The Third Circuit issued a non-precedential opinion in US v. Scott yesterday, affirming denial of a post-conviction challenge to a criminal conviction, and, respectfully, I think it’s wrong.

From the opinion (I’ve omitted most cites and footnotes from these quotes):

[Scott] argues that the trial court erred in not allowing him to withdraw his plea. This argument relies on Scott’s belief that he withdrew the plea before it was formally accepted by the trial court. Because Scott believes he withdrew the plea before it was accepted, he argues that, under Federal Rule of Criminal Procedure 11, he should have been allowed to withdraw it “for any reason or no reason.” Scott also believes that he is not estopped from bringing this claim because Martino’s testimony constitutes new evidence, obtained after direct appeal, which resolves the factual issue of when he moved to withdraw the plea.

Here’s the controlling rule:

Generally, a § 2255 proceeding may not be used to relitigate questions that were raised and considered on direct appeal.  We have held, however, that relitigation may be allowed for “newly discovered evidence that could not reasonably have been presented at the original [appeal]”

Here’s the issue:

On direct appeal, Scott argued that the trial court abused its discretion because it accepted the plea after Scott requested to withdraw it. In support of this assertion, Scott cited transcript excerpts of the August 15, 2008 on-the-record conference. The statements made at this conference, however, did not support his asserted timeline of events—rather, they depict the trial court as accepting the plea before Scott’s counsel makes any comments regarding withdrawal. Given this record, we concluded that there was no basis to conclude that the trial court erred in accepting the plea.

Now, Scott argues that relitigation is appropriate because he presents new evidence discovered after his direct appeal—namely, [trial counsel] Martino’s testimony regarding the off-the-record conference in which Martino made an oral motion to withdraw the plea. Scott argues that this new evidence provides the factual predicate for his plea-withdrawal claim that was not available to him previously.

Based on Martino’s testimony, we agree that Martino orally moved to withdraw the plea before it was accepted by the trial court.

So Scott wins? No, and here’s where things gets weird:

[E]vidence of the off-the-record conference is new, material to Scott’s instant claim, and directly relevant to our disposition of his claims on direct appeal. But that the evidence has these characteristics, is not to say that relitigation is appropriate. We must also conclude that the evidence “could not reasonably have been presented at the original trial,” or for our purposes, on direct appeal.

We conclude that Scott cannot show that he could not reasonably have presented this evidence on direct appeal. First, there is evidence that Scott had personal knowledge of the off-the-record conference and Martino’s oral motion to withdraw the plea even though he was not present. On direct appeal (where he was represented by different counsel), Scott stated that “the plea was accepted in chambers without the presence of the Defendant and after Defendant’s counsel had orally moved to withdraw the plea.” Brief of Appellant at 17, Scott, 434 F. App’x 103 (No. 09-2576). That Scott made this assertion suggests that he had some knowledge that the oral motion to withdraw the plea was made.

Further, given that the record strongly suggests that Scott had knowledge of this purportedly new evidence, his failure to even attempt to present it on direct appeal contradicts any indication of diligence. While it is true that, as a general matter, courts are limited to the trial court record on appeal,8 there is no evidence that Scott made any attempt to obtain a statement from Martino and move to supplement the record. Due diligence does not require that the court accept a defendant’s new evidence; it simply requires that the defendant make some meaningful steps toward obtaining the evidence and presenting it to the reviewing court. Based on the record before us, it appears Scott took no such steps and thus we cannot conclude that the new evidence could not have been reasonably presented on direct appeal.
Thus, because Scott presents no facts from which we can infer diligence, we conclude that Scott cannot lift the relitigation bar.

(That footnote 8 begins, “It is likely that none of the exceptions to this nearly categorical rule would have applied to Scott.”)

So, here’s what we have. On direct appeal, Scott asserted that his counsel tried to withdraw the guilty plea before it was accepted by the judge. But that assertion relied on a fact not in the record, and, really, it was clear as day that the law barred him from getting that new evidence into the record on direct appeal. Now, many good direct-appeal lawyers would not make an extra-record fact assertion like that. But Scott’s bold move actually wasn’t bold enough! This opinion seems to say he also had to try to get a statement from the lawyer and then ask the court to allow it into the appellate record. And because he didn’t make that goofy request, his new evidence “could … reasonably have been presented” on appeal.

That’s not how I see it. If the court wouldn’t have let you present it, it ain’t something that you could reasonably have presented.

And this holding isn’t just wrong but wrong-headed, because from now on cautious Third Circuit lawyers have to festoon their criminal appeals with dead-on-arrival requests to admit new evidence.

If I knew a rehearing dance, I’d be doing it.