Criminal Procedure keyed to Saltzburg
Massaro v. United States
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Petitioner Massaro was indicted for racketeering and murder in aid of racketeering. The day before the trial started, prosecutors learned a bullet was recovered from a car where the victim’s body found, but didn’t inform the defense until later in the trial. The defense counsel refused the trial court’s offer for a continuance. Petitioner was convicted and sentenced to life. He appealed directly with new counsel, but did not raise any claim relating to ineffective assistance of trial counsel. The conviction was affirmed. Petitioner then filed a motion under 28 U.S.C. Section: 2255, claiming that the counsel had been ineffective for failing to accept the trial court’s offer for continuance. The District Court found the claim “procedurally defaulted” because it could have been raised on direct appeal. The Court of Appeals for the Second Circuit affirmed, citing precedent that “when defendant is represented by new counsel on appeal and the ineffective assistance claim is based s olely on the record made at trial, the claim must be raised on direct appeal; failure to do so results in procedural default unless the petitioner shows cause and prejudice.”
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