With regard to "errors of law," however, we have held it to be extremely difficult for prisoners to take advantage of § 2255. Thus, in Alfano v. United States, 555 F.2d 1128 (2d Cir. 1977), we quoted the following passage from Stone v. Powell, 428 U.S. 465, 477 n. 10, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976): "[O]nce a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under section 2255."
They have continued to review claims by habeas corpus petitioners based on violations of the federal wiretapping statute and the Sixth Amendment — the two claims raised by petitioner in this case — as well as double jeopardy, self-incrimination, due process, and cruel and unusual punishment.See e. g. Alfano v. United States, 555 F.2d 1128 (2d Cir. 1977); Losinno v. Henderson, 420 F. Supp. 380 (S.D.N.Y. 1976).See e. g., Salomon v. LaVallee, 575 F.2d 1051 (2d Cir. 1978); Kaplan v. Bombard, 573 F.2d 708 (2d Cir. 1978).
An error in a ruling by a lower tribunal is generally not deemed fundamental when a remedy was available on appeal but no appeal was taken. See Alfano v. United States, 555 F.2d 1128, 1130 (2d Cir. 1977) (explaining in the context of a habeas petition that "`nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings.'") (quoting Stone v. Powell, 428 U.S. 465, 477 n. 10 (1976)). However, a ruling by an IJ that misleads an alien into believing that no relief exists falls into a different category because of the special duties of an IJ to aliens.
We have held that merely technical violations of ch. 119 of Title 18 do not rise to the Hill level and thus do not support collateral attack. United States v. Wright, 524 F.2d 1100, 1102 (2 Cir. 1975) (wiretap applications had not been approved as required by 18 U.S.C. § 2516); Alfano v. United States, 555 F.2d 1128, 1130-31 (2 Cir. 1977) (failure to seal wiretaps in violation of 18 U.S.C. § 2518(8)(a)). A second reason is Fiumara's procedural default.
We have applied the Hill-Davis test in other contexts where only the violation of a federal statute was alleged. See United States v. Sobell, 2 Cir., 314 F.2d 314, 321, cert. denied, 374 U.S. 857, 83 S.Ct. 1906, 10 L.Ed.2d 1077 (1963); Alfano v. United States, 2 Cir., 555 F.2d 1128, 1130 (1977); Edwards v. United States, 2 Cir., 564 F.2d 652, 654 (1977). For purposes of disposition here it will not be necessary to consider all of Alessi's manifold criticisms of the allocution, many of which, even if well-founded, do not rise to the Hill-Davis-Del Vecchio level.
It is clear, of course, that the Interstate Agreement on Detainers is a law of the United States, see 84 Stat. 1397 (1970). Mere recital of the facts shows how far Edwards' claim is from the tests laid down in Hill and Davis. Indeed, his claim is even less appealing than those we have recently held insufficient to warrant § 2255 relief in Alfano v. United States, 555 F.2d 1128 (2 Cir. 1977) (violation of requirement for sealing intercepted communications, 18 U.S.C. § 2518(8)(a)), and in Del Vecchio v. United States, 556 F.2d 106 (2 Cir. 1977) (alleged failure to comply with amended F.R.Cr.P. 11 with respect to guilty pleas). There was no "complete miscarriage of justice" and there are no "exceptional circumstances" in this case.
As the Report accurately notes, however, the Second Circuit has no authority directly on point. Cf. Alfano v. United States, 555 F.2d 1128, 1129 (2d Cir. 1977) (applying Hill standard to claim of 18 U.S.C. § 2518(8)(a) violation, which requires immediate presentation of recordings made pursuant to Title III to the trial court for seal). Moreover, a number of other courts have applied the Hill standard to habeas allegations of Title III violations. See, e.g., Lord v. Lambert, 347 F.3d 1091, 1094-95 (9th Cir. 2003); Llamas-Almagner v. Wainwright, 666 F.2d 191, 193-94 (5th Cir. 1982); Hussong v. Warden, Wisc. State Reformatory, 623 F.2d 1185, 190-91 (7th Cir. 1980); Barbosa v. Bissonnette, 434 F. Supp. 2d 25, 34-35 (D. Mass. 2006).
Counsel is not constitutionally ineffective for failing to either foresee changes in the law or present an argument of first impression. Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (Sixth Amendment does not require counsel "to foresee changes in the law, or present meritless arguments before a court"); see also Alfano v. United States, 555 F.2d 1128, 1131 (2d Cir. 1977) (counsel's failure to raise an issue at trial that was on appeal in a similar case, but one of first impression in a circuit, does not constitute ineffective assistance of counsel). Accordingly, Thompson's attorney was not constitutionally ineffective for failing to object to the imposition of a consecutive sentence prior to the Second Circuit's decision in Whitley.
"The writ of habeas corpus and its federal counterpart 28 U.S.C. § 2255, 'will not be allowed to do service for an appeal.'" Alfano v. U.S., 555 F.2d 1128, 1130 (2d Cir 1977) (citing Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947)), and therefore if a claim has not been raised on direct review, the petitioner is deemed procedurally defaulted unless he can establish either (1) "cause" for the failure to bring a direct appeal and "actual prejudice" from the alleged violations; or (2) "actual innocence." Zhang v. U.S., 506 F.3d 162, 166 (2d Cir. 2007) (citing Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998)).
Additionally, "where extraordinary relief by writ of habeas corpus is sought, evidence of actual tampering is necessary."Alfano v. United States, 555 F.2d 1128, 1129 n. 2 (2d Cir. 1977);Ramos v. Costello, No. 96 CIV. 3659, 1997 WL 231129, at *5 (S.D.N.Y. May 7, 1997) (quoting Alfano).