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No. 05-787

In the Supreme Court of the United States

MICHAEL BRAD MAGLEBY, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

WAN J. KIM
Assistant Attorney General

JESSICA DUNSAY SILVER
NATHANIEL S. POLLOCK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether counsel for petitioner on direct appeal provided ineffective assistance by omitting a First Amendment challenge to the jury instructions on the charges of conspiracy to violate civil rights, in violation of 18 U.S.C. 241, and intimidation or interference with housing rights on the basis of race, in violation of 42 U.S.C. 3631.

2. Whether counsel for petitioner on direct appeal provided ineffective assistance by omitting a challenge to his conviction for a use of fire in the commission of a felony, 18 U.S.C. 844(h)(1), when the felony was a conspiracy to violate civil rights, in violation of 18 U.S.C. 241.

In the Supreme Court of the United States

No. 05-787

MICHAEL BRAD MAGLEBY, PETITIONER

v.

UNITED STATES OF AMERICA

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

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-19a) is reported at 420 F.3d 1136. The opinion of the district court (Pet. App. 22a-41a) is unreported. The prior opinion of the court of appeals affirming peti tioner's conviction on direct appeal (Pet. App. 42a-71a) is reported at 241 F.3d 1306.

JURISDICTION

The judgment of the court of appeals was entered on August 19, 2005. A petition for rehearing was denied on September 20, 2005 (Pet. App. 20a-21a). The peti tion for a writ of certiorari was filed on December 19, 2005. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

After a jury trial in the United States District Court for the District of Utah, petitioner was convicted of: (1) conspiracy to violate civil rights, in violation of 18 U.S.C. 241; (2) intimidation or interference with hous ing rights on the basis of race, in violation of 42 U.S.C. 3631(a); (3) use of fire to commit a felony, in violation of 18 U.S.C. 844(h)(1); and (4) tampering with a witness, in violation of 18 U.S.C. 1512(b)(3). Pet. App. 46a. He was sentenced to 144 months of imprisonment. On di rect appeal, the court of appeals affirmed. Pet. App. 42a-71a. Petitioner then filed a motion under 28 U.S.C. 2255 to set aside the conviction and vacate the sentence. The district court denied the motion. Pet. App. 22a- 41a. The court of appeals again affirmed. Pet. App. 1a- 19a.

1. On September 6, 1996, petitioner invited five friends to come to his house for a barbeque. The group discussed their dislike for people of other races, lis tened to racist music, and viewed racist web sites. Peti tioner and a minor friend, L.M., built a cross that they intended to burn in front of the house of a group from the Kingdom of Tonga that had moved into the neigh borhood, and they purchased gasoline to set the cross aflame. When they arrived at the house, however, there were several men outside the house, and they decided not to carry out their plan there. Pet. App. 2a.

There was evidence that L.M. then suggested that they burn the cross at the house of a black man instead; petitioner argued that L.M. had said "crackhead" in stead of "black man." Petitioner and L.M. proceeded to burn the cross outside the home of Ron and Robyn Henry and their eleven-year-old son. Ron is an African American and his wife Robyn is white. Pet. App. 45a.

2. The jury found petitioner guilty of conspiracy to violate civil rights, in violation of 18 U.S.C. 241, and intimidation or interference with housing rights on the basis of race, in violation of 42 U.S.C. 3631. The jury also found him guilty of using fire to commit a felony, in violation of 18 U.S.C. 844(h)(1); the predicate felony was the violation of 18 U.S.C. 241.1 Under Section 844(h)(1), a defendant receives a prison sentence of ten years for a first conviction.2 Petitioner was also found guilty of tampering with a witness, in violation of 18 U.S.C. 1512(b)(3). Pet. App. 23a.

3. On appeal, petitioner argued that a jury instruc tion on the housing rights count was mistaken, because it permitted conviction if the defendant was motivated by race alone, rather than requiring proof that defen dant was motivated both by race and by the fact that the victims were occupying a dwelling. Pet. App. 49a. Petitioner also challenged an instruction that the jury could consider "the reaction of the victims and other witnesses to the cross burning in determining the defen dant's intent." Id. at 49a-50a. Petitioner further chal lenged the sufficiency of the evidence to support his civil rights, housing rights, and use of fire convictions. Id. at 51a-52a. Finally, petitioner challenged several evidentiary rulings of the district court. See id. at 59a- 71a. The court of appeals rejected each of those chal lenges. Id. at 46a-71a.

3. Petitioner filed a motion under 28 U.S.C. 2255 in district court, seeking to have his conviction set aside and his sentence vacated. Pet. App. 22a. He argued that (1) his convictions under Sections 241 and 3631 "were based on * * * speech protected by the First Amendment;" (2) the "use of fire" violation under 18 U.S.C. 844(h)(1) "does not apply to all felonies;" (3) "the application of § 844(h)(1) to the act of cross-burning violates the First Amendment;" and (4) "18 U.S.C. 844(h)(1) was impermissibly applied to this case be cause the conspiracy entered into by the defendant was completed before he used fire in connection with any felony." Pet. App. 27a. Because those claims were not raised on direct appeal, they were subject to a proce dural bar unless petitioner could show cause and preju dice. Id. at 26a. He sought to make that showing by advancing an additional claim that his counsel on direct appeal had provided ineffective assistance. Id. at 26a- 27a.

The district court rejected petitioner's claim of inef fective assistance. The court examined each portion of the jury instructions that petitioner claimed permitted the jury to convict him for protected speech rather than a "true threat" of physical violence. Pet. App. 32a; see Virginia v. Black, 538 U.S. 343, 359 (2003) (defining "true threats" as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals"). The court con cluded that "the jury instructions were adequate to en sure that [petitioner] was convicted only for * * * a threat of physical harm with the intent to advocate force; or at least that he intended to cause the [victims] to reasonably fear the use of imminent force." Pet. App. 37a.

With respect to Section 844(h)(1), the court rejected petitioner's argument that it applies only to arson, holding that the language of the statute is not so lim ited. Pet. App. 39a. The court also determined that Section 844(h)(1) is not a content-based restriction on speech when applied to cross-burning, because the sen tence "for the use of fire is unrelated to the conduct's expressive content." Id. at 37a. Finally, the court held that the Section 844(h)(1) charge could be based on peti tioner's conspiracy conviction, because the act of burn ing the cross was an overt act in petitioner's "ongoing [conspiracy] offense." Id. at 40a.

The district court concluded that "because the sub stantive merits of petitioner's claims have no merit, his appellate counsel was not constitutionally ineffective." Pet. App. 40a. See ibid. ("[Petitioner's] counsel's ac tions did not fall below an objective standard of reason ableness, and petitioner was not prejudiced by his coun sel's failure to raise these issues on appeal.").

4. On appeal of the denial of his Section 2255 mo tion, petitioner renewed his argument that his counsel on direct appeal had provided ineffective assistance and that he was therefore excused from his procedural de fault. Adopting the standard in Strickland v. Washing ton, 466 U.S. 668, 687-688 (1984), the court held that petitioner had the burden of showing that "counsel's representation fell below an objective standard of rea sonableness" and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Pet. App. 5a (quoting Strickland, 466 U.S. at 687-688, 694). The court of appeals held that, based on "the state of the law at the time of [petitioner's] direct appeal," id. at 5a, petitioner's appellate counsel did not provide in effective assistance, because counsel's omission of the claims now asserted by petitioner was not unreasonable under Strickland. Id. at 8a, 17a, 19a.

a. The court of appeals held that the failure of ap pellate counsel to challenge the Section 3631 instruc tions on First Amendment grounds was not unreason able. Petitioner argued that those instructions permit ted conviction for conduct that did not constitute a "true threat" of violence and therefore was protected by the First Amendment. The court noted that the pri mary instruction on Section 3631 stated that the gov ernment had to prove that "[t]he defendant used force or threat of force." Pet. App. 8a (emphasis omitted). A further instruction explained:

[t]he term 'force' includes the exercise and applica tion of physical power. In common usage force means power, violence, compulsion, or restraint ex erted upon or against a person or thing.

Id. at 9a. Rejecting petitioner's argument that the in struction did not require the threat of physical violence or force, the court explained that "[t]he natural reading of the language in the instruction is that it is referring to physical force." Id. at 10a.

The court of appeals also rejected petitioner's claim that another portion of the same instruction, which stated that "to threaten or intimidate does not require the possibility of physical force or physical harm," Pet. App. 10a, permitted conviction without a threat of phys ical violence or force. The court held that "the quoted sentence can best be understood as explaining that the Government need not prove that the threat of force could or would actually be carried out." Id. at 11a (cit ing Virginia v. Black, 538 U.S. at 359-360).

b. The court also held that the failure of appellate counsel to challenge the Section 241 jury instructions on First Amendment grounds was not unreasonable. Pet. App. 11a-14a. The Section 241 instructions re quired the government to prove

[t]hat the purpose of the conspiracy * * * was will fully to oppress, threaten or intimidate Ron Henry and Robyn Henry in the free exercise or enjoyment of the right to occupy their dwelling, or home, with out intimidation or interference because of race.

Id. at 12a. The instructions added:

The words 'oppress,' 'threaten,' or 'intimidate' are not used in any technical sense; they are to be un derstood in their ordinary meaning to cover a vari ety of conduct intended to threaten or frighten other persons or to prevent or punish the free action of other persons.

Ibid.

The court stated that the instructions were "flawed" because they "never define threat as requiring a threat of force" but instead "assert that oppress, threaten, and intimidate are used in their everyday sense." Pet. App. 13a. The court noted, however, that counsel may reasonably "forego a challenge to an improper instruc tion" if "the error is likely to be considered harmless." Ibid. The court found that "[t]hat likelihood is consid erable here." Ibid. The court noted that "the jury's verdict on the § 3631 charge almost surely reflected a finding that [petitioner's] cross burning constituted a willful threat of force" and that "the cross burning was the only object of the alleged § 241 conspiracy." Id. at 14a. In those circumstances, "it would be passing strange if the jury did not believe that [petitioner] and L.M. had conspired to threaten force." Ibid. The court added that, although petitioner's argument that the instruction was flawed relied on Eighth Circuit prece dent in cross-burning cases, there was an "absence at the time of the appeal of any authority from the Su preme Court or this circuit adopting the law set forth in the Eighth Circuit cross-burning decisions." Ibid. The court concluded that, under all the circumstances, it "cannot say that it was objectively unreasonable for [petitioner's] appellate counsel not to raise the First Amendment challenges to his convictions under §§ 241 and 3631." Ibid.

c. The court also held that petitioner's appellate counsel had not been ineffective in failing to raise ei ther of the Section 844(h)(1) claims petitioner advanced in his Section 2255 motion.3 The court concluded that appellate counsel had not acted unreasonably in failing to claim that his Section 844(h)(1) conviction violated the First Amendment because it imposed special pun ishment on him because of the content of his speech. The court explained that increased punishment for "es pecially pernicious" threats, Pet. App. 16a, does not conflict with this Court's decision in R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), which prohibited basing punishment for even unprotected speech on the point of view being expressed. The court noted that threats that make use of fire and are therefore subject to pun ishment under Section 844(h)(1) "exhibit to a higher degree than other felonious threats the characteristics that makes threats proscribable," because such threats have "the potential not only to frighten in a distinctly profound way but also * * * to cause the threatened harm to person or property." Pet. App. 16a. Accord ingly, the court concluded that the merits of the claim that counsel failed to raise were "highly questionable." Ibid. See also id. at 17a ("doubtful").

The court also concluded that counsel had not acted unreasonably in failing to attack his Section 844(h)(1) conviction on the ground that that provision cannot be based on a Section 241 conspiracy. The court recog nized that, in a decision that postdated petitioner's ap peal by two years, the Seventh Circuit had agreed with petitioner's argument, reasoning that unless fire is used in the process of reaching agreement, a conspiracy that does not require proof of an overt act cannot be the predicate felony under Section 844(h)(1). Pet. App. 17a (citing United States v. Colvin, 353 F.3d 569 (7th Cir. 2003) (en banc), cert. denied, 543 U.S. 925 (2004)). The court stated however, it was "not sure" it "would em brace Colvin." Ibid. The court discussed a number of ways in which conspiracy is a "continuing offense, en compassing the acts performed in furtherance of the agreement."4 The court determined that an ultimate decision on the merits of the question whether Section 844(h)(1) applies to a conspiracy under Section 241 was unnecessary, however, because at the time of direct appeal "[n]o decisions had yet adopted [petitioner's] view," and therefore his counsel's failure to raise the issue was not unreasonable under Strickland. Id. at 18a.

ARGUMENT

Petitioner argues that further review is warranted to address the court of appeals' application of the Strickland standard to his claim of ineffective assis tance of appellate counsel and to address his substan tive claims that the jury instructions in this case did not adequately protect his First Amendment rights and that a Section 844(h)(1) conviction cannot be based on a Section 241 conspiracy. The court of appeals' applica tion of the Strickland standard to the particular facts of this case does not conflict with any decision of any other circuit and does not warrant further review. The merits of the substantive issues petitioner discusses are not squarely before the Court in this case, which arises on collateral review and presents only the question whether petitioner's appellate counsel acted unreason ably. Those substantive issues would not in any event warrant further review.

1. Petitioner urges the Court to grant certiorari in order to resolve the "open * * * question of what stan dards to apply to ineffective assistance of appellate counsel" claims. Pet. 14 (quoting Evitts v. Lucey, 469 U.S. 387, 392 (1985) ("We therefore need not decide the content of the appropriate standards for judging claims of ineffective assistance of appellate counsel.")). Peti tioner admits (ibid.) that all of the courts of appeals have applied the Strickland standard to such claims, as did the court of appeals in this case. See Pet. App. 5a. Indeed, this Court's own decisions have applied the Strickland standard to claims of ineffective assistance of appellate counsel.

a. In Smith v. Murray, 477 U.S. 527 (1986), this Court applied the Strickland standard to a claim of in effective assistance of appellate counsel. See id. at 535 ("Nor can it seriously be maintained that the decision not to press the claim on appeal was an error of such magnitude that it rendered counsel's performance con stitutionally deficient under the test of Strickland v. Washington").5 In Murray, the prisoner claimed that counsel rendered ineffective assistance by failing to raise on appeal the issue of admissibility of testimony of a court-appointed psychiatrist who testified at the sentencing phase about a past sexual offense of a defen dant convicted of rape and murder. Id. at 529-530. Counsel had objected to the admission of the testimony at trial, but did not raise the issue on direct appeal. Id. at 531. This Court noted that "various forms of the claim [that the prisoner's counsel omitted on direct ap peal] had been percolating in the lower courts for years at the time of his original appeal." Id. at 537. But the Court determined nonetheless that counsel's failure to raise the claim on direct appeal had not been unreason able under Strickland. The Court explained that the "process of 'winnowing out weaker arguments on ap peal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Id. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-752 (1983)). The Court expressly reaffirmed the principle that "[a] fair assess ment of attorney performance requires that every ef fort be made to eliminate the distorting effects of hind sight" and "to evaluate the [attorney's] conduct from counsel's perspective at the time." Ibid. (quoting Strickland, 466 U.S. at 689) (brackets in original). See id. at 534 (characterizing as "irrelevant" a decision by the appellate court that heard petitioner's appeal that was reached after that appeal).

The court of appeals in this case followed the rea soning of Murray. As in Murray, petitioner's appellate counsel omitted issues on appeal that had been pre served at trial, and petitioner argues that he gained no "tactical advantage" in doing so. Pet. 16. Like this Court in Murray, the court of appeals concluded that counsel's performance on appeal had to be judged in light of "the state of the law at the time of" counsel's action-i.e., at the time of petitioner's direct appeal. Pet. App. 5a. And like this Court in Murray, the court of appeals concluded that counsel's decision not to pur sue the omitted claims was not deficient performance under Strickland, because appellate counsel had en gaged in a process of "winnowing out" the arguments to be presented on appeal that was not unreasonable when viewed from that ex ante perspective. See, e.g., ibid. Indeed, the court not only examined each of the omitted claims from that perspective and found them wanting, but it also noted that, even if an appeal on one or the other ground would have had some chance of success, "counsel could also reasonably fear that the issue was more likely to distract the appellate court's attention from issues with a greater likelihood of success." Id. at 11a. As the court explained, "[a]lthough we now know that this court rejected all the issues raised on direct appeal, those issues were not frivolous" and their analy sis "took a published opinion occupying 12 pages of text in the reporter to dispose of them." Ibid.

b. Petitioner asserts (Pet. 14-15) that there is a con flict in the circuits on the proper application of Strick land to an ineffective assistance of appellate counsel claim. Petitioner bases his argument on a purported difference between the Second and Seventh Circuits, which require a "comparison between merits of raised and unraised claims," Pet. 15 (citing Gray v. Greer, 800 F.2d 644 (7th Cir. 1986), and Mayo v. Henderson, 13 F.3d 528 (2d Cir. 1994), cert. denied, 513 U.S. 820 (1994)), and the Tenth Circuit, which requires an exam ination of "the merits of the omitted issue," Pet. 15 (cit ing Banks v. Reynolds, 54 F.3d 1508 (1995)).

Closer examination reveals that those cases do not state different legal standards, but simply deal with different factual contexts. In Banks, the court con cluded that the omitted arguments were "clearly meri torious." 54 F.3d at 1515. There was, therefore, no need to examine the arguments made on direct appeal, because omitting a clearly meritorious claim was enough in the circumstances of that case to constitute objectively deficient performance.6 In contrast, the court in Mayo concluded that the omitted claim was "particularly strong." 13 F.3d at 534. But the court in Mayo then went on to compare the particularly strong claim that was omitted with the "extremely weak" claims presented on direct appeal, and found, based on that comparison, that the appellate attorney's perfor mance was objectively deficient. Ibid. That no circuit split exists is well illustrated by Cargle v. Mullin, 317 F.3d 1196 (10th Cir. 2003), which harmonizes the hold ings of Banks and Mayo. Cargle, 317 F.3d at 1202-1203 ("If the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may di rectly establish deficient performance; if the omitted issue has merit but is not so compelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in its omission; of course, if the issue is meritless, its omission will not constitute deficient performance.") (citing Smith, 528 U.S. at 288, Banks, 54 F.3d at 1515-1516, and Mayo, 13 F.3d at 533).

2. Petitioner argues that the jury instructions on the Section 241 and Section 3631 counts permitted the jury to convict him for conduct that was protected by the First Amendment, see Pet. 19-27, and that a Section 844(h)(1) conviction may not be based on a Section 241 conspiracy, see Pet. 27-33. Those claims are not squarely before this Court in this case.

This case arises from petitioner's motion under Sec tion 2255, in which he attempted to present claims that were defaulted on direct appeal. The court of appeals held-and petitioner does not dispute-that those claims were thus procedurally barred unless petitioner could show cause and prejudice to excuse his default. Pet. App. 4a. The court of appeals decided this case on the ground that petitioner was unable to make a show ing of cause for the default, because he was unable to show that he received ineffective assistance of counsel.

In that posture, the only issue presented to the court of appeals was the case-specific one of whether petitioner received ineffective assistance of counsel on direct appeal. To resolve that question, the court of appeals did have to consider the merits of the claims that petitioner sought to raise, in order to determine whether counsel rendered ineffective assistance in fail ing to raise them. But the court did not ultimately have to resolve those claims.

For example, the court of appeals did not decide whether the Section 3631 jury instructions in this case were inadequate. Instead, the court concluded only that "[i]f there is a flaw [in the Section 3631 jury in structions], it is a subtle one," and that, although "[p]erhaps an appeal on this ground would have suc ceeded," counsel could also reasonably have concluded that other issues were more promising. Pet. App. 10a- 11a. On the Section 241 count, the court did state that the instructions were "flawed," but it did not defini tively resolve whether any error would have entitled petitioner to relief. Instead, it concluded only that counsel could have reasonably omitted the claim of in structional error on appeal, because the likelihood that the error would be considered harmless was "consider able." Id. at 13a. On the permissibility of applying Section 844(h)(1) based on the Section 241 conspiracy, the court concluded only that it was "not sure" that it would adopt petitioner's position in light of consider able arguments opposing it, id. at 17a, and that it "need not resolve" the issue definitively because "it was not so obvious at the time of [petitioner's] direct appeal that counsel's failure to raise [the issue] was unreasonable," id. at 18a.

In its present posture, this case therefore presents only the question whether the court of appeals erred in concluding that petitioner's appellate counsel was not ineffective. It does not present an appropriate opportu nity for this Court to address the merits of the various substantive issues that petitioner seeks to present. Thus, even if resolution of the substantive issues identi fied by petitioner otherwise warranted this Court's re view, such review would better await a case in which the merits of those issues would be squarely presented and could be finally settled.

3. In any event, the substantive issues identified by petitioner would not warrant further review.

a. Contrary to petitioner's contention (Pet. 25-26), the Section 3631 jury instructions adequately ensured that petitioner could not be convicted for engaging in conduct protected by the First Amendment. In Vir ginia v. Black, this Court determined that "[i]ntimi dation," which "is a type of true threat," is "constitu tionally proscribable" when done "with the intent of placing the victim in fear of bodily harm." 538 U.S. at 360. The Section 3631 jury instructions in this case adequately conveyed to the jury that only conduct threatening use of physical force is proscribed. The jury was instructed that, to convict petitioner, it had to find that petitioner "used force or threat of force," and that "[t]he term 'force' includes the exercise and appli cation of physical power" and "means power, violence, compulsion, or restraint exerted upon or against a per son or thing." Pet. App. 8a, 9a. That is sufficient to ensure that the jury convicted petitioner only upon finding that he had used a "threat of force" as that term was understood in Black-i.e., a threat that was in tended to "plac[e] the victim in fear of bodily harm."

Petitioner also objects to the statement in the in structions that "to threaten or intimidate does not re quire the possibility of physical force or physical harm." Pet. 26 (emphasis omitted); see Pet. 24. As the court of appeals held, see Pet. App. 11a, that statement correctly informed the jury that it could convict if peti tioner's cross burning amounted to a threat of physical force, even if petitioner did not actually intend to carry out the threat. See Black, 538 U.S. at 360 (determining that a cross burner "need not actually intend to carry out the threat" in order for his conduct to be pro scribable).

b. With respect to the Section 241 conviction, even if the instructions permitted conviction without requir ing a threat of force and, as the court of appeals stated, were "flawed" for that reason, see Pet. App. 12a, the error was harmless. Petitioner was charged pursuant to Section 241 with conspiracy to "oppress, threaten, or intimidate" the Henrys "in the free exercise or enjoy ment of" their housing rights. It is undisputed that the charged Section 241 conspiracy was a conspiracy to engage in the cross burning, which was itself the basis of the Section 3631 charge. As explained above, the instructions on petitioner's Section 3631 charge did require the jury to find use or threat of force as an element of the crime and explained that the force must be physical force. The jury's finding of guilt on that charge therefore shows that the jury determined that petitioner's cross burning exhibited physical force or the threat of physical force. Accordingly, the jury's finding on the Section 3631 count established that, even if the instructions on the Section 241 count failed to require proof that petitioner had conspired to use phys ical force against the victims and was flawed, the jury would have found that the object of the conspiracy was a "true threat"-i.e., a threat of physical force against the victims. Contrary to petitioner's argument (Pet. 27), there is no danger that petitioner was convicted under Section 241 for conspiring to engage in conduct protected by the First Amendment. Further review of petitioner's First Amendment claims would therefore be unwarranted.

c. Nor would further review be warranted to deter mine whether a Section 241 conspiracy may be a predi cate offense on which a Section 844(h)(1) conviction can be based. See Pet. 27-33. In United States v. Colvin, 353 F.3d 569, 576 (2003) (en banc), cert. denied, 543 U.S. 925 (2004), the Seventh Circuit held that Section 844(h)(1) could not be based on a Section 241 conspir acy. No other court of appeals, however, has ruled on that issue. The court of appeals in this case did not reach a final conclusion on that issue, although it did observe that there are substantial reasons not to "em brace Colvin." Pet. App. 17a. There is accordingly no conflict in the circuits on the question whether Section 241 may be a predicate for a Section 844(h)(1) convic tion, and petitioner has made no showing that that question is of such exceptional importance that further review would be warranted even in the absence of a conflict.7

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

WAN J. KIM
Assistant Attorney General

JESSICA DUNSAY SILVER
NATHANIEL S. POLLOCK
Attorneys

MARCH 2006

1 The jury also returned a verdict of guilty on an additional count under Section 844(h)(1) charging use of fire to commit the Section 3631 housing rights violation, but the trial court dismissed that count after trial. Pet. App. 23a.

2 Petitioner quotes (Pet. 3) an earlier version of 18 U.S.C. 844(h)(1) (1994) that provided for a five-year sentence for a first offense. See Antiterrorism and Effective Death Penalty Act, Pub. L. No. 104-132, Tit. VII, § 708(a)(3), 110 Stat. 1296 (amending statute to increase punishment).

3 On appeal, petitioner abandoned his claim that Section 844(h)(1) applies only to arson.

4 See Pet. App. 17a ("venue is proper wherever acts in furtherance of the conspiracy occur"); id. at 17a-18a (noting that for the exception to hearsay for statements of a co-conspirator "the statement need not further the attainment of an agreement; it is enough that it further an object of the agreement"); id. at 18a ("for statute-of-limitations purposes, a non-overt-act conspiracy is not committed simply on the date the agreement is made but 'is deemed to continue as long as its purposes have neither been abandoned nor accomplished, and no affirmative showing has been made that it has terminated'") (quoting United States v. Arnold, 117 F.3d 1308, 1313 (11th Cir. 1997)).

5 See Smith v. Robbins, 528 U.S. 259, 285 (2000) (citing Smith v. Murray, 477 U.S. 527 (1986), and characterizing it as "applying Strick land to claim of attorney error on appeal"); id. at 287-288 (determining that the Strickland standard applies where appellate counsel has com plied with applicable state procedure and found a criminal defendant's appeal to be frivolous and stating "[i]t is no harder for a court to apply Strickland in this area than it is when a defendant claims that he received ineffective assistance of appellate counsel because his counsel, although filing a merits brief, failed to raise a particular claim").

6 Petitioner's contention (Pet. 17-18) that the court of appeals departed from its own "dead bang winner" standard in this case is mistaken. The Tenth Circuit has used the term "dead-bang winner" to refer to an omitted claim that is clearly meritorious, see e.g., United States v. Cook, 45 F.3d 388, 395 (10th Cir. 1995), and the omission of such a claim may form a basis for a claim of ineffective assistance of appellate counsel. See Cargle v. Mullin, 317 F.3d 1196, 1202 n.4 (10th Cir. 2003) ("omission of a clearly meritorious issue can be a sufficient basis for such a claim"). That does not mean, however, that a decision on the merits is necessary to the determination of ineffective assistance claims. See ibid. ("This court recently rejected the idea that omission of a 'dead bang winner' issue is a necessary condition for prevailing on an appellate ineffectiveness claim. ") (citing Neill v. Gibson, 278 F.3d 1044, 1057 n. 5 (10th Cir. 2001), cert. denied, 537 U.S. 835 (2002)). In this case, because the court determined that there was no clearly meritorious issue that appellate counsel had omitted, the court had no occasion to use the "dead-bang winner" formulation. In any event, a claim that the court of appeals failed to follow its own precedent would not warrant further review. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam).

7 Quoting the trial transcript, petitioner notes (Pet. 29) that, in response to argument, the trial court expressed doubt about whether Section 844(h)(1) could be based on a Section 241 predicate felony. Ultimately, however, the trial court determined that petitioner's argument was mistaken, and it declined to dismiss the Section 844(h)(1) count. The same district court again concluded in analyzing petitioner's Section 2255 motion that "petitioner's act of burning a cross was part of his conspiracy to burn a cross" because it was an overt act of the conspiracy. Pet. App. 40a.