FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. D. Brock Hornby, U.S. District Judge]
Herrick, with whom Nicholson Herrick LLP was on brief, for
M. Lipez, Assistant United States Attorney, with whom Halsey
B. Frank, United States Attorney, was on brief, for appellee.
Barron and Selya, Circuit Judges, and Katzmann, [*] Judge.
David Miller pleaded guilty to violating the Mann Act, 18
U.S.C. § 2423(a), by transporting his
thirteen-year-old adopted daughter across state lines in
1995 for immoral sexual purposes. The defendant had not yet
been charged and the limitations period for his Mann Act
violation was still open when Congress elongated the statute
of limitations in 2003. "The mills of justice grind
slowly, but they grind exceedingly fine,"
Vineberg v. Bissonnette, 548 F.3d
50, 59 (1st Cir. 2008), and the government eventually charged
the defendant with the Mann Act violation in 2016. By then,
the old statute of limitations had expired, but the new
statute of limitations had not. The defendant entered a
guilty plea, and the district court sentenced him to a
327-month term of immurement.
by a new lawyer, the defendant argues for the first time on
appeal that he received ineffective assistance of counsel in
derogation of the Sixth Amendment because his trial attorney
(now deceased) did not mount a defense premised on the
statute of limitations in effect at the time of the
offense. But this argument runs headlong into a
potential obstacle: the general rule is that such a claim
must first be raised in the district court, either during the
proceedings leading to the defendant's direct appeal or
after the conclusion of that appeal (typically, through a
petition for post-conviction relief pursuant to 28 U.S.C.
§ 2255). Here, however, the claim was never raised at
all in the district court. Consequently, our first task is to
determine whether this case qualifies for an exception to the
general rule. Because it is uncertain whether the 2003
amendment applies retrospectively to the defendant's
conduct and because the record is opaque as to why trial
counsel elected not to raise a limitations defense below, we
conclude that the defendant's ineffective assistance of
counsel claim ought not to be aired for the first time on
direct appeal. Thus, we affirm the defendant's conviction
and sentence; without prejudice, however, to his right to
raise his claim of ineffective assistance of counsel in a
collateral proceeding brought pursuant to 28 U.S.C. §
2255. We do not decide the limitations issue.
briefly rehearse the relevant facts. On November 30, 2016, a
federal grand jury sitting in the District of Maine charged
the defendant with two counts of transporting a minor with
the intent to engage in criminal sexual activity in violation
of 18 U.S.C. § 2423(a). Specifically, the indictment
charged that in June and July of 1995, the defendant
knowingly transported a child across state lines with the
intent to sexually assault her.
1995, the statute of limitations for the charged crime
allowed prosecution until the victim reached twenty-five
years of age. See 18 U.S.C. § 3283 (1994).
Since the victim in this case would have turned twenty-five
no later than sometime in 2007, the statute of limitations
would have expired during that year. The legal landscape
shifted in 2003, when Congress extended the statute of
limitations for Mann Act violations to allow prosecution for
the duration of the life of the child victim. See
defendant originally maintained his innocence. During the
pretrial proceedings, his attorney demonstrated an awareness
that the applicable statute of limitations had changed
mid-stream and indicated that he "wanted to look at the
statute of limitations issue one final time."
Ultimately, the attorney eschewed a limitations defense and,
on June 1, 2017, the defendant entered a guilty plea to one
of the charged counts. The district court sentenced the
defendant to 327 months in prison and, at the same time,
dismissed the remaining count lodged in the indictment. The
defendant timely appealed, and at his request, this court
appointed new counsel under the Criminal Justice Act.
See 18 U.S.C. § 3006A.
begin with constitutional bedrock: the Sixth Amendment
guarantees "the right to the effective assistance of
counsel." Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quoting
McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970)). The Supreme Court has crafted a
two-pronged inquiry as a means of evaluating ineffective
assistance of counsel claims: "[f]irst, the defendant
must show that counsel's performance was deficient,"
and "[s]econd, the defendant must show that the
deficient performance prejudiced the defense."
Id. at 687. This two-pronged inquiry has equal
relevance with respect to ineffective assistance claims in
both tried cases and cases resolved by guilty pleas. See
Hill v. Lockhart, 474 U.S. 52, 58
establish deficient performance by an attorney in a criminal
case, the defendant must show that the attorney's
representation was "outside the wide range of
professionally competent assistance."
Strickland, 466 U.S. at 690. Pertinently, when
"an attorney fails to raise an important, obvious
defense without any imaginable strategic or tactical reason
for the omission, his performance falls below the standard of
proficient representation that the Constitution
States, 199 F.3d 37, 48 (1st Cir. 1999). To satisfy the
prejudice requirement, the defendant ...