227 F.3d 1014 (7th Cir. 2000)
Isiah Kitchen, Petitioner-Appellant,v.United States of America, Respondent-Appellee.
No. 97-3808
In the  United States Court of Appeals  For the Seventh Circuit
Argued December 10, 1999Decided September 14, 2000

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.  Nos. 96 C 6932 (89 CR 908)--Allen Sharp, Judge.[Copyrighted Material Omitted]
Before Cudahy, Easterbrook and Rovner, Circuit Judges.
Cudahy, Circuit Judge.


1
Isiah Kitchen appeals the  district court's denial of his motion under 28  U.S.C. sec. 2255. We have already detailed the  facts underlying Kitchen's arrest and conviction  in our decision on his direct appeal, see United  States v. Kitchen, 57 F.3d 516 (7th Cir. 1995),  but a very brief refresher is in order. Kitchen  was associated with the El Rukn street gang, and  in March of 1989 undercover agents posing as drug  dealers arrested Kitchen during the course of a  staged cocaine sale. Later that same day, agents  recovered two firearms from the house that  Kitchen shared with his girlfriend, Mary  Williams. Kitchen was charged with both drug and  firearm offenses, and on December 10, 1992, a  federal jury convicted him of possession of  cocaine with intent to distribute in violation of  21 U.S.C. sec. 841(a)(1) and of being a felon in  possession of a firearm in violation of 18 U.S.C.  sec. 922(g)(1). The district court sentenced  Kitchen to a total of 15 years imprisonment.  Kitchen filed a timely notice of appeal from his  conviction and sentence on April 1, 1993. On  direct appeal, this court affirmed the firearm  conviction but found the evidence insufficient to  sustain the cocaine charge. See Kitchen, supra.  Kitchen's sentence was not changed, and he  remains incarcerated.


2
The events relevant to this appeal, however,  took place between his conviction in the district  court and our decision of his direct appeal. On  February 22, 1994, while his direct appeal was  pending, Kitchen filed a motion for a new trial  on the basis of newly discovered evidence under  Rule 33 of the Federal Rules of Criminal  Procedure in the district court. In that motion,  he pointed to two pieces of newly discovered  evidence that he argued entitled him to a new  trial. First, he claimed to have new information  regarding one of the government's trial  witnesses. Second, Kitchen alleged that he had  discovered evidence that revealed a scheme by the  government to prevent Mary Williams (Kitchen's  girlfriend) from testifying at trial. The  briefing in Kitchen's direct appeal was stayed  for almost a year, allowing the district court to  decide Kitchen's Rule 33 motion, which it denied  on July 25, 1994. Kitchen wanted to appeal that  denial, but his counsel (who represented him both  at trial and on direct appeal) inadvertently  failed to file a notice of appeal, thus  precluding our review of the denial of Kitchen's  motion for a new trial. On June 7, 1995, as  noted, we decided Kitchen's appeal of his  conviction and sentence, but without  consideration of the Rule 33 motion.


3
On October 23, 1996, Kitchen filed the present  motion under 28 U.S.C. sec. 2255 in the district  court. In his motion, Kitchen argued that he had  been denied his right to effective assistance of  counsel when his trial/appellate counsel failed  to file a notice of appeal from the July 25, 1994  denial of his motion for a new trial. The  district court denied Kitchen's sec. 2255 motion.  That court assumed that Kitchen had a right to  counsel for the motion for a new trial but  concluded that Kitchen failed to establish that  he had been prejudiced by his counsel's failure  to file a notice of appeal. This court granted  Kitchen a certificate of appealability on the  following issue:


4
Whether petitioner was denied effective  assistance of counsel due to his attorney's  admitted failure "through inadvertence" to file  a notice of appeal from the district court's  denial of [a post-trial, as opposed to a post-  appeal] motion for a new trial.


5
Kitchen v. United States, No. 97-3808 (7th Cir.,  Nov. 25, 1998) (order granting certificate of  appealability) (citation omitted). Kitchen  initially filed a pro se brief, and the  government responded, but on June 30, 1999,  counsel (Howard Eisenberg, dean and professor of  law at Marquette University Law School) was  appointed for Kitchen. Both sides rebriefed the  case, and we proceeded to oral argument.


6
We review de novo the district court's denial  of Kitchen's motion under 28 U.S.C. sec. 2255.  See Lanier v. United States, 205 F.3d 958, 962  (7th Cir. 2000). Deciding whether Kitchen was  denied effective assistance of counsel due to his  attorney's failure to file a notice of appeal  from the denial of his Rule 33 motion requires us  to resolve three subsidiary issues: (1) whether  Kitchen had a right to counsel for his pre-appeal  motion for a new trial; (2) whether counsel's  failure to file a notice of appeal was deficient  performance; and (3) whether Kitchen is entitled  to a presumption of prejudice, or, if he is not,  whether he has shown prejudice. As explained in  detail below, we hold that Kitchen had a right to  counsel for his post-trial but pre-appeal Rule 33  motion. Counsel's failure to file a notice of  appeal was clearly deficient performance, but,  ultimately, Kitchen's ineffective assistance  claim fails because he is not entitled to a  presumption of prejudice and cannot demonstrate  actual prejudice from the forfeited appeal.

I.  Right to Counsel

7
Our initial inquiry in this case must be  whether Kitchen had a right to counsel for his  pre-appeal motion for a new trial because  "[w]here there is no constitutional right to  counsel there can be no deprivation of effective  assistance." Coleman v. Thompson, 501 U.S. 722,  752 (1991). See also Wainwright v. Torna, 455  U.S. 586, 587-88 (1982).1 The Supreme Court has  established that a defendant's right to counsel  attaches "at or after the time that judicial  proceedings have been initiated against him,"  Kirby v. Illinois, 406 U.S. 682, 688 (1972), and  once a defendant's right to counsel attaches, the  right continues to apply "at every stage of a  criminal proceeding where substantial rights of  a criminal accused may be affected." Mempa v.  Rhay, 389 U.S. 128, 134 (1967). It is equally  well established that a criminal defendant enjoys  this right to counsel through his first appeal of  right, see Evitts v. Lucey, 469 U.S. 387, 396  (1985); Ross v. Moffit, 417 U.S. 600, 607 (1974),  but that, once the direct appeal has been  decided, the right to counsel no longer applies,  see Finley v. Pennsylvania, 481 U.S. 551, 557  (1987). See also United States v. Gramley, 915  F.2d 1128, 1137 (7th Cir. 1990) ("Our cases  establish that the right to appointed counsel  extends to the first appeal of right, and no  further.").


8
The timing of Kitchen's motion for a new trial  is an important factor supporting his right to  counsel in prosecuting the motion and in an  appeal from an adverse determination in the  district court. His Rule 33 motion came well  after the initiation of criminal proceedings  (when his right to counsel attached, see Kirby,  406 U.S. at 689) and well before the decision of  his direct appeal (when his right to counsel  terminated, see Finley, 481 U.S. at 557). In  addition, under governing principles, the nature  of a motion for a new trial supports Kitchen's  right to counsel in a Rule 33 proceeding, a  defendant "must face an adversary proceeding  that--like a trial--is governed by intricate  rules that to a layperson would be hopelessly  forbidding. An unrepresented [defendant]--like an  unrepresented defendant at trial--is unable to  protect the vital interests at stake." Evitts,  469 U.S. at 396 (although referring specifically  to a direct appeal). Kitchen could not have  presented his new evidence for the first time in  his direct appeal without having first fully  pursued his Rule 33 motion. See United States v.  Higham, 98 F.3d 285, 293 (7th Cir. 1996). The  outcome of Kitchen's motion for a new trial  (including the outcome of an appeal from an  adverse judgment) could have had a substantial  impact on the course of his criminal proceedings.  It would not have, under any circumstances,  entitled him to release, but were the motion to  be granted, Kitchen would have received a second  trial and an opportunity to present a  (presumably) enhanced defense.


9
The government, however, argues that Kitchen had  no right to counsel for his post-trial but pre-  appeal motion for a new trial by pointing to  several courts of appeals that have held, quite  explicitly, that there is no right to counsel in  Rule 33 proceedings. United States v. Tajeddini, 945 F.2d 458 (1st Cir. 1991); United States v.  Lee, 513 F.2d 423 (D.C. Cir. 1975); United States  v. Birrell, 482 F.2d 890 (2d Cir. 1973). By  relying on these cases, the government overlooks  the fact that Tajeddini, Lee and Birrell  addressed only Rule 33 motions that were decided  after the decisions in the respective defendants'  direct appeals. See Tajeddini, 945 F.2d at 460;  Lee, 513 F.2d at 424; Birrell, 482 F.2d at 891-  92. As noted, timing is critical in the present  issue, and because the Rule 33 motions in the  cited cases from other circuits were filed and  decided after the first appeal of right, they  were characterized as collateral attacks, and it  is well established that there is no  constitutional right to counsel in collateral  proceedings. See, e.g., Finley, 481 U.S. at 557.


10
However, it is wide of the mark to label a pre-  appeal motion for a new trial as a "collateral  attack." We have noted the converse proposition  that "[w]hen made following the outcome of a  direct appeal, a Rule 33 motion plainly is  'collateral' in the usual sense of that term."  United States v. Woods, 169 F.3d 1077, 1078 (7th  Cir. 1999). See also United States v. Evans, 224 F.3d 670, 673, (7th Cir.2000) ("[A]ny motion filed after the  expiration of the time for direct appeal, and  invoking grounds mentioned in [sec. 2255(1)], is  a collateral attack for purposes of [sec.  2255(8)]."). Here, however, Kitchen's direct  appeal had not yet been decided, so his motion  for a new trial clearly did not "follow[ ] the  outcome of [his] direct appeal."2 Instead we  can say that his motion for a new trial was in  aid of the appeal of the conviction and sentence.  The conclusion that Kitchen's motion for a new  trial was not a collateral attack is further  supported by the procedural consideration that,  had Kitchen's counsel filed a notice of appeal  from the denial of the motion, the Rule 33 appeal  could have been consolidated with Kitchen's  direct appeal. See United States v. Ellison, 557  F.2d 128, 132 (7th Cir. 1977). It would make no  sense to label a pre-direct appeal Rule 33 motion  as a "collateral attack" on the conviction, when  the appeal from such a proceeding could be  consolidated with the direct appeal of the  conviction. A properly denominated collateral  attack on a defendant's conviction--like a sec.  2255 motion--could never be consolidated with the  direct appeal, and is not even part of the  criminal proceeding itself. See Finley, 481 U.S.  at 556-57; Fay v. Noia, 372 U.S. 391, 423-24  (1963). Therefore, because Kitchen's motion for  a new trial was decided before our decision in  his direct appeal, it may not be deemed a  "collateral attack" on his conviction, and  Kitchen had a right to counsel in prosecuting  such a motion and in taking an appeal from its  denial.

II.  Counsel's Performance

11
Having determined that Kitchen had a right to  counsel, we must now determine whether his right  to effective assistance of counsel has been  violated. In order to prevail on an ineffective  assistance claim based on his counsel's failure  to file a notice of appeal, Kitchen must satisfy  the familiar test of Strickland v. Washington,  466 U.S. 668 (1984). See Roe v. Flores-Ortega,  120 S. Ct. 1029, 1034 (2000). Under Strickland,  Kitchen must first demonstrate that his counsel's  performance was deficient. See 466 U.S. at 687.  An attorney's performance is deficient if, under  the circumstances, it was unreasonable under  prevailing professional norms. See id. at 688.  The government argues that Kitchen cannot show  deficient performance because Kitchen's counsel  was partially successful on the direct appeal.  The government explains


12
In a narrow sense, reasonable counsel should file  a notice of appeal from an order denying a new  trial when requested to do so by the defendant.  In a broader sense, however, failing to pursue  one issue so strongly destined to fail, in light  of counsel's otherwise fine performance, is not  constitutionally unacceptable.


13
2d Gov. Br. at 17. While we think it sensible to  view Kitchen's appeal as a whole, we are not  entirely persuaded by the government's reasoning.  The government is correct that, as a general  matter, failing to pursue a particular issue is  not necessarily deficient performance, for there  is "[n]o particular set of detailed rules for  counsel's conduct" Strickland, 466 U.S. at 688.  But we must consider, along with all the other  circumstances, the reason or reasons why an  attorney takes (or fails to take) a particular  action, see id. at 690. Although "strategic  choices made after thorough investigation of the  law and facts relevant to plausible options are  virtually unchallengeable," Strickland, 466 U.S.  at 690, counsel's failure to file a notice of  appeal here was not the product of any such  strategic decision. Counsel has freely admitted  that he failed to file a notice of appeal through  "inadvertence." Forgetting to file a notice of  appeal is far from a reasonable strategy and  clearly falls "outside the wide range of  professionally competent assistance." Strickland,  466 U.S. at 690. Therefore, we reject the  government's argument on this point counsel's  performance was deficient.

III.  Prejudice

14
Merely demonstrating deficient performance,  however, is not enough to succeed on an  ineffective assistance claim. Under Strickland,  Kitchen must also show that he was prejudiced by  his counsel's deficient performance. See 466 U.S.  at 687. Kitchen first argues that his counsel's  failure to file a notice of appeal from the  denial of the Rule 33 motion is per se  constitutionally ineffective representation that  requires no showing of prejudice by way of a  likelihood of success on appeal. Prejudice,  however, can be presumed only in the most  egregious cases of ineffective assistance--those  where "[p]rejudice . . . is so likely that case-  by-case inquiry into prejudice is not worth the  cost," id. at 692--and "[a]ctual or constructive  denial of the assistance of counsel altogether is  legally presumed to result in prejudice." Id. See  also Penson v. Ohio, 488 U.S. 75, 88 (1988);  United States v. Cronic, 466 U.S. 648, 659  (1984). The Supreme Court recently held, in a  case in which defense counsel failed to file a  notice of appeal for direct review of a  conviction, that "when counsel's constitutionally  deficient performance deprives a defendant of an  appeal that he otherwise would have taken, the  defendant has made out a successful ineffective  assistance of counsel claim," Flores-Ortega, 120  S. Ct. at 1039, and need not demonstrate "the  merits of his underlying claims," id. at 1038.  Prior to Flores-Ortega, we had ruled similarly in  Castellanos v. United States, 26 F.3d 717, 720  (7th Cir. 1994) (holding, in a case in which it  was undisputed that the defendant requested that  his attorney file a direct appeal, that "[a]  defendant is entitled on direct appeal to legal  aid . . . and he need not make a preliminary  showing of 'prejudice' . . . .").


15
Kitchen argues that he need not show a  likelihood of success on appeal because this case  is analogous to cases like Castellanos and  Flores-Ortega. Although it is a close question,  we must ultimately reject this argument. For in  those cases in which the Supreme Court, as well  as this and other circuits, have presumed  prejudice from the failure to file a notice of appeal, defendants have had no assistance of  counsel for any issues. See Flores-Ortega, 120 S.  Ct. at 1033; Castellanos, 26 F.3d at 718. See  also, e.g., Ludwig v. United States, 162 F.3d  456, 459 (6th Cir. 1998); Morales v. United  States, 143 F.3d 94, 97 (2d Cir. 1998). Cf.  Penson, 488 U.S. at 78-79 (defense counsel  withdrew prior to appeal). Therefore, a  presumption of prejudice has arisen when the  defendant was hampered by "the complete denial of  counsel," Flores-Ortega, 120 S. Ct. at 1038  (emphasis added), meaning that "the defendant  never receive[d] the benefit of a lawyer's  services in constructing potential appellate  arguments," Castellanos, 26 F.3d at 718 (emphasis  added). When "[n]o one has looked at the record  with an advocate's eye," id., possible arguments  on appeal are not even identified by an attorney,  and it would be difficult for a court to evaluate  the likelihood of success on appeal when the  potential issues on that appeal were never  identified. Cf. Castellanos, 26 F.3d at 718  (noting that although judges can  "conscientiously" try "to imagine what a lawyer  might have done, an advocate often finds things  that an umpire misses.").


16
Here, however, we need not employ our  imaginations to determine what appealable issues  were present in Kitchen's case. His counsel filed  a timely notice of appeal from Kitchen's  conviction and sentence and argued several issues  before this court on direct appeal--some with  success. Thus, one cannot characterize such a  situation as one in which Kitchen was "abandoned"  by his attorney or the denial of counsel on  appeal was "complete." His attorney's deficient  performance did not "deprive[ ] [Kitchen] of the  appellate proceeding altogether." Flores-Ortega,  120 S. Ct. at 1038. Rather, Kitchen's counsel,  through his deficient performance, foreclosed our  review of one issue-- whether Kitchen was  entitled to a new trial on the basis of newly  discovered evidence. This is unlike the situation  in which the possible issues on appeal have not  even been identified by an advocate, and  prejudice must be presumed. See, e.g., Penson,  488 U.S. at 88. Here, the abandoned issue has  been clearly defined, and no reason has been  offered why any prejudice resulting from its  abandonment may not be reliably determined.


17
We believe that Kitchen's situation most closely  resembles one in which his counsel has failed to  preserve a particular issue for appellate  review.3 Our most recent decision addressing  the omission of one issue from an appeal is Mason  v. Hanks, 97 F.3d 887 (7th Cir. 1996). Under  Mason, a defendant must demonstrate prejudice by  showing that the "omitted issue 'may have  resulted in a reversal of the conviction, or an  order for a new trial,'" 97 F.3d at 893 (quoting  Gray v. Greer, 800 F.2d 644, 646 (7th Cir.  1986)), and only if the defendant makes that  showing, will we deem the lack of effective  assistance prejudicial, see id. Thus, to  determine whether Kitchen was prejudiced by his  counsel's deficient performance we must look at  the possible merits of the appeal from Kitchen's  denied Rule 33 motion.4 If there was merit to  Kitchen's Rule 33 motion, his appeal from its  denial would probably have been successful and  Kitchen has demonstrated prejudice. If, however,  his appeal would not likely have resulted in  reversal, Kitchen has not demonstrated prejudice,  and his ineffective assistance claim fails.  Kitchen presented two pieces of newly-discovered  evidence that he argues entitled him to a new  trial. We address each in turn.


18
In his Rule 33 motion, Kitchen first claimed to  have new evidence regarding Lawrence Griffin, who  testified for the government at trial about the  staged cocaine purchase. (Kitchen does not press  this portion of the motion on appeal, but, for  the sake of completeness, we briefly discuss it.)  This piece of claimed new evidence concerned  Griffin's receipt of allegedly unauthorized  payments that constituted undisclosed benefits  from the government. Apparently, the government  had been paying Griffin fees for "decoding"  various taped conversations and only completely  disclosed this fact on the last day of the  trial.5 This certainly would have been useful  for impeachment of Griffin's testimony by tending  to show bias,6 but we have clearly stated that  "impeachment evidence cannot provide the basis  for a new trial." United States v. Austin, 103  F.3d 606, 609 (7th Cir. 1997). See also United  States v. Young, 20 F.3d 758 (7th Cir. 1994).  Accordingly, the new evidence about Griffin would  not have entitled Kitchen to a new trial, and had  Kitchen argued this issue, his argument would  have failed for lack of demonstrated prejudice.


19
Kitchen's argument to us focuses exclusively on  the second piece of newly-discovered evidence  that he raised in his Rule 33 motion. Kitchen  claims to have uncovered evidence that the  government intimidated one of his potential  witnesses, Mary Williams, who, on this account,  did not testify. Had Ms. Williams testified, she  would have explained that the guns that formed  the basis of Kitchen's sec. 922(g) conviction  were hers and her cousin's, not Kitchen's. The  intimidation of Ms. Williams, claims Kitchen,  involves a second search of her home and her  arrest in 1992, that was, allegedly, engineered  by Assistant U.S. Attorney Hogan (Kitchen's  prosecutor). Another factor was Hogan's decision  to ask her incriminating questions if she took  the stand. Williams did not testify at trial, and  in an affidavit submitted by Kitchen with his  sec. 2255 motion, she claims that:


20
Mr. Hogan cautioned me against testifying for  Isiah Kitchen. In addition, the agents who  searched my home on October 5, 1989 made what I  considered were threats against my home, car,  possessions, and, most importantly, children. The  agents had indicated to me that if I did not  cooperate with them (and I took that to mean if  I did not say the guns belonged to Mr. Kitchen)  I would be harmed by them, harmed in the sense  that they would attempt to take my home and  children away from me.


21
Williams's Aff. para. 21. Of course, a prosecutor  may properly "caution" a defense witness about  the risks of testifying--e.g., the danger of  self-incrimination--but the prosecution cannot  "interfere[ ] with a defense witness' free and  unhampered choice to testify." United States v.  Jackson, 935 F.2d 832, 846 (7th Cir. 1991). Thus,  "[w]here . . . the substance of what the prosecutor communicates to a witness is 'a threat  over and above what the record indicate[s] was  timely, necessary, and appropriate,' the  inference that the prosecutor sought to coerce a  witness into silence is strong." Id. at 847  (quoting United States v. Simmons, 670 F.2d 365,  369 (D.C. Cir. 1982). But, Kitchen's claim of  witness coercion falters because he cannot show  that these alleged threats by Hogan or by other  government agents had any effect on Ms.  Williams's willingness to testify. See United  States v. Hooks, 848 F.2d 785, 802 (7th Cir.  1988) (rejecting witness coercion claim, in part  because "[w]e have found no government  interference with the defense witnesses' choice  not to testify"); United States v. Viera, 839  F.2d 1113, 1115 (5th Cir. 1988) (en banc)  (rejecting witness coercion claim because "[n]o  showing had been made that a prospective witness  was intimidated or that he refused to testify");  United States v. Blackwell, 694 F.2d 1325, 1343  (D.C. Cir. 1982) ("Where, as here, the witness  herself never refuses to testify, the nexus  between the error and the loss of her testimony  to the defendant is inevitably attenuated . . .  .").


22
Far from demonstrating that she was intimidated  by the alleged scheme orchestrated by the  government, Ms. Williams's affidavit shows that  she was totally unfazed. We have, at most,  allegations of a failed attempt to coerce a  witness. In her affidavit, Williams explains that  Kitchen's counsel attempted to reach an  "understanding" with the court and the government  that no punitive action would be taken against  her.7 She further explains that "[a]lthough no  understanding was reached, I still wanted to get  on the stand and tell the truth about the  ownership of the guns." Williams's Aff. para. 23.  Thus, it is quite apparent from Ms. Williams's  affidavit that she was ready, willing and able to  testify despite the alleged threats. See also id.  para. 23 ("When the time for Mr. Kitchen's trial  arrived, I wanted to testify on his behalf.");  id. para. 25 ("If I ever had the opportunity to  take the stand regarding the issue of ownership  and possession of the guns . . . I would testify  . . . ."). The alleged conduct of the government  actors may have been egregiously inappropriate  (accepting, of course, Williams's allegations),  but in the face of her clear statements that it  had no effect on her willingness to testify, the  alleged behavior (even if true) cannot be the  basis of a witness coercion claim. We need  evidence not only that there was an attempt to  coerce a witness but also that the attempted  coercion actually influenced the witness's  decision to testify or not to testify. On the  basis of the allegations, Kitchen asks us to  "infer" that Williams was coerced and to remand  the issue for a hearing. We will not do this  because Ms. Williams's own affidavit flat out  refutes Kitchen's desired inference that she was  dissuaded from testifying.


23
Then why did Ms. Williams not take the stand  during Kitchen's trial? Simply put, because the  defense decided not to call her as a witness.  Kitchen's brief explains:


24
As a result of [the 1992] search, Williams was  charged in the state court with several offenses.  Defense counsel wanted to call Ms. Williams to  testify that she had these weapons in her home in  1992 to show that, unrelated to Petitioner, she  regularly kept weapons in her home.8 The U.S.  Attorney responded by saying that if Williams  testified about the 1992 weapons, he would cross  examine her about whether she was selling drugs  with [Kitchen] in 1989.


25
Originally defense counsel was concerned that  questioning Williams would raise Fifth Amendment  problems as to her pending 1992 state court  charges. After the prosecutor mentioned the  possibility of cross examining Williams about  events that occurred in 1989, Judge Sharp and the  U.S. Attorney began discussing possible Fifth  Amendment issues relating to acts that occurred  in 1989. Defense counsel then decided not to call  Williams because of problems she might face on  her Fifth Amendment privilege.


26
Appellant's Br. at 19-20 (citations and  quotations omitted) (emphasis and footnote  added). The defense counsel deciding not to call  Williams because she ran the risk of  incriminating herself (or asserting her Fifth  Amendment right not to testify) on either direct  or cross-examination is a far cry from Williams's  refusing to testify because she had been  intimidated by the government. And surely Mr.  Hogan should properly have been free to cross-  examine Ms. Williams regarding her activities  with Kitchen in 1989. It bears repeating that  Williams, despite the risk of self-incrimination,  "still wanted to get on the stand and tell the  truth about the ownership of the guns" at the  trial. Williams's Aff. para. 23. In her  affidavit, Williams states that "[i]t had always  been my understanding that I was not called to  the stand because of Mr. Kitchen's concern for my  own welfare." Williams's Aff. para. 24. He  possibly did Williams a great service by keeping  her off the stand, but Kitchen cannot now excuse  his decision not to call Williams by alleging  that she was coerced. Accordingly, Kitchen's  witness coercion argument fails.


27
In sum, Kitchen had a right to counsel in the  appeal from his motion for a new trial, which was  denied by the district court before our decision  in his direct appeal. Counsel's failure to file  a notice of appeal from the district court's  denial of the Rule 33 motion was deficient  performance. However, Kitchen was not entitled to  a presumption of prejudice, and his ineffective  assistance of counsel motion ultimately fails  because he cannot show that his counsel's failure  to appeal prejudiced him. Therefore, we Affirm the  district court's denial of Kitchen's sec. 2255  motion.



Notes:


1
 We note for the sake of completeness that this  circuit has confronted this factual situation  before in Perez v. United States, 124 F.3d 204,  1997 WL 534459 (7th Cir. Aug. 25, 1997)  (unpublished order). In that case, Perez filed a  sec. 2255 motion arguing that he had been denied  his right to effective assistance of counsel when  his attorney failed to file a notice of appeal  from the denial of his Rule 33 motion. Just as in  the present case, Perez's counsel had already  timely filed a notice of appeal from Perez's  conviction and sentence and that appeal had yet  to be argued. In Perez, the panel addressed the  merits of Perez's ineffective assistance claim--  rejecting it because he failed to show prejudice-  -and thereby implicitly concluded that Perez did  have a right to counsel in the Rule 33  proceedings. However, both because Perez is  unpublished and because it contains no analysis  of the right to counsel issue, we do not rely on  it here.


2
 The Supreme Court has also used the decision of  the direct appeal as the temporal boundary that  defines a collateral attack for which a defendant  has no right to counsel. In Finley v.  Pennsylvania, the Court stated that a motion for  postconviction relief is a "collateral attack  that normally occurs only after the defendant has  failed to secure relief through direct review of  his conviction."  481 U.S 551, 557 (1987).


3
 This analogy is bolstered by the fact that had  his counsel filed a timely notice of appeal from  the denial of his motion for a new trial, that  appeal would have been consolidated with  Kitchen's direct appeal. See United States v.  Ellison, 557 F.2d 128, 132 (7th Cir. 1977). We  also note that our previous analysis of counsel's  performance jibes with the performance analysis  used when counsel fails to appeal a particular  issue: "when appellate counsel omits (without  legitimate strategic purpose) 'a significant and  obvious issue,' we will deem his performance  deficient." Mason v. Hanks, 97 F.3d 887, 893 (7th  Cir. 1996) (quoting Gray v. Greer, 800 F.2d 644,  646 (7th Cir. 1986)).


4
 Because we must consider the hypothetical appeal,  we must keep in mind that we review the district  court's denial of a motion for a new trial under  Rule 33 for abuse of discretion only. See United  States v. Austin, 103 F.3d 606, 608 (7th Cir.  1997).


5
 The government had already disclosed that Griffin  had been paid fees for "decoding," but on the  last day of trial added (1) that someone in the  United States Attorney's office had recently had  a conversation with a paralegal in which the  paralegal admitted arranging for Griffin to  receive fees in prior months when, in fact,  Griffin had not been working on tapes and (2)  that Griffin and another government paralegal had  a drink together while waiting for lunch one day.


6
 At a hearing outside of the jury's presence,  Kitchen's attorney was given the opportunity to  voir dire Griffin about the additional  information. The district court then denied the  defense request to reopen testimony and recall  Griffin for further cross-examination in front of  the jury. See United States v. Kitchen, 832 F.  Supp. 217, 220 (N.D. Ill. 1993).


7
 Presumably, this "understanding" was some sort of  immunity.


8
 The fact that defense counsel wanted to call Ms.  Williams to testify that she had these weapons in  her home in 1992 undermines Kitchen's intimation  that the 1992 search and arrest were part of the  scheme to coerce Williams. As the district court  noted, "[i]t is difficult for this court to  ascribe prosecutorial misconduct where the events  allegedly engineered inured to the benefit of the  defense." United States v. Kitchen, 858 F. Supp.  782, 792 (N.D. Ill. 1994).


