Charles N. Norris v. United States , 687 F.2d 899 ( 1982 )

POSNER, Circuit Judge.

The appellant was convicted in 1976 of transporting and conspiring to transport forged or altered securities in interstate commerce, a federal crime. He appealed his conviction to this court, which in 1978 affirmed the conviction in an unpublished order sub nom. United States v. Greathouse, 571 F.2d 586 (7th Cir. 1978). The appellant then moved the sentencing court under 28 U.S.C. § 2255 to vacate his conviction, the court denied his motion, and this appeal followed.

The appellant’s section 2255 motion raised seven issues. Three of these had been presented in the appellant’s direct appeal from his conviction and decided by this court against him. No changed circumstances of fact or law are alleged that might make it possible to regard them as new grounds. In the absence of changed circumstances we will not reconsider in an appeal from the denial of a section 2255 motion an issue previously decided by us on direct appeal from the conviction. See Levine v. United States, 430 F.2d 641, 642-43 (7th Cir. 1970); cf. United States v. Scherer, 673 F.2d 176, 180 (7th Cir. 1982); United States v. Orejuela, 639 F.2d 1055, 1057 (7th Cir. 1981).

Another issue raised in the appellant’s section 2255 motion — -that one of the witnesses who testified against the appellant at his trial was not credible — could not properly be raised in a section 2255 motion because it could have been, but was not, raised on direct appeal. See Sunal v. Large, 332 U.S. 174, 178-79, 67 S.Ct. 1588, 1590-91, 91 L.Ed. 1982 (1947). It is true that Kaufman v. United States, 394 U.S. 217, 220, 89 S.Ct. 1068, 1070, 22 L.Ed.2d 227 n.3 (1969), limited the rule of Sunal to non-constitutional errors; but the credibility of a witness is not a constitutional issue.

The remaining three grounds in the section 2255 motion are constitutional, and Kaufman holds that the failure to raise a constitutional issue on direct appeal does not prevent raising it later in a section 2255 motion unless the movant was deliberately bypassing the appellate process. See 394 U.S. at 220 n.3, 89 S.Ct. at 1070 n.3; Davis v. United States, 411 U.S. 233, 240, 93 S.Ct. 1577,1581, 36 L.Ed.2d 216 (1973). Nonetheless the district court held that the appellant was barred from raising these issues in a section 2255 motion. With regard to the principal ground (unduly suggestive photo-identification), the court stated that the failure to raise it on direct appeal was “apparently because of a strategic decision” and that “a deliberate failure to raise an issue on appeal precludes its consideration under § 2255,” citing Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). Now it is true that the court held, in the alternative, that these issues were without merit; but the importance of enforcing gatekeeping procedures designed to prevent the courts from being flooded by unworthy postconviction motions every one of which must be, unless it is barred by one of those procedures, painstakingly considered on the merits has persuaded us to consider the correctness of the district judge’s threshold ruling even though it raises more difficult questions than his alternative ruling on the merits.

The district judge was right to doubt that deliberate bypass is still the test for whether a failure to follow normal procedures for raising issues in criminal cases — procedures that include raising issues whenever possible in a direct appeal from the conviction rather than years later in a postconviction proceeding — is a bar to raising such an issue later in a section 2255 motion. Kaufman had gotten the standard of deliberate bypass from Fay v. Noia, 372 U.S. 391, 438-40, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963), where the Supreme Court had held that a criminal defendant’s failure to appeal his conviction did not prevent a federal district court in a habeas corpus proceeding from deciding constitutional issues that he could have appealed directly, unless the failure to appeal was, in the circumstances, a deliberate bypass of the state’s procedures for correcting erroneous criminal convictions. This aspect of Fay v. Noia was overruled in Wainwright v. Sykes, supra, 433 U.S. at 87, 97 S.Ct. at 2506, which holds that if a petitioner for federal habeas corpus has not fulfilled the procedural requirements under state law for judicial review of an issue, the federal court may not reach the merits of the issue unless the petitioner shows good cause for his procedural default and prejudice resulting from not being allowed to raise the issue on habeas corpus.

It is true that Wainwright involved habeas corpus for state prisoners rather than section 2255 relief for federal prisoners; and many of the reasons given by the Court for its result in Wainwright derive from the tensions that federal habeas corpus for state prisoners creates in a federal system and are therefore inapplicable to section 2255 proceedings. On the other hand, whereas enforcing a state procedural default in a federal habeas corpus proceeding bars the petitioner from what is realistically his only access to a federal forum to decide his federal claims, this is not a problem under section 2255 — a remedy for people convicted in federal court in the first place. In any event, the Supreme Court’s very recent decision in United States v. Frady, - U.S. -, -, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816, 830 (1982), ends these speculations by extending the Wainwright test to section 2255 proceedings.

Now it may well be a fair inference to draw from Wainwright and Frady that a procedural default will bar subsequent review in a section 2255 proceeding unless good cause for and prejudice from the default are shown, even if the applicable statute or rule of procedure does not provide, as it did provide in both of those cases, that the failure to raise an issue in the fashion prescribed bars the criminal defendant from raising it later. If so, we could dispose rather quickly of two of the three remaining grounds in this section 2255 motion— that the trial judge was biased and that the jury was racially prejudiced. The appellant failed to take any steps at his trial to correct either of these alleged errors. He did not file an affidavit of bias with the trial judge, see 28 U.S.C. § 144, and he did not ask the judge to question the jury, during the voir dire, regarding their racial prejudices, see, e.g., Savage v. United States, 547 F.2d 212, 217 (3d Cir. 1976). He has presented no reason for his failure to take these steps.

But we need not decide whether these defaults at trial bar the appellant from relief under section 2255. A decision on that ground would not enable us to dispose of this appeal in its entirety, because it would leave unresolved the last ground in the appellant’s motion: that a witness at the trial was prompted to identify the appellant by an unduly suggestive photographic exhibit that had been prepared by the prosecution. Because this allegation raises a constitutional issue (under the due process clause of the Fifth Amendment, see, e.g., Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)), Sunal v. Large, supra, cannot be used to prevent us from considering it on the merits. And because the appellant pressed the issue at trial, we could not dispose of it on the same ground that we have suggested might be available to decide the appellant’s judge and jury prejudice claims. Hence if the appellant is barred from raising this issue in a section 2255 motion, it can only be because he failed to raise it in his direct appeal from his conviction and has offered no reason for that failure, which the district court conjectured was “strategic.” This means that in order to decide whether the district court was correct in holding that it did not have to reach the merits of any of the grounds for relief presented in the appellant’s section 2255 motion, we must decide whether failure to raise a claim in a direct appeal bars raising it later by way of a section 2255 motion unless there is a showing of good cause for so irregular a procedure. And our answer to this question, if it is in the affirmative, will automatically resolve the question whether the district court was not required to reach the merits of the judge and jury prejudice claims either, and will therefore make it unnecessary for us to decide the additional question whether a procedural default at trial bars relief under section 2255 even if the default is not governed by a rule that provides that an issue on which the defendant has defaulted may not be raised later.

This brings us, at last, to the central issue in this case, which is whether Kaufman is still good law. If it is, the court below was wrong to hold that the appellant could not raise in his section 2255 motion issues that he could have raised but did not raise in his direct appeal; for the Supreme Court held in Kaufman that failure to raise an issue on appeal is not in and of itself a deliberate bypass of the appellate process. But after Wainwright pulled the rug out from under Kaufman (and from under Davis v. United States, supra, which repeated the holding in Kaufman, and like Kaufman preceded Wainwright), by repudiating the deliberate bypass standard that the Court in Kaufman had gotten from Fay v. Noia, the continued survival of Kaufman has been questioned in a number of decisions. Sincox v. United States, 571 F.2d 876, 879-80 (5th Cir. 1978), held that the deliberate bypass standard of Kaufman had been superseded by the cause and prejudice standard of Wainwright. Cf. Huffman v. Wainwright, 651 F.2d 347, 350 (5th Cir. 1981). Two district court decisions in this circuit take the same approach as the Fifth Circuit in Sincox : the decision below; and Ramsey v. United States, 448 F.Supp. 1264, 1273 n.18, 1274 (N.D.Ill.1978), which contains a full and forceful argument for the approach. The District of Columbia Circuit has left open the question whether the deliberate bypass standard of Kaufman or the cause and prejudice standard of Wainwright governs in failure-to-appeal cases. United States v. Barnes, 610 F.2d 888, 892-94 (D.C.Cir.1979). Most courts, including our own, have continued to apply the deliberate bypass standard but without discussion of the possible effect of Wainwright on it. See, e.g., Hutul v. United States, 582 F.2d 1155 (7th Cir. 1978). However, in Guzzardo v. Bengston, 643 F.2d 1300, 1304 (7th Cir. 1981), we expressly declined to extend Wainwright to the failure-to-appeal situation, but without an examination of the issue; instead we placed denial of the section 2255 motion on an alternative ground. We decline to postpone the day of reckoning yet again.

At least one court has implied that failure to appeal, if unexplained, is in itself a deliberate bypass of normal procedures, see United States v. Little, 608 F.2d 296, 300 (8th Cir. 1979); cf. United States v. West, 494 F.2d 1314 (2d Cir. 1974) — an approach that is, of course, contrary to Kaufman, and reaches the same result as Sincox. We have found only one decision, addressing the effect of Wainwright on Kaufman, that squarely holds that deliberate bypass remains the standard applicable to a failure to appeal. Pacelli v. United States, 588 F.2d 360, 363-65 (2d Cir. 1978). And the precise significance of Pacelli is somewhat in doubt, for it cites and discusses United States v. West, supra, with apparent approval. See 588 F.2d at 363, 365.

All of these decisions predate Frady. The reluctance of the courts of appeals to declare a Supreme Court decision defunct is understandable, especially since, as mentioned, Wainwright relied on factors relating to the abrasive potential of federal court intervention in the state criminal process that are inapplicable to section 2255. But these doubts are dispelled by Frady, which applied the Wainwright standard to a section 2255 case. It is true that the Court in Frady did not discuss or even cite Kaufman. But it had no occasion to do so. Since it held that the movant was barred by a procedural default at trial, it did not have to decide whether section 2255 also was unavailable because the movant had failed to appeal.

Though it is always perilous to rest decision on general language in an opinion, the tenor of the Supreme Court’s opinion in Frady strongly suggests that the cause .and prejudice standard of Wainwright applies not only to a procedural default by the section 2255 movant at trial but also to his failure to appeal. In holding that a procedural default at trial (specifically, failure to object to jury instructions) bars a section 2255 proceeding unless cause and prejudice are shown, even if the effect is to prevent the correction of a plain error committed at trial, the Court stated that “the ‘plain error’ standard is out of place when a prisoner launches a collateral attack against a criminal conviction after society’s legitimate interest in the finality of the judgment has been perfected by the expiration of the time allowed for direct review or by the affirmance of the conviction on appeal.” - U.S. at -, 102 S.Ct. at 1592, 71 L.Ed.2d at 827-28. “Once the defendant’s chance to appeal has been waived or exhausted, ... we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless post-conviction collateral attacks.” - U.S. at -, 102 S.Ct. at 1593, 71 L.Ed.2d at 828. Against this background the Court’s further statement that “a collateral challenge may not do service for an appeal,” id., takes on special relevance to the issue in the present case; for when a criminal defendant fails to appeal an issue he has pressed at trial, and then later seeks to raise that issue in a section 2255 proceeding,- he is making a collateral challenge do service for an appeal.

The Court in Frady also thought it significant that a federal prisoner, “unlike his state counterparts, has already had an opportunity to present his federal claims in federal trial and appellate forums.” - U.S. at -, 102 S.Ct. at 1593, 71 L.Ed.2d at 829. Finally, the Court remarked on Frady’s “double procedural default.” - U.S. at -, 102 S.Ct. at 1594, 71 L.Ed.2d at 830. The first default occurred when he failed to object to the jury instructions at trial. The second occurred when he failed to attack those instructions on appeal, since the appellate court could have corrected the alleged error, if it was plain, despite his failure to object. The Court thus regarded a failure to appeal as a procedural default, as did the Fifth Circuit in Huffman v. Wainwright, supra, 651 F.2d at 350, and, the context suggests, a procedural default subject to the cause and prejudice standard of Wainwright, which Frady makes applicable to section 2255 proceedings. This in turn implies that Norris’s failure to appeal on the grounds later asserted in his section 2255 motion is a bar to considering those grounds on the merits under section 2255 unless cause for and prejudice from the failure to appeal are shown.

At least Frady casts sufficient doubt on the continued vitality of Kaufman to allow us to consider as an original question whether failure to appeal on a ground later raised in a section 2255 motion should bar the motion unless good cause for not appealing is shown. To take an appeal, and as it were reserve several issues for a second appeal to be taken from the denial of a section 2255 motion after the first appeal is decided, so that as in this case the appellant is allowed to split his appeal into two pieces heard more than four years apart, is to engage in piecemeal litigation in as blatant a form as can be imagined. In some cases there may be a good reason for this weird procedure — such as incompetence of counsel in the first appeal, newly discovered evidence, or an intervening change in the law — and if so the appellant will be able to demonstrate good cause for his failure to appeal the first time and will therefore be allowed to appeal a second time. But we do not think the government should be required to prove, what is moreover usually unprovable, that the first default was an attempt “deliberately” to bypass normal procedures for judicial review. Especially at a time when the federal courts are drowning in litigation, the presumption is against piecemeal litigation and it is the movant’s burden to overcome the presumption by showing that he has a good reason for proceeding in this manner. Perhaps, as intimated in Davis v. United States, supra, 411 U.S. at 239-41, 93 S.Ct. at 1581, the failure to make a contemporaneous objection is a more serious procedural default than splitting one’s appeal is. But it does not follow that the latter is trivial, and should, when as here it is unexcused, carry no sanction.

In holding that the cause and prejudice standard rather than the deliberate bypass standard is applicable to failures to appeal, we are not “overruling” Kaufman, any more than the Fifth Circuit “overruled” Kaufman when it reached the same conclusion that we reach today with greater confidence than the Fifth Circuit could have had because we have the benefit of Frady and it did not. Constitutional law is very largely a prediction of how the Supreme Court will decide particular issues when presented to it for decision. Ordinarily the best predictor of how the Court will decide an issue in a future case is how it decided the same issue in a past case, and when that is so the law is what is stated in the earlier decision. But sometimes later decisions, though not explicitly overruling or even mentioning an earlier decision, indicate that the Court very probably will not decide the issue the same way the next time. In such a case, to continue to follow the earlier case blindly until it is formally overruled is to apply the dead, not the living, law.

The application of the cause and prejudice standard to the facts of this case is straightforward. The appellant gave no reason for not complaining about the trial judge’s denial of his photo-identification claim, and about the judge’s and jury’s alleged prejudice against him, in his direct appeal from his conviction. He does say that his court-appointed attorney “did not present the whole true case to the Appeal Court,” but that is just another way of saying that he wants to bring up to us grounds not included in his direct appeal; it does not establish good cause for splitting his appeal.

AFFIRMED.