United States v. Pitcher, No. 05-3182-pr (2d Cir. March 11, 2009) (Wesley, Hall, CJJ, Oberdorder, DJ) (per curiam)
In 1999, Pitcher went to trial on a heroin distribution charge. He was convicted, sentenced to 121 months’ imprisonment, and appealed. In a 2001 summary order, the court of appeals rejected his claim that his counsel had been ineffective for counseling him to reject the government’s efforts to sign him up as a cooperator, and affirmed. The court held that any deficiency in counsel’s advice was attributable to Pitcher’s own dishonesty in dealing with his attorney.
In 2004, Pitcher filed a § 2255 motion arguing that he would have received a much shorter sentence had his counsel not misinformed him about the risks of going to trial and the benefits of cooperating. After an evidentiary hearing, the district court granted the motion, vacated the sentence and resentenced Pitcher to time served. The government appealed, and the circuit reversed.
A § 2255 motion cannot be used to relitigate questions that were raised and considered on direct appeal. The claim is not barred, however, if it rests upon a different “ground” for relief than the one previously raised. A “ground” is a “legal basis for granting the relief sought by the applicant.” Here, the ground raised in the § 2255 motion was that Pitcher’s attorney gave him an “overly optimistic assessment of his chances at trial.” But this was “simply the inverse” of the claim disposed of on his direct appeal, that the attorney was ineffective for discouraging him from cooperating. Both were premised on the same facts and, hence rested on the same legal ground.
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