Whether the failure of the district court and the Court of Appeals to consider the expanded habeas record violates Due Process in preventing assessment of the claim of ineffective assistance of counsel

QUESTION PRESENTED In 2013, the Second Circuit affirmed convictions of Petitioners Gary Tanaka and Alberto Vilar for securities law-related offenses, but vacated the sentences and remanded. The Circuit expressly declined to review claims of “ineffective assistance of counsel” stating it was not reaching those claims and that, “[p]articularly in view of the complexity of this case”, Petitioner “may pursue this claim, if he chooses, in a subsequent §2255 petition.” (84a,87a). The district court judge thereafter refused to consider two 2255 petitions, citing procedural reasons. Then, in 2019, explicitly stating his decision rested solely on the trial record, the judge (still presiding over penalties) denied habeas relief and denied a certificate of appealability. The Second Circuit, stating nothing about the record used for habeas review, affirmed the denial and dismissal stating only that appellants “have not “made a substantial showing of the denial of a constitutional right.” (1a). The question presented is: whether, pursuant to Massaro v. United States, 538 U.S. 500 (2003), the failure of the district court and the Court of Appeals to consider the expanded habeas record, violates Due Process in that it prevents intelligent or thorough assessment of the claim of ineffective assistance of counsel in the first instance, let alone appellate review.