United States v. Mir Islam , 932 F.3d 957 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 19, 2018 Decided August 2, 2019
No. 18-3003
UNITED STATES OF AMERICA,
APPELLEE
v.
MIR ISLAM,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cr-00067-1)
Jonathan Zucker, appointed by the court, argued the cause
and filed the briefs for appellant.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, John P. Mannarino, and
Jonathan P. Hooks, Assistant U.S. Attorneys.
Before: KATSAS, Circuit Judge, and SILBERMAN and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge KATSAS.
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KATSAS, Circuit Judge: This appeal addresses the legal
consequences of a criminal defendant’s failure to object to a
magistrate judge’s adverse report and recommendation. We
also consider claims that defense counsel provided ineffective
assistance during proceedings to revoke a term of supervised
release.
I
Mir Islam received two federal sentences for various
offenses. In the Southern District of New York, Islam pleaded
guilty to crimes involving credit-card fraud, identity theft, and
computer hacking. An SDNY judge sentenced him to one day
of imprisonment followed by three years of supervised release.
In the District of Columbia, Islam pleaded guilty to crimes
involving the theft and online publication of personal
information, conveying false information about the use of
explosives, and cyber-stalking. A DDC judge sentenced him
to two years of imprisonment followed by three years of
supervised release. The respective terms of supervised release
were subject to substantially similar conditions.
After Islam served both prison sentences, he began
concurrently serving the terms of supervised release. Because
Islam was living in New York, the SDNY probation office
conducted supervision for both courts.
On January 18, 2017, Islam was arrested in New York for
violating the conditions of his supervised release. On January
19, the SDNY probation office filed with the SDNY a petition
to revoke the supervised release. On April 11, the SDNY
judge revoked Islam’s original term of supervised release and
imposed two years of imprisonment followed by one year of
supervised release subject to the same conditions previously
imposed. She recommended that the imprisonment and
supervised release run concurrently with any further
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punishment that the DDC judge might impose. With credit for
time served, Islam was released from SDNY custody on
August 17, 2017.
In the meantime, the DDC probation office filed its own
petition to revoke with the DDC. On February 1, 2017, the
DDC judge issued a warrant for Islam’s arrest, which was
lodged as a detainer to be executed upon Islam’s release from
SDNY custody. On August 14, Islam moved to dismiss the
detainer and to transfer the DDC case to the SDNY. On the
same day, the DDC judge denied the motion in a minute order.
Upon his release from SDNY custody, Islam was held under
the detainer and then transferred to the District of Columbia.
On September 6, Islam arrived in the District, was arrested
under the warrant, and appeared before a magistrate judge
assigned to his case.
The magistrate judge scheduled a revocation hearing for
September 15, but Islam sought and received two continuances.
On October 27, Islam moved to dismiss the petition for
revocation. Among other things, he argued that the delay
between his arrest in New York and revocation proceedings in
the DDC violated both the Due Process Clause of the Fifth
Amendment and Federal Rule of Criminal Procedure
32.1(a)(1). Islam also sought to transfer the matter to the
SDNY. On November 8, the magistrate judge held a hearing
on these issues.
On December 4, the magistrate judge issued a thirty-page
report and recommendation rejecting Islam’s various
arguments. The magistrate judge proposed finding that Islam
had engaged in unauthorized travel, failed to identify
computers and other electronic devices to which he had access,
failed to allow monitoring of those devices, failed to attend
mental-health counseling, and failed to provide requested
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financial information—all in violation of his supervised-
release conditions. The magistrate judge recommended that
the district court impose four months of imprisonment. She
recommended no further supervision because the SDNY
probation office would be supervising compliance with the
conditions imposed in the SDNY, which were “nearly
identical” to those imposed in the DDC. App. 98. The report
and recommendation stated that “any party who objects to the
proposed findings or recommendations herein must file written
objections within fourteen days” of service. App. 99. It
further warned that the parties “may waive their right of appeal
from an order of the District Court adopting such findings and
recommendations” if they “fail to file timely objections.” Id.
Islam did not file any objections.
The district court held a revocation hearing on December
19, 2017. At the outset, the court asked the parties if they
objected to the report and recommendation. Through counsel,
Islam replied that he did not. Still, the court went over each
violation and confirmed that Islam had no objections. The
court adopted the proposed findings that Islam had violated his
supervised-release conditions in five different respects,
revoked his supervised release, and imposed nine months of
imprisonment followed by 24 months of supervised release.
The court rejected the magistrate judge’s recommendation of a
four-month prison term with no further supervised release, as
well as the SDNY judge’s recommendation of a concurrent
prison term. Regarding the relationship between the SDNY
and DDC proceedings, the district court explained: “[T]his
was a separate matter and there was a separate criminal
proceeding here. This is a violation of the terms with respect
to that separate criminal proceeding.” App. 110.
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II
On appeal, Islam seeks to raise the same delay argument
that he pressed unsuccessfully before the magistrate judge.
He contends that the lag between his January 2017 arrest and
his December 2017 revocation hearing violated both due
process and Rule 32.1(a)(1). The government responds that
Islam forfeited his right to appeal the district court’s decision
rejecting these claims by failing to object to the magistrate
judge’s adverse recommendation. We agree.
A
The Federal Magistrates Act permits a district court to
“designate a magistrate judge to conduct hearings” on various
civil and criminal matters, 28 U.S.C. § 636(b)(1)(B), including
petitions “to modify, revoke, or terminate supervised release,”
18 U.S.C. § 3401(i). For such petitions, the magistrate judge
must make “proposed findings of fact and recommendations,”
id., as she must for all other dispositive matters referred to her,
see 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1); Fed.
R. Civ. P. 72(b)(1). Within 14 days of the recommended
disposition of a criminal case, any party “may” file objections,
Fed. R. Crim. P. 59(b)(2), in which case the district court “must
consider” the objection “de novo,” id. 59(b)(3). “[F]ailure to
object in accordance with this rule waives a party’s right to
review.” Id. 59(b)(2). Failure to object also “waives a
party’s right to review” of any non-dispositive matter referred
to a magistrate judge in a criminal case. Id. 59(a).
The Supreme Court explained the rationale for this waiver
rule in Thomas v. Arn, 474 U.S. 140 (1985), which held that
the courts of appeals could make and enforce such a rule
through their supervisory powers. See id. at 155. In this
context as in others, contemporaneous objections help to
“focus attention” on any genuinely contested issues. Id. at
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147. Moreover, without the waiver rule, litigants could
sandbag a district court “by failing to object and then
appealing,” which would either “force the court of appeals to
consider claims that were never reviewed by the district court,
or force the district court to review every issue in every case.”
Id. at 148. Many courts of appeals had adopted the waiver rule
approved in Thomas, see id. at 146 n.4, and the Supreme Court,
in 1983, codified it for non-dispositive matters in civil cases,
see Fed. R. Civ. P. 72(a). After the Ninth Circuit later refused
to apply the waiver rule to criminal cases, United States v.
Abonce-Barrera, 257 F.3d 959, 967–69 (9th Cir. 2001), the
Supreme Court, in 2005, codified it for criminal cases as well,
see Fed. R. Crim. P. 59(a), (b)(2).
The parties briefed this case as if Thomas still controls,
which would require us to determine whether to adopt its
waiver rule as an exercise of supervisory power. But as we
have explained, Rule 59(b)(2) now governs, and it provides
that the “[f]ailure to object” to a magistrate judge’s proposed
findings and recommendations on any dispositive matter in a
criminal case “waives a party’s right to review.” Because
Islam did not timely object to the report and recommendation
in this case, he cannot appeal the district court’s decision
adopting it.
B
Because Rule 59(b)(2) is not cast in jurisdictional terms,
the courts have discretion to excuse a waiver under the rule.
Islam argues that the district court excused his waiver here and
that we should do likewise. We disagree.
As for the district court, Islam highlights one passing
comment, made orally at the revocation hearing, that the court
had reviewed and agreed with the “analysis and conclusions”
of the magistrate judge. App. 105. That hardly constitutes a
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decision to excuse the waiver. To the contrary, in its very next
breath, the court “note[d] for the record as well that the parties
have not objected to [the] report and recommendation.” Id.
And again, the court later noted that “Mr. Islam is not at this
point contesting [the] report and recommendation.” App. 106.
In this Court, Islam presses his claims of unlawful delay
despite failing to preserve them below. We review such
unpreserved claims only for plain error. Puckett v. United
States, 556 U.S. 129, 135 (2009). Here, there was no error.
Islam’s due-process argument is meritless. To violate
due process, a delay in revocation proceedings must be both
unreasonable and prejudicial. See Sutherland v. McCall, 709
F.2d 730, 732 (D.C. Cir. 1983). Islam complains about the
eleven-month delay between his January 2017 arrest in New
York and his final revocation hearing in December 2017. But
the DDC arrest warrant was not executed until September 6,
2017. And it is the “execution of the warrant and custody
under that warrant” that serves as “the operative event
triggering any loss of liberty” for purposes of due process.
Moody v. Daggett, 429 U.S. 78, 87 (1976). So, the due-
process clock for the DDC revocation hearing did not begin to
run until Islam was arrested on the DDC charges in September.
Islam contends that he was arrested in January 2017 for
violating both the conditions imposed by the SDNY and those
imposed by the DDC. He argues that the arrest was made by
the probation officer based on probable cause that Islam
violated both sets of conditions. But the SDNY record
indicates that the arrest was made on a warrant issued by the
SDNY judge for violations of the SDNY conditions. United
States v. Islam, No. 12-cr-810 (S.D.N.Y.), ECF Docs. 36, 39,
46. Thus, the magistrate judge permissibly found that Islam
was not arrested on the DDC charges until September, and the
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district court permissibly adopted the finding. Given a
September arrest date, the December revocation hearing—
pushed back twice by continuances requested by Islam—was
not unreasonably delayed. See Howard v. Caufield, 765 F.3d
1, 3, 13 (D.C. Cir. 2014) (“minor delay” of four months
between arrest and revocation hearing was not unreasonable);
United States v. Madden, 515 F.3d 601, 607 (6th Cir. 2008)
(delay “caused by [the defendant’s] own conduct” is not
unreasonable).
Islam’s due-process argument also fails for lack of any
prejudice. The only harm he alleges is losing the ability to
seek a prison term in the DDC that would run concurrently with
the one imposed by the SDNY. But the district court did
consider—and expressly reject—the possibility of a concurrent
punishment. The court explained that the SDNY and DDC
proceedings involved separate offenses, that the totality of
Islam’s misconduct was concerning, and that additional
incarceration was therefore appropriate. Islam provides no
reason to think that the district court might have assessed these
issues differently had it imposed punishment sooner rather than
later.
Islam further argues that the delay violated Rule
32.1(a)(1), which provides that a person arrested for violating
conditions of supervised release must be brought before a
magistrate judge “without unnecessary delay.” Nothing in
that sparse text expands due-process protections in this area.
To the contrary, the rule simply codifies these protections.
See, e.g., United States v. Ruby, 706 F.3d 1221, 1226 (10th Cir.
2013). Islam’s Rule 32.1 argument thus fares no better than
his due-process argument.
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III
In the alternative, Islam seeks a remand for an evidentiary
hearing on two claims alleging ineffective assistance of counsel
during the revocation proceedings. Although we remand
colorable claims of ineffective assistance, we have “never held
that any claim of ineffective assistance of counsel …
automatically entitles a party to an evidentiary remand.”
United States v. Sitzmann, 893 F.3d 811, 831 (D.C. Cir. 2018)
(per curiam) (quotation marks omitted). When the record
“clearly shows” that the claim is meritless, or when no further
factual development is needed, we may dispose of the claim
without remanding. Id. at 831–32.
As an initial matter, it is unclear whether Islam had any
right to effective assistance during his revocation proceedings.
The Sixth Amendment right to counsel does not attach to
revocation hearings. Baker v. Sard, 486 F.2d 415, 423 (D.C.
Cir. 1972). The Due Process Clause does attach, but it
guarantees counsel only in rare cases; as the Supreme Court has
explained, the participation of counsel “will probably be both
undesirable and constitutionally unnecessary in most
revocation hearings.” Gagnon v. Scarpelli, 411 U.S. 778, 790
(1973). Islam did have a statutory right to counsel, 18 U.S.C.
§ 3006A(a)(1)(E), but it is unclear whether that encompasses a
right to effective assistance, see United States v. Eskridge, 445
F.3d 930, 933 (7th Cir. 2006). Because the government is
willing to assume that ineffective-assistance principles apply to
this case, and that they parallel ones that govern under the Sixth
Amendment, we do likewise.
To establish ineffective assistance, a defendant must show
both that “counsel’s performance was deficient” and that “the
deficient performance prejudiced the defense.” Strickland v.
Washington, 466 U.S. 668, 687 (1984). Deficient
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performance must fall “below an objective standard of
reasonableness.” Id. at 688. Prejudice requires a “reasonable
probability” that, but for the deficient performance, “the result
of the proceeding would have been different.” Id. at 694.
The failure to raise a meritless objection is not deficient
performance. See Sitzmann, 893 F.3d at 833.
Islam raises two allegations of ineffective assistance.
First, he claims that his counsel was ineffective in failing to
object to the magistrate judge’s recommendation to reject the
claim of unreasonable delay. As explained above, however,
the unreasonable-delay claim lacks merit, and the delay caused
no prejudice. The waiver of this claim does not amount to
ineffective assistance.
Next, Islam complains that his counsel waited to file a
transfer motion until October 2017, when the SDNY
revocation proceedings were complete and the DDC
proceedings were already well underway. Islam contends that
if counsel had filed the motion in April 2017, when he first
learned of the DDC charges, the motion likely would have been
granted, and Islam then would have received concurrent rather
than consecutive prison terms. But a transfer decision is left
to the district court’s discretion, 18 U.S.C. § 3605, and there is
no reasonable probability that the court here would have
ordered a transfer. Again, Islam cannot show prejudice.
Islam’s contrary argument focuses on the magistrate
judge’s recommendation to reject the October transfer motion
because she had already invested substantial time in the case.
Islam overlooks the district court’s prior decision rejecting out-
of-hand the August transfer motion, which was filed before the
magistrate judge had begun working on the case. Islam also
overlooks the district court’s subsequent revocation decision,
which rejected the magistrate judge’s recommendation to cede
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future supervision to the SDNY. Moreover, the supervised-
release violations charged in the DDC were broader than those
charged in the SDNY, as only the former involved financial-
disclosure obligations. And the underlying offenses in the
DDC, which originally produced a prison sentence of two
years, were far more serious than those in the SDNY, which
originally produced a prison sentence of one day. Under these
circumstances, the likelihood of the district court’s granting an
earlier motion to transfer would have been slim at best.
Without any prejudice, Islam’s second ineffective-assistance
claim fares no better than his first.
Affirmed.