Massaro, Joseph v. U.S. (04/23/2003)

Questions presented: Whether a federal criminal defendant, whose new appellate counsel fails to raise, on direct appeal, a claim of ineffective assistance of trial counsel, is procedurally barred from asserting that constitutional claim in a habeas corpus proceeding brought under 28 U.S.C. 2255.

BY DANIEL SCHACK, MEDILL NEWS SERVICE

Joseph "Joey Bang Bang" Massaro wanted to be the head of the topless bar industry in Long Island, and he wanted it bad.

As the courts tell it, Massaro was a "soldier" in the Luchese organized crime family who used methods of intimidation, including arson, against club owners who wouldn't book strippers from his Entertainment Plus Agency.

In the summer of 1989, when he learned that an underling in his racketeering conspiracy had stolen from him by pocketing gambling proceeds, Massaro shot him in the head. Massaro and an associate named Patrick Esposito then placed the victim in an upright position in the back seat of the victim's car, but as they drove through New York City, Massaro feared that the man might still be alive and shot him in the head again.

New York police found the car with the body of Joseph Fiorito on Sept. 21, 1989, but they found no bullet and no blood. Yet they released the car anyway after the state dropped charges against Esposito in exchange for his cooperation.

Three years later, Esposito implicated Massaro while cooperating with federal authorities who wanted to crack down on mob action following the successful conviction of John Gotti. Massaro's federal trial on numerous charges, including the murder, was scheduled to start Sept. 7, 1993.

The day before opening statements, the U.S. Attorney's office learned that the car's new owner had recently discovered a bullet lodged in the floor while removing the carpet. Prosecutors waited five days to fax Massaro's defense attorney about the discovery, after he already argued that the government snitch, not Massaro, had really killed Fiorito. The attorney had hoped to discredit Esposito's entire account of the murder because not one piece of physical evidence tied Massaro to the crime, or so he thought.

Yet when a judge denied Massaro's request for a mistrial or exclusion of the bullet evidence, Massaro's attorney declined extra time to change his defense strategy, saying the damage had been irreparable.

After Massaro was found guilty and sentenced to life in prison, he appealed on the grounds that the bullet should not have been admitted into evidence. The 2nd Circuit Court of Appeals affirmed in 1995, writing that declining the continuance actually worked against Massaro's claim on appeal.

"Massaro's decision to proceed with his strategy despite his knowledge that the bullet might be matched to existing shell fragments weakens his claim," the court wrote.

Two years later, Massaro sought a writ of habeas corpus, claiming that he should receive a new trial because, among other things, his defense attorney did not adequately represent him. The district court denied the writ, but the appeals court then heard arguments on two of the ineffective assistance claims, first because his lawyers did not accept the continuance, and second because they did not allow Massaro to testify.

On Nov. 2, 2001, the appeals court unanimously denied both these claims because when appealing his conviction originally to the 2nd circuit, Massaro's new lawyers did not assert that his first ones were ineffective.

"Because Massaro was represented by different counsel on appeal, and because the facts and circumstances surrounding his second ineffective assistance claim are based on the record developed at trial, the claim is procedurally defaulted," the court wrote.

Just before the Supreme Court's 2002-03 term was to begin, the justices took this case to resolve a split among the circuit courts. The 2nd and 7th circuits have made their view clear that claims of ineffective assistance are no longer valid if not previously raised on direct appeal, but other appeals courts have said that the claims can still be brought if they werent on direct appeal, and even if the record does not include all the facts.

Some courts have said vigorously that these claims should be brought while seeking a writ of habeas corpus because that is a better forum for introducing evidence and listening to experts, Massaro's attorney Harold Fahringer said.

He claims Massaro had nothing to do with the crime. The bullet had to have been planted to frame him, he argues, because of how long police took to find it, and three ballistics experts have shown that the bullet could not have been used in the crime.

"Ineffectiveness is becoming one of the most prominent claims made by defendants, some of them genuine, maybe some of them not so genuine," Fahringer said. "I think this is a perfect example of the rule I advocate."

For the government, attorneys from the Solicitor General's office argued in opposition to the petition for the writ of certiorari by writing that although the appeals courts have a slightly different procedural take on this issue, both approaches have advantages and the Supreme Court does not have to dictate a uniform national rule.

On April 23, 2003, a unanimous Court reversed, holding that an ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. section 2255, whether or not a defendant could have raised the claim on direct appeal.

Justice Anthony Kennedy wrote the Court's opinion.