Whitman v. United States

Summary

Whitman's § 2255 motion challenging his insider trading conviction based on an erroneous jury instruction on "personal benefit" was procedurally defaulted because he failed to raise the issue on direct appeal. The Second Circuit held that cause to excuse the default was lacking because the claim was not novel—trial counsel had raised the same argument, making it available to appellate counsel. Appellate counsel's failure to raise the issue did not constitute ineffective assistance because the argument was not "significant and obvious" under then-existing law, and pursuing other grounds was not a clearly weaker strategy.

Holdings

1. The claim is procedurally defaulted because Whitman failed to raise it on direct appeal, and he cannot show cause because the claim was not novel; the argument was available to his appellate counsel as evidenced by his trial counsel having raised the same argument before the district court.
2. Whitman's appellate counsel did not render ineffective assistance because the argument was not clearly significant and obvious given the prior definition of personal benefit, and the decision to pursue other appellate issues was not clearly weaker.

Questions Presented

1. Whether Whitman's claim that the personal benefit instruction was erroneous under Newman is procedurally defaulted, and whether he can show cause to excuse the default.
2. Whether Whitman's appellate counsel's failure to raise the jury instruction challenge on direct appeal constituted ineffective assistance of counsel.

Disposition

affirmed