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,

(1984);

Rojas-Medina v. United States,

(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,

; Rojas-Medina,

.

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,

, at *1 (D. Me.

Mar. 1, 2021); see also Miller v. United States (Miller II), No.

16-165,

, 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),

(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,

(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,

. 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

(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

(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

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."

(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,

; see also United States v.

Mala,

(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,

(quoting

Mala,

), 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

," 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

(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,

, 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,

(1st Cir. 2003). Based

on the briefs and the record, the magistrate judge issued a report

and recommendation. See Miller II,

, 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,

. Accordingly, the

- 7 - magistrate judge recommended the denial of the section 2255 motion.

See Miller II,

, 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,

, at *1. So,

too, the district court declined to issue a certificate of

appealability (COA). See id.; see also

(c). The

petitioner proceeded to file an appeal without a COA. He

subsequently sought a COA from this court, see

(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,

(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,

(quoting McMann v.

Richardson,

, 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,

(1st Cir. 2002) (quoting Strickland,

). 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,

(1st Cir. 2016) (quoting

Strickland,

). Second, the defendant "must show

that he was prejudiced by counsel's deficient representation."

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,

, 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,

, at *6 n.3.

- 9 - manifest in the record. See Yacouba-Issa v. Calis,

(1st Cir. 2022); Pike v. Guarino,

(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,

(1st Cir. 2015) (quoting

Strickland,

). In appraising counsel's performance,

a high degree of deference is in order. See Strickland,

. 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."

.

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.'"

(quoting Michel v. Louisiana,

(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,

(1st Cir. 2021) (quoting Rossetti v. United States,

(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

(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,

(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

(2003) did not operate retrospectively was likely

to be a loser and, thus, not worth pursuing. See Johnston v.

Mitchell,

(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,

(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,

(9th

Cir. 2006) (analyzing 2003 version); United States v. Jeffries,

(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,

(4th Cir. 2014); United States v. Grimes,

(11th Cir. 1998) (collecting cases); see also Stogner v.

California,

(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,

(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,

; Hughes Aircraft Co. v. United States ex rel.

Schumer,

(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,

(alteration in original) (quoting Stogner,

). 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,

; Grimes,

.

Given the principles articulated in these cases and the facts of

this case, there was (and is) a strong argument that

(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,

(1st

Cir. 1999); see Vargas-De Jesús v. United States,

(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,

(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,

(second

alteration in original) (quoting United States v. Natanel,

(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,

(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,

, 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.,

(1994); see also Lattab v. Ashcroft,

(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,

. 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,

(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.

. Concluding that the extension was susceptible

of a retroactive effect, it then relied on Toussie v. United

States,

(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,

.

- 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,

.

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,

(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,

(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 -