Full opinion text
FINDINGS OF FACT AND LAW, MEMORANDUM, ORDER, AND JUDGMENT ON 28 U.S.C. § 2255 MOTION JACK B. WEINSTEIN, Senior District Judge. Table of Contents I. Introduction.............................................................391 II. Facts and Procedural History..............................................392 A. Crime of Conviction..................................................392 B. Rule 33 Motion......................................................396 C. Sentencing..........................................................399 D. Direct Appeal .......................................................399 E. Section 2255 Motion: Substance and Practice............................399 F. Section 2255 Hearings................................................402 III. Section 2255 Collateral Attack Prior to Resolution of Direct Appeal.............405 IV. Asserted Grounds for Relief...............................................409 A. Ineffective Assistance of Counsel.......................................409 1. Law............................................................409 2. Application of Law to Facts Pertaining to Ineffective Assistance of Counsel.......................................................410 B. Actual Innocence.....................................................414 1. Law............................................................414 2. Application of Law to Facts Pertaining to Actual Innocence............421 V. Certificate of Appealability................................................422 VI.Conclusion..............................'................................422 I. Introduction Prior to resolution of his appeal before the Court of Appeals for the Second Circuit, defendant Frank DiMattina (“DiMattina” or “Defendant”) seeks collateral relief from a conviction and sentence imposed on one count of extortion and another for use of a firearm in connection with extortion. This odd — but sensible, in view of the circumstances — procedural turn, directed by the appellate court, raises interesting procedural questions by requiring the trial court to rule on a then-nonexistent motion pursuant to 28 U.S.C. § 2255 after the direct appeal was taken but before it has been decided. See Part III, infra. DiMattina contends in this collateral attack that (1) he received ineffective assistance of trial counsel and (2) he is innocent. An alibi defense — presented first in a post-trial motion pursuant to Rule 33 of the Federal Rules of Criminal Procedure and now collaterally pursuant to 28 U.S.C. § 2255 — lies at the heart of DiMattina’s claims. Trial counsel’s failure to pursue this “defense” is the basis for the ineffective assistance claim. The same evidence he adduces in arguing that his trial attorneys missed an obvious alibi defense is offered in support of his actual innocence claim. Neither ground asserted by DiMattina provides a viable avenue to section 2255 relief. See Part IV, infra. DiMattina’s trial attorneys ably handled the defense. See Part IV.A, infra. They vigorously pursued a strategy of disproving the credibility of the government’s key witness. At no point during, or immediately after, the trial did DiMattina suggest or hint to his lawyers a possible alibi defense. Omniscience by a lawyer cannot be assumed. The client bears some responsibility for providing, at minimum, a scintilla of reason to investigate and pursue an alibi. Exploration of the law and facts supporting a claim of actual innocence is required. See Part IV.B, infra. It is assumed — because of the availability of new tools, in some cases, to demonstrate innocence almost to a certainty — that a showing of actual innocence may now provide a substantive as well as procedural ground for collateral relief. See Part IV.B.l, infra. But the burden of sustaining such a claim — however it may be defined — has not been met. See Part IV.B.2, infra. For reasons stated orally and on the following findings of law and facts, the section 2255 motion is denied. II. Facts and Procedural History A. Crime of Conviction Following a three day jury trial that began in January 2012, DiMattina was found guilty of one count of extortion in connection with a competitor’s bid on a school lunch program and a separate count of using a firearm in connection with the extortion. See United States v. DiMattina, 885 F.Supp.2d 572, 576-77 (E.D.N.Y.2012) (denying Rule 33 motion, setting forth basis for sentence imposed and granting bail pending appeal). He was acquitted on three additional counts related to destroying a window of the restaurant he had sold to the chief witness against him, Walter Bowers. See Jury Verdict, United States v. DiMattina, No. 11-CR705 (E.D.N.Y. Jan. 6, 2012), ECF No. 62. Both the complaint, filed in September 2011, and the indictment, filed in October 2011, alleged that the extortion related to the use of a firearm occurred “ ‘[o]n or about and between June 1, 2010 and September 1, 2010, both dates being approximate and inclusive.’ ” DiMattina, 885 F.Supp.2d at 576 (quoting Sealed Compl.). The complaint and indictment make clear that the crime occurred shortly after Bowers, the victim, submitted a bid on a school lunch contract and almost immediately pri- or to it being withdrawn. See, e.g., Sealed Compl., United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Sept. 15, 2011), ECF No. 1, at ¶¶4-6 (describing that Bowers was confronted by DiMattina “soon after he placed the bid for the School Lunch Program Contract” and that “on the next business day after this confrontation with DiMattina, [Bowers], out of fear for his personal safety, withdrew his bid for the School Lunch Program Contract”). Several months before the crime, in March 2010, Bowers and DiMattina were involved in a business deal in which DiMattina sold Bowers a catering hall on Staten Island. See DiMattina, 885 F.Supp.2d at 575-77. It was named “Ariana’s” after DiMattina’s eldest daughter. Id. DiMattina did not sell, and continued to operate, two separate catering halls— one on Staten Island and another in Wood-bridge, New Jersey — under variations of the name “Ariana’s.” Id. at 575. The contract governing the sale of “Ariana’s” in Staten Island permitted Bowers to use the name for a limited period of time. Id. In a civil suit, DiMattina alleged that Bowers was continuing to use the name “Ariana’s” without authority and failed to make payments for the purchase price of the business. Id. On October 25, 2011, Defendant exercised his right to a speedy trial. See Ltr., United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Oct. 25, 2011), ECF No. 15. On the same day, he moved for a bill of particulars, requesting that the government state with more specificity when the alleged extortion occurred. See Mot. for Bill of Particulars, United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Oct. 25, 2011), ECF No. 13. The motion for a bill of particulars was denied orally at a hearing on November 30, 2011. See Mot. to Vacate, Set Aside, or Correct Sentence, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Mar. 11, 2013), ECF No. 1 (“Section 2255 Mot.”), Ex. C (Tr. of Pre-Trial Conf., Nov. 30, 2011), at 3. Bills of particulars under this federal district’s generous discovery procedures are redundant: the court expects the United States Attorney to open its files to the defendant unless there is a good, articulable reason not to do so. Defendant has conceded as much. See Tr. of Sentencing Hr’g, Mar. 30, 2013 (“Mar. 30 Tr.”), United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Oct. 25, 2011), at 26 (“[Defendant’s Counsel]: I know that bills of particulars are routinely denied and they probably should be routinely denied except in cases like this.” (emphasis added)). The government has demonstrated that before the trial it revealed everything it knew about the date and time of the alleged incident. DiMattina, 885 F.Supp.2d at 576. Material turned over pursuant to 18 U.S.C. § 3500 (“3500 Material”) included an FBI report that summarized two interviews with Bowers as well as Bowers’s grand jury testimony. The FBI report stated that Bowers told an agent that he was “called” by DiMattina on a “Saturday morning” before engaging in a “walk- and-talk with DiMattina in approximately July or August of 2010” on a “Saturday.” See Section 2255 Mot., Ex. E (“FBI Report”), at 3. The FBI report and grand jury testimony were consistent in relaying that the “walk-and-talk” was initiated when DiMattina approached Bowers at Ariana’s in Staten Island, accompanied him to an area next to the catering hall, and threatened him with a gun when discussing their competing bids on a school lunch contract. Id.; Section 2255 Mot., Ex. E (“Grand Jury Tr.”), at 20-22. Both sources of information stated that, after showing Bowers the gun, DiMattina turned to an associate and instructed him, so that Bowers could hear, to physically assault Bowers if he did not withdraw his bid. FBI Report 3; Grand Jury Tr. 22. The transcript of the grand jury testimony reflected that Bowers placed his bid on the school lunch program in “June because the [priest in charge of the program] said ‘We have to have this wrapped up by July 4th because school is shutting down, and you need at least two months to get all the paperwork together.’ ” Grand Jury Tr. 18-19. Bowers testified before the grand jury that he withdrew his bid after DiMattina had threatened him with a gun on a Saturday. See id. at 21-23. Upon reviewing the FBI report and grand jury transcript, DiMattina’s trial counsel knew the alleged extortion and use of a firearm occurred “between June and July 4.” Tr. of Hr’g on Ineffective Assistance Claim, Mar. 21, 2013 (“Ineffective Assistance Hr’g Tr.”), at 33. DiMattina did not subsequently renew his motion for a bill of particulars. Id. at 34. Bowers testified to the following facts at trial: DiMattina was a competing bidder on a contract for a school lunch program at a local Catholic high school. On a “Saturday, the last week in June [2010],” DiMattina approached Bowers at Ariana’s. DiMattina asked Bowers to step outside and speak to him. He then led Bowers to an alley behind the catering hall, where they were met by an unidentified accomplice of the defendant. To induce Bowers to withdraw his bid, DiMattina threatened him. Demonstrating the seriousness of this demand, DiMattina lifted his shirt to reveal a gun stuck in his waistband. Bowers identified one of the guns seized from the defendant when he was arrested as the gun he saw. DiMattina then instructed his accomplice, “Take a good look at this kid [Bowers]. You are going to come back here and kick his ass if he doesn’t get out of the bid.” He also told Bowers to tell Lawrence Chiarappo, Bowers’s business partner, that he would burn Chiarappo’s bagel stores down if the bid were not withdrawn. DiMattina, 885 F.Supp.2d at 576 (internal citations omitted; emphasis added; clarifying alterations in original). Notably, although the FBI report indicated that “Bowers recalled that DiMattina ... called him on a Saturday morning,” see FBI Report 3 (emphasis added), Bowers was not questioned about whether, and did not testify at trial that, he received a phone call from DiMattina before their encounter. Bowers stated at the trial that he was “alone” with DiMattina and DiMattina’s associate throughout the gun encounter. See Tr. of Crim. Trial, United States v. DiMattina, No. 11-CR705 (E.D.N.Y. Sept. 27, 2012), ECF Nos. 97-99 (“Trial Tr.”), at 109-110. When he returned to Ariana’s, he told Chiarappo, who owned several bagel stores in the area: “[DiMattina] just threatened us to get out of the bid.... He showed me a gun____And you know what, he actually said he was going to burn down your stores. We got to get out of this bid.” Id. at 117. The two of them then agreed that Bowers would withdraw his bid on the school lunch contract. Id. at 118. Bowers agreed to “call the priest [in charge of the program, Father Michael Reilly,] on Monday and go see him right away.” Id. Bowers called Father Reilly’s secretary that Monday and arranged for a meeting where he withdrew his bid. Id. While Chiarappo did not witness the threat, his trial testimony corroborated that Bowers described the incident to him immediately after it occurred. Id. at 245. See also Fed.R.Evid. 803(2) (“A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused” is not excluded by the rule against hearsay even if the witness is available to testify.). Chiarappo testified that DiMattina’s message — conveyed through his “associate”— about burning down the bagel stores influenced him to support withdrawing the bid. See Trial Tr. 250-51 (“Q: ... [D]id Mr. Bowers tell you anything that Mr. DiMattina told Bowers to tell you; in other words, tell your partner anything? A: He said, tell the kid that I’m going to burn his bagel stores down. Q: If what? A: If you won’t withdraw the bid. Q: Did that have an effect at all on your decision with Mr. Bowers about whether to. stay in the bid for the school lunch contract? A: Yes.”). See also Fed.R.Evid. 803(1), (3) (exceptions to hearsay rule for present sense impression and then-existing state of mind). The priest in charge of the school lunch program, Father Michael Reilly, credibly established at trial that Bowers’s bid was submitted in the spring of 2010 and withdrawn on June 28, 2010, the first business day after the last Saturday in June 2010. Id. at 207-09, 230. He testified that, on June 28th, Bowers left a message with his secretary “about the bid” stating that he “wanted to meet with [the priest].” Id. at 236. See also id. at 209. He confirmed that Bowers later withdrew his bid in-person that Monday afternoon, explaining to the priest that he had “got a visit.” Id. at 239. Father Reilly described Bowers as looking “very fearful” during the encounter. Id. Before and during the pendency of the trial, DiMattina was represented by attorneys John Meringolo and Martin Geduldig, as well as by Meringolo’s associate, attorney Clara Kalhouse. At the time of DiMattina’s criminal trial, Meringolo had conducted approximately eight trials and was an adjunct professor at Pace Law School and New York Law School, teaching classes on trial advocacy. See Ineffective Assistance Hr’g Tr. 68. Meringolo’s co-counsel, Geduldig, has been an attorney since 1967 and, at the time of the trial, had conducted “in excess of fifty” federal criminal trials. Id. at 73. DiMattina’s trial attorneys employed a private investigator — a retired New York City Police Department detective — to assist in developing evidence. Id. at 53, 75. They also initiated a civil suit on behalf of DiMattina against Bowers in Richmond County Civil Court based on the commercial dispute over the sale of Ariana’s, seeking to take Bowers’s deposition in the civil suit for use at the criminal trial. Id. at 54. The last day of June 2010 was on a Wednesday; July 4th was the following Sunday. From the reports, grand jury minutes, and prosecution’s case, it would have been apparent to defense counsel that the threat occurred on Saturday, June 26, 2010. This was the last Saturday in June, and the bid was withdrawn before 'July 4th, on Monday, June 28th. The priest in charge of the bidding process, unchallenged as to veracity, testified that he received a phone message from Bowers earlier in the day on June 28th, Bowers’s bid being withdrawn in person later that afternoon. See Trial Tr. 208-09, 235, 239. No suggestion of an alibi for the day, time, or place on which the alleged gun threat occurred was made by the Defendant prior to verdict. Nor did DiMattina’s trial attorneys move for a continuance— which it was clear to counsel would have been granted — to develop an alibi defense once the date, time, and place of the gun threat was fixed. See DiMattina, 885 F.Supp.2d at 576; Ineffective Assistance Hr’g Tr. 71 (“[Meringolo]:.... I’m aware that the Court would have given me the continuance.”). Both Meringolo and Geduldig testified during the section 2255 hearings that DiMattina did not inform them during the trial, or even reasonably soon after the verdict was rendered, of a potential alibi. See Ineffective Assistance Hr’g Tr. 57-58, 61 (Meringolo); 74-75 (Geduldig). Not until several weeks after DiMattina was found guilty did he begin to pursue— through subsequently retained counsel— an alibi defense. Id. at 91-93 (alibi defense developed with subsequently retained counsel beginning about “forty days after verdict”). During the trial, DiMattina and his attorneys executed a sensible strategy of “showing] that Mr. Bowers had fabricated the event entirely” to exact leverage over DiMattina in their business dispute. Id. at 79. Bowers’s credibility was repeatedly, and strongly, attacked. When asked to identify the weapon used during the extortion, Bowers incorrectly testified at trial that he was shown a lineup of six guns when in fact he was only shown four. Trial Tr. 57 (testimony of officer that conducted gun lineup); 112 (Bowers testimony). Inconsistent statements relating to key underlying facts were used to impugn Bowers’s overall credibility. See, e.g., id. at 356 (Meringolo summation to jury: “When Mr. Bowers was asked on direct examination how many guns did you review two days ago, you know what he says ... he says six guns. Well, ladies and gentlemen, it was only — actually it was only a day ago and it went from four to six.... [CJarefully evaluate the contradictions.”). His trial attorneys were attempting to discredit all of the charges — including those supported by a video recording on which DiMattina was ultimately acquitted — that were based on Bowers’s testimony. See Ineffective Assistance Hr’g Tr. 79 (Geduldig: “Mr. Bowers picked out the wrong gun. It was my take that we could show that Mr. Bowers had fabricated the event entirely. There may have been a meeting, but it did not go down as Mr. Bowers described it.”). At closing, Meringolo told the jury: “the government got it wrong [when] they told you ... that Walter Bowers ... was telling the truth. I submit to you he committed perjury, he committed perjury many times, not once but many times.” Trial Tr. 350; see also id. at 352 (“I respectfully submit that there’s motivations here, there’s motivations for Mr. Bowers and this incident, this gun incident----”); id. at 354 (“I submit to you he’s a liar and if you think he lies about a material fact, under the law you could disregard his whole testimony.”); id. at 356 (‘You cannot trust Mr. Bowers”); id. at 358 (“And they can’t prove this case beyond a reasonable doubt because you can’t believe Walter Bowers and that’s the law.”). The tactical and strategic theory of defense counsel was reasonable and well-executed. B. Rule 33 Motion On March 16, 2012, more than two months after a guilty verdict was rendered against him, Defendant moved for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure. See Mot. for New Trial Pursuant to Rule 33(b)(1), United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Mar. 16, 2012), ECF No. 70 (“Rule 33 Mot.”). He argued that newly discovered evidence established that, at the time he was found to have threatened Bowers with a gun at Ariana’s in Staten Island, he was at another catering hall he owned, Ariana’s Grand, located in Woodbridge, New Jersey, which is a drive of approximately fourteen miles from Ariana’s in Staten Island. See Mem. L. Supp. Rule 33 Mot., United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Mar. 16, 2012), ECF No. 70, at 1; Ineffective Assistance Hr’g Tr. 39. He did not initially allege ineffective assistance of trial counsel in his Rule 33 motion. Id. Rule 33 provides that “[u]pon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R. Crim.P. 33(a). While a Rule 33 motion must generally be filed within fourteen days of verdict, it may be filed within three years of verdict if “grounded on newly discovered evidence.” Fed.R. Crim.P. 33(b). A successful Rule 33 motion based on “newly discovered evidence” must demonstrate that “facts are alleged from which the court can infer due diligence on the part of the movant to obtain the evidence” before or during trial. United States v. Owen, 500 F.3d 83, 88 (2d Cir.2007). “Due diligence has not been exercised if the defendant or his counsel could have, without unusual effort, acquired the evidence before or during the trial.” DiMattina, 885 F.Supp.2d at 577 (citing United States v. Alessi, 638 F.2d 466, 479 (2d Cir.1980)). A movant’s ultimate burden on a Rule 33 motion is to demonstrate that newly discovered “evidence would likely result in an acquittal.” Owen, 500 F.3d at 88. Rule 33 relief should be granted only if there is “a real concern that an innocent person may have been convicted.” United States v. Sanchez, 969 F.2d 1409, 1414 (2d Cir.1992). And only when such “exceptional circumstances can be demonstrated,” may a “trial judge ... intrude upon the jury function of credibility assessment.” Id. Although DiMattina chose, as was his right, not to testify at his criminal trial, at the Rule 33 hearing he submitted an affidavit. See Rule 33 Mot., Ex. A (“DiMattina Rule 33 Aff.”). He claimed to have been — and continues to claim — that he “was never in Staten Island [the day of the alleged extortion], except to leave my Staten Island home early in the morning and to return to my Staten Island home very early the following morning (June 27, 2010).” Id. at ¶ 5. Affirmed by DiMattina was that, “[p]rior to trial, I informed my then-attorney that I could not be at the place where Mr. Bower’s [sic] said I was when he said I threatened him.” Id. at ¶ 20. He stated that he had “asked my attorney many times for the specific date when I was accused of extorting Mr. Bowers.” Id. (emphasis in original). According to DiMattina, it was not until “Mr. Bowers testified at trial that the date of the alleged incident was ‘the last Saturday in June, 2010’ (i.e., June 26, 2010) — [that] I knew I could not have been at the place where Mr. Bowers said I was and/or committed this crime.” Id. at ¶ 22. In an attempt to corroborate his assertions, DiMattina submitted several additional statements from claimed-to-be alibi witnesses to demonstrate that he was seen several times on June 26, 2010 in New Jersey — namely, at Ariana’s Grand — and not seen at Ariana’s in Staten Island. See, e.g., Rule 33 Mot., Attorney Aff., Mar. 16, 2012, ECF No. 7, at ¶ 11 (“I have spoken with Mr. DiMattina, as well as to others, including vendors, guests and employees regarding Mr. DiMattina’s whereabouts on June 26, 2010. I have also reviewed various contracts and receipts that were recorded on that date. All show that Mr. DiMattina was at Ariana’s Grand Catering in Woodbridge, New Jersey from approximately 9AM that day until approximately 1AM the following day.”). Defendant was provided, but did not avail himself of, the opportunity to submit an affidavit or testimony from his trial attorneys as to their knowledge of a possible alibi defense. See Mar. 30 Tr. 6-7 (“The Court: [T]he defendant was given an opportunity to call [his] trial attorney. You have no affidavit from him. [Defense Counsel]: From the trial counsel? The Court: Yes. [Defense Counsel]: No, I do not. The Court:.... [T]he court was at all times happy to hear [from trial counsel] including today.”). The Rule 33 motion was deemed untimely, obviating the need to determine whether “[t]he affidavits and other evidence ... submitted by the defendant ... might have established to a jury’s satisfaction that the defendant was not at Ariana’s in Staten Island on June 26, 2010.” DiMattina, 885 F.Supp.2d at 578. Defendant had failed to demonstrate that his newly discovered alibi evidence was actually “new” — i.e., that diligence was exercised and the evidence could only have been discovered after the trial concluded. It was held that “DiMattina’s defense attorney could have consulted with his client regarding his whereabouts on that day and if there were any potential alibi witnesses.” DiMattina, 885 F.Supp.2d at 579. All of the affiants whose testimony was offered to support DiMattina’s Rule 38 motion were known to him at the time of trial. Id. Most of them were his “employees or business associates” and no showing was made that “any were unavailable to testify at trial.” Id. The motion was untimely because “[t]he defendant was fully aware, while the trial was still ongoing, that an alibi defense was available.” Id. Defendant requested orally, through his counsel, during the hearing on his Rule 33 motion that, should it be denied, it be converted into a section 2255 motion for ineffective assistance of counsel. See Tr. of Sentencing Hr’g, Mar. 26, 2012 (“Mar. 26 Tr.”), at 10-11. This placed Defendant in the unenviable position of arguing both that (a) his trial attorneys were sufficiently diligent so that their inability to find “newly” discovered evidence was excusable, and (b) they were insufficiently diligent so that their failure to pursue an effective alibi defense was inexcusable. See Mar. 30 Tr. 25-26 (“[Defense Counsel]: Either he was diligent in defending the case and not being able to present the alibi defense in a timely manner during the trial ... or ... the defense attorney was not diligent, should have asked for an adjournment, should have made an attempt to present, to identify the alibi defense and to present it in court.... ”). ■ At the Rule 33 hearing, Defendant’s then-counsel was directed, but was unable, to provide any authority “that indicates that [the court] can grant a writ of habeas [corpus] on [the] set of facts [before it] before entering sentence.” Mar. 26 Tr. 11. A related argument that there was a substantial likelihood that an ineffective assistance claim would be granted on direct appeal was rejected because there was no “fully developed record” on the issue for the appellate court to consider. Mar. 30 Tr. 24-25. There was only a self-serving affidavit from DiMattina attesting that he had informed his trial counsel of an alibi. See DiMattina Rule 33 Aff. ¶ 20. No testimony from his trial counsel had been elicited to substantiate what DiMattina claimed to have discussed with his attorneys regarding the critical issue of an alibi defense or whether one was considered, developed, pursued, or not pursued. Mar. 30 Tr. 24-25. While recognizing that “trial counsel’s failure to present this [alibi] defense may raise Sixth Amendment concerns,” the court declined, in the circumstances of the case, to rely on Rule 33 in entertaining an ineffective assistance claim, which would be available under section 2255 were there an affirmance. DiMattina, 885 F.Supp.2d at 579 (citing United States v. Dukes, 727 F.2d 34, 39 (2d Cir.1984)). It would have been unduly burdensome to the trial court, litigants, and prospective witnesses to permit amendment of DiMattina’s Rule 33 motion so that his ineffective assistance claim could be adjudicated before a sentence was imposed. Moreover, it would have delayed sentencing inappropriately were post-trial hearings then conducted. See Fed.R. Crim.P. 32(b)(1) (“The court must impose sentence without unnecessary delay.”). An ineffective assistance claim cannot be adjudicated through Rule 33 solely on the ground that it is based on newly discovered evidence. “[I]neffective assistance claims do not present new evidence within the meaning of Rule 33.” United States v. Castillo, 14 F.3d 802, 805 (2d Cir.1994) (citing Dukes, 727 F.2d at 39). DiMattina’s ineffective assistance claim would only have been timely on a Rule 33 motion upon a showing that his failure to bring it within fourteen days after verdict was a product of excusable neglect. See United States v. Brown, 623 F.3d 104, 113 n. 5 (2d Cir.2010) (stating that Rule 33 can be a vehicle for ineffective assistance claims outside fourteen day period of Rule 33 if excusable neglect is demonstrated). No such showing was made. See Mar. 26 Tr. 10. Based on the then-record, DiMattina’s Rule 33 motion was properly denied. C. Sentencing On March 30, 2012, DiMattina was sentenced to a term of imprisonment of six years and one day, three years of supervised release, a $10,000 fíne, and a $200 special assessment. See DiMattina, 885 F.Supp.2d at 579-82. The heavy sentence was due to the minimum five year sentence under the gun charge. See id. at 582 (citing 18 U.S.C. 924(c)(1)(A)®). Bail pending appeal was granted. Id. at 582-90. In reaching the decision to grant bail, it was noted that “the defendant has raised substantial questions that may merit relief on appeal or collateral attack” and that “[i]t would be unfortunate to incarcerate the defendant for a year or more while his appeal pends if reversal follows or, alternatively, if there is an affirmance followed by a successful habeas petition.” Id. at 589. At sentencing, DiMattina raised three issues he planned to pursue on appeal: (1) the district court’s denial of his bill of particulars; (2) the district court’s denial of his Rule 33 motion based on newly discovered alibi evidence; and (3) ineffective assistance of trial counsel. See Mar. 30 Tr. 23-27. D. Direct Appeal An appeal was taken on April 3, 2012. See Notice of Appeal, United States v. DiMattina, No. 11-CR-705 (E.D.N.Y. Apr. 3, 2012), ECF No. 84. Defendant did not attempt to argue any of his three areas of concern on the merits. Instead, he moved in the appellate court, on August 30, 2012, for a summary remand to provide the district court with an opportunity to entertain a motion pursuant to section 2255 during the pendency of the direct appeal. See Mot. to Remand Appeal, United States v. DiMattina, No. 12-1361 (2d Cir. Aug. 30, 2012), Dkt. Entry No. 42. It was represented to the appellate court that DiMattina’s unfiled section 2255 motion would be “predicated on the ineffective assistance of trial counsel to investigate and set forth an alibi defense and [would] contain[ ] the written statements of fifteen witnesses that, taken together, demonstrate his actual innocence.” Id. at ¶ 2. His motion for summary remand alleged that DiMattina’s trial attorneys “made no attempt to prepare an alibi defense — or even request a continuance to investigate its viability” and that DiMattina had informed them “that he could not have been present at Ariana’s” in Staten Island on June 26th, the day of the extortion with a gun. Id. at ¶ 6. On January 15, 2013, the Court of Appeals for the Second Circuit stayed Defendant’s direct appeal “pending the filing and deciding of a section 2255 motion in the district court.” See Order, United States v. DiMattina, No. 12-1361 (2d Cir. Jan. 15, 2013), Dkt. Entry No. 56. In reaching its decision, the appellate court “expressed] no opinion as to the ultimate merit of DiMattina’s proposed § 2255 motion.” Id. (emphasis added). E.Section 2255 Motion: Substance and Practice After remand, and some delay, DiMattina filed a motion to set aside the judgment of conviction pursuant to 28 U.S.C. § 2255. See Section 2255 Mot. (filed Mar. 11, 2013). His motion served, in effect, to proceed separate and apart from the criminal action in which a pending appeal has been stayed. Section 2255 of Title 28 of the United States Code permits a federal defendant to file a motion to “vacate, set aside, or correct the sentence” imposed on the ground that: the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A section 2255 motion is traceable to the ancient writ of habeas corpus. Prior to the adoption of section 2255, the district courts for the districts in which federal prisoners were confined entertained habeas corpus petitions; since 1948 [when section 2255 was adopted], collateral review has been available pursuant to [section] 2255 only in the districts in which the convictions were obtained. Thus, [section] 2255 created a new postconviction remedy in the sentencing court and provided that a habeas corpus petition may not be entertained elsewhere. Swain v. Pressley, 430 U.S. 372, 378-79, 97 S.Ct. 1224, 51 L.Ed.2d 411 (1977) (citing United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952)). See also Richard H. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts and The Federal System 1303 (6th ed. 2009) (noting that the pre-1948 system “caused serious administrative problems” by requiring federal prisoners to litigate habeas claims in district courts where the records of the sentencing court were not easily attainable and it proved difficult to obtain evidence from key witnesses). The new statute’s main concern was with “the mechanics of processing federal prisoners’ petitions and was not intended to alter the substance or scope of the traditional habeas corpus remedy.” 2 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure § 41.2a (3d ed. 1998) (citing Hayman, 342 U.S. at 219, 72 S.Ct. 263). Its purpose was, and remains, “to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974). Accord Boumediene v. Bush, 553 U.S. 723, 774-75, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (section 2255 “replaced traditional habeas corpus for federal prisoners (at least in the first instance) with a process that allowed the prisoner to file a motion with the sentencing court on the ground that his sentence was, inter alia, imposed in violation of the Constitution or laws of the United States” (citation and internal quotation marks omitted)); Kaufman v. United States, 394 U.S. 217, 222, 89 S.Ct. 1068, 22 L.Ed.2d 227 (1969) (section 2255 provides “a remedy exactly commensurate with that which had previously been available by habeas corpus in the court of the district where the prisoner was confined” (citation and internal quotation marks omitted)). Although a motion brought pursuant to section 2255 is to be made during federal criminal proceedings, the acorn of the section 2255 motion does not fall far from the primordial oak of the writ of habeas corpus now covered in large part by 28 U.S.C. § 2254, controlling habeas corpus proceedings involving state criminal convictions. See Fama v. Comm’r of Corr. Servs., 235 F.3d 804, 815-16 (2d Cir.2000) (“Sections 2254 and 2255 are generally seen as in pari material”). “Unlike the criminal trial where the guilt of the defendant is in issue and his presence is required by the Sixth Amendment, a proceeding under Section 2255 is an independent and collateral inquiry into the validity of the conviction.” Hayman, 342 U.S. at 222, 72 S.Ct. 263 (1952) (emphasis added). Underscoring the inherently “civil” nature of a section 2255 hearing — akin to a section 2254 proceeding, which is unquestionably civil, see Keeney v. Tamayo-Reyes, 504 U.S. 1, 14, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992) (O’Connor, J., dissenting) (habeas corpus is “an original civil action in a federal court”); Cross v. Burke, 146 U.S. 82, 88, 13 S.Ct. 22, 36 L.Ed. 896 (1892) (“It is well settled that a proceeding in habeas corpus is a civil, and not a criminal, proceeding.”) — is the fact that it is codified in Title 28, generally pertaining to jurisdictional and civil issues, rather than Title 18, generally pertaining to substantive criminal law and criminal procedure. While the Advisory Committee Notes to the federal rules applicable to a section 2255 motion explicitly note that “a motion under § 2255 is a further step in a movant’s criminal case and not a separate civil action,” Rules Governing § 2255, Rule 1, Advisory Committee Notes (1976 Adoption), the rules themselves are largely identical to those applicable to a section 2254 habeas corpus petition attacking a state conviction. See Hart and Wechsler, supra, at 1304 (“[Section] 2255 motions are processed in much the same way as § 2254 petitions, and the Rules Governing § 2255 Proceedings in the United States District Courts are virtually identical to the parallel Rules Governing § 2254 Proceedings.”); Liebman & Hertz, supra, at § 41.2a (“[G]iven both the Advisory Committee’s apparent recognition that the ‘further step’ taken by the filing of a section 2255 is akin to an appellate step, and the role of federal habeas corpus as a surrogate for appellate review as of right in the Supreme Court, the criminal/civil distinction between section 2255 and habeas corpus proceedings is less consequential than otherwise might be the case.” (citing cases)). See also Wall v. Kholi, — U.S. -, 131 S.Ct. 1278, 1289 n. 7, 179 L.Ed.2d 252 (2011) (“[T]here has been some confusion over whether § 2255 proceedings are civil or criminal in nature---- We express no opinion on this question.” (internal citations omitted)); 3 C. Wright & S. Welling, Fed. Prac. and Proc. § 622 (4th ed.) (“[T]he § 2255 action has been regarded as an independent suit. Whether this independent suit is civil or criminal is uncertain.”). The anomalous procedural nature of a section 2255 motion — technically part of a criminal case but civil in nearly all of its aspects — is reflected in the practice by the clerk of this court (and presumably the clerks of other federal district courts) to assign a civil docket number to any such motion, separating it from the docket sheet of its underlying criminal case. Cf. Liebman & Hertz, supra, at § 41.4b n. 22 (noting that “[t]he frequency with which section 2255 cases are reported with the prior criminal caption reversed — i.e., with a caption styled ‘[Movant] v. United States ’ — suggests the relative lack of importance that the courts attach to” the Advisory Committee Notes’ statement that a section 2255 motion is part of the underlying criminal case). Given the flood of docket entries which often issue during a section 2255 motion, such a docketing practice is sensible. It is an attempt to avoid the confusion created by intermingling the criminal and the section 2255 aspects of the case. The instant motion thus triggered initiation of what was, practically speaking, a civil hearing requiring evidence beyond the confines of the record developed at trial. F. Section 2255 Hearings While initially based solely on a claim of ineffective assistance by trial counsel for failure to execute an alibi defense, Defendant’s motion was later amended to include a freestanding claim of actual innocence. See Mem. L. Supp. Frank DiMattina’s Mot. for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Mar. 11, 2013), ECF No. 1-2 (“DiMattina Ineffective Assistance Mem.”), at 1; Ineffective Assistance Hr’g Tr. 4-6. Extensive briefing and fact-finding ensued on the section 2255 motion. An initial evidentiary hearing on the ineffective assistance claim was held on March 21, 2013. See Min. Order, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Mar. 21, 2013), ECF No. 14. Supplemental briefing and additional evidentiary hearings were subsequently permitted on a freestanding actual innocence claim to assist the court in (1) determining the legal viability of such a claim and, (2) assuming one is cognizable, whether it could be proven by Defendant. See generally Scheduling Order for Actual Innocence Claim, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Mar. 22, 2013), ECF No. 11. Upon Defendant’s requests, four extensions were granted to permit additional time for his new lawyers to investigate and to brief his claim that an alibi proves his innocence. See Revised Scheduling Order for Actual Innocence Claim, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Apr. 9, 2013), ECF No. 15; Second Revised Scheduling Order for Actual Innocence Claim, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Apr. 17, 2013), ECF No. 20; Third Revised Scheduling Order for Actual Innocence Claim, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. May 3, 2013), ECF No. 25.; Final Scheduling Order for Actual Innocence Claim, DiMattina v. United States, No. 11-CV-1273 (E.D.N.Y. May 29, 2013), ECF No. 32. Ultimately, in addition to the initial evidentiary hearing on Defendant’s ineffective assistance of counsel claim, evidentiary hearings on the actual innocence claim were held over two days— May 28 and 31, 2013. See generally Tr. of Hr’g on Actual Innocence Claim, May 28 and 31, 2013 (“Actual Innocence 2255 Hr’g Tr.”). Because the factual predicates for each of Defendant’s grounds for relief are so intertwined, all post-trial evidence was deemed applicable both to the effectiveness of his counsel and to his ability to prove innocence. Relied upon by Defendant to establish an alibi was a mix of the same affidavits submitted in support of the Rule 33 motion, three additional affidavits that averred that DiMattina was not seen at Ariana’s in Staten Island but seen in Woodbridge, New Jersey on the day of the incident, live testimony from five of the original Rule 33 affiants, and Bowers’s phone records from the day of the incident. See, e.g., Actual Innocence Hr’g Tr.; Ineffective Assistance Hr’g Tr.; DiMattina Ineffective Assistance Mem. at 1; Def.’s Witness List, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Mar. 14, 2013), ECF 3; Def.’s Ex. List, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. Mar. 14, 2013), ECF 14; Supp. Br. in Support of Frank DiMattina’s Mot. Pursuant to 28 U.S.C. § 2255, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. May 14, 2013), ECF 27 (“DiMattina Innocence Br.”). Bowers was called by Defendant; he testified on the limited point of whether — and, if so, when — he was carrying a cell phone the day of the incident. See Actual Innocence Hr’g Tr. 110-34. DiMattina himself submitted an affidavit at the section 2255 hearing to supplement the one he relied upon at the Rule 38 hearing, but he did not testify or subject himself to cross-examination. See Affidavit, DiMattina v. United States, No. 13-CV-1273 (Mar. 11, 2013), ECF No. 1 (“DiMattina Rule 33 Affidavit”), at ¶4; Ineffective Assistance Hr’g Tr.; Actual Innocence Hr’g Tr. Unlike the affidavit submitted in support of his Rule 33 motion, DiMattina’s section 2255 affidavit does not state that he raised the possibility of an alibi defense with his trial lawyers. See Affidavit, DiMattina v. United States, No. 13-CV-1273 (Mar. 11, 2013), ECF No. 1 (“DiMattina section 2255 Aff.”). DiMattina’s lead trial lawyers — Meringolo and Geduldig — were. ordered to appear at the evidentiary hearing on the motion and did so. See Notice of Scheduling Order for 28 U.S.C. § 2255 Briefing and Hearing, DiMattina v. United States, No. 13-CV-1273 (Mar. 11, 2013) (unnumbered docket entry). They testified as fact witnesses and were examined by Defendant’s motion counsel, the government and the court. See Ineffective Assistance Hr’g Tr. 8-90. They both credibly testified that Defendant never suggested to them the possibility of an alibi defense or gave them any reason to believe one existed. Id. at 57-58, 61, 74-75. It was explained by attorney Geduldig that the trial strategy— which resulted in acquittal on three of the five charges brought against DiMattina— was to impugn Bowers’s credibility to the point that they could achieve acquittal on all counts: Q: Was it the defense in this case that Mr. Bowers and Mr. DiMattina had a business relationship with each other, had a civil dispute you claimed Mr. Bowers was trying to turn into a criminal case for his own benefit? A: Yes. Q: That they knew each other that whole year and were fighting with each other constantly over the sale of this catering hall? A: That’s right. Q: Is that part of the reason why you said you did not believe that [an] alibi defense would he, because they were always talking and fighting with each other about something or other? A: That was part of the reason, yes. Q: It was your strategy to focus, then, on whether the gun was in fact shown and whether an extortion was in fact committed? A: Yes. Id. at 86-87. See also id. at 79-80, 83-84. One of DiMattina’s attorneys on the Rule 33 motion, Lawrence Schoenbach, testified as to the development of DiMattina’s post-trial alibi defense. Id. at 91-124. He offered no testimony regarding what Defendant told — or did not tell — Meringolo and Geduldig regarding an alibi. As to the alibi itself, Schoenbach stated that the idea of an alibi defense “was more [my suggestion] than Frank’s [the defendant], but certainly he was in the equation.” Id. at 93; see also id. at 92-93 (“The Government: Did he express to you, at any time during the beginning of your relationship, that, T couldn’t have done this crime’ ... because he had [an alibi]? [Mr. Schoenbach]: When Mr. DiMattina hired me, I looked through the records. / saw the lack of a date.... I looked at the complaint, I looked at the indictment, I looked at the Rule 16 material and the 3500 material, and there was no way to fix a date.... So, the three month window, I had been concerned and had discussed with Mr. DiMattina about having it narrowed, or how it should have been narrowed prior to trial.” (emphasis added; paraphrasing eliminated)). Live testimony from five of the original Rule 33 affiants was presented to establish the validity of an alibi defense. Three of the witnesses — Geraldine Habeeb, Maryanne Honadel, and Victoria Wall — had hosted parties at Ariana’s in Staten Island on the afternoon of June 26, 2010, the day on which the jury found DiMattina to have extorted Bowers. See Actual Innocence Hr’g Tr. 67-68 (Habeeb); 77-78 (Wall); 82-83 (Honadel). They each testified that they did not see DiMattina on that day either in the catering hall or its parking lot. See id. at 69 (Habeeb); 79 (Wall); 84 (Honadel). Eric Frigiano was called to establish that DiMattina was frequently seen in New Jersey on June 26th. Frigiano had worked as a maitre d’ at Ariana’s Grand, DiMattina’s catering hall in Woodbridge, New Jersey. He testified that he saw DiMattina there “[tjhroughout the day sporadically,” beginning around 10:00 a.m. or 11:00 a.m. Id. at 90. While Frigiano claimed that he “would have definitely noticed if [DiMattina] was gone for a longer period of time,” id. at 97, he admitted the focus of his attention was on the approximately 250 guests hosted that day at the New Jersey catering hall. Id. He could not account for DiMattina’s whereabouts on a minute-by-minute basis. Id. at 93-97. It is undisputed that Ariana’s Grand is approximately fourteen miles from Ariana’s in Staten Island, see Ineffective Assistance Hr’g Tr. 39, and, depending on traffic, a twenty-six to forty-five minute drive. Id. (twenty-six minute drive without traffic according to Google maps application); Actual Innocence Hr’g Tr. 93 (thirty to forty-five minute drive “depending on traffic” according to Frigiano). Another of DiMattina’s former employees who testified, John Gorgoglione, had worked at Ariana’s in Staten Island when DiMattina owned the business and continued working there as a car valet after Bowers assumed ownership. On June 26th, he was stationed near the parking lot of Ariana’s in Staten Island. Id. at 52-53. His shift began around noon. Id. at 52. He testified not to have seen DiMattina or Bowers in the parking lot area on the day of the incident, id. at 57, but admitted that he would not have been able to pay attention to the full parking lot area while parking cars or when taking bathroom and meal breaks inside of the building. Id. at 61-64. Additional testimony by Gorgoglione — who began working for DiMattina at the age of 15 and has a close relationship with him, see id. at 55 — that he parked only approximately 15-20 cars was contradicted by Honadel and Habeeb, who testified their parties collectively had approximately 150 guests, most of whom would have driven to Ariana’s and used the facility’s valet services. Compare id. at 61 (Gorgoglione), with id. at 75-76 (Habeeb); 85 (Honadel). Robert Picciano, a retired member of the New York City Police Department, was called by DiMattina to explain that Bowers’s cell phone records demonstrate that Bowers was not at Ariana’s in Staten Island at the time of the alleged extortion — implying the event did not occur— and to impugn Bowers’s credibility by demonstrating that he never received a “call” from DiMattina before the extortion occurred. See generally DiMattina Innocence Br. 8-9; Reply Br. in Support of Frank DiMattina’s Mot. Pursuant to 28 U.S.C. § 2255, DiMattina v. United States, No. 13-CV-1273 (E.D.N.Y. May 23, 2013), ECF No. 31, at 2. Based on Picciano’s analysis, DiMattina argued that Bowers’s cell phone records demonstrated, contrary to the pre-trial FBI report, that no “call” was placed from DiMattina to Bowers on the day of the extortion. DiMattina Innocence Br. 8-9. It was suggested by DiMattina, through Picciano’s testimony, that “geolocation data” gleaned from Bowers’s cell phone records established “that Bowers was not even at Ariana’s in Staten Island at the time he claimed the incident occurred.” Actual Innocence Hr’g Tr. 6. He testified that the phone records made it “highly unlikely” that Bowers was at Ariana’s in Staten Island in the morning or afternoon of June 26, 2010. Id. at 19. Of the six closest cell-phone towers to Ariana’s in Staten Island, the majority of Bowers’s calls on June 26th were processed through the sixth closest tower — which was slightly more than a mile away from the Staten Island catering hall. Id. at 16-20. According to Picciano, calls originating from a cell phone at Ariana’s in Staten Island would generally have been processed through the five closest cellphone towers rather than the sixth closest. Id. at 20. He conceded, however, that a host of variables, such as temporary overloads and the positioning of cell-tower antennas, which he did not analyze, could have affected the cell-tower through which calls were routed. Id. at 28-31. All of the numerous cell phone calls Bowers made that day appear, according to the geolocation expert, to have been made within approximately 1.3 miles from the place the gun threat was allegedly made at Ariana’s in Staten Island. Id. at 32. The telephone records, far from Defendant’s contention that Bowers was not at Ariana’s in Staten Island at the time the gun threat was made, are not inconsistent with Bowers’s testimony about the event in question. It is undisputed, for example, that between 9:16 a.m. and 12:31 p.m. on the day in question, there are several gaps in usage, including lapses of at least 11, 15, 25, and 45 minutes where no calls were placed or received, and no conclusion can be drawn as to where the phone (let alone Bowers himself) was located. See DiMattina Innocence Br., Ex. A, ECF No. 27-1 (Phone Records), at 3. The claimed critical calls were all made and received from Bowers’s cell phone when it was, at most, only a few minutes away from Ariana’s in Staten Island by car. Unfounded is DiMattina’s reasoning that inconsistencies between the phone records and Bowers’s trial testimony, combined with alibi witness information, demonstrate his trial counsels’ ineffectiveness in failing to explore an obvious path to victory, an ironclad alibi proving his innocence. III. Section 2255 Collateral Attack Pri- or to Resolution of Direct Appeal Resolving the collateral attack on a conviction prior to resolution of a direct appeal presents a series of interesting questions implicating procedure, evidence, fairness, and other issues. The Court of Appeals for the Second Circuit’s remand was designed to expedite decision on such pivotal issues as whether Defendant received effective trial counsel and whether he could demonstrate innocence. Development — prior to a decision on the direct appeal — of a fuller record pertaining to trial counsel’s strategic decisions, which are critical to an ineffective assistance claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), may obviate the need for the direct appeal. It may also provide the appellate court with additional reasons for deciding whether a ground for a successful appeal exists. Two simultaneous bites at the apple — one on an appeal of the denial of a section 2255 motion and another on a direct appeal — by an appellate court permit it to examine a case in all its aspects when a collateral attack is ruled on prior to a decision on the direct appeal. The Court of Appeals for the Second Circuit has held “that when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.” Brown, 623 F.3d at 113 (emphasis added). Cf. United States v. Fleurimont, 401 Fed.Appx. 580, 582 (2d Cir.2010) (“It is clear ... that Brown does not require as a categorical matter that district courts grant a full-blown testimonial hearing in response to all such claims.”); United States v. Outen, 286 F.3d 622, 632 (2d Cir.2002) (“[T]here is no jurisdictional bar to a district court’s adjudication of a § 2255 motion during the pendency of a direct appeal.” (emphasis in original)); Rules Governing § 2255 Proceedings for the United States District Courts, Rule 5, Advisory Committee Notes (1976 adoption) (“There is no requirement that the movant exhaust his remedies prior to seeking relief under § 2255.”). There is a preference within the Second Circuit for the claims Defendant makes to be resolved through motions made pursuant to Rule 33 of the Federal Rules of Criminal Procedure if they can be brought within fourteen days of the verdict or if there is a valid excuse for failing to do so. Brown, 623 F.3d at 113 n. 5. As noted, see Part II.B, supra, an otherwise untimely ineffective assistance claim under Rule 33, however, cannot be excused on the theory that relevant facts giving rise to the claim were “newly discovered” under Rule 33(b)(1). See Dukes, 727 F.2d at 39 (longer timeframe not available for Rule 33 motion for new trial based on newly discovered evidence relating to ineffective assistance of counsel). Accord United States v. Cammacho, 462 Fed.Appx. 81, 83 (2d Cir.2012) (“ ‘The longer period provided by [Rule 33] for a motion based on newly discovered evidence applies only to motions that address the issues raised by the criminal charges, not to motions that raise collateral issues such as the effectiveness of trial counsel.’ ” (quoting United States v. Mayo, 14 F.3d 128, 132 (2d Cir.1994))). When timely asserted, the assessment undertaken by a district court when considering a pre-direct appeal collateral attack is similar to the task before the Court of Appeals when an appellant presents an ineffectiveness claim on direct appeal. Both circumstances require a balancing of the interests of justice, efficiency, and finality. When the question is before the appellate court, three options are available: “[the appellate court] may: (1) decline to hear the claim, permitting the appellant to raise the issue as part of a subsequent petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255; (2) remand the claim to the district court for necessary factfinding; or (3) decide the claim on the record before [the appellate court].” United States v. Morris, 350 F.3d 32, 39 (2d Cir.2003) (citing United States v. Leone, 215 F.3d 253, 256 (2d Cir.2000)). The first and second procedural avenues — remanding the case while staying a pending appeal or permitting a collateral attack on the underlying conviction once all arguments on direct appeal have been exhausted — provide for fact-finding in the district court. While “in most cases a motion brought under § 2255 is preferable to direct appeal for deciding claims of ineffective assistance,” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), the Court of Appeals has “from time to time ... remanded in the course of a direct appeal for the district court to resolve an ineffectiveness claim in the first instance, permitting [the appellate court] to review that resolution as part of any subsequent appeal.” United States v. Doe, 365 F.3d 150, 153 (2d Cir.2004). See also Trevino v. Thaler, — U.S. -, 133 S.Ct. 1911, 1921, 185 L.Ed.2d 1044 (2013) (noting that “practical considerations, such as the need for a new lawyer, the need to expand the trial court record, and the need for sufficient time to develop the claim, argue strongly for initial consideration of [a] claim [of ineffective assistance] during collateral, rather than on direct, review”). The third option — deciding a claim of ineffective assistance on a direct appeal — is generally least desirable because evidence not in the trial record is often necessary to ascertain the bases for a trial attorney’s tactics. This is particularly so because, in the wake of Massaro v. United States, 538 U.S. at 504-06, 123 S.Ct. 1690, an ineffective assistance of counsel claim is not waived by a defendant’s failure to raise the issue on direct appeal. There is little reason to require a defendant to hastily develop an ineffective assistance claim on direct appeal. Here, where DiMattina had retained new counsel for his appeal and was primed to use the same evidence asserted on his Rule 33 motion for his section 2255 motion, the Court of Appeals selected an expedited course of action, staying the appeal while remanding the case for consideration of a section 2255 motion. This has permitted consideration of two issues that might — if this court ruled in Defendant’s favor on the section 2255 motion — have obviated the need for a direct appeal and limited the possibility of an unwarranted long incarceration of Defendant while an appeal was pending. DiMattina’s failure to achieve collateral relief notwithstanding, his efforts, see Part IV, infra, underscore an array of complications that should be examined whenever considering ordering a decision on a section 2255 motion before resolution of the direct appeal. Some of these issues were recognized by the Court of Appeals two years ago in United States v. Vilar, 645 F.3d 543 (2d Cir.2011). In rejecting an appellant’s request to stay his criminal appeal pending pursuit of a section 2255 motion, it observed that: Absent a showing that the habeas application is much more promising [than a direct appeal], judicial economy would seem to favor pursuing the direct appeal first. Direct appeals are generally less time consuming and expensive than habeas application because they involved a fixed record and simpler procedures and standards of review. Moreover, successful habeas applications often result in new trials, while successful direct appeals often do not. And unsuccessful habeas applications often lead to appeals to the circuit court, necessitating another round of briefing.... While ... consolidation [of a direct appeal and appeal from a denial of a habeas application] would reduce the number of appellate adjudications, few if any judicial resources would be conserved. The consolidated appeals would entail different standards, different records, and separate analyses. And simultaneous adjudication of interrelated issues using different standards and different records would increase the complexity of the consolidated appeal. Thus, there is little reason to believe that a consolidated appeal would save significant time or energy compared to two separate appeals. Id. at 548. Aside from matters of judicial economy, fairness to the defendant must be taken into account. A multitude of difficult strategic choices will confront the moving section 2255 party when litigating a collateral attack prior to a decision on a direct appeal, not the least of which is the Antiterrorism an