`United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`
`Decided August 2, 2019
`
`Argued November 19, 2018
`
`
`No. 18-3003
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`MIR ISLAM,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:15-cr-00067-1)
`
`
`Jonathan Zucker, appointed by the court, argued the cause
`and filed the briefs for appellant.
`
`
`Peter S. Smith, Assistant U.S. Attorney, argued the cause
`for appellee. With him on the brief were Jessie K. Liu, U.S.
`Attorney, and Elizabeth Trosman, John P. Mannarino, and
`Jonathan P. Hooks, Assistant U.S. Attorneys.
`
`
`Before: KATSAS, Circuit Judge, and SILBERMAN and
`WILLIAMS, Senior Circuit Judges.
`
`
`Opinion for the Court filed by Circuit Judge KATSAS.
`
`
`
`
`
`
`
`2
`KATSAS, Circuit Judge: This appeal addresses the legal
`consequences of a criminal defendant’s failure to object to a
`magistrate judge’s adverse report and recommendation. We
`also consider claims that defense counsel provided ineffective
`assistance during proceedings to revoke a term of supervised
`release.
`
`I
`
`Mir Islam received two federal sentences for various
`offenses. In the Southern District of New York, Islam pleaded
`guilty to crimes involving credit-card fraud, identity theft, and
`computer hacking. An SDNY judge sentenced him to one day
`of imprisonment followed by three years of supervised release.
`In the District of Columbia, Islam pleaded guilty to crimes
`involving the theft and online publication of personal
`information, conveying false information about the use of
`explosives, and cyber-stalking. A DDC judge sentenced him
`to two years of imprisonment followed by three years of
`supervised release. The respective terms of supervised release
`were subject to substantially similar conditions.
`
`After Islam served both prison sentences, he began
`concurrently serving the terms of supervised release. Because
`Islam was living in New York, the SDNY probation office
`conducted supervision for both courts.
`
`On January 18, 2017, Islam was arrested in New York for
`violating the conditions of his supervised release. On January
`19, the SDNY probation office filed with the SDNY a petition
`to revoke the supervised release. On April 11, the SDNY
`judge revoked Islam’s original term of supervised release and
`imposed two years of imprisonment followed by one year of
`supervised release subject to the same conditions previously
`imposed. She recommended that the imprisonment and
`supervised
`release
`run concurrently with any
`further
`
`
`
`
`
`3
`punishment that the DDC judge might impose. With credit for
`time served, Islam was released from SDNY custody on
`August 17, 2017.
`
`In the meantime, the DDC probation office filed its own
`petition to revoke with the DDC. On February 1, 2017, the
`DDC judge issued a warrant for Islam’s arrest, which was
`lodged as a detainer to be executed upon Islam’s release from
`SDNY custody. On August 14, Islam moved to dismiss the
`detainer and to transfer the DDC case to the SDNY. On the
`same day, the DDC judge denied the motion in a minute order.
`Upon his release from SDNY custody, Islam was held under
`the detainer and then transferred to the District of Columbia.
`On September 6, Islam arrived in the District, was arrested
`under the warrant, and appeared before a magistrate judge
`assigned to his case.
`
`The magistrate judge scheduled a revocation hearing for
`September 15, but Islam sought and received two continuances.
`On October 27, Islam moved to dismiss the petition for
`revocation. Among other things, he argued that the delay
`between his arrest in New York and revocation proceedings in
`the DDC violated both the Due Process Clause of the Fifth
`Amendment and Federal Rule of Criminal Procedure
`32.1(a)(1). Islam also sought to transfer the matter to the
`SDNY. On November 8, the magistrate judge held a hearing
`on these issues.
`
`On December 4, the magistrate judge issued a thirty-page
`report and
`recommendation
`rejecting
`Islam’s various
`arguments. The magistrate judge proposed finding that Islam
`had engaged in unauthorized travel, failed to identify
`computers and other electronic devices to which he had access,
`failed to allow monitoring of those devices, failed to attend
`mental-health counseling, and failed to provide requested
`
`
`
`
`
`4
`financial information—all in violation of his supervised-
`release conditions. The magistrate judge recommended that
`the district court impose four months of imprisonment. She
`recommended no further supervision because the SDNY
`probation office would be supervising compliance with the
`conditions imposed in the SDNY, which were “nearly
`identical” to those imposed in the DDC. App. 98. The report
`and recommendation stated that “any party who objects to the
`proposed findings or recommendations herein must file written
`objections within fourteen days” of service. App. 99. It
`further warned that the parties “may waive their right of appeal
`from an order of the District Court adopting such findings and
`recommendations” if they “fail to file timely objections.” Id.
`Islam did not file any objections.
`
`The district court held a revocation hearing on December
`19, 2017. At the outset, the court asked the parties if they
`objected to the report and recommendation. Through counsel,
`Islam replied that he did not. Still, the court went over each
`violation and confirmed that Islam had no objections. The
`court adopted the proposed findings that Islam had violated his
`supervised-release conditions
`in five different respects,
`revoked his supervised release, and imposed nine months of
`imprisonment followed by 24 months of supervised release.
`The court rejected the magistrate judge’s recommendation of a
`four-month prison term with no further supervised release, as
`well as the SDNY judge’s recommendation of a concurrent
`prison term. Regarding the relationship between the SDNY
`and DDC proceedings, the district court explained: “[T]his
`was a separate matter and there was a separate criminal
`proceeding here. This is a violation of the terms with respect
`to that separate criminal proceeding.” App. 110.
`
`
`
`
`
`5
`II
`
`On appeal, Islam seeks to raise the same delay argument
`that he pressed unsuccessfully before the magistrate judge.
`He contends that the lag between his January 2017 arrest and
`his December 2017 revocation hearing violated both due
`process and Rule 32.1(a)(1). The government responds that
`Islam forfeited his right to appeal the district court’s decision
`rejecting these claims by failing to object to the magistrate
`judge’s adverse recommendation. We agree.
`
`A
`
`The Federal Magistrates Act permits a district court to
`“designate a magistrate judge to conduct hearings” on various
`civil and criminal matters, 28 U.S.C. § 636(b)(1)(B), including
`petitions “to modify, revoke, or terminate supervised release,”
`18 U.S.C. § 3401(i). For such petitions, the magistrate judge
`must make “proposed findings of fact and recommendations,”
`id., as she must for all other dispositive matters referred to her,
`see 28 U.S.C. § 636(b)(1)(B); Fed. R. Crim. P. 59(b)(1); Fed.
`R. Civ. P. 72(b)(1). Within 14 days of the recommended
`disposition of a criminal case, any party “may” file objections,
`Fed. R. Crim. P. 59(b)(2), in which case the district court “must
`consider” the objection “de novo,” id. 59(b)(3). “[F]ailure to
`object in accordance with this rule waives a party’s right to
`review.” Id. 59(b)(2). Failure to object also “waives a
`party’s right to review” of any non-dispositive matter referred
`to a magistrate judge in a criminal case. Id. 59(a).
`
`The Supreme Court explained the rationale for this waiver
`rule in Thomas v. Arn, 474 U.S. 140 (1985), which held that
`the courts of appeals could make and enforce such a rule
`through their supervisory powers. See id. at 155. In this
`context as in others, contemporaneous objections help to
`“focus attention” on any genuinely contested issues. Id. at
`
`
`
`
`
`6
`147. Moreover, without the waiver rule, litigants could
`sandbag a district court “by failing to object and then
`appealing,” which would either “force the court of appeals to
`consider claims that were never reviewed by the district court,
`or force the district court to review every issue in every case.”
`Id. at 148. Many courts of appeals had adopted the waiver rule
`approved in Thomas, see id. at 146 n.4, and the Supreme Court,
`in 1983, codified it for non-dispositive matters in civil cases,
`see Fed. R. Civ. P. 72(a). After the Ninth Circuit later refused
`to apply the waiver rule to criminal cases, United States v.
`Abonce-Barrera, 257 F.3d 959, 967–69 (9th Cir. 2001), the
`Supreme Court, in 2005, codified it for criminal cases as well,
`see Fed. R. Crim. P. 59(a), (b)(2).
`
`The parties briefed this case as if Thomas still controls,
`which would require us to determine whether to adopt its
`waiver rule as an exercise of supervisory power. But as we
`have explained, Rule 59(b)(2) now governs, and it provides
`that the “[f]ailure to object” to a magistrate judge’s proposed
`findings and recommendations on any dispositive matter in a
`criminal case “waives a party’s right to review.” Because
`Islam did not timely object to the report and recommendation
`in this case, he cannot appeal the district court’s decision
`adopting it.
`
`B
`
`Because Rule 59(b)(2) is not cast in jurisdictional terms,
`the courts have discretion to excuse a waiver under the rule.
`Islam argues that the district court excused his waiver here and
`that we should do likewise. We disagree.
`
`As for the district court, Islam highlights one passing
`comment, made orally at the revocation hearing, that the court
`had reviewed and agreed with the “analysis and conclusions”
`of the magistrate judge. App. 105. That hardly constitutes a
`
`
`
`
`
`7
`decision to excuse the waiver. To the contrary, in its very next
`breath, the court “note[d] for the record as well that the parties
`have not objected to [the] report and recommendation.” Id.
`And again, the court later noted that “Mr. Islam is not at this
`point contesting [the] report and recommendation.” App. 106.
`
`In this Court, Islam presses his claims of unlawful delay
`despite failing to preserve them below. We review such
`unpreserved claims only for plain error. Puckett v. United
`States, 556 U.S. 129, 135 (2009). Here, there was no error.
`
`Islam’s due-process argument is meritless. To violate
`due process, a delay in revocation proceedings must be both
`unreasonable and prejudicial. See Sutherland v. McCall, 709
`F.2d 730, 732 (D.C. Cir. 1983). Islam complains about the
`eleven-month delay between his January 2017 arrest in New
`York and his final revocation hearing in December 2017. But
`the DDC arrest warrant was not executed until September 6,
`2017. And it is the “execution of the warrant and custody
`under that warrant” that serves as “the operative event
`triggering any loss of liberty” for purposes of due process.
`Moody v. Daggett, 429 U.S. 78, 87 (1976). So, the due-
`process clock for the DDC revocation hearing did not begin to
`run until Islam was arrested on the DDC charges in September.
`
`Islam contends that he was arrested in January 2017 for
`violating both the conditions imposed by the SDNY and those
`imposed by the DDC. He argues that the arrest was made by
`the probation officer based on probable cause that Islam
`violated both sets of conditions. But the SDNY record
`indicates that the arrest was made on a warrant issued by the
`SDNY judge for violations of the SDNY conditions. United
`States v. Islam, No. 12-cr-810 (S.D.N.Y.), ECF Docs. 36, 39,
`46. Thus, the magistrate judge permissibly found that Islam
`was not arrested on the DDC charges until September, and the
`
`
`
`
`
`8
`district court permissibly adopted the finding. Given a
`September arrest date, the December revocation hearing—
`pushed back twice by continuances requested by Islam—was
`not unreasonably delayed. See Howard v. Caufield, 765 F.3d
`1, 3, 13 (D.C. Cir. 2014) (“minor delay” of four months
`between arrest and revocation hearing was not unreasonable);
`United States v. Madden, 515 F.3d 601, 607 (6th Cir. 2008)
`(delay “caused by [the defendant’s] own conduct” is not
`unreasonable).
`
`Islam’s due-process argument also fails for lack of any
`prejudice. The only harm he alleges is losing the ability to
`seek a prison term in the DDC that would run concurrently with
`the one imposed by the SDNY. But the district court did
`consider—and expressly reject—the possibility of a concurrent
`punishment. The court explained that the SDNY and DDC
`proceedings involved separate offenses, that the totality of
`Islam’s misconduct was concerning, and that additional
`incarceration was therefore appropriate. Islam provides no
`reason to think that the district court might have assessed these
`issues differently had it imposed punishment sooner rather than
`later.
`
`Islam further argues that the delay violated Rule
`32.1(a)(1), which provides that a person arrested for violating
`conditions of supervised release must be brought before a
`magistrate judge “without unnecessary delay.” Nothing in
`that sparse text expands due-process protections in this area.
`To the contrary, the rule simply codifies these protections.
`See, e.g., United States v. Ruby, 706 F.3d 1221, 1226 (10th Cir.
`2013). Islam’s Rule 32.1 argument thus fares no better than
`his due-process argument.
`
`
`
`
`
`9
`III
`
`In the alternative, Islam seeks a remand for an evidentiary
`hearing on two claims alleging ineffective assistance of counsel
`during the revocation proceedings. Although we remand
`colorable claims of ineffective assistance, we have “never held
`that any claim of ineffective assistance of counsel …
`automatically entitles a party to an evidentiary remand.”
`United States v. Sitzmann, 893 F.3d 811, 831 (D.C. Cir. 2018)
`(per curiam) (quotation marks omitted). When the record
`“clearly shows” that the claim is meritless, or when no further
`factual development is needed, we may dispose of the claim
`without remanding. Id. at 831–32.
`
`As an initial matter, it is unclear whether Islam had any
`right to effective assistance during his revocation proceedings.
`The Sixth Amendment right to counsel does not attach to
`revocation hearings. Baker v. Sard, 486 F.2d 415, 423 (D.C.
`Cir. 1972). The Due Process Clause does attach, but it
`guarantees counsel only in rare cases; as the Supreme Court has
`explained, the participation of counsel “will probably be both
`undesirable and constitutionally unnecessary
`in most
`revocation hearings.” Gagnon v. Scarpelli, 411 U.S. 778, 790
`(1973). Islam did have a statutory right to counsel, 18 U.S.C.
`§ 3006A(a)(1)(E), but it is unclear whether that encompasses a
`right to effective assistance, see United States v. Eskridge, 445
`F.3d 930, 933 (7th Cir. 2006). Because the government is
`willing to assume that ineffective-assistance principles apply to
`this case, and that they parallel ones that govern under the Sixth
`Amendment, we do likewise.
`
`To establish ineffective assistance, a defendant must show
`both that “counsel’s performance was deficient” and that “the
`deficient performance prejudiced the defense.” Strickland v.
`Washington, 466 U.S. 668, 687
`(1984).
` Deficient
`
`
`
`
`
`10
`performance must fall “below an objective standard of
`reasonableness.” Id. at 688. Prejudice requires a “reasonable
`probability” that, but for the deficient performance, “the result
`of the proceeding would have been different.” Id. at 694.
`The failure to raise a meritless objection is not deficient
`performance. See Sitzmann, 893 F.3d at 833.
`
`Islam raises two allegations of ineffective assistance.
`First, he claims that his counsel was ineffective in failing to
`object to the magistrate judge’s recommendation to reject the
`claim of unreasonable delay. As explained above, however,
`the unreasonable-delay claim lacks merit, and the delay caused
`no prejudice. The waiver of this claim does not amount to
`ineffective assistance.
`
`Next, Islam complains that his counsel waited to file a
`transfer motion until October 2017, when
`the SDNY
`revocation proceedings were complete and
`the DDC
`proceedings were already well underway. Islam contends that
`if counsel had filed the motion in April 2017, when he first
`learned of the DDC charges, the motion likely would have been
`granted, and Islam then would have received concurrent rather
`than consecutive prison terms. But a transfer decision is left
`to the district court’s discretion, 18 U.S.C. § 3605, and there is
`no reasonable probability that the court here would have
`ordered a transfer. Again, Islam cannot show prejudice.
`
`Islam’s contrary argument focuses on the magistrate
`
`judge’s recommendation to reject the October transfer motion
`because she had already invested substantial time in the case.
`Islam overlooks the district court’s prior decision rejecting out-
`of-hand the August transfer motion, which was filed before the
`magistrate judge had begun working on the case. Islam also
`overlooks the district court’s subsequent revocation decision,
`which rejected the magistrate judge’s recommendation to cede
`
`
`
`
`
`11
`future supervision to the SDNY. Moreover, the supervised-
`release violations charged in the DDC were broader than those
`charged in the SDNY, as only the former involved financial-
`disclosure obligations. And the underlying offenses in the
`DDC, which originally produced a prison sentence of two
`years, were far more serious than those in the SDNY, which
`originally produced a prison sentence of one day. Under these
`circumstances, the likelihood of the district court’s granting an
`earlier motion to transfer would have been slim at best.
`Without any prejudice, Islam’s second ineffective-assistance
`claim fares no better than his first.
`
`Affirmed.
`
`
`
`
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