Does the presumption of Massaro v. United States apply where the ineffective assistance of counsel claim was first litigated and decided in a considered, post-trial, prejudgment motion in the district court?

QUESTION PRESENTED Does the presumption of Massaro v. United States, 538 U.S. 500 (2003) that ineffective assistance of counsel claims should be litigated in collateral proceedings under 28 U.S.C. § 2255 rather than brought on direct appeal apply where the claim was first litigated and decided in a considered, post-trial, prejudgment motion in the district court? Through newly assigned counsel after trial, petitioner and the government litigated whether trial counsel had been ineffective, leading to a fully briefed posttrial motion and considered denial by the district court. Citing its “baseline aversion” to reviewing ineffective assistance claims on direct appeal, the court of appeals declined to review this claim, and refused to remand for further proceedings with assigned counsel, instead leaving petitioner to pro se, prisoner re-litigation under 28 U.S.C. § 2255. This placed the court below in conflict with other courts of appeal that do not apply the Massaro presumption where the issue was litigated and decided in posttrial motions in the district court, and with courts that would remand to allow the defendant to retain the right to counsel. i STATEMENT PURSUANT TO RULE 14.1(b) AND RULE 29.6 The names of all parties to this petition appear in the caption of the case on the cover page. The parties have no parent or subsidiary companies and do not issue stock. The proceedings directly related to this case are as follows: e United States v. Pierce, No. 17-cr-00032 (LJV), U.S. District Court for the Western District of New York. Judgments entered November 20, 2018 and April 17, 2019. e United States v. Willis, Nos. 18-3617-cr and 19-1051-cr, U.S. Court of Appeals for the Second Circuit. Judgments entered September 20, 2021. ii