Michael J. Guinan v. United States , 6 F.3d 468 ( 1993 )

POSNER, Chief Judge.

The district court denied Michael Guinan’s motion to set aside his convictions for filing false tax returns. The motion, filed under 28 U.S.C. § 2255, claimed that newly discovered evidence showed that Guinan was innocent and that his counsel at his criminal trial had been ineffective. There are other claims as well, but they plainly lack merit and so need not be discussed.

1. Rule 33 of the Federal Rules of Criminal Procedure requires that a motion for a new trial based on newly discovered evidence be filed within two years of the final judgment, a term that Guinan exceeded. We do not think that section 2255 can be used to circumvent this limitation. The question, left open in Bean v. United States, 679 F.2d 683, 685 (7th Cir.1982) (though with a broad hint, which today we promote to a holding, that section 2255 cannot be so used), has divided the circuits to have addressed it. Compare United States v. Spector, 888 F.2d 583, 585 (8th Cir.1989) (per curiam), and United States v. Stotts, 870 F.2d 288, 291 (5th Cir.1989) (per curiam), with Bentley v. United States, 701 F.2d 897, 898 (11th Cir.1983) (per curiam). In English v. United States, 998 F.2d 609 (8th Cir.1993), the court considered such a motion on the merits, but did not address the jurisdictional question; for that matter, Bentley, too, assumes rather than discusses jurisdiction. Other cases are discussed in Pelegrina v. United States, 601 F.2d 18, 19 n. 2 (1st Cir.1979), and Baumann v. United States, 692 F.2d 565, 579 (9th Cir.1982), but both duck the issue.

Herrera v. Collins, — U.S. -, -, 113 S.Ct. 853, 860-62, 122 L.Ed.2d 203 (1993), decided after all these cases, lays the issue to rest. The Court held that a refusal to grant a new trial on the basis of newly discovered evidence is not actionable in habe-as corpus. Section 2255 is a substitute for habeas corpus and like it is confined to correcting errors that vitiate the sentencing court’s jurisdiction or are otherwise of constitutional magnitude. Scott v. United States, 997 F.2d 340 (7th Cir.1993); Johnson v. United States, 805 F.2d 1284, 1287 (7th Cir.1986). A defendant who seeks to have his conviction set aside on the ground of newly discovered evidence is claiming that the conviction was “erroneous” in the layman’s sense — it reached the wrong result — -but not that the trial judge committed reversible error. A judge can hardly be faulted for having failed to give due weight to evidence that had not been known to exist at the time the defendant was convicted and sentenced. The purpose of granting a new trial on the basis of newly discovered evidence is not to correct a legal error, but to rectify an injustice, and the office of section 2255 is the former, not the latter. Richardson v. Gramley, 998 F.2d 463, 464 (7th Cir.1993). The conviction of an innocent person is an injustice, but it is only when such a conviction results from a legal error that the courts speak of a “miscarriage of justice” that warrants a new trial. Johnson v. United States, supra, 805 F.2d at 1289-90. Even then, unless the error is of constitutional magnitude, a federal court does not have the power to correct it in a proceeding brought under the habeas corpus statute (section 2254) or, we add today, its federal-prisoner substitute (section 2255).

2. Guinan claims that his trial counsel rendered ineffective assistance to him. This is a claim of constitutional error and can therefore be raised in a motion under section 2255. Some of the specific charges of professional misconduct are based entirely on the trial record, and as no reason for failing to present them to this court on direct appeal has been offered, they would, if standing alone (the significance of this qualification will be explained shortly), be deemed waived. United States v. Taglia, 922 F.2d 413, 418 (7th Cir.1991). The interest in finality of criminal proceedings requires the defendant to raise in his direct appeal all grounds for reversal that he could feasibly raise then. He may not hold some of them in reserve for collateral proceedings, giving him two or more bites at the apple. But this is in general, not in every case. If he was represented on appeal by the very lawyer who he now claims did not represent him effectively at the trial, then he could not as a practical matter have raised the ineffective assistance claim on direct appeal, so there is no forfeiture. Id.; Velarde v. United States, 972 F.2d 826, 827 (7th Cir.1992). Likewise if he seeks to demonstrate ineffective assistance by facts outside the record of the trial. Often, indeed usually, the effectiveness of a trial lawyer’s performance cannot be evaluated without an evidentiary hearing at which the lawyer is asked to explain why he did not follow seemingly promising lines of defense. Not always: the defendant might be confident that the ineffectiveness of the lawyer’s assistance was obvious from the transcript and might not think that the lawyer who had disserved him (or anyone else) would have anything helpful to say at an evidentiary hearing. But when such a hearing would be necessary or useful to the consideration of a claim of ineffective assistance the defendant is entitled to withhold the claim from his direct appeal and pursue it in a collateral proceeding in which such a hearing can be held. Bond v. United States, 1 F.3d 631, 635 (7th Cir.1993).

The approach sketched in the preceding paragraph was set forth in the Taglia case two years ago and has been followed or cited approvingly in such eases as Bond and United States v. Castillo, 965 F.2d 238, 243 (7th Cir.1992). A subsequent decision by a different panel, United States v. Donaldson, 978 F.2d 381, 394 (7th Cir.1992), declared that Taglia had in fact been inconsistent with other decisions of the court, though the only decision cited, United States v. Nero, 733 F.2d 1197, 1207 (7th Cir.1984), is entirely consistent with it. On the basis of the supposed inconsistency flagged in Donaldson, a subsequent decision declares the question of Taglia’s soundness to. be an “open” one in this circuit. United States v. Davenport, 986 F.2d 1047, 1050 (7th Cir.1993). The full court had meanwhile voted to rehear en banc a case raising the Taglia issue, but the issue had washed out at argument when the defendant’s lawyer withdrew his claim of ineffective assistance, and the case was then decided on other grounds. United States v. Echols, 951 F.2d 352 (7th Cir.1992) (table); see United States v. Donaldson, supra, 978 F.2d at 394.

The fact that rehearing en banc is granted to examine a question does not deprive the answer given to the question by an earlier decision of its precedential force. Taglia remains the law of the circuit, and in its short life has not, so far as we have been made aware, become an engine of oppression, either for us or for criminal defendants. And as pointed out in the Castillo case, the inter-circuit conflict that along with the supposed intracircuit conflict and the doubts of some members of the court concerning the fundamental soundness of Taglia prompted the grant of rehearing en banc in Echols has since disappeared; there is no longer any decision in conflict with Taglia. 965 F.2d at 243. We do not, however, disparage the concerns that some members of this court have felt concerning Taglia, and in a moment we shall suggest a refinement of the rule of that case designed to meet those concerns.

Taglia requires the defendant to decide at the time of briefing his direct appeal whether he-wants to base a claim of ineffective assistance of counsel entirely on the trial record, with no extrinsic evidence — from possible witnesses, from the trial lawyer, from other lawyers, from whomever — designed to show that a competent trial lawyer would have behaved differently. The track record of such appeals is poor, although a quick check of reported cases finds several such reversals in the last three years. United States v. Swartz, 975 F.2d 1042, 1050 (4th Cir.1992); United States v. Tatum, 943 F.2d 370, 379-80 (4th Cir.1991); United States v. Swanson, 943 F.2d 1070 (9th Cir.1991); United States v. Ford, 918 F.2d 1343, 1350 (8th Cir.1990); United States v. Loughery, 908 F.2d 1014 (D.C.Cir.1990). United States v. Cronic, 466 U.S. 648, 659, 666, 104 S.Ct. 2039, 2047, 2051, 80 L.Ed.2d 657 (1984), indicates that such reversal is indeed appropriate, at least in limited circumstances. No court has accepted the position of the Department of Justice, quoted but not ruled on in Cronic, that “a defendant can attack the actual performance of trial counsel only through a petition for posteonviction relief ... and not through direct appeal.” Id. at 667 n. 42, 104 S.Ct. at 2051 n. 42 (emphasis added). In the usual case a criminal defendant will want to seek evidentiary support for his claim of ineffective assistance of counsel outside the trial record and will thus want to present the claim in a postconviction motion, as is his privilege. United States v. Alex Janows & Co., 2 F.3d 716, 722 n. 1 (7th Cir.1993). But from the number of cases in which the issue is presented (though rarely successfully) on direct appeal, it appears that often the defendant and his present counsel do not believe that anything would be gained by an evidentiary inquiry, and in that case, since the defendant perforce intends to base his claim of ineffective assistance on the trial record alone, he must raise it on direct appeal or lose it.

This result can be questioned on two grounds, one conceptual, one practical. The conceptual objection is that it violates the principle that an issue not raised in the district court (and how often will trial counsel raise in the district court the issue of his own competence?) cannot be raised in the court of appeals. The practical objection is that it hands appellate counsel a nasty dilemma: if he seeks reversal on the basis of ineffective assistance of trial counsel, the judgment is almost certain to be affirmed, barring the raising of the issue in collateral proceedings; if he does not, the government may contend in any collateral proceeding that he should have. Against these points must be weighed, however, the interests in resolving the validity of a criminal judgment at the earliest' possible time and, a closely related point, in minimizing the number of collateral proceedings so that the direct appeal will be the main bout and not just the warm-up. These conflicting interests can be reconciled by a, rule that if a defendant postpones raising the issue of ineffective assistance of counsel until the collateral stage he must have a valid reason for the postponement. It might be that his trial counsel was his appellate counsel. Or that the claim could not be developed without new facts. Or (this is the refinement of Taglia) that at the time of taking the appeal it had reasonably appeared that new evidence might be necessary, though it has since become apparent that the trial record itself was the only evidence that could be presented in support of the claim. But if no reason is presented for the defendant’s having waited, the interest in finality requires that the failure to have raised the issue on appeal be deemed a waiver of it. Beaulieu v. United States, 930 F.2d 805, 807-08 (10th Cir.1991). Otherwise, collateral attacks on criminal convictions will be routine, because ineffective assistance is a staple ground for challenging a criminal conviction, rather than exceptional as they should be.

The line taken by the Justice Department in Cronic — and perhaps its current position as well — is that since an ineffective assistance claim can never succeed without post-trial evidence, defendants should be forbidden to present such claims on direct appeal and, presumably, forbidden to present them in collateral proceedings either unless they have some post-trial evidence to offer. But to begin with, the premise is false, since we have cited cases in which such claims did succeed on direct appeal. And second we do not ordinarily forbid an appellant to present an argument for reversal merely because the probability that the argument will be accepted is low. We are not so paternalistic. If the argument is made and rejected, or not raised and later held waived, the appellant must live with the consequences.

There is, however, a further wrinkle in this case. Guinan presented in his section 2255 motion two distinct types of ineffective-assistance claim. The first type includes charges that his trial counsel was inexperienced, unprepared, and failed to call crucial witnesses. Guinan might have sought to bolster these charges in an evidentiary hearing to explore the trial counsel’s preparation, experience, and so forth. But he did not ask for such a hearing. He was content to base these complaints about his lawyer’s performance solely on the trial record. That is precisely the type of complaint that should be presented on direct appeal. Guinan’s second type of claim of ineffective assistance is based on a Tax Court opinion rendered after his conviction and appeal. The opinion demonstrates, Guinan argues, that he had a good defense to the criminal charges, which his trial counsel failed to raise, and which thus strengthens the claim of ineffective assistance. Guinan could not of course have raised this matter on direct appeal. Nor do we think he should be penalized for not having raised on direct appeal those allegations of ineffective assistance that he wanted to base solely on the trial record. Those allegations standing by themselves were very weak. Only when the Tax Court opinion came down had he a plausible, though as we are about to see not a winning, claim of ineffective assistance. He could reserve his other complaints about counsel’s performance for such time as he obtained, whether through evidentiary investigation or otherwise, a stronger basis for claiming ineffective assistance, and then present all his claims at once, to give the court a full picture of his counsel’s performance. As he did.

All this said, there is no merit to the claim of ineffective assistance. The defense raised in the Tax Court proceedings was in fact raised by Guinan’s criminal trial counsel, and the other allegations of ineffective assistance are not supported by the record. The judgment of the district court is therefore affirmed, but with the modification that so much of the motion as sought relief on the basis of newly discovered evidence should have been dismissed without consideration of whether the motion would have had any merit if timely filed under Rule 33.

Modified AND Affirmed.