remedies in the courts of the District and Circuit in which he was convicted and sentenced, and to apply to the Supreme Court, on Certiorari from a denial of such remedies, before seeking release on habeas corpus." Crismond v. Blackwell, 333 F.2d 374, 377 (3d Cir. 1964); see also Millan-Diaz v. Parker, 444 F.2d 95, 96 (3d Cir. 1971); Galante v. United States, 437 F.2d 1164, 1165 (3d Cir. 1971). Strong interests in the finality of judgments prevents an error which may justify reversal on direct appeal from supporting a collateral attack on a final judgment. United States v. Cleary, 46 F.3d 307, 310 (3d Cir. 1995) (quoting United States v. Addonizio, 442 U.S. 178, 185, 60 L. Ed. 2d 805, 99 S. Ct. 2235 (1979)), cert. denied, 479 U.S. 938, 107 S. Ct. 419, 93 L. Ed. 2d 370 (1986).
The grounds for collateral attack of a sentence pursuant to Section 2255 are narrowly limited. United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992); Addonizio, 442 U.S. at 184. The Circuit has recognized "not all non-constitutional errors in criminal proceedings enable a prisoner to bring an action under [Section] 2255 for relief." Diggs v. United States, 740 F.2d 239, 242 (3d Cir. 1984); accord United States v. Vancol, 778 F. Supp. 219, 222 (D.Del. 1991), aff'd, 970 F.2d 901 (3d Cir. 1992).
A motion under Section 2255 will be granted "only if the sentence results in 'a fundamental defect which inherently results in a complete miscarriage of justice' or 'an omission inconsistent with the rudimentary demands of fair procedure.'" Cannistraro, 734 F. Supp. at 1119 (quoting Hill v. United States, 368 U.S. 424, 428, 7 L. Ed. 2d 417, 82 S. Ct. 468, reh'g denied, 369 U.S. 808, 7 L. Ed. 2d 556, 82 S. Ct. 640 (1962)); Addonizio, 442 U.S. at 185; United States v. DeLuca, 889 F.2d 503, 506 (3d Cir. 1989), cert. denied, 496 U.S. 939, 110 L. Ed. 2d 669, 110 S. Ct. 3222 (1990); Vancol, 778 F. Supp. at 222-23. Similarly, errors of fact will not provide a basis for relief unless "'the errors were of the most fundamental character, that is, such as rendered the proceeding itself irregular and invalid.'" Addonizio, 442 U.S. at 185-86 (quoting United States v. Mayer, 235 U.S. 55, 69, 59 L. Ed. 129, 35 S. Ct. 16 (1914)).
The Supreme Court has "long and consistently affirmed that a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165, 71 L. Ed. 2d 816, 102 S. Ct. 1584, reh'g denied, 456 U.S. 1001, 73 L. Ed. 2d 1296, 102 S. Ct. 2287 (1982); see Addonizio, 442 U.S. at 184-85; Government of Virgin Islands v. Nicholas, 759 F.2d 1073, 1074 (3d Cir. 1985)("A Section 2255 petition is not a substitute for an appeal").
A petitioner's failure to raise a particular error either at trial or on direct appeal generally precludes the assertion of that error for the first time in a collateral attack under Section 2255. See United States v. Essig, 10 F.3d 968, 979 (3d Cir. 1993); United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993), cert. denied, 511 U.S. 1033, 128 L. Ed. 2d 196, 114 S. Ct. 1544 (1994); United States v. Osser, 864 F.2d 1056, 1061 (3d Cir. 1988); United States v. Grasso, 468 F. Supp. 264, 266 (E.D.Pa.), aff'd, 612 F.2d 575 (3d Cir. 1979). Where a petition is predicated upon information known by the defendant and his counsel at the time of the trial or at a point at which an appeal could have been taken, such knowledge is fatal to a section 2255 claim. See Biberfeld, 957 F.2d at 104; Brown v. United States, 556 F.2d 224, 227 (3d Cir. 1977); see also United States v. Keller, 902 F.2d 1391, 1393-94 (9th Cir. 1990); Chin v. United States, 622 F.2d 1090 (2d Cir. 1980), cert. denied, 450 U.S. 923, 67 L. Ed. 2d 353, 101 S. Ct. 1375 (1981).
Where a section 2255 motion rests on issues not raised at trial or on direct appeal, the petitioner bears the burden of demonstrating both "cause" to excuse the procedural default and that "actual prejudice" will result from the errors at issue.
Frady, 456 U.S. at 167; Essig, 10 F.3d at 979; DeRewal, 10 F.3d at 105 n.4; Biberfeld, 957 F.2d at 104.
"The existence of cause for a procedural default must ordinarily turn on whether some objective factor external to the defense impeded counsel's effort to comply with the ... procedural rule." Murray, 477 U.S. at 488 (emphasis added); see Essig, 10 F.3d at 979. The Supreme Court has explained:
Objective factors that constitute cause include "interference by officials" that makes compliance with [the exhaustion requirement] impracticable, and "a showing that the factual or legal basis for a claim was not reasonably available to counsel." In addition, constitutionally "ineffective assistance of counsel ... is cause." Attorney error short of ineffective assistance of counsel, however, does not constitute cause and will not excuse a procedural default.
McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S. Ct. 1454, 113 L. Ed. 2d 517 (quoting Murray, 477 U.S. at 486-88), reh'g denied, 501 U.S. 1224, 111 S. Ct. 2841, 115 L. Ed. 2d 1010 (1991).
To establish prejudice, the petitioner must show "not merely that the errors at ... trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Frady, 456 U.S. at 170 (emphasis in original); see Biberfeld, 957 F.2d at 105.
B. Due Process Claim
Kikumura argues the large departure based on an uncharged crime violated his right to due process and a trial by jury. Moving Brief at 13. Kikumura argues: "When a sentencing factor, which is itself a separate uncharged crime is so central to punishment that it acts as the 'tail which wags the dog of the substantive offense,' it is no longer a sentencing factor, but a separate crime subject to the full panoply of constitutional protections (i.e. formal charging and trial by jury with all the rights, including proof beyond a reasonable doubt and the full press of the confrontation clause)." Id. at 13. Kikumura further argues application of the reasonable doubt standard invalidates the departure and "the confrontation clause blocks the ... Hartman Affidavit ... that linked [Kikumura] to terrorist activity." Id. at 15.
Kikumura attempted to raise an identical argument in his Second Appeal. There, Kikumura argued that "the factual findings at a sentencing proceeding must be supported by proof beyond a reasonable doubt and that hearsay may only be admitted at sentencing if it satisfies the Confrontation Clause." Kikumura IV, 947 F.2d at 76. The Circuit held Kikumura to be procedurally barred. It stated: "Kikumura cannot continue to litigate questions already decided by this court in a prior proceeding. Our observation in Kikumura [III], that we may require a more demanding standard of proof at sentencing proceedings 'at some later date' ... was not an invitation to Kikumura to bring a second appeal religitating the issue and urging that higher standard upon us." Id. at 77. The Circuit held the appropriate standard of proof arrived at in the earlier appeal -- clear and convincing evidence -- was now the "law of the case" and would not be revisited. Id.
Kikumura's failure to raise the issue of a due process violation either at sentencing or on direct appeal precludes the assertion of that issue in a collateral attack. See Essig, 10 F.3d at 979; DeRewal, 10 F.3d at 105 n.433 (1994); Osser, 864 F.2d at 1061; Grasso, 468 F. Supp. at 266. Where a Section 2255 motion rests on issues not raised at trial or on direct appeal, Kikumura bears the burden of demonstrating both "cause" to excuse the procedural default and that "actual prejudice" will result from the errors at issue. Frady, 456 U.S. at 167; Essig, 10 F.3d at 979; DeRewal, 10 F.3d at 105 n.4; Biberfeld, 957 F.2d at 104. Section 2255 may not be employed to relitigate questions which were raised and considered on direct appeal. DeRewal, 10 F.3d at 105 & n.4.
Kikumura asserts both cause and prejudice for his procedural default. Moving Brief at 45-55. Kikumura argues his claims were "not fully pressed [at sentencing or on direct appeal] because counsel was ineffective or because the claims were novel and unavailable." Moving Brief at 45. Trial Counsel for Kikumura were not ineffective nor where the claims currently raised unavailable to Kikumura at the time of the First Appeal. The procedural default of Kikumura will not be excused.
a. Ineffective Assistance of Counsel
The failure to raise legal arguments constitutes cause for a procedural default only if such failure rises to the level of ineffective assistance of counsel. Murray, 477 U.S. at 478. To establish a claim for ineffective assistance of counsel, Kikumura
first ... must show that [Trial] Counsel's performance was deficient. This requires showing that counsel made errors so serious that [Trial] Counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, [Kikumura] must show that the deficient performance prejudiced the defense. This requires showing that [Trial] Counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. 3562, 82 L. Ed. 2d 864; see also United States v. Kauffman, 109 F.3d 186, 190 (3d Cir. 1997); Wells v. Petsock, 941 F.2d 253, 259 (3d Cir. 1991), cert. denied, 505 U.S. 1223, 112 S. Ct. 3038, 120 L. Ed. 2d 906 (1992). Pursuant to this test, a litigant claiming ineffective counsel "must prove both incompetence and prejudice." Kimmelman v. Morrison, 477 U.S. 365, 381, 91 L. Ed. 2d 305, 106 S. Ct. 2574 (1986)(citing Strickland, 466 U.S. at 688); Berryman v. Morton, 100 F.3d 1089, 1094-95 (3d Cir. 1996). Kikumura argues these principles warrant a finding of ineffective assistance of Trial Counsel.
In support of his argument, Kikumura cites the Circuit opinion in the First Appeal. There, the Circuit declined to conduct an analysis under due process because
neither here nor at the district court ... did Kikumura advance the argument that a conviction under [Section] 844(d) is too slender a reed on which to support consideration at sentencing of defendant's specific intent to commit murder.