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No. 05-42

In the Supreme Court of the United States

ROBIN L. PEOPLES, 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 UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

VIJAY SHANKER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals erred in holding that the law of the case doctrine barred petitioner from bringing a claim of ineffective assistance of counsel in a motion under 28 U.S.C. 2255 when petitioner had twice raised a claim of ineffective assistance of counsel on direct appeal and the court had rejected the claim on both occasions.

In the Supreme Court of the United States

No. 05-42

ROBIN L. PEOPLES, 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 UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 60a- 66a) is reported at 403 F.3d 844. The opinion of the dis trict court (Pet. App. 37a-51a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on April 6, 2005. The petition for a writ of certiorari was filed on July 1, 2005. This Court's jurisdiction is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District Court for the Northern District of Indiana, petitioner was convicted on four counts of armed bank robbery, in violation of 18 U.S.C. 2113(d); four counts of using or

carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. 924(c); two counts of using fire to commit a federal felony, in violation of 18 U.S.C. 844(h); and two counts of destroying a vehicle by means of fire, in violation of 18 U.S.C. 844(i). He was sentenced to a total of 1329 months of imprisonment, to be followed by five years of supervised release. The court of appeals affirmed (Pet. App. 15a-21a), and this Court denied certiorari (id. at 22a).

Petitioner filed a motion for a new trial. The district court denied the motion (Pet. App. 23a-29a), and the court of appeals affirmed (id. at 32a-33a). Petitioner then filed a motion pursuant to 28 U.S.C. 2255. The dis trict court denied the motion (Pet. App. 37a-51a), and the court of appeals affirmed (id. at 60a-66a).

1. In late 1997 and early 1998, petitioner, along with several accomplices, robbed four banks near South Bend, Indiana. First, on December 12, 1997, petitioner and three accomplices robbed the Oak Manor branch of the National Bank of Detroit in Elkhart, Indiana, taking approximately $25,000. Petitioner brandished a Tec 9 assault firearm during the robbery. Petitioner and two others went inside the bank. Petitioner was the leader of the group and provided instructions to the other two during the robbery. The fourth member of the group drove the getaway vehicle, a 1997 Ford Expedition, which petitioner and others had stolen from a car dealer earlier that day. The group abandoned the Expedition a short distance from the bank and entered a sedan owned by petitioner's mother. After the crew switched cars, petitioner doused the Expedition with gasoline and set it on fire. Gov't C.A. Br. 5-6.

On December 26, 1997, petitioner and two accompli ces robbed two banks. In the first robbery, the group stole approximately $23,000 from the Lake City Bank in Elkhart, Indiana. Shortly thereafter, the group stole approximately $13,000 from Valley American Bank in Osceola, Indiana. Petitioner used the same Tec 9 during these robberies that he had used in the December 12 robbery, and he was again the leader of the crew. As in the December 12 robbery, petitioner and his accomplices stole a sport utility vehicle, this time a 1996 Chevy Tahoe, on the morning of the robbery. The group used the Tahoe as a first getaway vehicle. Within a few min utes of the robberies, they abandoned the Tahoe and entered petitioner's mother's car. Petitioner then set the Tahoe on fire. Gov't C.A. Br. 6.

Finally, on February 17, 1998, petitioner and two accomplices robbed a branch of the National Bank of Detroit in Elkhart, Indiana, stealing approximately $44,000. Petitioner again was the leader of the crew, and he again used the same Tec 9 he had used during the first three robberies. Petitioner and his accomplices stole an Oldsmobile Bravada sport utility vehicle from a Michigan dealer and used it as a first getaway vehicle. Petitioner drove the Bravada before and after the rob bery and abandoned it soon after the robbery. Gov't C.A. Br. 6-7.

Petitioner was the leader, organizer, and planner of the four bank robberies. He had attempted, unsuccess fully, to recruit others to help in the fourth robbery. Petitioner was also principally responsible for the theft of the three vehicles that were used as initial getaway cars, and for destroying two of those vehicles by fire. In addition, petitioner was responsible for destroying the clothing used in the robberies. Gov't C.A. Br. 7-8.

2. a. In a 12-count indictment, a federal grand jury charged petitioner and his accomplices with aggravated robbery of four banks, the carrying and use of firearms during the bank robberies, the use of fire to commit two of the robberies, and the malicious destruction by fire of two stolen getaway vehicles. Petitioner's co-defendants pleaded guilty, but petitioner went to trial. Petitioner was found guilty on all counts. Gov't C.A. Br. 2; Pet. App. 15a-16a.

b. Before sentencing, the district court granted peti tioner's motion for appointment of new counsel. Peti tioner filed a motion for a new trial pursuant to Federal Rule of Criminal Procedure 33, arguing that he had been denied the effective assistance of counsel. Petitioner argued that his lawyer had been under the influence of alcohol at trial, had not prepared adequately for trial, and had failed adequately to object during jury selec tion. Pet. App. 5a-10a, 19a-20a.

After conducting an evidentiary hearing, the district court denied petitioner's motion for a new trial. Pet. App. 2a-14a. The court found nothing in the record to support petitioner's allegation that his counsel had been under the influence of alcohol during trial. Id. at 5a. With respect to petitioner's remaining complaints con cerning his attorney's performance at trial, the court ruled that they "[a]ll suffer from a lack of proof, from [petitioner's] lack of understanding of the law, and/or from [petitioner's] lack of credibility." Id. at 5a-6a. The court thus rejected on both factual and legal grounds petitioner's various arguments concerning his counsel's performance at trial. Id. at 6a-9a.

c. On appeal, petitioner, represented by new counsel, renewed his contention that his trial counsel had been ineffective. The court of appeals rejected that argument and affirmed petitioner's convictions. Pet. App. 15a-21a. The court observed that "the district court, in a well- reasoned opinion," had "denied [petitioner's] ineffective assistance of counsel claim," and that the district court had given "little or no weight to [petitioner's] allegations that he received subpar representation from his trial counsel." Id. at 19a. The court of appeals concluded that petitioner had "point[ed] to no fundamental flaw in the district court's analysis," and the court "agree[d] with the district court that the record contain[ed] no evidence demonstrating that trial counsel rendered sub standard assistance or caused actual prejudice to [peti tioner's] defense." Ibid.

d. Petitioner filed a petition for a writ of certiorari, which this Court denied. Pet. App. 22a.

3. a. While the appeal from his conviction was pend ing, petitioner, acting pro se, filed in the district court another motion for a new trial, again arguing ineffective assistance of counsel. Petitioner contended, inter alia, that his trial counsel's mental condition had rendered him unable to provide effective assistance. Pet. App. 27a-28a, 32a.

b. The district court denied petitioner's motion. Pet. App. 23a-29a. The court explained that it "already ha[d] sufficiently addressed [petitioner's] claims concerning his trial counsel," and had "concluded that [petitioner] received effective assistance." Id. at 27a. The court reiterated that counsel's "performance exceeded any objective standard of reasonableness," and that peti tioner had "come far short of demonstrating that but for any unprofessional error [counsel] is alleged to have committed, the result of the proceeding would have been different." Ibid. The court rejected petitioner's attempt to call his counsel's mental condition into doubt based on his counsel's subsequent suicide. In the court's view, the suicide, "while tragic, * * * has virtually no probative value here." Id. at 28a.

c. The court of appeals affirmed. Pet. App. 30a-33a. The court rejected petitioner's argument that his coun sel was ineffective. The court explained that it had found in petitioner's initial appeal that "his trial at torney's performance was well within the bounds of ac ceptable performance." Id. at 32a. Although petitioner claimed, based on what he characterized as newly dis covered evidence, that his counsel's mental condition had rendered him unable to provide effective assistance, the court of appeals did "not consider the 'new evidence' * * * to describe any errors serious enough to impli cate his attorney's performance under the standard of Strickland v. Washington, 466 U.S. 668 (1984)." Ibid.

4. a. While his second appeal was pending, peti tioner filed a motion pursuant to 28 U.S.C. 2255, again arguing ineffective assistance of counsel. Petitioner claimed, inter alia, that his trial counsel had failed to object to alleged prosecutorial misconduct, had failed to request a flight instruction, had made misstatements concerning a co-defendant's gang involvement, and had operated under a conflict of interest by putting his fi nancial needs ahead of petitioner's interests. Pet. App. 39a-40a. Petitioner also argued that his appellate coun sel in his first appeal had been ineffective in failing to raise certain aspects of trial counsel's allegedly deficient performance. Id. at 42a-43a.

b. The district court denied petitioner's Section 2255 motion. Pet. App. 37a-51a. The court explained that petitioner's "current allegations largely mirror * * * arguments made in his prior appeals," id. at 40a, and that the new evidence he relied on was "largely the same evidence and post-trial events he offered the court of appeals the second time it addressed his ineffective assistance of counsel claim," id. at 41a. The court concluded that the law of the case doctrine precluded petitioner from presenting "theories of ineffective assistance he could have offered in his prior appeals but didn't." Ibid.

The district court explained, however, that peti tioner's claims concerning his appellate counsel's inef fectiveness were not subject to the law of the case doc trine. Because the claims concerning appellate counsel concerned the failure on appeal to raise certain aspects of trial counsel's performance, the court found "some value in discussing the allegations" against trial counsel, "despite the effects [of] the law of the case or procedural default rules." Pet. App. 43a. Accordingly, the court addressed and rejected petitioner's arguments that his trial counsel was ineffective. Id. at 43a-45a.

In particular, the district court found that peti tioner's claims concerning his trial counsel's alleged con flict of interest were baseless. The court explained that none of the claims that counsel had placed his own finan cial interests above petitioner's interests "in any way show[] how [counsel's] performance suffered at trial, nor how the proceeding's outcome was adversely affected." Pet. App. 43a. The court also rejected petitioner's argu ment that counsel should have objected to the govern ment's closing argument. The court explained that the prosecutor's statements identified by petitioner were either unobjectionable or harmless. Id. at 44a-45a. Fi nally, the court found that petitioner's remaining argu ments could have been raised in either of his first two appeals, and in any event "would not show a violation of Strickland." Id. at 45a.

c. The court of appeals affirmed. Pet. App. 60a-66a. The court observed that, in both of petitioner's previous appeals, it had rejected on the merits petitioner's claim that he had received ineffective assistance of counsel. Id. at 60a. The court therefore held that the law of the case doctrine barred petitioner from again alleging inef fective assistance of counsel. The court acknowledged that the law of the case doctrine is inapplicable when "the substantive law has changed or when evidence that could not have been discovered earlier despite diligent inquiries at last comes to light." Id. at 63a. The court explained that, although petitioner sought "to present new instances of supposed shortcomings" with respect to his counsel's performance, "it is the overall deficient performance, rather than a specific failing, that consti tutes the ground of relief" in an ineffectiveness claim. Ibid. Although the court understood the Tenth Circuit to have adopted a different approach in United States v. Galloway, 56 F.3d 1239 (1995) (en banc), the court was not persuaded by that decision "to abandon the doctrine of law of the case." Pet. App. 66a.

The court of appeals rejected petitioner's reliance on this Court's decision in Massaro v. United States, 538 U.S. 500 (2003), which held that a defendant does not procedurally default an ineffectiveness claim by failing to raise it in a direct appeal of his conviction. The court of appeals explained that, while Massaro allows a defen dant to wait until collateral review to raise an ineffec tiveness claim, the decision "does not hold that the same ground of relief may be raised twice, once on direct ap peal and again on collateral review." Pet. App. 64a. In this case, petitioner's "only argument is that [he] re ceived ineffective assistance at trial," and "[t]hat argu ment has been considered and rejected before." Id. at 66a.

ARGUMENT

Petitioner seeks this Court's review on the question whether the assertion of a claim of ineffective assistance of trial counsel on direct appeal bars a defendant from again raising a claim of ineffective assistance in a motion for collateral relief under 28 U.S.C. 2255, where the col lateral claim relies on aspects of trial counsel's perfor mance that were not raised on direct appeal. See Pet. 6- 18. There is no warrant for granting review of that question.

1. The Court's review is unwarranted for the thres hold reason that the issue is likely to arise only rarely. This Court held in Massaro, supra, that "an ineffective- assistance-of-counsel claim may be brought in a collat eral proceeding under § 2255, whether or not the peti tioner could have raised the claim on direct appeal." 538 U.S. at 504. The court explained that resolution of inef fectiveness claims on collateral review "is preferable to direct appeal" because, "[w]hen an ineffective-assistance claim is brought on direct appeal, appellate counsel and the court must proceed on a trial record not developed precisely for the object of litigating or preserving the claim and thus often incomplete or inadequate for the purpose." Id. at 504-505. The Court observed that, un der the rule it established, "ineffective-assistance claims ordinarily will be litigated in the first instance in the district court" rather than in the court of appeals. Id. at 505.

After Massaro, a defendant is never required to raise a claim of ineffective assistance on direct appeal, and such claims "ordinarily" will be raised and resolved on collateral review. 538 U.S. at 505. Although a defen dant on occasion nonetheless might elect to present an ineffectiveness claim on direct appeal, the court of ap peals is not required to address it, and presumably would remit the defendant to collateral review under Section 2255 except in an unusual situation in which the record permits resolution of the claim on direct review. See, e.g., United States v. Reyes-Platero, 224 F.3d 1112, 1116-1117 (9th Cir. 2000), cert. denied, 531 U.S. 1117 (2001); United States v. Williams, 205 F.3d 23, 35-36 (2d Cir.), cert. denied, 513 U.S. 228 (2000); United States v. Haywood, 155 F.3d 674, 678 (3d Cir. 1998). This Court opined in Massaro that "few [ineffectiveness] claims will be capable of resolution on direct review," 538 U.S. at 507, and petitioner admits that such claims will be "uncommon." Pet. 12 n.8. The issue raised by petitioner therefore could arise only in a case in which a defendant elects to raise an ineffectiveness claim on di rect appeal, the court of appeals elects to resolve the claim after determining that the case presents the un usual situation in which the trial record permits resolu tion of an ineffectiveness claim, the court denies relief, and the defendant subsequently raises an ineffective ness claim based on different alleged attorney errors in a Section 2255 proceeding. Those circumstances should rarely arise.

2. Petitioner argues (Pet. 8-11) that the court of ap peals' application of the law of the case doctrine conflicts with the approaches of the Tenth Circuit in United States v. Galloway, 56 F.3d 1239 (1995), and the Second Circuit in Riascos-Prado v. United States, 66 F.3d 30 (1995). With respect to the Second Circuit, however, it is unclear whether that court will continue the approach it adopted in Riascos-Prado after this Court's interven ing decision in Massaro. At the time of the Second Cir cuit's decision in Riascos-Prado, the rule in that court, pursuant to Billy-Eko v. United States, 8 F.3d 111 (2d Cir. 1993), was that a defendant represented by new counsel on appeal was required to raise an ineffective ness claim on direct appeal if the claim was based solely on the record developed at trial. At the same time, the Second Circuit also adhered to the general rule that a defendant who raised a claim on direct appeal was barred from raising the same claim on collateral review. See Williams v. United States, 731 F.2d 138, 141 (2d Cir. 1984), cert. denied, 469 U.S. 1188 (1985).

The court reasoned in Riascos-Prado that, in light of those two rules, an approach that treated all ineffective ness claims as presenting a single ground of relief would leave appellate counsel "in a legal quandary," with coun sel potentially required by Billy-Eko to raise certain attorney errors on direct appeal but then potentially barred from raising different attorney errors on collat eral review. 66 F.3d at 35. The court therefore held that a defendant was not barred from raising alleged attorney errors on collateral review that had not been presented on direct appeal. The dilemma that gave rise to that holding no longer exists in light of Massaro's abrogation of Billy-Eko. It remains to be seen whether the Second Circuit will now revisit the approach it adopted in Riascos-Prado.

The Tenth Circuit in Galloway did not disagree with the court of appeals below on the question whether each alleged failure by trial counsel constitutes a different ground for relief. Rather, the Tenth Circuit concluded that "an ineffectiveness claim may be viewed as unitary, regardless of the number of separate reasons advanced in support of the claim," and that a "unitary claim by definition cannot easily be split into two proceedings on any logical basis." 56 F.3d at 1241. Although the court recognized that the normal rule was that the assertion of such a claim on direct appeal would bar its assertion on collateral review, the court elected to adopt a special rule for ineffectiveness claims. In that context, the court reasoned, the procedural bar would be "absurdly easy to circumvent" and "painfully labor intensive to sort through and apply," because a defendant could as sert that appellate counsel was ineffective in failing to raise "all possible reasons showing why trial counsel was ineffective." Ibid. The court therefore held that it would address on the merits an ineffectiveness claim raised on collateral review where the claim was based on different alleged errors committed by counsel than had been raised on direct appeal. Id. at 1242.

Although the court of appeals below disagreed with the approach adopted by the Tenth Circuit in Galloway, see Pet. App. 65a-66a, this Court's review is unwar ranted. As explained, pp. 9-10, supra, the issue is un likely to arise with any frequency, particularly in the wake of this Court's recent decision in Massaro. In ad dition, a court of appeals' choice concerning the applica tion of law of the case principles to ineffective assistance claims does not ultimately affect the merits of any inef fectiveness claim or prevent any defendant from having at least one opportunity to have an ineffectiveness claim resolved. Once a circuit has established a procedural approach, defendants are on notice of the potential im plications of raising an ineffectiveness claim on direct appeal rather than presenting it in a motion for a new trial or on collateral review under Section 2255. Also, insofar as the approach of the Tenth Circuit differs in the abstract from the approach of the Seventh Circuit, the law of the case doctrine is inherently flexible and allows for consideration of equitable considerations in any given case. See Castro v. United States, 540 U.S. 375, 384 (2003) (explaining that the "law of the case doc trine * * * simply expresses common judicial practice; it does not limit the court's power") (quotation marks omitted).

Finally, it is not clear that the Tenth Circuit would reach a different resolution on the particular facts of this case. Petitioner has already raised an ineffective ness claim on appeal on two previous occasions, and the court of appeals addressed the merits of the claim both times. Petitioner was afforded a full opportunity to de velop his ineffectiveness claim-including an evidentiary hearing-in connection with his initial motion for a new trial. See Pet. App. 3a. He therefore is not in the same position as a defendant who raises an ineffectiveness claim on direct appeal based on certain alleged errors that are evident from the trial record, but who then de sires to develop a factual record on collateral review in support of other alleged attorney errors. Because peti tioner was already afforded an opportunity to develop a factual record in support of his ineffectiveness claim, it is not clear that the Tenth Circuit would afford him yet another opportunity to assert different attorney errors in a motion under Section 2255. See Galloway, 56 F.3d at 1240 (explaining that ineffectiveness claims ordinarily should be raised on collateral review because a "factual record must be developed in and addressed by the dis trict court in the first instance for effective review"). For the same reasons, there is no unfairness in applying the law of the case doctrine against petitioner in this case.1

3. Petitioner asserts (Pet. 13) that this Court's re view is needed "to clarify the extent to which, and on what authority, district courts should apply the law of the case doctrine to first motions filed pursuant to" 28 U.S.C. 2255. That argument is not limited to ineffective ness claims, but extends to any claim raised in an initial motion under Section 2255. There is no need for this Court to review the applicability of the law of the case doctrine to an initial motion under Section 2255.

As petitioner acknowledges (Pet. 14-15), this Court established in Sanders v. United States, 373 U.S. 1 (1963), that the law of the case doctrine generally bars the assertion of a claim in a Section 2255 proceeding if the claim was previously raised and addressed in a "prior application for federal habeas corpus or § 2255 relief." Id. at 15.2 The Court subsequently indicated in Davis v. United States, 417 U.S. 333 (1974), that the same approach to the law of the case doctrine adopted in Sanders also applies when a claim was initially raised and resolved on direct appeal and is asserted again in an initial motion under Section 2255. Id. at 342.

Petitioner argues (Pet. 15-16) that the Court in Da vis merely held that a claim raised and resolved on di rect review may be raised in a Section 2255 proceeding if there has been an intervening change in law. Accord ing to petitioner, the Court did not establish that the law of the case doctrine otherwise would bar assertion of the claim, i.e., even if there had been no intervening change of law. There is no merit to that argument. If a defen dant were generally free to raise claims in Section 2255 proceedings that had already been raised and resolved on direct appeal, regardless of whether there had been an intervening change of law, there would have been no need for the Court to explain in Davis that a claim re solved on direct appeal nonetheless may be raised in a Section 2255 petition where there has been an interven ing change of law. See 417 U.S. at 342. Petitioner iden tifies no lower court that generally permits a defendant to raise a claim in an initial Section 2255 motion even if the same claim was raised and resolved on direct appeal. See Reed v. Farley, 512 U.S. 339, 358 (1994) (Scalia, J., concurring) ("[C]laims will ordinarily not be entertained under § 2255 that have already been rejected on direct review."); Withrow v. Williams, 507 U.S. 680, 721 (1993) (Scalia, J., concurring in part and dissenting in part) (explaining that "federal courts have uniformly held that, absent countervailing considerations, district courts may refuse to reach the merits of a constitutional claim previously raised and rejected on direct appeal"). Accordingly, there is no need for this Court's review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

VIJAY SHANKER
Attorney

SEPTEMBER 2005

1 There is no merit to petitioner's contention (Pet. 11-13) that the court of appeals' decision conflicts in principle with this Court's decision in Massaro. The Court in Massaro specifically declined to address the "conclusiveness" in Section 2255 proceedings "of determinations made on * * * ineffective-assistance claims raised on direct appeal." 538 U.S. at 508-509. Insofar as the approach of the court of appeals en courages defendants to bring ineffective assistance claims on collateral review rather than on direct appeal (see Pet. 11-12), that result is fully consistent with Massaro. See 538 U.S. at 504 ("In light of the way our system has developed, in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective- assistance."). As the court of appeals explained, Pet. App. 64a-65a, nothing in Massaro bars the court of appeals' approach below.

2 Since Sanders, Congress has codified and strengthened the re strictions on the filing of successive motions for relief under Section 2255. See Antiterrorism and Effective Death Penalty Act of 1996, codified in relevant part at 28 U.S.C. 2255 para. 8; Pet. App. 63a.