasis added).

5 Petitioner contends that the court of appeals misapprehended his ineffective-assistance claim because it believed that petitioner was claiming (1) that counsel should have challenged the eyewitness testimony as merely incredible, rather than inadmissible, and (2) that trial counsel, rather than appellate counsel, was ineffective. Pet. 4-5, 14-15. There is no clear support for this contention, however, and petitioner does not contend that the prejudice inquiry would have been materially different if the court of appeals had not been operating under any misapprehension.

6 There is no reason to hold the petition pending this Court's decision in Mayle v. Felix, cert. granted, 125 S. Ct. 824 (2005) (No. 04-563). That case presents the issue of the circumstances under which an amendment to a habeas petition "relates back" to the date of filing under Rule 15(c) of the Federal Rules of Civil Procedure. Because of its ultimate disposition of this case, the court of appeals' discussion of Rule 15 was dictum. And in any event, that discussion focused not on whether any amendment would "relate back" under Rule 15(c), but rather on whether the district court could allow an amendment at all under Rule 15(a), notwithstanding the court of appeals' limited remand. See Pet. App. 7-9.