can be no abuse of the writ based on a failure to include in a Rule 35 motion claims that go to the validity of the conviction itself, there has been no abuse of the writ and it will be necessary to resolve defendant's claims on their merits.
It is true that Moskovits, through Mr. Kunstler, has already filed a motion denominated, in part, as a § 2555 motion, and that the motion failed to include the claims raised in the instant motion challenging the validity of his underlying conviction. However, the motion submitted by Mr. Kunstler has to be viewed in context. Before Mr. Kunstler's motion, Moskovits had filed his own pro se motion to correct his sentence under former Rule 35(a)-- a motion that challenged the terms of his sentence by providing new information to the district court about the validity of the Mexican conviction. This is precisely what former Rule 35 was designed to do. See Fed. R. Crim. P. 35, advisory committee note (1983) (citation omitted) (describing the "underlying objective of rule 35" as "'giving every convicted defendant a second round before the sentencing judge, and [affording] the judge an opportunity to reconsider the sentence in the light of any further information about the defendant or the case which may have been presented to him in the interim'"). Similarly, the § 2255/Rule 35 motion submitted by Mr. Kunstler was itself confined to seeking a de novo sentencing hearing, not a new trial. Where a person in Moskovits' shoes (i.e., a person in custody for an offense committed prior to November 1, 1987)
desires to challenge the validity of his sentence on constitutional grounds, the remedies afforded by former Rule 35 and § 2255 overlap, see, e.g., Scarponi v. United States, 313 F.2d 950, 952 (10th Cir. 1963), and the petitioner would generally be indifferent as between reliance on the rule or the statute.
With an evident commitment to construing the title of documents liberally in the interest of justice,
the Court has viewed a petition brought under § 2255 as a Rule 35 motion in order to allow consideration of the merits of the claims. See Hill v. United States, 368 U.S. 424, 430, 7 L. Ed. 2d 417, 82 S. Ct. 468 (1962) (footnote omitted) ("It is suggested that although the petitioner denominated his motion as one brought under 28 U.S.C. § 2255 . . . we may consider it as a motion to correct an illegal sentence under Rule 35 of the Federal Rules of Criminal Procedure. This is correct."); see also Heflin v. United States, 358 U.S. 415, 3 L. Ed. 2d 407, 79 S. Ct. 451 (1959) (concurring opinion of Stewart, J., joined by four other Justices, treats a petition filed under § 2255 as a motion under former Rule 35, where relief was not available under § 2255, id. at 422; and cf. opinion of the Court, id. at 418);
see generally Andrews v. United States, 373 U.S. 334, 338, 10 L. Ed. 2d 383, 83 S. Ct. 1236 (1963) (citation omitted) ("'Adjudication upon the underlying merits of claims is not hampered by reliance upon the titles petitioners put upon their documents.'"); 3 Charles A. Wright, Federal Practice and Procedure § 583, at 392 (1982) (footnote omitted) ("The general principle in all [post-conviction matters] ought to be, and largely is, that errors in naming the rule or statute under which a defendant is proceeding should not be held against him and that if relief is available under any of these procedures it ought to be given."). Because the abuse-of-the-writ doctrine addresses only successive habeas petitions, a defendant is allowed to file a motion under former Rule 35 challenging the terms of his sentence and, thereafter, file a § 2255 petition. See, e.g., United States v. Grana, 864 F.2d 312, 313 (3d Cir. 1989); United States v. Gibbs, 813 F.2d 596, 603 (3d Cir.), cert. denied, 484 U.S. 822, 98 L. Ed. 2d 45, 108 S. Ct. 83 (1987). Further, because a former Rule 35 motion is not intended to attack the validity of the underlying conviction, the filing of such a motion does not result in a waiver or forfeiture of claims going to the validity of the conviction. See, e.g., United States v. Hamilton, 553 F.2d 63, 65 (10th Cir.), cert. denied, 434 U.S. 834, 54 L. Ed. 2d 96, 98 S. Ct. 122 (1977).
It would-- to echo the sentiments of former Chief Judge Gibbons, articulated in an analogous context-- "elevate form over substance" to preclude Moskovits from asserting the instant claims simply due to the label his attorney decided to attach to that motion, especially where there is reason to believe that defendant himself intended to file a former Rule 35 motion.
United States v. Flenory, 876 F.2d 10, 11 (3d Cir. 1989) (Gibbons, C.J.,) (deciding that where a motion brought under former Rule 35 might not bring relief under that rule, petitioner's motion should not be denied simply because he cited former Rule 35 rather than § 2255). Therefore, I regard the motion filed by Mr. Kunstler as brought under former Rule 35 and find that Moskovits has not abused the writ by raising the instant claims in his first petition that collaterally challenges the validity of his conviction.
The Petition's Allegations
If the allegations of a habeas petition raise material issues of fact, the district court is required to hold an evidentiary hearing. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992). In my view, Moskovits' submissions raise sufficient doubts about the constitutional adequacy of his representation at trial as to warrant such a hearing.
In deciding an ineffective assistance of counsel claim,
the appropriate questions are whether "counsel's representation fell below an objective standard of reasonableness," and, if so, whether there is a reasonable probability that "the deficient performance prejudiced the defense."
Strickland v. Washington, 466 U.S. 668, 687, 688, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In ruling on defendant's prior challenge to his sentence, I took note of Mr. Simone's acknowledgement that he probably did not make any efforts to determine whether the Mexican conviction was valid and that he should have filed some type of motion to contest the validity of the Mexican conviction. I concluded that
Mr. Simone's failure to pursue [the issue of the validity of the Mexican conviction] by appropriate inquiry into the facts and research in the law, and translation of that inquiry and research into an appropriate motion . . . is a failure which is not compatible with minimal professional standards.
784 F. Supp. at 186. This conclusion would seem to make it arguable that Mr. Simone may also have been ineffective within the meaning of the first Strickland prong in failing to pursue the issue of whether a Mexican conviction obtained without the assistance of counsel at critical phases could be used for impeachment purposes and, accordingly, advising Moskovits that, if he chose to testify, his Mexican conviction would more than likely be used for impeachment purposes.
Cf. United States v. Nino, 878 F.2d 101, 105 (3d Cir. 1989) (posing the question whether a counsel's failure to apprise defendant of the deportation consequences of a guilty plea constituted ineffective assistance of counsel). At the hearing, the government will have the opportunity to demonstrate why Mr. Simone's failure to give proper advice to Moskovits about the use of his Mexican conviction for impeachment purposes was more reasonable than Mr. Simone's failure to assess the validity of that conviction at the sentencing stage.
To demonstrate a "reasonable probability" of prejudice, Moskovits, it would seem, must provide evidence sufficient to support two propositions: (1) that if Moskovits had known that he could not be impeached with a prior conviction obtained without the assistance of counsel at critical phases of the proceeding, it is reasonably probable that he would have chosen to testify; and (2) that without his trial testimony, his trial was rendered unfair and the verdict rendered suspect. As to the first proposition, Moskovits has submitted an affidavit from Mr. Simone stating that
I advised Mr. Moskovits that if he testified on his own behalf, that [the Mexican] conviction would more than likely be used for impeachment purposes.
I advised Mr. Moskovits that such evidence would have a great deal of affect [sic] on his credibility in front of the jury, and Mr. Moskovits took my advice and did not in fact testify in his own behalf.