United States Court of Appeals For the First Circuit
No. 21-1348
DAVID MILLER,
Petitioner, Appellant,
v.
UNITED STATES,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge] [Hon. John C. Nivison, U.S. Magistrate Judge]
Before
Barron, Chief Judge, Selya and Howard, Circuit Judges.
Katherine C. Essington for appellant. Brian S. Kleinbord, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.
August 8, 2023 SELYA, Circuit Judge. In our system of justice, a
criminal defendant is entitled to the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984);
Rojas-Medina v. United States, 924 F.3d 9, 15 (1st Cir. 2019); see
also U.S. Const. amend. VI. To demonstrate a breach of that
entitlement, the defendant must show both that his attorney
performed constitutionally unacceptable work and that such
deficient performance caused him cognizable prejudice. See
Strickland, 466 U.S. at 687; Rojas-Medina, 924 F.3d at 15.
In the case at hand, defendant-appellant David Miller
(the petitioner) sought habeas review, alleging that his trial
counsel (who represented him in his underlying criminal case)
rendered ineffective assistance and that, therefore, his
conviction should be set aside. The district court saw the matter
differently and denied the habeas petition. See United States v.
Miller (Miller III), No. 16-165, 2021 WL 787133, at *1 (D. Me.
Mar. 1, 2021); see also Miller v. United States (Miller II), No.
16-165, 2021 WL 311860, at *1 (D. Me. Jan. 29, 2021) (magistrate
judge's report and recommendation). Although our reasoning
differs from that of the court below, we affirm the denial of the
habeas petition.
I
We briefly rehearse the relevant facts and travel of the
case. The reader who hungers for greater detail may wish to
- 2 - consult our earlier opinion in this matter. See United States v.
Miller (Miller I), 911 F.3d 638, 640-41 (1st Cir. 2018).
In November of 2016, a federal grand jury sitting in the
District of Maine charged the petitioner with two counts of
transporting a minor with the intent to engage in criminal sexual
activity in violation of the Mann Act, 18 U.S.C. § 2423(a). The
indictment alleged that in June and July of 1995, the petitioner
knowingly transported his then-thirteen-year-old adopted daughter
across state lines with the intent to sexually assault her. After
initially maintaining his innocence, the petitioner reversed
course and pleaded guilty to one of the charged counts. The
government dropped the other count, and the district court
sentenced the petitioner to a 327-month term of immurement.
Represented by a new attorney, the petitioner appealed.
His only claim was that his trial counsel, who had since passed
away, afforded him constitutionally ineffective assistance. See
Miller I, 911 F.3d at 640. This claim was centered on the statute
of limitations applicable to crimes for sexual abuse of a child,
which had changed from the time when the petitioner committed the
offense of conviction in the mid-1990s to the time when he was
indicted for that offense in 2016. That statutory change lies at
the heart of the petitioner's argument and, thus, we describe that
change and explain how it dovetails with the facts.
- 3 - We begin with the time of the commission of the offense
of conviction on July 12, 1995. At that time, the relevant statute
of limitations allowed charges to be brought until the victim
reached twenty-five years of age. See 18 U.S.C. § 3283 (1994).
The legal landscape shifted in 2003, however, when Congress
extended the limitations period to allow charges to be brought
throughout the life of a child victim.1 See id. (2003).
This brings us to the nub of the petitioner's claim.
Because the petitioner's adopted daughter would have turned
twenty-five sometime in 2007, the charges brought against him in
2016 would have been time-barred if the version of the statute in
effect at the time of the offense controlled. But if the
petitioner's case was subject to the expanded statute of
limitations that Congress enacted in 2003, the charges brought
against the petitioner in 2016 would have been timely. See id.
The government interpreted the 2003 version of the
statute as having retrospective effect and applied the expanded
limitations. The grand jury indicted the petitioner on that basis.
The petitioner's trial counsel never moved to dismiss the charges
as time-barred. The petitioner now argues that his trial counsel
1In 2006, Congress again amended the statute so as to allow prosecution to commence at any time "during the life of the child, or for ten years after the offense, whichever is longer." 18 U.S.C. § 3283 (2006). The 2006 amendment has no bearing on this case.
- 4 - rendered ineffective assistance by not seeking dismissal based on
the statute of limitations, instead advising him to enter a guilty
plea. Refined to bare essence, he claims that his trial counsel
should have argued that the charges against him were time-barred
because the 1994 version of section 3283, as opposed to the 2003
version, applied to the charged conduct.
In Miller I, the petitioner raised the same claim but we
did not resolve it on its merits. Rather, we held fast to our
customary praxis of declining to adjudicate claims of ineffective
assistance that are raised for the first time on direct appeal.
See Miller I, 911 F.3d at 641-42, 646; see also United States v.
Mala, 7 F.3d 1058, 1063 (1st Cir. 1993) (explaining that — with a
narrow exception — fact-specific claims of ineffective assistance
of counsel "must originally be presented to, and acted upon by,
the trial court"). Because the petitioner's case did not fall
within the isthmian exception to the general rule that ineffective
assistance of counsel claims may not "make their debut on direct
review of criminal convictions," Miller I, 911 F.3d at 642 (quoting
Mala, 7 F.3d at 1063), we affirmed the petitioner's conviction and
sentence without prejudice "to [his] right to raise his claim of
ineffective assistance of counsel . . . in a collateral proceeding
brought pursuant to 28 U.S.C. § 2255," id. at 646.
The petitioner exercised that reserved right. In July
of 2019, he filed a motion to vacate, set aside, or correct his
- 5 - sentence because he had "received ineffective assistance of
counsel in violation of the Sixth Amendment." The petitioner again
argued that his trial counsel had rendered ineffective assistance
by failing to move to dismiss the indictment on limitations
grounds. He asserted that — were it not for his trial counsel's
miscue — he would not have pleaded guilty.
The district court referred the petitioner's section
2255 motion to a magistrate judge. See 28 U.S.C. § 636(b)(1)(B);
Fed. R. Civ. P. 72(b). The magistrate judge directed the
government to respond to the motion. In its response, the
government submitted that the motion was without merit and should
be denied.
The petitioner filed a reply. He also filed an affidavit
relating that he and his trial counsel had discussed his case "in
detail" and on multiple occasions in the months preceding his
guilty plea. During the course of at least one of these
discussions, trial counsel told the petitioner that "based on his
legal research" the charges had been brought "within the statute
of limitations." Consequently, "he would not be pursuing a motion
to dismiss on statute of limitations grounds."
Evidence recovered from trial counsel's case file shed
some further light on his decisionmaking process. Pertinently,
that file contained a letter sent by counsel to the petitioner on
May 15, 2017 — two weeks before the petitioner entered his guilty
- 6 - plea. In that letter, trial counsel reiterated that, based on his
research, his conclusion was "that there exists no statute of
limitations defense notwithstanding the timeframe of the alleged
offense." Trial counsel attached a copy of the opinion in United
States v. Vickers, No. 13-128, 2014 WL 1838255, at *1, *7-11
(W.D.N.Y. May 8, 2014) — a case that, according to trial counsel,
"detail[ed] the history of the applicable statute of
limitations . . . and inform[ed] [his] decision." The letter
ended by emphasizing that "it is imperative that we make a
compelling sentencing presentation" and noting that trial
counsel's work toward that end was continuing.
After reviewing the papers, the magistrate judge
determined that an evidentiary hearing was not warranted. See
Rule 8, Rules Governing Section 2255 Proceedings; see also Moreno-
Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003). Based
on the briefs and the record, the magistrate judge issued a report
and recommendation. See Miller II, 2021 WL 311860, at *1. In the
report and recommendation, the magistrate judge concluded that the
petitioner had not shown ineffective assistance because a
challenge to the timeliness of the charges would have been futile
and, thus, the petitioner was not prejudiced by trial counsel's
decision to refrain from filing a motion to dismiss. See id. at
*3-6; see also Strickland, 466 U.S. at 687. Accordingly, the
- 7 - magistrate judge recommended the denial of the section 2255 motion.
See Miller II, 2021 WL 311860, at *7.
The petitioner served an objection to the report and
recommendation but — after a de novo review — the district court
adopted the magistrate judge's recommendation and denied the
section 2255 motion.2 See Miller III, 2021 WL 787133, at *1. So,
too, the district court declined to issue a certificate of
appealability (COA). See id.; see also 28 U.S.C. § 2253(c). The
petitioner proceeded to file an appeal without a COA. He
subsequently sought a COA from this court, see 28 U.S.C. § 2253(c),
and we granted it.
II
In this venue, the petitioner renews his claim that his
trial counsel rendered ineffective assistance by failing to move
to dismiss the charges against him on limitations grounds. Our
standard of review is familiar. "In reviewing the denial of a
[section] 2255 motion alleging ineffective assistance of counsel,
we assess the district court's legal conclusions de novo and its
factual findings for clear error." Thompson v. United States, 64
F.4th 412, 418 (1st Cir. 2023).
For simplicity's sake, we do not hereafter distinguish 2
between the district judge and the magistrate judge but, rather, take an institutional view and refer to the determinations below as those of the district court.
- 8 - We set the stage. The Sixth Amendment guarantees
criminal defendants "the right to the effective assistance of
counsel." Strickland, 466 U.S. at 686 (quoting McMann v.
Richardson, 397 U.S. 759, 771 n.14 (1970)). To establish that a
lawyer's performance fell below the constitutional norm, a
defendant must make a two-part showing. First, he "must show that
counsel's performance was deficient." Ouber v. Guarino, 293 F.3d
19, 25 (1st Cir. 2002) (quoting Strickland, 466 U.S. at 687). This
element of the test requires him to "show 'that counsel made errors
so serious that counsel was not functioning as the "counsel"
guaranteed the [defendant] by the Sixth Amendment.'" Rivera-
Rivera v. United States, 844 F.3d 367, 372 (1st Cir. 2016) (quoting
Strickland, 466 U.S. at 687). Second, the defendant "must show
that he was prejudiced by counsel's deficient representation."
Id.
The district court did not pass upon the performance
element3: it went directly to the prejudice element and denied
the section 2255 motion because it found that the petitioner had
not satisfied that element. See Miller II, 2021 WL 311860, at *3-
6. We are not wedded to the district court's reasoning but,
rather, may affirm the denial of habeas relief on any ground made
3Although the district court did not resolve the performance element, it nonetheless indicated its belief that the petitioner — at least "arguably" — could not satisfy that element. Miller II, 2021 WL 311860, at *6 n.3.
- 9 - manifest in the record. See Yacouba-Issa v. Calis, 22 F.4th 333,
339 (1st Cir. 2022); Pike v. Guarino, 492 F.3d 61, 71 (1st Cir.
2007). Exercising this latitude, we start — and end — with the
performance element.
To satisfy this element, the petitioner must demonstrate
that his "counsel's performance was objectively unreasonable
'under prevailing professional norms.'" United States v.
Mercedes-De La Cruz, 787 F.3d 61, 67 (1st Cir. 2015) (quoting
Strickland, 466 U.S. at 688). In appraising counsel's performance,
a high degree of deference is in order. See Strickland, 466 U.S.
at 691. When conducting this appraisal, we must make "every
effort . . . to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and
to evaluate the conduct from counsel's perspective at the time."
Id. at 689.
Given these criteria, our review proceeds with a strong
presumption — albeit a rebuttable one — that counsel's choices
among available courses of action fall "within the wide range of
reasonable professional assistance . . . that, under the
circumstances, . . . 'might be considered sound . . . strategy.'"
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)). In
practical terms, this means that a defendant can demonstrate
constitutionally deficient performance only if he can show that —
given what counsel knew or should have known at the time —
- 10 - "counsel's choice was so patently unreasonable that no competent
attorney would have made it." Flores-Rivera v. United States, 16
F.4th 963, 969 (1st Cir. 2021) (quoting Rossetti v. United States,
773 F.3d 322, 327 (1st Cir. 2014)).
A
The lynchpin of the petitioner's case is his assertion
that a competent attorney in his trial counsel's shoes would have
raised a statute-of-limitations defense through a motion to
dismiss the indictment before advising him to plead guilty. This
assertion builds upon the fact that when the offense of conviction
was committed (in 1995), the limitations period then in effect
would have run in 2007. See 18 U.S.C. § 3283 (1994) (permitting
prosecution to begin against individuals charged with child sexual
abuse until child victim reached twenty-five years of age). The
petitioner posits that it was objectively unreasonable for his
trial counsel to refrain from pursuing a defense premised on the
argument that the subsequent (2003) amendment elongating the
limitations period could not be applied retrospectively to the
charged conduct. In his view, trial counsel dipped below the
constitutionally assured level of performance by erroneously
concluding that such a defense was doomed to fail. Arguing by
analogy to United States v. Gentile, 235 F. Supp. 3d 649 (D.N.J.
2017), the petitioner contends that "there was a colorable statute
- 11 - of limitations defense" available and that "[t]here was no
justifiable reason" for trial counsel's failure to pursue it.
This contention does not withstand scrutiny. Our
starting point is the state of the law as a competent attorney
would have perceived it at the time. Two salient characteristics
of that legal landscape persuade us that competent counsel could
reasonably have concluded that a defense based on the claim that
18 U.S.C. § 3283 (2003) did not operate retrospectively was likely
to be a loser and, thus, not worth pursuing. See Johnston v.
Mitchell, 871 F.3d 52, 63 (1st Cir. 2017) (explaining that counsel
does not perform deficiently where reasonable counsel would
conclude that forgone action "was highly likely to fail and thus
was not worth bringing"); Powell v. United States, 430 F.3d 490,
491 (1st Cir. 2005) (per curiam) (similar).
The first characteristic is the body of on-point case
law holding that section 3283, as amended in 2003, as well as the
previous version of the same statute, operated retrospectively.
See United States v. Leo Sure Chief, 438 F.3d 920, 924-25 (9th
Cir. 2006) (analyzing 2003 version); United States v. Jeffries,
405 F.3d 682, 684-85 (8th Cir. 2005) (analyzing 1994 version).
The second characteristic is the abundant case law holding, more
generally, that applying an extended statute of limitations to
criminal conduct occurring before the date of the extension is
permissible as long as Congress has not expressly prescribed
- 12 - otherwise and the original limitations period was still open when
the limitations period was extended. See Cruz v. Maypa, 773 F.3d
138, 145 (4th Cir. 2014); United States v. Grimes, 142 F.3d 1342,
1351 (11th Cir. 1998) (collecting cases); see also Stogner v.
California, 539 U.S. 607, 632-33 (2003). These cases teach that
there is a critical "difference between revoking a vested statute
of limitations defense and extending a filing period for live
claims." Weingarten v. United States, 865 F.3d 48, 57 (2d Cir.
2017). Courts are in broad agreement that the former is
impermissible and violates foundational tenets of constitutional
law (such as the Ex Post Facto Clause). See Stogner, 539 U.S. at
610-22, 632-33; Hughes Aircraft Co. v. United States ex rel.
Schumer, 520 U.S. 939, 950 (1997).
Extending the charging period for open claims, however,
is a horse of a different hue. After all, "a defendant facing
unexpired claims has never been 'safe from . . . pursuit.'" Cruz,
773 F.3d at 145 (alteration in original) (quoting Stogner, 539
U.S. at 611). Consequently, it does not offend either fundamental
notions of fair notice or settled expectations born of reasonable
reliance to prolong the length of time in which the defendant
remains responsible for the consequences of past conduct. Not
surprisingly, then, the decided cases hold — with near uniformity
— that Congress may retrospectively extend a still-open criminal
statute of limitations without offending the Constitution. See,
- 13 - e.g., Weingarten, 865 F.3d at 57-58; Grimes, 142 F.3d at 1351.
Given the principles articulated in these cases and the facts of
this case, there was (and is) a strong argument that 18 U.S.C.
§ 3283 (2003) should be construed retrospectively, which would
render the charges against the petitioner timely.
To be sure, none of these cases was decided either by
the Supreme Court or by this court. They are, therefore, not
controlling in the technical sense. But the existence of a body
of out-of-circuit precedent, not contradicted by any controlling
precedent, makes pellucid that the petitioner's contention was not
a "clear winner" of the type that any competent attorney would
recognize and raise. Prou v. United States, 199 F.3d 37, 48 (1st
Cir. 1999); see Vargas-De Jesús v. United States, 813 F.3d 414,
418 (1st Cir. 2016) (explaining that out-of-circuit precedent may
defeat claim of deficient performance when binding precedent is
"at best equivocal"). And in the face of that body of case law,
we cannot say that the performance of the petitioner's counsel
fell below prevailing professional norms because the record
demonstrates that counsel made a strategic decision in choosing to
devote his limited time, effort, and available capital to making
the case that the petitioner deserved a relatively modest sentence.
See Bucci v. United States, 662 F.3d 18, 31-32 (1st Cir. 2011).
The record indicates that the petitioner's trial counsel
reasonably concluded that pursuing a long-shot motion to dismiss
- 14 - the indictment on statute of limitations grounds would draw
resources away from his preparation of a "compelling sentencing
presentation." There is no doubt that counsel put a great deal of
effort into his sentencing presentation. He submitted a sentencing
memorandum on the petitioner's behalf and — at the disposition
hearing — presented a psychiatrist to testify to the mitigating
effects of the petitioner's childhood sexual abuse, along with
character witness interviews and evidence related to the
petitioner's education. And even though — despite the presentation
of those materials — the petitioner ultimately received a lengthy
sentence, the apparent failure of trial counsel's efforts does not
matter because "[a] decision by counsel that 'prove[s]
unsuccessful, or even unwise,' may nevertheless be a reasonable
strategic choice." Flores-Rivera, 16 F.4th at 969 (second
alteration in original) (quoting United States v. Natanel, 938
F.2d 302, 310 (1st Cir. 1991)). Hindsight is always twenty-twenty,
but that is not the barometer by which counsel's performance should
be gauged.4
4Nor is the outcome of the inquiry affected by the fact that the limitations defense may have been the only weapon in the petitioner's armamentarium. See Jones v. Page, 76 F.3d 831, 843 (7th Cir. 1996). A defense that is likely to fail does not assume added importance in the Sixth Amendment calculus merely because no other defense is available. See id.; cf. United States v. Cronic, 466 U.S. 648, 656 n.19 (1984) ("If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade.").
- 15 - B
The petitioner does not meaningfully argue that existing
case law was (or is) hospitable to his position. Instead, he
suggests only that the law was not entirely antithetic to his
proposed defense, and he argues that a competent lawyer in trial
counsel's stead should have taken a shot and raised a limitations
defense based on the reasoning underpinning the holding in Gentile.
He insists that there was nothing to lose by making such a motion.
We do not think that this "nothing ventured, nothing
gained" approach is a gateway to a finding that trial counsel's
performance was constitutionally inadequate given that counsel
reasonably believed that his time was better spent in preparing
for the petitioner's sentencing. Pursuing a defense premised on
the logic of Gentile would have required trial counsel to advocate
that the district court adopt Gentile's analysis, even though the
other courts that have examined the issue have rejected such an
approach for determining whether an expanded statute may apply
retrospectively to cases that were still open when the limitations
period was expanded. We explain briefly.
Controlling precedent holds that in order to determine
whether a statute of limitations applies retrospectively, a court
must conduct a two-step inquiry. See Landgraf v. USI Film Prods.,
511 U.S. 244, 280 (1994); see also Lattab v. Ashcroft, 384 F.3d 8,
14-15 (1st Cir. 2004). This inquiry requires a court first to
- 16 - consider the statutory text as one of several indicators bearing
on the question of whether a statute should be given retrospective
effect. If Congress did not "expressly prescribe[] the statute's
proper reach," the court must then consider "whether the new
statute would have retroactive effect," including "whether [the
statute] would impair rights a party possessed when he acted,
increase a party's liability for past conduct, or impose new duties
with respect to transactions already completed." Landgraf, 511
U.S. at 280. If the statute would have retroactive effect, "the
default rule is that the statute should not be construed to
regulate the past conduct." Arevalo v. Ashcroft, 344 F.3d 1, 11
(1st Cir. 2003).
Gentile — in holding that a statute of limitations did
not apply retroactively — first determined that there was no clear
Congressional directive that the challenged extension of the
statute of limitations should be applied retroactively. 235 F.
Supp. 3d at 654-55. Concluding that the extension was susceptible
of a retroactive effect, it then relied on Toussie v. United
States, 397 U.S. 112 (1970), a pre-Landgraf case, saying that
Toussie stood for the proposition that "criminal statutes of
limitations are to be interpreted in favor of repose" and holding
that "without clear Congressional intent" the extension "must be
applied prospectively," Gentile, 235 F. Supp. 3d at 652, 655.
- 17 - But Gentile did not address the extension of the statute
of limitations that governs the petitioner's conduct. At least
one court, addressing the extension of the statute of limitations
at issue here, has determined that Congress expressed an
unambiguous intent to make the extension of the statute of
limitations retroactive. See Leo Sure Chief, 438 F.3d at 924-25.
And another, addressing that same extension, disagreed with
Gentile's reading of Toussie and at the second step of the Landgraf
analysis determined that an extension of a statute of limitations
which has not yet run is not a "retroactive effect." See United
States v. Piette, 45 F.4th 1142, 1160-62 (10th Cir. 2022). In the
face of this muddled case law, we cannot say that the petitioner's
counsel performed deficiently by declining to press a Gentile-
based theory, at least given the record support for a conclusion
that he reasonably believed that there were other ways in which to
devote his limited time and resources — ways that were more likely
to benefit the petitioner.
C
We need go no further. Because the petitioner "has the
burden of showing both deficient performance and prejudice," his
failure to establish the former constitutes an adequate basis for
a conclusion that his trial counsel's assistance to him was not
ineffective. United States v. Rodriguez, 675 F.3d 48, 58 (1st
Cir. 2012) (emphasis in original). Thus, we need not reach the
- 18 - question of how the 2003 version of section 3283 should be
construed and, specifically, whether it operated to extend the
limitations period in the petitioner's case.
III
For the reasons elucidated above, the judgment of the
district court is
Affirmed.
- 19 -