United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 16, 2007 Decided January 25, 2008

No. 06-3180

UNITED STATES OF AMERICA,

APPELLEE

v.

RONALD R. HUGHES,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 93cr00097-04)

Edward C. Sussman, appointed by the court, argued the

cause and filed the briefs for appellant.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the briefs were Jeffrey A.

Taylor, U.S. Attorney, and Roy W. McLeese, III, Mary B.

McCord, and Carolyn K. Kolben, Assistant U.S. Attorneys.

Before: BROWN and GRIFFITH, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

BROWN, Circuit Judge: After being convicted of federal

crimes, Ronald Hughes raises two claims on collateral review:
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(1) a judicial bias claim, which he procedurally defaulted, and

(2) an ineffective assistance of counsel claim, which we reject.

I

A jury convicted Ronald Hughes of multiple federal crimes,

the details of which are described in our opinion affirming his

convictions. See United States v. White, 116 F.3d 903, 909–10

(D.C. Cir. 1997). Hughes filed a petition to vacate his convictions pursuant to 28 U.S.C. § 2255. Hughes asserts two claims

on collateral review. First, he claims the trial judge exhibited

bias and hostility toward his trial counsel, rendering his trial

constitutionally unfair. See generally United States v. Edmond,

52 F.3d 1080, 1099–1103 (D.C. Cir. 1995) (considering a

judicial bias claim). For example, the judge told Hughes’s trial

counsel:

If you don’t like what I did, that’s your privilege as a

lawyer. You can do two things. Number one, you can

go out to the next tavern or bar and have a drink and

curse the judge, and number two, you can go to the

court of appeals and say the dumb bastard didn’t know

what he was doing. But I don’t want you to come back

day after day saying, yesterday you did something

wrong again.

Second, Hughes asserts he received constitutionally ineffective

assistance of counsel at his trial. According to Hughes, the trial

judge’s “battering of trial counsel rendered her ineffective” and

caused her “severe emotional distress.” In an effort to avoid

incurring the judge’s ire, counsel purportedly advised Hughes

not to testify, refrained from making certain mistrial motions,

and abstained from some cross-examination.
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II

A

The procedural default rule generally precludes consideration of an argument made on collateral review that was not

made on direct appeal, unless the defendant shows cause and

prejudice. See, e.g., Massaro v. United States, 538 U.S. 500,

504 (2003) (citing United States v. Frady, 456 U.S. 152, 167–68

(1982)); United States v. Mathis, 503 F.3d 150, 152–53 (D.C.

Cir. 2007). This rule “respect[s] the law’s important interest in

the finality of judgments” and conserves judicial resources.

Massaro, 538 U.S. at 504.

Because Hughes did not raise his judicial bias claim on

direct appeal, the procedural default rule bars its consideration

unless an exception applies or Hughes demonstrates cause and

prejudice. Inexplicably, Hughes’s opening brief does not

acknowledge the existence of the procedural default rule; his

reply brief contains no argument whatsoever to show the cause

and prejudice requirements have been satisfied for his judicial

bias claim; and he offers no colorable reason why the procedural

default rule should not apply to this claim. Accordingly, we

need not address Hughes’s procedurally defaulted judicial bias

claim on the merits. See United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 497 (D.C. Cir. 2004) (“Ordinarily,

arguments that parties do not make on appeal are deemed to

have been waived.”); Ark Las Vegas Rest. Corp. v. NLRB, 334

F.3d 99, 108 n.4 (D.C. Cir. 2003) (an argument first raised at

oral argument was waived).

B

Hughes also raises an ineffective assistance of counsel

claim. Most ineffectiveness claims proceed under Strickland v.
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Washington’s familiar two-step framework, which requires (1)

showing “counsel’s representation fell below an objective

standard of reasonableness” and (2) demonstrating “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

466 U.S. 668, 687–88, 694 (1984); see, e.g., United States v.

Cronic, 466 U.S. 648, 659 & n.26 (1984). However, in a “very

narrow range of situations,” courts presume “actual prejudice to

the defendant.” 27 MOORE’S FEDERAL PRACTICE,

§ 644.61[3][c] (Matthew Bender 3d ed. 2007); see Cronic, 466

U.S. at 658–59 & nn.25–26; Strickland, 466 U.S. at 692.

Prejudice is presumed where counsel “entirely fail[ed] to subject

the prosecution’s case to meaningful adversarial testing” or was

“totally absent, or prevented from assisting the accused during

a critical stage of the proceeding.” E.g., Cronic, 466 U.S. at

658–59 & nn.25–26. One category of presumed prejudice cases

arises where the “[g]overnment ... interferes in certain ways

with the ability of counsel to make independent decisions about

how to conduct the defense.” Strickland, 466 U.S. at 686, 692;

see Geders v. United States, 425 U.S. 80, 91 (1976) (prohibition

on attorney-client consultation during a 17-hour overnight

recess); Herring v. New York, 422 U.S. 853, 864–65 (1975) (bar

on summation after trial had been substantially interrupted);

Brooks v. Tennessee, 406 U.S. 605, 612–13 (1972) (requirement

that defendant be the first defense witness); Ferguson v.

Georgia, 365 U.S. 570, 591–96 (1961) (bar on certain

questioning of the defendant by defense counsel).

Hughes seems—somewhat unwittingly—to make a

presumed prejudice argument based on government interference

with his counsel. His brief asserts “the court’s battering of trial

counsel rendered her ineffective” and, at oral argument, he

described judicial bias as an essential predicate of his

ineffectiveness claim. However, since Hughes does not cite any

government interference cases—much less make a specific
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1 Because Hughes waived any potential government interference

claim, we need not discuss whether the exception to the procedural

default rule announced in Massaro, 538 U.S. at 504, would apply to

government interference cases.

argument that those cases are analogous to his—he has waived

any potential government interference claim.1 See Ry. Labor

Executives’ Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6

(D.C. Cir. 1984) (refusing to resolve an issue “on the basis of

briefing which consisted of only three sentences ... and no

discussion of the relevant ... case law”); see also Hutchins v.

District of Columbia, 188 F.3d 531, 539–40 n.3 (D.C. Cir. 1999)

(en banc) (refusing to consider a “cursory argument[]” raised in

a footnote); United States v. South, 28 F.3d 619, 629 (7th Cir.

1994) (“Ours is an adversary system, and it is up to the party

seeking relief to sufficiently develop his arguments.” (citations

and quotation marks omitted)).

Hughes’s brief discusses Strickland’s two-pronged test,

which he refers to as “the established standard.” We can

analyze his Strickland claim because, under Massaro, 538 U.S.

at 504–09, such claims may be raised for the first time in a

§ 2255 proceeding.

Assuming counsel’s performance was deficient, Hughes’s

ineffectiveness claim fails Strickland’s second prong because he

was not prejudiced. Cf. 466 U.S. at 691–96. His counsel said

the judge’s remarks caused her to pass notes to other attorneys

asking them to pose certain questions to witnesses on her behalf.

But she could cite no specific question she referred to other

counsel. She also refrained from making certain mistrial

motions. However, she could not identify any specific motion

she failed to make, and she admitted such motions would have

been “similar to ones [she] had made before.” She advised

Hughes not to testify, but (1) she acknowledged the judge’s
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conduct was only one of several factors affecting her advice, (2)

she said putting a defendant on the stand in a conspiracy case is

“always dicey,” and (3) her only specific description of

Hughes’s potential testimony shows it would have addressed a

charge for which he was acquitted.

III

For the foregoing reasons, the district court’s order denying

Hughes’s § 2255 petition is

Affirmed.