Kitchen, Isiah T. v. United States

In the
United States Court of Appeals
For the Seventh Circuit
No. 97-3808
Isiah Kitchen,
Petitioner-Appellant,
v.
United States of America,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
Nos. 96 C 6932 (89 CR 908)--Allen Sharp, Judge.
Argued December 10, 1999--Decided September 14, 2000
Before Cudahy, Easterbrook and Rovner, Circuit Judges.
Cudahy, Circuit Judge. Isiah Kitchen appeals the
district court’s denial of his motion under 28
U.S.C. sec. 2255. We have already detailed the
facts underlying Kitchen’s arrest and conviction
in our decision on his direct appeal, see United
States v. Kitchen, 57 F.3d 516 (7th Cir. 1995),
but a very brief refresher is in order. Kitchen
was associated with the El Rukn street gang, and
in March of 1989 undercover agents posing as drug
dealers arrested Kitchen during the course of a
staged cocaine sale. Later that same day, agents
recovered two firearms from the house that
Kitchen shared with his girlfriend, Mary
Williams. Kitchen was charged with both drug and
firearm offenses, and on December 10, 1992, a
federal jury convicted him of possession of
cocaine with intent to distribute in violation of
21 U.S.C. sec. 841(a)(1) and of being a felon in
possession of a firearm in violation of 18 U.S.C.
sec. 922(g)(1). The district court sentenced
Kitchen to a total of 15 years imprisonment.
Kitchen filed a timely notice of appeal from his
conviction and sentence on April 1, 1993. On
direct appeal, this court affirmed the firearm
conviction but found the evidence insufficient to
sustain the cocaine charge. See Kitchen, supra.
Kitchen’s sentence was not changed, and he
remains incarcerated.
The events relevant to this appeal, however,
took place between his conviction in the district
court and our decision of his direct appeal. On
February 22, 1994, while his direct appeal was
pending, Kitchen filed a motion for a new trial
on the basis of newly discovered evidence under
Rule 33 of the Federal Rules of Criminal
Procedure in the district court. In that motion,
he pointed to two pieces of newly discovered
evidence that he argued entitled him to a new
trial. First, he claimed to have new information
regarding one of the government’s trial
witnesses. Second, Kitchen alleged that he had
discovered evidence that revealed a scheme by the
government to prevent Mary Williams (Kitchen’s
girlfriend) from testifying at trial. The
briefing in Kitchen’s direct appeal was stayed
for almost a year, allowing the district court to
decide Kitchen’s Rule 33 motion, which it denied
on July 25, 1994. Kitchen wanted to appeal that
denial, but his counsel (who represented him both
at trial and on direct appeal) inadvertently
failed to file a notice of appeal, thus
precluding our review of the denial of Kitchen’s
motion for a new trial. On June 7, 1995, as
noted, we decided Kitchen’s appeal of his
conviction and sentence, but without
consideration of the Rule 33 motion.
On October 23, 1996, Kitchen filed the present
motion under 28 U.S.C. sec. 2255 in the district
court. In his motion, Kitchen argued that he had
been denied his right to effective assistance of
counsel when his trial/appellate counsel failed
to file a notice of appeal from the July 25, 1994
denial of his motion for a new trial. The
district court denied Kitchen’s sec. 2255 motion.
That court assumed that Kitchen had a right to
counsel for the motion for a new trial but
concluded that Kitchen failed to establish that
he had been prejudiced by his counsel’s failure
to file a notice of appeal. This court granted
Kitchen a certificate of appealability on the
following issue:
Whether petitioner was denied effective
assistance of counsel due to his attorney’s
admitted failure "through inadvertence" to file
a notice of appeal from the district court’s
denial of [a post-trial, as opposed to a post-
appeal] motion for a new trial.
Kitchen v. United States, No. 97-3808 (7th Cir.,
Nov. 25, 1998) (order granting certificate of
appealability) (citation omitted). Kitchen
initially filed a pro se brief, and the
government responded, but on June 30, 1999,
counsel (Howard Eisenberg, dean and professor of
law at Marquette University Law School) was
appointed for Kitchen. Both sides rebriefed the
case, and we proceeded to oral argument.
We review de novo the district court’s denial
of Kitchen’s motion under 28 U.S.C. sec. 2255.
See Lanier v. United States, 205 F.3d 958, 962
(7th Cir. 2000). Deciding whether Kitchen was
denied effective assistance of counsel due to his
attorney’s failure to file a notice of appeal
from the denial of his Rule 33 motion requires us
to resolve three subsidiary issues: (1) whether
Kitchen had a right to counsel for his pre-appeal
motion for a new trial; (2) whether counsel’s
failure to file a notice of appeal was deficient
performance; and (3) whether Kitchen is entitled
to a presumption of prejudice, or, if he is not,
whether he has shown prejudice. As explained in
detail below, we hold that Kitchen had a right to
counsel for his post-trial but pre-appeal Rule 33
motion. Counsel’s failure to file a notice of
appeal was clearly deficient performance, but,
ultimately, Kitchen’s ineffective assistance
claim fails because he is not entitled to a
presumption of prejudice and cannot demonstrate
actual prejudice from the forfeited appeal.
I. Right to Counsel
Our initial inquiry in this case must be
whether Kitchen had a right to counsel for his
pre-appeal motion for a new trial because
"[w]here there is no constitutional right to
counsel there can be no deprivation of effective
assistance." Coleman v. Thompson, 501 U.S. 722,
752 (1991). See also Wainwright v. Torna, 455
U.S. 586, 587-88 (1982)./1 The Supreme Court has
established that a defendant’s right to counsel
attaches "at or after the time that judicial
proceedings have been initiated against him,"
Kirby v. Illinois, 406 U.S. 682, 688 (1972), and
once a defendant’s right to counsel attaches, the
right continues to apply "at every stage of a
criminal proceeding where substantial rights of
a criminal accused may be affected." Mempa v.
Rhay, 389 U.S. 128, 134 (1967). It is equally
well established that a criminal defendant enjoys
this right to counsel through his first appeal of
right, see Evitts v. Lucey, 469 U.S. 387, 396
(1985); Ross v. Moffit, 417 U.S. 600, 607 (1974),
but that, once the direct appeal has been
decided, the right to counsel no longer applies,
see Finley v. Pennsylvania, 481 U.S. 551, 557
(1987). See also United States v. Gramley, 915
F.2d 1128, 1137 (7th Cir. 1990) ("Our cases
establish that the right to appointed counsel
extends to the first appeal of right, and no
further.").
The timing of Kitchen’s motion for a new trial
is an important factor supporting his right to
counsel in prosecuting the motion and in an
appeal from an adverse determination in the
district court. His Rule 33 motion came well
after the initiation of criminal proceedings
(when his right to counsel attached, see Kirby,
406 U.S. at 689) and well before the decision of
his direct appeal (when his right to counsel
terminated, see Finley, 481 U.S. at 557). In
addition, under governing principles, the nature
of a motion for a new trial supports Kitchen’s
right to counsel: in a Rule 33 proceeding, a
defendant "must face an adversary proceeding
that--like a trial--is governed by intricate
rules that to a layperson would be hopelessly
forbidding. An unrepresented [defendant]--like an
unrepresented defendant at trial--is unable to
protect the vital interests at stake." Evitts,
469 U.S. at 396 (although referring specifically
to a direct appeal). Kitchen could not have
presented his new evidence for the first time in
his direct appeal without having first fully
pursued his Rule 33 motion. See United States v.
Higham, 98 F.3d 285, 293 (7th Cir. 1996). The
outcome of Kitchen’s motion for a new trial
(including the outcome of an appeal from an
adverse judgment) could have had a substantial
impact on the course of his criminal proceedings.
It would not have, under any circumstances,
entitled him to release, but were the motion to
be granted, Kitchen would have received a second
trial and an opportunity to present a
(presumably) enhanced defense.
The government, however, argues that Kitchen had
no right to counsel for his post-trial but pre-
appeal motion for a new trial by pointing to
several courts of appeals that have held, quite
explicitly, that there is no right to counsel in
Rule 33 proceedings. United States v. Tajeddini,
945 F.2d 458 (1st Cir. 1991); United States v.
Lee, 513 F.2d 423 (D.C. Cir. 1975); United States
v. Birrell, 482 F.2d 890 (2d Cir. 1973). By
relying on these cases, the government overlooks
the fact that Tajeddini, Lee and Birrell
addressed only Rule 33 motions that were decided
after the decisions in the respective defendants’
direct appeals. See Tajeddini, 945 F.2d at 460;
Lee, 513 F.2d at 424; Birrell, 482 F.2d at 891-
92. As noted, timing is critical in the present
issue, and because the Rule 33 motions in the
cited cases from other circuits were filed and
decided after the first appeal of right, they
were characterized as collateral attacks, and it
is well established that there is no
constitutional right to counsel in collateral
proceedings. See, e.g., Finley, 481 U.S. at 557.
However, it is wide of the mark to label a pre-
appeal motion for a new trial as a "collateral
attack." We have noted the converse proposition
that "[w]hen made following the outcome of a
direct appeal, a Rule 33 motion plainly is
’collateral’ in the usual sense of that term."
United States v. Woods, 169 F.3d 1077, 1078 (7th
Cir. 1999). See also United States v. Evans, No.
99-1187, 2000 WL 1171971, at *4 (7th Cir. Aug.
18, 2000) ("[A]ny motion filed after the
expiration of the time for direct appeal, and
invoking grounds mentioned in [sec. 2255(1)], is
a collateral attack for purposes of [sec.
2255(8)]."). Here, however, Kitchen’s direct
appeal had not yet been decided, so his motion
for a new trial clearly did not "follow[ ] the
outcome of [his] direct appeal."/2 Instead we
can say that his motion for a new trial was in
aid of the appeal of the conviction and sentence.
The conclusion that Kitchen’s motion for a new
trial was not a collateral attack is further
supported by the procedural consideration that,
had Kitchen’s counsel filed a notice of appeal
from the denial of the motion, the Rule 33 appeal
could have been consolidated with Kitchen’s
direct appeal. See United States v. Ellison, 557
F.2d 128, 132 (7th Cir. 1977). It would make no
sense to label a pre-direct appeal Rule 33 motion
as a "collateral attack" on the conviction, when
the appeal from such a proceeding could be
consolidated with the direct appeal of the
conviction. A properly denominated collateral
attack on a defendant’s conviction--like a sec.
2255 motion--could never be consolidated with the
direct appeal, and is not even part of the
criminal proceeding itself. See Finley, 481 U.S.
at 556-57; Fay v. Noia, 372 U.S. 391, 423-24
(1963). Therefore, because Kitchen’s motion for
a new trial was decided before our decision in
his direct appeal, it may not be deemed a
"collateral attack" on his conviction, and
Kitchen had a right to counsel in prosecuting
such a motion and in taking an appeal from its
denial.
II. Counsel’s Performance
Having determined that Kitchen had a right to
counsel, we must now determine whether his right
to effective assistance of counsel has been
violated. In order to prevail on an ineffective
assistance claim based on his counsel’s failure
to file a notice of appeal, Kitchen must satisfy
the familiar test of Strickland v. Washington,
466 U.S. 668 (1984). See Roe v. Flores-Ortega,
120 S. Ct. 1029, 1034 (2000). Under Strickland,
Kitchen must first demonstrate that his counsel’s
performance was deficient. See 466 U.S. at 687.
An attorney’s performance is deficient if, under
the circumstances, it was unreasonable under
prevailing professional norms. See id. at 688.
The government argues that Kitchen cannot show
deficient performance because Kitchen’s counsel
was partially successful on the direct appeal.
The government explains:
In a narrow sense, reasonable counsel should file
a notice of appeal from an order denying a new
trial when requested to do so by the defendant.
In a broader sense, however, failing to pursue
one issue so strongly destined to fail, in light
of counsel’s otherwise fine performance, is not
constitutionally unacceptable.
2d Gov. Br. at 17. While we think it sensible to
view Kitchen’s appeal as a whole, we are not
entirely persuaded by the government’s reasoning.
The government is correct that, as a general
matter, failing to pursue a particular issue is
not necessarily deficient performance, for there
is "[n]o particular set of detailed rules for
counsel’s conduct" Strickland, 466 U.S. at 688.
But we must consider, along with all the other
circumstances, the reason or reasons why an
attorney takes (or fails to take) a particular
action, see id. at 690. Although "strategic
choices made after thorough investigation of the
law and facts relevant to plausible options are
virtually unchallengeable," Strickland, 466 U.S.
at 690, counsel’s failure to file a notice of
appeal here was not the product of any such
strategic decision. Counsel has freely admitted
that he failed to file a notice of appeal through
"inadvertence." Forgetting to file a notice of
appeal is far from a reasonable strategy and
clearly falls "outside the wide range of
professionally competent assistance." Strickland,
466 U.S. at 690. Therefore, we reject the
government’s argument on this point: counsel’s
performance was deficient.
III. Prejudice
Merely demonstrating deficient performance,
however, is not enough to succeed on an
ineffective assistance claim. Under Strickland,
Kitchen must also show that he was prejudiced by
his counsel’s deficient performance. See 466 U.S.
at 687. Kitchen first argues that his counsel’s
failure to file a notice of appeal from the
denial of the Rule 33 motion is per se
constitutionally ineffective representation that
requires no showing of prejudice by way of a
likelihood of success on appeal. Prejudice,
however, can be presumed only in the most
egregious cases of ineffective assistance--those
where "[p]rejudice . . . is so likely that case-
by-case inquiry into prejudice is not worth the
cost," id. at 692--and "[a]ctual or constructive
denial of the assistance of counsel altogether is
legally presumed to result in prejudice." Id. See
also Penson v. Ohio, 488 U.S. 75, 88 (1988);
United States v. Cronic, 466 U.S. 648, 659
(1984). The Supreme Court recently held, in a
case in which defense counsel failed to file a
notice of appeal for direct review of a
conviction, that "when counsel’s constitutionally
deficient performance deprives a defendant of an
appeal that he otherwise would have taken, the
defendant has made out a successful ineffective
assistance of counsel claim," Flores-Ortega, 120
S. Ct. at 1039, and need not demonstrate "the
merits of his underlying claims," id. at 1038.
Prior to Flores-Ortega, we had ruled similarly in
Castellanos v. United States, 26 F.3d 717, 720
(7th Cir. 1994) (holding, in a case in which it
was undisputed that the defendant requested that
his attorney file a direct appeal, that "[a]
defendant is entitled on direct appeal to legal
aid . . . and he need not make a preliminary
showing of ’prejudice’ . . . .").
Kitchen argues that he need not show a
likelihood of success on appeal because this case
is analogous to cases like Castellanos and
Flores-Ortega. Although it is a close question,
we must ultimately reject this argument. For in
those cases in which the Supreme Court, as well
as this and other circuits, have presumed
prejudice from the failure to file a notice of
appeal, defendants have had no assistance of
counsel for any issues. See Flores-Ortega, 120 S.
Ct. at 1033; Castellanos, 26 F.3d at 718. See
also, e.g., Ludwig v. United States, 162 F.3d
456, 459 (6th Cir. 1998); Morales v. United
States, 143 F.3d 94, 97 (2d Cir. 1998). Cf.
Penson, 488 U.S. at 78-79 (defense counsel
withdrew prior to appeal). Therefore, a
presumption of prejudice has arisen when the
defendant was hampered by "the complete denial of
counsel," Flores-Ortega, 120 S. Ct. at 1038
(emphasis added), meaning that "the defendant
never receive[d] the benefit of a lawyer’s
services in constructing potential appellate
arguments," Castellanos, 26 F.3d at 718 (emphasis
added). When "[n]o one has looked at the record
with an advocate’s eye," id., possible arguments
on appeal are not even identified by an attorney,
and it would be difficult for a court to evaluate
the likelihood of success on appeal when the
potential issues on that appeal were never
identified. Cf. Castellanos, 26 F.3d at 718
(noting that although judges can
"conscientiously" try "to imagine what a lawyer
might have done, an advocate often finds things
that an umpire misses.").
Here, however, we need not employ our
imaginations to determine what appealable issues
were present in Kitchen’s case. His counsel filed
a timely notice of appeal from Kitchen’s
conviction and sentence and argued several issues
before this court on direct appeal--some with
success. Thus, one cannot characterize such a
situation as one in which Kitchen was "abandoned"
by his attorney or the denial of counsel on
appeal was "complete." His attorney’s deficient
performance did not "deprive[ ] [Kitchen] of the
appellate proceeding altogether." Flores-Ortega,
120 S. Ct. at 1038. Rather, Kitchen’s counsel,
through his deficient performance, foreclosed our
review of one issue-- whether Kitchen was
entitled to a new trial on the basis of newly
discovered evidence. This is unlike the situation
in which the possible issues on appeal have not
even been identified by an advocate, and
prejudice must be presumed. See, e.g., Penson,
488 U.S. at 88. Here, the abandoned issue has
been clearly defined, and no reason has been
offered why any prejudice resulting from its
abandonment may not be reliably determined.
We believe that Kitchen’s situation most closely
resembles one in which his counsel has failed to
preserve a particular issue for appellate
review./3 Our most recent decision addressing
the omission of one issue from an appeal is Mason
v. Hanks, 97 F.3d 887 (7th Cir. 1996). Under
Mason, a defendant must demonstrate prejudice by
showing that the "omitted issue ’may have
resulted in a reversal of the conviction, or an
order for a new trial,’" 97 F.3d at 893 (quoting
Gray v. Greer, 800 F.2d 644, 646 (7th Cir.
1986)), and only if the defendant makes that
showing, will we deem the lack of effective
assistance prejudicial, see id. Thus, to
determine whether Kitchen was prejudiced by his
counsel’s deficient performance we must look at
the possible merits of the appeal from Kitchen’s
denied Rule 33 motion./4 If there was merit to
Kitchen’s Rule 33 motion, his appeal from its
denial would probably have been successful and
Kitchen has demonstrated prejudice. If, however,
his appeal would not likely have resulted in
reversal, Kitchen has not demonstrated prejudice,
and his ineffective assistance claim fails.
Kitchen presented two pieces of newly-discovered
evidence that he argues entitled him to a new
trial. We address each in turn.
In his Rule 33 motion, Kitchen first claimed to
have new evidence regarding Lawrence Griffin, who
testified for the government at trial about the
staged cocaine purchase. (Kitchen does not press
this portion of the motion on appeal, but, for
the sake of completeness, we briefly discuss it.)
This piece of claimed new evidence concerned
Griffin’s receipt of allegedly unauthorized
payments that constituted undisclosed benefits
from the government. Apparently, the government
had been paying Griffin fees for "decoding"
various taped conversations and only completely
disclosed this fact on the last day of the
trial./5 This certainly would have been useful
for impeachment of Griffin’s testimony by tending
to show bias,/6 but we have clearly stated that
"impeachment evidence cannot provide the basis
for a new trial." United States v. Austin, 103
F.3d 606, 609 (7th Cir. 1997). See also United
States v. Young, 20 F.3d 758 (7th Cir. 1994).
Accordingly, the new evidence about Griffin would
not have entitled Kitchen to a new trial, and had
Kitchen argued this issue, his argument would
have failed for lack of demonstrated prejudice.
Kitchen’s argument to us focuses exclusively on
the second piece of newly-discovered evidence
that he raised in his Rule 33 motion. Kitchen
claims to have uncovered evidence that the
government intimidated one of his potential
witnesses, Mary Williams, who, on this account,
did not testify. Had Ms. Williams testified, she
would have explained that the guns that formed
the basis of Kitchen’s sec. 922(g) conviction
were hers and her cousin’s, not Kitchen’s. The
intimidation of Ms. Williams, claims Kitchen,
involves a second search of her home and her
arrest in 1992, that was, allegedly, engineered
by Assistant U.S. Attorney Hogan (Kitchen’s
prosecutor). Another factor was Hogan’s decision
to ask her incriminating questions if she took
the stand. Williams did not testify at trial, and
in an affidavit submitted by Kitchen with his
sec. 2255 motion, she claims that:
Mr. Hogan cautioned me against testifying for
Isiah Kitchen. In addition, the agents who
searched my home on October 5, 1989 made what I
considered were threats against my home, car,
possessions, and, most importantly, children. The
agents had indicated to me that if I did not
cooperate with them (and I took that to mean if
I did not say the guns belonged to Mr. Kitchen)
I would be harmed by them, harmed in the sense
that they would attempt to take my home and
children away from me.
Williams’s Aff. para. 21. Of course, a prosecutor
may properly "caution" a defense witness about
the risks of testifying--e.g., the danger of
self-incrimination--but the prosecution cannot
"interfere[ ] with a defense witness’ free and
unhampered choice to testify." United States v.
Jackson, 935 F.2d 832, 846 (7th Cir. 1991). Thus,
"[w]here . . . the substance of what the
prosecutor communicates to a witness is ’a threat
over and above what the record indicate[s] was
timely, necessary, and appropriate,’ the
inference that the prosecutor sought to coerce a
witness into silence is strong." Id. at 847
(quoting United States v. Simmons, 670 F.2d 365,
369 (D.C. Cir. 1982). But, Kitchen’s claim of
witness coercion falters because he cannot show
that these alleged threats by Hogan or by other
government agents had any effect on Ms.
Williams’s willingness to testify. See United
States v. Hooks, 848 F.2d 785, 802 (7th Cir.
1988) (rejecting witness coercion claim, in part
because "[w]e have found no government
interference with the defense witnesses’ choice
not to testify"); United States v. Viera, 839
F.2d 1113, 1115 (5th Cir. 1988) (en banc)
(rejecting witness coercion claim because "[n]o
showing had been made that a prospective witness
was intimidated or that he refused to testify");
United States v. Blackwell, 694 F.2d 1325, 1343
(D.C. Cir. 1982) ("Where, as here, the witness
herself never refuses to testify, the nexus
between the error and the loss of her testimony
to the defendant is inevitably attenuated . . .
.").
Far from demonstrating that she was intimidated
by the alleged scheme orchestrated by the
government, Ms. Williams’s affidavit shows that
she was totally unfazed. We have, at most,
allegations of a failed attempt to coerce a
witness. In her affidavit, Williams explains that
Kitchen’s counsel attempted to reach an
"understanding" with the court and the government
that no punitive action would be taken against
her./7 She further explains that "[a]lthough no
understanding was reached, I still wanted to get
on the stand and tell the truth about the
ownership of the guns." Williams’s Aff. para. 23.
Thus, it is quite apparent from Ms. Williams’s
affidavit that she was ready, willing and able to
testify despite the alleged threats. See also id.
para. 23 ("When the time for Mr. Kitchen’s trial
arrived, I wanted to testify on his behalf.");
id. para. 25 ("If I ever had the opportunity to
take the stand regarding the issue of ownership
and possession of the guns . . . I would testify
. . . ."). The alleged conduct of the government
actors may have been egregiously inappropriate
(accepting, of course, Williams’s allegations),
but in the face of her clear statements that it
had no effect on her willingness to testify, the
alleged behavior (even if true) cannot be the
basis of a witness coercion claim. We need
evidence not only that there was an attempt to
coerce a witness but also that the attempted
coercion actually influenced the witness’s
decision to testify or not to testify. On the
basis of the allegations, Kitchen asks us to
"infer" that Williams was coerced and to remand
the issue for a hearing. We will not do this
because Ms. Williams’s own affidavit flat out
refutes Kitchen’s desired inference that she was
dissuaded from testifying.
Then why did Ms. Williams not take the stand
during Kitchen’s trial? Simply put, because the
defense decided not to call her as a witness.
Kitchen’s brief explains:
As a result of [the 1992] search, Williams was
charged in the state court with several offenses.
Defense counsel wanted to call Ms. Williams to
testify that she had these weapons in her home in
1992 to show that, unrelated to Petitioner, she
regularly kept weapons in her home./8 The U.S.
Attorney responded by saying that if Williams
testified about the 1992 weapons, he would cross
examine her about whether she was selling drugs
with [Kitchen] in 1989.
Originally defense counsel was concerned that
questioning Williams would raise Fifth Amendment
problems as to her pending 1992 state court
charges. After the prosecutor mentioned the
possibility of cross examining Williams about
events that occurred in 1989, Judge Sharp and the
U.S. Attorney began discussing possible Fifth
Amendment issues relating to acts that occurred
in 1989. Defense counsel then decided not to call
Williams because of problems she might face on
her Fifth Amendment privilege.
Appellant’s Br. at 19-20 (citations and
quotations omitted) (emphasis and footnote
added). The defense counsel deciding not to call
Williams because she ran the risk of
incriminating herself (or asserting her Fifth
Amendment right not to testify) on either direct
or cross-examination is a far cry from Williams’s
refusing to testify because she had been
intimidated by the government. And surely Mr.
Hogan should properly have been free to cross-
examine Ms. Williams regarding her activities
with Kitchen in 1989. It bears repeating that
Williams, despite the risk of self-incrimination,
"still wanted to get on the stand and tell the
truth about the ownership of the guns" at the
trial. Williams’s Aff. para. 23. In her
affidavit, Williams states that "[i]t had always
been my understanding that I was not called to
the stand because of Mr. Kitchen’s concern for my
own welfare." Williams’s Aff. para. 24. He
possibly did Williams a great service by keeping
her off the stand, but Kitchen cannot now excuse
his decision not to call Williams by alleging
that she was coerced. Accordingly, Kitchen’s
witness coercion argument fails.
In sum, Kitchen had a right to counsel in the
appeal from his motion for a new trial, which was
denied by the district court before our decision
in his direct appeal. Counsel’s failure to file
a notice of appeal from the district court’s
denial of the Rule 33 motion was deficient
performance. However, Kitchen was not entitled to
a presumption of prejudice, and his ineffective
assistance of counsel motion ultimately fails
because he cannot show that his counsel’s failure
to appeal prejudiced him. Therefore, we Affirm the
district court’s denial of Kitchen’s sec. 2255
motion.
/1 We note for the sake of completeness that this
circuit has confronted this factual situation
before in Perez v. United States, 124 F.3d 204,
1997 WL 534459 (7th Cir. Aug. 25, 1997)
(unpublished order). In that case, Perez filed a
sec. 2255 motion arguing that he had been denied
his right to effective assistance of counsel when
his attorney failed to file a notice of appeal
from the denial of his Rule 33 motion. Just as in
the present case, Perez’s counsel had already
timely filed a notice of appeal from Perez’s
conviction and sentence and that appeal had yet
to be argued. In Perez, the panel addressed the
merits of Perez’s ineffective assistance claim--
rejecting it because he failed to show prejudice-
-and thereby implicitly concluded that Perez did
have a right to counsel in the Rule 33
proceedings. However, both because Perez is
unpublished and because it contains no analysis
of the right to counsel issue, we do not rely on
it here.
/2 The Supreme Court has also used the decision of
the direct appeal as the temporal boundary that
defines a collateral attack for which a defendant
has no right to counsel. In Finley v.
Pennsylvania, the Court stated that a motion for
postconviction relief is a "collateral attack
that normally occurs only after the defendant has
failed to secure relief through direct review of
his conviction." 481 U.S 551, 557 (1987).
/3 This analogy is bolstered by the fact that had
his counsel filed a timely notice of appeal from
the denial of his motion for a new trial, that
appeal would have been consolidated with
Kitchen’s direct appeal. See United States v.
Ellison, 557 F.2d 128, 132 (7th Cir. 1977). We
also note that our previous analysis of counsel’s
performance jibes with the performance analysis
used when counsel fails to appeal a particular
issue: "when appellate counsel omits (without
legitimate strategic purpose) ’a significant and
obvious issue,’ we will deem his performance
deficient." Mason v. Hanks, 97 F.3d 887, 893 (7th
Cir. 1996) (quoting Gray v. Greer, 800 F.2d 644,
646 (7th Cir. 1986)).
/4 Because we must consider the hypothetical appeal,
we must keep in mind that we review the district
court’s denial of a motion for a new trial under
Rule 33 for abuse of discretion only. See United
States v. Austin, 103 F.3d 606, 608 (7th Cir.
1997).
/5 The government had already disclosed that Griffin
had been paid fees for "decoding," but on the
last day of trial added (1) that someone in the
United States Attorney’s office had recently had
a conversation with a paralegal in which the
paralegal admitted arranging for Griffin to
receive fees in prior months when, in fact,
Griffin had not been working on tapes and (2)
that Griffin and another government paralegal had
a drink together while waiting for lunch one day.
/6 At a hearing outside of the jury’s presence,
Kitchen’s attorney was given the opportunity to
voir dire Griffin about the additional
information. The district court then denied the
defense request to reopen testimony and recall
Griffin for further cross-examination in front of
the jury. See United States v. Kitchen, 832 F.
Supp. 217, 220 (N.D. Ill. 1993).
/7 Presumably, this "understanding" was some sort of
immunity.
/8 The fact that defense counsel wanted to call Ms.
Williams to testify that she had these weapons in
her home in 1992 undermines Kitchen’s intimation
that the 1992 search and arrest were part of the
scheme to coerce Williams. As the district court
noted, "[i]t is difficult for this court to
ascribe prosecutorial misconduct where the events
allegedly engineered inured to the benefit of the
defense." United States v. Kitchen, 858 F. Supp.
782, 792 (N.D. Ill. 1994).