Tag Archives: ineffective assistance

‘He Should Have Called,’ Lawyer Tells 5th Circuit – Update for January 30, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘YOU HAD ONE JOB’, 5TH CIRCUIT TELLS LAWYER

A trial lawyer representing a client post-sentencing can fairly be said to only have one remaining task: To consult with the client about the advantages and disadvantages of appeal and to determine whether the client wants to file appeal papers with the court.

onejob240130Lucas Tighe, represented by Attorney Sharon Diaz, pleaded guilty in 2019 to conspiracy and firearms charges. The court sentenced him to a top-of-the-Guidelines 150 months in prison, a sentence made up of the statutory maximum of 120 months on two counts (run concurrently) and 30 months consecutive for the conspiracy charge. Luke was also charged in state court for organized criminal activity related to the same gun issues as in his federal conviction.

Two months after his federal sentence, Luke got 15 years on his state charges. He wrote to the federal court asking it to run his federal sentences concurrent with the state sentence, claiming that he was misled by counsel and that he never saw his presentence report. The district court construed the letter as a 28 USC § 2255 motion, but when Luke did not respond, the court dismissed it. About 5 months later, Luke sent another letter to the court asking about his appeal. He told the court that he was in state custody, his attorney had told him she was not able to help him anymore, and he never received a copy of the judgment or sentencing paperwork. The district court appointed counsel, who filed a 28 USC § 2255 motion claiming ineffective assistance of counsel because trial counsel failed to perfect an appeal.

Luke said that he had directed Diaz prior to sentencing to ask the judge about running his federal sentence concurrently to any forthcoming state sentence but counsel “blew me off.” Luke complained that Diaz told him that after he was sentenced,  she would visit him at the jail later that day, but she never showed.

The district court denied the § 2255 motion, but last week, the 5th Circuit reversed. “Diaz admitted that she had not advised Luke about the advantages or disadvantages of taking an appeal,” the Circuit said. She “excused her failure to directly ask Tighe before sentencing whether he wanted to appeal by saying, ‘Well, at that point, he hadn’t been sentenced yet, so — I did not ask him at that point if he wanted to appeal’.”

shouldcall240130But after sentencing, she failed to ask Luke whether he wanted to appeal, relying instead on whether he successfully reached out to her from prison. Diaz said that if Luke had contacted her and “expressed his desire to appeal, then she would have advised him of the potential advantages or disadvantages of appealing.”

Not good enough, the 5th ruled: “Counsel has a constitutionally imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. In making this determination, courts must take into account all the information counsel knew or should have known.”

Here, the Circuit found a rational defendant in Luke’s situation would have wanted to appeal, and Luke reasonably demonstrated that he was interested in appealing. Luke and Diaz were admittedly both shocked by the court’s stacked 150-month sentence. “Regardless of whether Diaz did or did not tell Tighe that he would not get a stacked sentence, she still expressed shock over it,” the 5th said. “It is reasonable to expect that Tighe would have that same reaction.”

shocked191024Also, Attorney Diaz acknowledged that Luke wanted to ask the district court to run his federal sentence concurrent with his state sentence,” but she failed to do that. “Those are all indications that Tighe would be interested in appealing. Further, Diaz excused her failure to directly ask Tighe whether he wanted to appeal because he had not yet been sentenced. Under that same reasoning, Diaz could not have properly consulted with Tighe about an appeal prior to sentencing when she gave him his notice of right to appeal because she would not yet have known the ‘advantages and disadvantages of taking an appeal’ that she is required to counsel her client on.”

In other words, you can’t fairly tell your client that a sentence should be appealed until you know what the sentence is.

“In the absence of any self-evident reason why Tighe would not have filed a direct appeal,” the 5th said, “and without any regard to the potential merits of such an appeal, we conclude that he has established prejudice…”

United States v. Tighe, Case No. 22-50332, 2024 U.S.App. LEXIS 1758 (5th Cir. January 25, 2024)

– Thomas L. Root

Bad Advice Kills ‘No-Brainer’ Plea Deal, 10th Circuit Says – Update for January 26, 2024

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SIX MINUTES OF BAD ADVICE COST DEFENDANT AN EXTRA 14 YEARS

clockwatcher190620Jonathan Kearn was indicted on three counts alleging he possessed some unsavory and illegal photos of his own children. He was looking at a 30-year sentence when the government threw him a lifeline: it offered him a Rule 11(c)(1)(C) plea deal with a fixed 10-year sentence in exchange for a guilty plea to just one of the three counts.

Most plea agreements specify that, while the government and defendant may anticipate the Sentencing Guidelines will recommend a sentence within a certain range, the court is not bound by their anticipations and may impose whatever sentence it believes is appropriate. Federal Rule of Criminal Procedure 11(c)(1)(C), however, lets the government and criminal defendants lock the court into a binary choice: the judge may either accept the plea deal, which comes with an agreement that the defendant will get a certain sentence (or occasionally, a sentence within a certain range) regardless of what the Sentencing Guidelines recommend or the judge prefers.

If the court doesn’t like the sentence specified in the 11(c)(1)(C), it can reject the deal, at which time the defendant can walk away from the agreement and go to trial. So-called (c)(1)(C) pleas are popular with defendants because they provide certainty – defendants either receive the sentence they agreed to or they can withdraw their plea.

tooasy240126Anyone familiar with the draconian sentences usually imposed in child pornography cases would see acceptance of the (c)(1)(C) offer made to Jon as a “no-brainer.” But not Jon’s lawyer. After exhaustively counseling his client about the (c)(1)(C) plea for all of six minutes, learned counsel convinced Jon to reject the offer and proceed to trial. You can guess the end: Jon was convicted on all three counts and sentenced to 24 years in prison.

Jon filed a 28 USC § 2255 post-conviction motion, arguing his lawyer was constitutionally ineffective during the plea-bargaining phase. The district court found that counsel didn’t tell Jon that if the court accepted the plea agreement, he would be guaranteed a 10-year sentence but if the court rejected the plea agreement, he could withdraw the plea. In fact, the district court found counsel failed to explain anything at all about Rule 11.

The district judge granted Jon’s § 2255 motion and let him plead to the 10-year offer. This week, the 10th Circuit upheld the decision.

Jon’s hang-up was that he did not want to stand in open court and “personally describe the facts of his offenses – which involved his daughters – before his family and friends in open court.” Under Rule 11, “[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.” This requirement is intended to ensure the accuracy of the plea through some evidence that a defendant actually committed the offense.

But Jon’s lawyer told him that he had to do that in order to accept the plea. This advice, the Court said, was absolutely wrong. “The defendant does not have to provide the factual basis narrative,” the appeals court said. Instead, “[t]he district court may look to answers provided by counsel for the defense and government, the presentence report, or… whatever means is appropriate in a specific case – so long as the factual basis is put on the record.”

dumblawyer180108Jon’s lawyer didn’t know this. The lawyer admitted that he “regularly advised his clients that they would have to admit the facts surrounding the offense… and didn’t know if Mr. Kearn would actually receive a 10-year sentence if he pleaded guilty.”

“In the plea agreement context,” the 10th ruled, “counsel has a critical obligation… to advise the client of the advantages and disadvantages of a plea agreement… Because counsel understated the benefits and overstated the burdens of the plea offer, Mr. Kearn could not make an informed choice about whether to accept it.”

The government argued that Jon could not show that his attorney’s bad advice prejudiced him because there was no evidence Jon would have taken the deal had his lawyer properly advised him. But the Court held that Jon “lacked the requisite information to weigh the options in front of him, and whatever desire he exhibited before trial is not dispositive of what he would have done if he were properly educated about the charges against him… We cannot rationally expect defendants to theorize contemporaneously about the decisions they would make if they were receiving different advice. If courts required this kind of evidence, no defendant could show prejudice.”

41475-Forever-Is-A-Long-TimeThe significant disparity between the 10-year sentence Jon was offered and the 24 years he got is very relevant to the prejudice analysis, the Court said. Jon “was not adequately informed that the district court would have been bound by the agreed-upon sentence. Thus, counsel improperly skewed his attention away from the sizeable sentencing disparity he faced in favor of the need for him to personally supply a factual basis… Sentencing disparity is strong evidence of a reasonable probability that a properly advised defendant would have accepted a plea offer, despite earlier protestations of innocence.”

United States v. Kearn, Case No. 23-3029, 2024 U.S. App. LEXIS 1471 (10th Cir. January 23, 2024)

– Thomas L. Root

Socrates Was Right About Ineffective Assistance of Counsel – Update for September 11, 2023

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COUNSEL’S INVESTIGATION IS A GOOD IDEA, 3RD CIRCUIT SAYS

Socrates is reputed to have said that “the unexamined life is not worth living.” The 3rd Circuit reminded us last week that an attorney’s unexamined defense strategy is not worth crediting.

knifegunB170404Two guys, Ron Rogers and Demetrius Hayes, got into a shootout on a Philadelphia street. Neither one hit the other, but Ron’s friend Bill Green got hit by a stray bullet from Ron’s gun. He died, and both Ron and Demetrius were charged by the Commonwealth with murder.

Demetrius got tried first. One witness, Myra Summers, said she wasn’t sure who had fired first. Another witness, Tyrone Singleton – who was Demetrius’s friend – said Ron fired first. Demetrius was acquitted.

A week later, Ron went to trial. Now, Ty’s testimony took an abrupt turn, naming Demetrius — not Ron —as the first shooter. Without pointing out Tyrone’s flip, the prosecutor continued questioning Singleton for a bit before the trial judge ended proceedings early for the day. After excusing the jury, the judge admonished Ty for his inconsistent testimony, saying he committed “perjury on the record.” The judge warned Tyrone that if he was “playing some little game here,” the judge would ensure he “receive a maximum consecutive sentence” for perjury. The judge encouraged him to “[d]o some long hard thinking” before resuming his testimony, because if “you say that [Demetrius shot first] again, it is perjury.”

Through this harangue, Ron’s lawyer raised no objection.

Unsurprisingly, Tyrone got it. The next day, he suddenly remembered that Ron – not Demetrius – shot first. Ty explained he “made a mistake” the day before, chalking the error up to nervousness. Again, Ron’s lawyer said nothing. In fact, not only did he not object, he didn’t even bother to cross-examine Tyrone about the changed testimony. Ron was convicted of third-degree murder and sentenced to 16 to 32 years in prison.

Ron claimed ineffective assistance of counsel in a state post-conviction claim. When he lost, he took it to federal court, where a district judge held that the state court conclusion that Ron’s lawyer was not ineffective made perfect sense.

Last week the 3rd Circuit disagreed, and granted Ron’s 28 USC § 2254 motion. It rejected the claim of Ron’s attorney that “he had no basis for objecting to the admonishment because regardless of how Tyrone testified, his testimony would not have been determinative because he lacked credibility.” Counsel said his strategy was to rely on Myra Summers, who counsel said was the more credible witness despite the fact she had testified the week before that she didn’t see who shot first.

The 3rd Circuit complained that Ron’s counsel had neither seen nor read Myra’s testimony the week before. The Circuit observed that an attorney’s duty to test the government’s case requires that “defense counsel has done some investigation into the prosecution’s case and into various defense strategies”. The constitutional standard for ineffective assistance – established almost 40 years ago in Strickland v, Washington – is the same whether counsel screws up in a state or federal criminal proceeding. Here, the 3rd ruled, the state courts had unreasonably applied Strickland when they found Ron’s counsel’s performance adequate, “having failed to properly consider prevailing professional standards.”

dumblawyer180108And that wasn’t all, the Circuit said. Pennsylvania law firmly established that a trial judge admonishing a witness about perjury if he or she persisted was reversible error. The witness says what the witness says, and any such threat in the middle of testimony puts “pressure on a witness to testify in a particular way.” For Ron’s lawyer to believe that the trial judge’s threats against witness Tyrone were permissible was deficient performance, the 3rd said. “An attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”

liar170209“So too,” the appeals court said, with counsel’s later failure to cross-examine Ty regarding his changed testimony. “Counsel characterized Singleton as a liar, trying to help his buddy out, whose testimony would not be determinative of the outcome of this case, Not so,” the 3rd Circuit said. “Singleton was the only witness to ever claim Ron shot first — the ultimate issue in the case. And Singleton’s pre-admonishment testimony to the contrary, which aligned with Myra Summer’s original eyewitness statement, would benefit the defense by casting doubt on Singleton’s earlier implication of Rogers… Counsel’s performance [is] deficient when he, among other failures, neglected to “adapt his argument to the testimony in evidence.”

But winning an ineffective assistance of claim also requires a finding of prejudice. The state court found Ron had not shown “that but for the act or omission in question, the outcome of the proceedings would have been different.” But Strickland is clear that the standard is just “a reasonable probability that . . . the result of the proceeding would have been different.” By requiring Ron to prove the outcome would have changed, the state court applied a standard “contrary to… clearly established Federal law, as determined by the Supreme Court.”

Rogers v. Superintendent Greene SCI, Case No. 21-2601, 2023 USApp. LEXIS 23748 (3d Cir. Sep. 7, 2023)

– Thomas L. Root

Fecklessness Is No Legal Strategy, 1st Circuit Says – Update for November 15, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SOMETIMES THE DIFFERENT DRUM IS POUNDING OUT THE WRONG BEAT

diffdrummer211115Sandy Flores-Rivera was one of 46 people charged with a drug-trafficking conspiracy. At trial, most of the evidence against Sandy and her co-defendants came from three cooperating witnesses, all of whom fingered Sandy and helped the government present non-testimonial evidence.

After the jury returned guilty verdicts against Sandy and the other defendants, the government belatedly disclosed some pretrial documents created by a cooperating witness. One was a letter to the lead prosecutor, in which the witness described himself as the government’s “best cooperator: “I promised you to do everything you said and I have done it to the point that you know how this has gotten, we have more than we expected, more evidence and more strength for the case…” Another document consisted of notes that the cooperating witness kept of conversations he had with other cooperators while they were in prison together, in which he had encouraged them to testify. Finally, the government disclosed a note showing the FBI knew the cooperating witnesses were talking to each other in jail.

Of course, the government’s failure to disclose this evidence – which suggested the cooperating witnesses were singing a version of the “truth” they thought would be most pleasing to the authorities who controlled their fates – was a slam-dunk violation of the constitutional requirement of disclosure enshrined in Brady v. Maryland.

[Remember Brady? Brush up on it here]

Sandy and the other defendants moved for a new trial under Rule 33(b) of the Federal Rules of Criminal Procedure due to the Brady violation, but the district court turned them down. On appeal, the other defendants again raised the Brady violation, and this time someone listened: the 1st Circuit granted those other defendants new trials because the court found it was “reasonably probable that the impeachment evidence would have caused the jury to acquit” them.

lawyerjoke180807Sandy’s lawyer, however, marched to a different drummer: he didn’t bother raising the Brady issue in Sandy’s appellate brief, but rather argued a couple of loser claims that hadn’t even been preserved in the lower court record. Those issues ran into what the 1st Circuit called “a stone wall of controlling precedent.” In fact, the Circuit even pointed out in amazement that Sandy’s counsel had joined in the new trial motion at the district court but inexplicably “did not renew the argument despite his clear awareness of his ability to adopt a co-appellant’s arguments in a consolidated case… since he reserved his right to do so in Sandy’s opening brief.”

After losing her appeal while her co-defendants won theirs, Sandy filed a post-conviction motion under 28 USC § 2255 claiming her attorney rendered ineffective assistance on appeal. Last week, the 1st Circuit agreed.

The Circuit said the government’s case against Sandy “depended quite heavily on the largely uncorroborated testimony of the three cooperators. Hence, she would have prevailed on the Brady issue just like her co-defendants had she raised the issue. And for that reason, she establishes prejudice under Strickland.”

Appellate counsel performs deficiently, the Circuit said, when he or she “ignor[es] issues that are clearly stronger than those presented.” Forgoing an argument is not a reasonable strategic decision when there is no downside to objecting to an error or when the omitted argument would not “detract from” but would rather “build upon” another challenge.

feckless211115“Here,” the 1st ruled, “any reasonable attorney handling Flores-Rivera’s appeal would have known of the Brady claim’s availability even after a cursory review of the district court docket and the arguments offered by Flores-Rivera’s co-defendants… Appellate counsel opted to forgo an obviously serious, preserved Brady claim in favor of two dubious plain-error challenges, one of which was foreclosed by binding precedent. That choice resembles rejecting a lifeboat in favor of two lily pads… Fecklessness is not a strategy.”

Flores-Rivera v. United States, Case No. 18-1963, 2021 U.S. App. LEXIS 32404 (1st Cir. Oct 29, 2021)

– Thomas L. Root

Lousy Lawyering and Other Stories – Update for April 27, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

Last Week’s § 2255 Gleanings – Update for March 4, 2021

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

INMATES GO 2-2 ON § 2255 DECISIONS LAST WEEK

The Courts handed federal inmates two 28 USC § 2255 wins and two losses last week.

habeas191211For the uninitiated, habeas corpus (literally, a Latin imperative phrase to “produce the body”) has been around for about 806 years, give or take, ever since a band of angry noblemen forced King John to sign the Magna Carta (the “Great Charter of Liberties”) as an alternative to having his royal butt kicked.

One liberty the noblemen secured was the right not to be locked up without reason. The Magna Carta empowered courts to issue a writ (order) to a jailer to “produce the body” – that is, come to court with a particular prisoner and show why that prisoner’s detention is legal. Habeas corpus has become known as the “Great Writ,” so ingrained in English common law that our constitution simply assumes the right exists. The constitution only references habeas corpus in the negative, by denying the president the right to suspend the writ except in time of war.

Notwithstanding the constitutional origins of habeas corpus, Congress controls how prisoners may exercise their right to seek the writ in the federal courts by statute. For instance, 28 USC § 2244 regulates the filing of habeas corpus petitions for all claims of illegal detention for reasons other than a defect in the conviction or sentence. Section 2255 of Title 18 permits a federal prisoner to file a habeas corpus petition where the claim is that the conviction or sentence is contrary to law.

Every federal prisoner has the right to bring one § 2255 motion, subject to rather strict time limits. Bringing a second such petition is possible under very limited circumstances, with permission first being granted by the Court of Appeals.

Now for the week’s news:

violence181008(1) Dearnta Thomas pled guilty to a substantive RICO offense, and an 18 USC § 924(c) count for using a gun in furtherance of a crime of violence. The predicate “crime of violence” for the § 924 offense was aiding and abetting the commission of a VICAR offense (Violent Crimes in Aid of Racketeering Activity under 18 USC § 1959), those predicate violent crimes being two Virginia state-law offenses, a conviction for use or display of a firearm in committing a felony and another for “pointing, holding, or brandishing a firearm, air or gas-operated weapon or object similar in appearance.”

After the 2019 Supreme Court decision in United States v. Davis, Dearnta filed for permission under 28 USC § 2244 to bring a successive § 2255. Last week, the 4th Circuit held that Davis announced a new substantive rule of constitutional law retroactive to cases on collateral review by the Supreme Court and that Dearnta’s argument – that the state convictions were not crimes of violence within the meaning of Davis – stated a plausible claim.

(2) Meanwhile, Travis Harris asked the 5th Circuit for permission to file a successive § 2255 arguing that after Davis, his conviction for using a destructive device during a crime of violence (18 USC § 844(i)), should be thrown out, because the predicate offense – arson – was no longer a crime of violence.

The 5th agreed, holding – as the 4th Circuit has previously said – that Davis was retroactive and that Travis raised a plausible enough claim to go forward.

lawyerjoke180807(3) Things didn’t go so well for Kevin Kelley in the 1st Circuit. Kev figured he had a “gotcha:” it turned out the Assistant U.S. Attorney who had signed Kevin’s indictment had not paid his bar dues. Because F.R.Crim.P. 7(c)(1) says that an indictment “must be signed by” a government lawyer, and the AUSA’s law license had been suspended for nonpayment of dues, Kevin argued in his § 2255 motion that the bad signature invalidated the indictment and “robbed the district court of jurisdiction to proceed against him.”

Last week, the 1st Circuit rejected Kev’s technicality. “The Supreme Court, after all, has long viewed a government lawyer’s indictment signing as necessary only as evidence of the authenticity of the document,” the Circuit said, and Rule 7’s “intent is for common sense to prevail over technicalities.” Thus, the Circuit said, “it is unsurprising that many courts refuse to stamp ‘invalid’ an indictment signed by a prosecutor with bar-license problems if other evidence shows that the government was backing the prosecution — with some cases explicitly saying that in such a situation, the complaining party cannot prove prejudice.”

Here, the evidence showed the indictment had been approved by the AUSA’s superior, and that was good enough for common sense to prevail, the Court ruled, especially where Kevin could prove he was not harmed by the suspended AUSA working under a nonpayment suspension.

(4) Finally, Greg Olson got a target letter from the U.S. Attorney, telling him he would be indicted, but offering that he could get a lawyer and work out a preindictment deal. Greg and his lawyer worked out a 30-month plea to tax evasion, but the deal foundered when the government refused to provide any discovery. Greg got indicted, hired a different lawyer, but ended up with a 48-month sentence.

target210305Greg filed a § 2255 motion claiming his pre-indictment lawyer screwed up the plea deal. But last week, a 9th Circuit panel shot him down. Precedent in the circuit holds a defendant has no 6th Amendment right to effective counsel before he is a defendant, meaning that a three-judge panel cannot overrule the prior case. Of course, in such cases, if a three-judge panel thinks the precedent is nonsense, it can refer its case to the court en banc, but here, the Circuit said, “In determining whether this is an appropriate case to do so, we must assess whether Olson might prevail if current circuit precedent were to be overruled… The record does not support Olson’s claim that his counsel was ineffective. An en banc ruling would therefore not affect the result.”

In re Thomas, Case No 19-292, 2021 U.S. App. LEXIS 5316 (4th Cir. February 23, 2021)

In re Harris, Case No 19-51045, 2021 U.S. App. LEXIS 5719 (5th Cir. February 25, 2021)

Kelley v. United States, Case No 19-1932, 2021 U.S. App. LEXIS 5646 (1st Cir.  February 25, 2021)

United States v. Olson, Case No 19-16591, 2021 U.S. App. LEXIS 5027 (9th Cir.  February 22, 2021)

– Thomas L. Root

Sobering § 2255 Lessons – Update for September 10, 2020

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

A COUPLE OF CAUTIONARY 2255 DECISIONS

A pair of Circuit decisions on 28 U.S.C. § 2255 motions last week did not deliver a lot of hope to petitioners.

bribeB160627In one 6th Circuit decision, former Cuyahoga County Commissioner Jimmy Dimora got a number of bribery-related convictions vacated because of the intervening 2016 Supreme Court decision in McDonnell v. United States. The decision is instructive for public officials and employees caught up in so-called pay-to-play cases, where they are accused of trading official favors for profit. But the cautionary note for the rest of § 2255 movants relates to cumulative error.

Jimmy, like many § 2255 movants, argued that even if no single error he cited justified reversal, the cumulative effect of the many errors he cited was to violate his due process rights. “Cumulative error” is a favorite catch-all issue, added to the end of a § 2255 motion to give it sufficient heft.

Thehe cumulative error doctrine provides that an aggregation of errors that are in and of themselves insufficient to require a reversal can nevertheless yield a denial of a defendant’s 5th Amendment right to a fair trial, and thus – by the sheer weight of the pile of mistakes, require a mistrial.

As a circuit court of appeals observed in a case almost 30 years ago, “the possibility of cumulative error is often acknowledged but practically never found persuasive.” The doctrine justifies reversal only in the unusual case in which synergistic or repetitive error violates the defendant’s constitutional right to a fair trial.

The 6th Circuit poured additional cold water on the doctrine last week. The Circuit doubts that “cumulative error” has any place in a § 2255 motion: “We note, however, that we are uncertain whether this theory of prejudice is available to § 2255 petitioners… And we are especially uncertain that it is available where one of two claimed errors is an evidentiary error… But we leave these questions for the district court to consider on remand after it assesses the harmlessness of the instructional error independent of any cumulative effect.”

shootemup161122Meanwhile, in the 5th Circuit, Lauro Valdez used a convenient handgun to shoot a man Lauro said was trying to break in. His self-defense claim might have worked, except that after Lauro shot him once, he walked over to the prostrate victim and pumped more three rounds into him.

An old lawyer I knew used to say, “Two bullets or two bodies, and you’ve got a problem.” That was Lauro’s predicament. He could explain the one shot at an intruder. The other three a minute later – not so easy.

Lauro was charged with being a felon-in-possession of a gun in violation of 18 USC § 922(g). His lawyer told him that he faced a 24-36 month Guidelines range if he were convicted. That was wrong, because USSG § 2K2.1(c)(1) has a cross-reference for murder – which clearly applied here – that would raise Lauro’s Guidelines to at least 324 months. That meant Lauro would undoubtedly get 10 years, the maximum sentence for felons-in-possession allowed by statute.

Being advised wrongly by his lawyer, Lauro figured he would use the “justification” defense at trial, arguing he had just grabbed a gun to protect himself from an imminent threat. This might have worked for him, too, except that on the eve of trial, he learned that his wife would testify the gun had been on Lauro’s nightstand a week before the shooting, way too long ago to let him argue a sudden need to possess a gun against an imminent threat.

Lauro decided to plead guilty. At the change-of-plea hearing, the judge explained that § 922(g) carried a 120-month statutory maximum, and that regardless of what his lawyer might have said about a possible sentence, “it’s not a guarantee and it’s not binding on this Court.”

Lauro, of course, agreed. Defendants in those hearings usually are able to process nothing the judge says, and Lauro was no exception.

At sentencing, the judge gave Lauro the full 10 years, using the Guidelines cross reference for murder. Lauro later claimed in his § 2255 motion that his lawyer had predicted only 36 months, and had said nothing about a murder cross-reference to the Guidelines.if he had known about the Guidelines’ murder cross-reference, Lauro wrote in his motion, he would not have waived his right to a jury trial. His lawyer admitted in an affidavit that he had completely missed the murder cross-reference when he advised Lauro.

lawyer15170317The issue when a defendant alleges his counsel’s errors led him to take a plea rather than go to trial is not whether the defendant could have won the trial, but instead only whether a rational defendant would have chosen to go to trial. Here, the 5th Circuit held Lauro’s lawyer’s performance was not deficient, because both he and the court told Juan about the 10-year statutory maximum. The Circuit so much as said that a competent lawyer can’t figure out the Guidelines, so misadvising his or her client was not deficient representation.

What’s more, the 5th said, Lauro suffered no prejudice, because it was clear that “rather than risking conviction by the jury (with no sentencing benefits whatsoever), Lauro hoped to parlay a late guilty plea into a credit for acceptance of responsibility and additional benefit from cooperating or rendering substantial assistance. In other words, knowing that wifey was going to blow up his defense, the Circuit said, Lauro did what any rational defendant would do.

One judge dissented, as he should have, from this terrible decision. Any rational defendant – being told that if he pled, he would get 120 months and if he went to trial, he would get 120 months – would take his chances with a jury.

Dimora v. United States, Case No. 18-4260, 2020 U.S. App. LEXIS 27675 (6th Cir Aug 31, 2020)

United States v. Valdez, Case No. 18-40495, 2020 U.S. App. LEXIS 27909 (5th Cir. Sep 1, 2020)

– Thomas L. Root

Lord, Save Us From Parents… – Update for June 30, 2020

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

FATHER KNOWS BEST

Seldom is a defendant is such a mess that the advice of his family or friends cannot make things worse. That’s what happened to David Day.

David faced a messy white-collar case, one that could easily yield a Guidelines sentence of more than 90 months. His public defengoodlawyer160314der was top-drawer (as full-time public defenders usually are): she could assess a loser of a case, and she did, negotiating a government offer for a 51-month sentence.

But parents always want the best for their kids. Although David was in his mid-30s, his Dad figured prominently in planning his defense. And Dad, who had seen all of the relevant TV shows,  figured a court-appointed lawyer couldn’t possibly be any good. He convinced David to reject the offer, and then to dump his PD in favor of hiring two lawyers Dad knew, both whom could smell a fee and thus told David he could easily beat the case.

Things went downhill fast.

After the new lawyers collected their fee, paid over several months (by Dad), they entered their appearance in the case. The government generously re-offered the 51 month deal, but the new lawyers – without ever opening the case files, which they had not yet bothered to pick up from the public defender – told David to reject 51 months and go to trial.

toast200630A few weeks later, the new lawyers finally picked up the files and read the discovery. For the first time, they could see that David was toast. They convinced him to plead, but by then there was no deal. He entered an open plea, which is a plea to the whole indictment without any deal whatsoever. When all the dust settled, David got 92 months.

David filed a 28 USC § 2255 post-conviction motion, arguing the hired lawyers were incompetent for telling him to reject the plea offer without having first read the file. That seems like a pretty basic blunder. But David’s trial judge didn’t think so. She denied the § 2255 motion without a hearing, holding that even if the lawyer had done that, David could not show he was prejudiced by their mistake, because the government’s offered plea agreement would not have bound the court to a particular sentence, so there was no guarantee the judge would have sentenced David to 51 months.

Last week, the 7th Circuit reversed. The proper inquiry, the Circuit said, is not whether the sentencing court is bound by a plea agreement, but whether it is reasonably probable that the court would have accepted its terms and that the resulting sentence would have been less than the one that was actually imposed.

The 7th complained that the “judge’s prejudice analysis also overlooks the practical realities of plea negotiations. Few court observers would contend that the government’s views as reflected in its plea stipulations and Guidelines recommendations have no influence on a judge’s real-world sentencing decisions… Judges usually follow the nonbinding recommendation in Rule 11 type B agreements in part because they know that not accepting prosecutors’ sentencing recommendations will hamper plea negotiations in future cases. Why would prosecutors offer nonbinding plea agreements — and defendants accept them—if they count for nothing in the sentencing decision?

dumblawyer180108The government weirdly warned the Circuit that ruling in David’s favor would produce “absurd results” by encouraging defendants to engage incompetent attorneys. Of course they would: it makes perfect sense to hire a dummy and get slammed with a lot of time, so that you can roll the dice on your less-than-10% chance that you can win your § 2255 a few years down the road.

Ask David. He’s already served all but 12 months of his 92-month sentence. No doubt he’s happier to have his rights vindicated after he’s done the time he would not have had if he had stuck with his public defender.

The Court, with regal understatement, wrote the government argument “strikes us as an entirely unrealistic concern.”

Day v. United States, 2020 U.S. App. LEXIS 19640 (7th Cir. June 24, 2020)

– Thomas L. Root

Winning the Appointed Counsel Lottery – Update for December 2, 2019

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

3RD CIRCUIT ISSUES REMARKABLE INEFFECTIVE-ASSISTANCE DECISION

When prisoners file post-conviction motions, such as the motion under 28 USC § 2255, they are not entitled to appointed counsel under the Sixth Amendment. However, if their claims seem on their face to be sufficiently meritorious, the courts often appoint lawyers to help them in an evidentiary hearing or on appeal.

lottery191202How the courts select counsel to appoint varies from district to district and circuit to circuit. What does not vary is the relatively small amount of compensation paid for the lawyers’ work.

This is where the appointed counsel lottery comes in.

Usually, a solo practitioner or small firm is appointed, and the amount of time those appointed attorneys can devote is limited by the pedestrian need to make a living. If the hours you bill are what will put food on next month’s table, you are motivated to spend no more time on the appointment than fees available for compensation. It’s a fact of life.

A few times in my career, I have seen the occasional prisoner have appointed to him or her a lawyer at one of the “big law” firms – law partnerships with hundreds of lawyers and a culture of providing every client with a quarter-million dollar defense, regardless of whether the client is Megacorp International or Peter Pauper. I recall one defendant in Indiana calling me to report the court had appointed some lawyer from Washington, D.C. to represent him, at a firm named Jones Day or something like that.

“My friend,” I said, “you just won the lottery.”

(For the uninitiated, I note that Jones, Day, with over 2,500 lawyers and offices around the world, is one of the top grossing firms on the planet. Wikipedia describes it as “one of the most elite law firms in the world”).

And what a difference unlimited resources made for the Indiana defendant.

Just as big a win is when a top-ranked law school has a driven law prof and a gaggle of smart law students working in a practicum. Law students are allowed to provide representation in some cases, under guidance of a licensed attorney-professor. I know a vigorous pro se inmate with a complex legal question to whom a Georgetown University professor and her students were assigned by the D.C. Circuit. The representation he got could not have been purchased for $300,000.

Today, we consider lottery winner Peter Sepling. Pete pled guilty to importing gamma butyrolactone (GBL), a schedule I analogue drug. His lawyer cut a good deal, one that would let him get sentenced without application of a Guidelines career offender enhancement.

But while on bond, Pete got busted for conspiracy to import methylone, another Schedule I drug.

methylone191202Pete cut a deal on the new charge where he would not be prosecuted for the methylone, but instead, it would be factored into the sentence he would get in the GBL case. This is where the fun started.

The Guidelines do not contain any offense level for methylone. Pete’s presentence report compared methylone to methylenedioxymethamphetamine (MDMA), commonly known as ecstasy. The Guidelines holds ecstasy to be pretty bad stuff, equating a unit of that drug to 500 units of marijuana. Consequently, the District Court started its sentencing determination using this 500:1 ratio. In Pete’s case, this converted to 5,000 kilos of pot. The net result was that his Guidelines sentencing range of 27-33 months soared to 188-235 months.

Pete’s lawyer did not object to the methylone-ecstasy comparison, or to the sentencing range. Nor did he file a sentencing memorandum. At sentencing, defense counsel admitted to the court that he had “never heard of methylone… until Sepling got rearrested,” and that he had attempted to learn about the drug from the government. Counsel further explained that the government “tried to educate me… as Mr. Sepling tried to educate me. My understanding of the drug, which is very little, is that drug is – Spellman will explain to the Court – it’s like a watered down ecstasy.”

For its part, the Government also knew next to nothing about methylone.

At his attorney’s request, Pete told the Court methylone is “like ecstasy. If ecstasy is a ten… this stuff is six and lasts about an hour and a half.”

mdma191202The Court admitted it did not know anything about methylone, either, but observed that “in any event, it’s a controlled substance. It’s mind altering. It affects people’s behavior. It’s not a good thing. So I will consider that.” The Court varied downward from the Guidelines, but still gave Pete 102 months, telling him “you’ve committed a serious crime here, and it’s — in particular the methylone and that you put people in harm’s way.”

Pete filed a post-conviction motion under 28 USC § 2255, complaining that his lawyer failed to investigate methylone, and if he had, he would have found that the comparison to ecstasy was way overblown. The district court turned him down, finding that counsel’s performance was not ineffective because, “although sentencing counsel acknowledged that he knew little about methylone, he appropriately likened the drug to a ‘watered down ecstasy’” and “counsel’s characterization of the drug was consistent with Petitioner’s statements at sentencing.”

duke191202Then, Pete’s fortunes changed. On appeal the 3rd Circuit assigned a Duke University law school professor and three Duke law students working in the school’s appellate advocacy clinic to represent Pete. The Blue Devil counselors-in-training pulled out all the stops. Last week, they bulldozed the 3rd Circuit – in a remarkable decision – into reversing the district court, finding that Pete’s lawyer was ineffective, and holding that Pete was prejudiced by it.

The Circuit initially noted that Pete’s lawyer made the first question – whether his representation fell below the standards required of attorneys – an easy one to answer. At sentencing, the attorney admitted he knew nothing about methylone, and he made it clear that he had done nothing to educate himself, despite having a clear duty to do so. The decision cites several scientific studies and court decisions that were available to him, all of which found that methylone is much less serious that ecstasy. The 3rd said that “properly prepared counsel could have made a strong argument, grounded in readily available research, that methylone is significantly less serious than MDMA.”

In other words, the 3rd Circuit said that Pete’s lawyer was ineffective for not arguing that the Guidelines’ 500:1 ratio was flawed, and should be ignored by the sentencing court. Ineffectiveness for failing to attack the Guidelines for being wrong is a holding without precedent.

The district court denied Pete’s § 2255 motion in part because defense counsel’s description of methylone was good enough, and that Pete himself testified as to its effects as sentencing. The 3rd Circuit blew that justification apart:

Rather than doing any research into the pharmacological effect of methylone in order to competently represent his client and inform the District Court’s application of the Guidelines table, Sentencing Counsel relied upon his client to explain the effects of methylone. Sentencing Counsel thus “decided to outsource to Sepling any discussion of methylone at the hearing.”

Still, lawyer ineffectiveness is only one-half of the equation. If a lawyer screws the pooch, but the defendant ends up being none the worse for the blunder, there is (in the words of Strickland v. Washington, the Holy Grail of ineffective assistance of counsel) no prejudice.

stupidlawyr191202After having read hundreds of 2255 decisions over the past 25 years, I was sure what was coming. Pete was sentenced far below his Guidelines range. Normally, a court would hold that because Pete got a downward variance sentence well under his guidelines, he could not possibly have been prejudiced by his lawyer’s failures.

But instead, the 3rd Circuit quite properly said the below-guidelines sentence was irrelevant to whether Pete was prejudiced:

A significant variance from an arguably high and inaccurate guideline sentence is not a gift. The District Court expressed a desire to base Sepling’s sentence on the seriousness of distributing methylone. It is impossible to review the transcript of the sentencing proceeding without concluding that the District Court did not have sufficient information to assess the actual seriousness of methylone. We therefore cannot dismiss the very real possibility that the court may have been amenable to a further downward variance based upon evidence specific to methylone’s reduced effect as compared to MDMA… Because Sentencing Counsel’s dereliction put the District Court in a position where it was literally ‘flying blind’ at sentencing, there was no way for a district court to know if the sentence imposed was the least serious penalty consistent with the Court’s objective in imposing the sentence.

This is an astounding case. I salute Duke Law (and sorry about the Stephen F. Austin thing).

United States v. Sepling, 2019 U.S. App. LEXIS 35706 (3rd Cir. Nov. 29, 2019)

– Thomas L. Root

6th Circuit Fleshes Out Ineffective Assistance on Plea Deals – Update for October 15, 2019

Leave a comment

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6th CIRCUIT ISSUES FASCINATING INEFFECTIVE-ASSISTANCE DECISION ABOUT BAD ADVICE ON PLEA DEALS

Ttakethemoney191015ell me if this sounds familiar: a defendant is charged with a crime. His or her court-appointed attorney discourages making any plea deal with the government, because counsel can win it for sure at trial. At trial, defense counsel completely misunderstands the law, and mangles the defense. Defendant is convicted, and gets hammered.

That’s what played out at the 6th Circuit last week. The Court granted habeas corpus to a Michigan inmate who was convicted of aiding and abetting a robbery-turned-murder. Billy Joe Byrd and his girlfriend Bobbie Sue decided to commit a robbery. Billy Joe got cold feet before the crime, but he gave Bobbie Sue his gun. Bobbie Sue shot a man while robbing his castle. Rather than heading down south with Bobbie Sue, Billy Joe turned himself in.

In Michigan, aiding and abetting a murder carries the same sentence as the murder itself, mandatory life. Billy Joe wanted to make a plea deal, but his court-appointed attorney convinced him that because he had walked away from the crime before it happened, he could not be convicted. He told Billy Joe it didn’t matter even if he gave Bobbie Sue the gun knowing she was going to rob the Gasso, because he did not intend that she do so.

lawyermistake170227Alas, the defense attorney was as wrong as he could be. Michigan requires a defendant claiming abandonment as an affirmative defense to establish “by a preponderance of the evidence voluntary and complete abandonment of a criminal purpose.” In fact a prior Michigan Court of Appeals case, People v. Akins, held that, despite the defendant’s defense that he changed his mind about a robbery, his abandonment defense failed because, among other things, he “gave his gun to [the principal], knowing that it would be used to commit the robbery.”

Bobbie Sue had a better lawyer. She pled to second-degree murder and got 30 years. In fact, she testified against Billie Joe. That’s not in the song.

The 6th Circuit was incredulous that defense counsel met with Billy Joe for a grand total of 60 minutes between indictment and trial. Billy Joe said that during their meetings, the lawyer did not review the sentencing guidelines or explain aiding and abetting or other legal concepts underlying the case. The lawyer “baldly denied these allegations but also testified that he did not remember his conversations” with Billy Joe “precisely” or “particularly.”

In that court, prosecutors wait for defense counsel to request an offer before beginning negotiations. Then, the prosecutor will develop a proposal and consult with the interested parties. The judges in that court rarely reject plea agreements. Billy Joe “was denied the opportunity to accept a lesser charge and more lenient sentence because his trial counsel,” the 6th said, “never initiated plea negotiations with the prosecutor’s office.”

The District Court refused Billy Joe any post-conviction relief, holding that he could not prove he would have taken a plea offer. Besides, the government argued, the 6th Amendment only covers effective assistance when the government makes an offer. Here, Billy Joe never initiated plea negotiations.

billyjoe191015

The 6th Circuit said that did not matter, holding that “in the context of the right to effective assistance of counsel… the absence of a right to be offered a plea or to have it accepted… is beside the point’.” The Circuit said Billy Joe’s lawyer displayed “a shocking lack of comprehension regarding the pertinent law” in the case… A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available.”

The Government argued Billy Joe was not prejudiced, because he claimed he was innocent, and so would have gone to trial anyway. The 6th disagreed. Here, the defendant’s “interest in proceeding to trial was rooted in misinformation gleaned from his counsel’s faulty advice, making it an unreliable metric of reasonably probable outcomes.” Defense counsel’s advice to Billy Joe “was erroneous and omitted critical details” about the case. Thus, Billy Joe “lacked the requisite information to weigh the options in front of him, and whatever desire he exhibited before trial is not dispositive of what he would have done if he were properly educated about the charges against him.”

Byrd v. Skipper, 2019 U.S. App. LEXIS 30163 (6th Cir. Oct. 8, 2019)

– Thomas L. Root