(Rendell, Fuentes, Greenaway, C.J.s)
In Gov’t of V.I. v Vanterpool, No. 13-4400, 2014 WL 4473960, Vanterpool raised First Amendment challenges (facially vague, as applied, and overbreadth) to his convictions for harassment by telephone and written communication. His attorney did not raise any First Amendment challenge to a statute that criminalizes “writing in a manner likely to harass or alarm.” The Court determined if the statute was unconstitutional, the District Court would have committed error in applying it, but it would only be reversible under plain error. The Court had never ruled on whether a constitutional challenge can survive plain error review but found other Circuit cases “persuasive” that when a constitutional question is far from being “clear under current law,” it cannot survive plain error. (However, the Court would not rule out that a constitutional challenge could ever win under plain error review). Nonetheless, here, the Court took the rare step of remanding the case for an evidentiary hearing on an ineffective assistance of counsel (IAC) claim while on direct appeal. The Court explained it would remand the case because 28 U.S.C. §2255 would not be available for a defendant who was not in custody and had fully discharged his term of probation. Thus, inability to seek habeas relief constitutes grounds to review ineffectiveness claims on direct appeal. The Court examined the statute and concluded it swept up a wide variety of expressive speech and that the letters at issue in the case fell within that category. Thus, if the attorney had raised a constitutional challenge, the statute likely would have been found unconstitutional, satisfying the prejudice prong of IAC. The Court remanded for a hearing on the performance prong, to determine if a failure to challenge the statute was ignorance of the law or failure to perform basic research, rather than strategy.