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Fly The Friendly Skies of § 2255 Prejudice – Update for November 7, 2024

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

PREJUDICE FLIES FIRST CLASS

Kay Ellison and a friend started their own airline, Direct Air. Owning an airline worked for Sir Richard Branson (Virgin Atlantic) but not for Donald Trump (Trump Shuttle). It didn’t work for Kay, either.

trumpshuttle241107Under federal regulations, a charter airline like Direct Air has to keep money passengers pay for tickets in an escrow account until they take the flight. But when Direct Air’s money got tight, Kay tapped the escrow account by faking some records in order to keep the planes flying. Those things seldom work, and they didn’t work for Kay: she and her co-owner were charged with wire fraud and bank fraud conspiracy.

At trial, Kay did not present a defense, and the jury obligingly convicted her on all counts.

In a 28 USC § 2255 post-conviction motion, Kay claimed her lawyer had rendered ineffective assistance, a 6th Amendment violation and a first-class ticket to a new trial. Kay said her lawyer wrongly told her that if she declined to testify, she could not present other witnesses or evidence. Ellison believed him, and did not put witnesses and records before the jury. She argued this advice prejudiced her defense by depriving her of the opportunity to contest key portions of the Government’s case – she had lobster thermidor to serve the jury, but they got a little packet of peanuts instead.

The District Court concluded that even assuming Kay could prove her attorney told her something as wrong-headed as what she claimed he said, she could not show prejudice.

airposter1241107An argument of ineffective assistance made on a § 2255 motion has two components. First, the attorney must have performed deficiently. Second, the § 2255 movant must show that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different.

Here, the District Court focused on prejudice first. Assuming the lawyer told her such a bone-headed thing, the court asked “whether there is a reasonable probability… that if Kay had testified herself and presented the testimony of her proposed witnesses, the jury would have acquitted” her. The judge concluded that “with or without the proposed witness testimony… evidence of Kay’s involvement in running Direct Air makes it unlikely the jury would conclude she was not involved” in the withdrawal scheme.

Kay argued that her right to testify was so fundamental that the correct prejudice test was not whether the jury would have acquitted her. Instead, the test should be a “process-based” inquiry. She likened her case to § 2255 motions alleging lawyer ineffectiveness in counseling a defendant of accepting a plea offer: In such cases, the courts have judged prejudice by asking whether or not the defendant would have taken or rejected a plea deal, not whether the defendant could have prevailed at trial. Kay argued the proper test here should be a similar one, whether – if her lawyer had given her good advice – she would have exercised her right to testify.

airposter2241107Last week, the 3rd Circuit grounded Kay’s process-based prejudice flight of fancy. In a decision that is a must-read primer on prejudice, the Circuit explained that “actual prejudice” – proof that the outcome is reasonably likely to have been different – “is required where the alleged error occurs within a judicial proceeding that is otherwise presumptively reliable. That must include right-to-testify claims like [Kay’s], because the error in those cases (i.e., failing to present testimony from the defendant or other defense witnesses) occurs during the presentation of the case to the jury and may therefore be quantitatively assessed in the context of other evidence presented in order to determine what effect, if any, it had on the jury’s verdict.”

Kay, the 3rd ruled, “needed to show a reasonable probability that, but for counsel’s errors, she would have exercised her trial rights, and that doing so would have changed the result.” She could not, leaving her § 2255 stranded at the gate.

Ellison v. United States, Case No. 22-2169, 2024 U.S. App. LEXIS 27494 (3d Cir., October 30, 2024)

– Thomas L. Root

For Ineffective Assistance Claim, Its Lousy Investigation That Matters – Update for October 28, 2024

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

WOULDA, COULDA, SHOULDA

woulda241028A tough battle for anyone filing a 28 USC § 2255 post-conviction motion claiming ineffective assistance of counsel is to successfully argue that his or her defense attorney should have done something different – called a different witness, made a different objection, pursued a different theory – that would have won the case. Strickland v. Washington, the gold standard of ineffective assistance of counsel, holds that a lawyer’s strategic choices are almost sacred, as long as they result from adequate investigation.

John Neuhard ran into that last week. John was indicted on child porn production and related counts. When John’s court-appointed lawyer, Richard Korn, met with him, he was puzzled by John’s “awkward behaviors when answering questions” and “flat, emotionless” responses in a recorded police interrogation.

Rick discussed the issue with John’s prior attorney, with John’s parents, and with John himself. Rick hired two experts, one of whom found John was autistic while the other thought the diagnosis was inconclusive. Rick checked out his client’s school record and read up on autism and any connection to sexual crimes.

Rick concluded it was a “close call” but decided that introducing John’s autism at trial was likely to do more harm than good. Rick worried that, regardless of what an expert might caution, the jury would view John as a “mentally ill sexual deviant who lacked control over his impulses,” as the 6th Circuit put it. “So, he decided that he would introduce autism evidence only if ‘absolutely necessary.’”

SODDI190402Rick’s defense theory was classic SODDI – ‘some other dude did it.’ John lived with three other guys, Rick argued, any of whom had access to the computer and could have produced the porn.  During the investigation, all three of the others offered to take polygraph tests, a fact that the government and Rick agreed before trial would not be mentioned. Nevertheless, during her testimony, a government agent volunteered that the other three residents “were cooperative, helpful, offered to take lie detector tests…”   Rick objected and during a sidebar, asked the Judge to cure the error by letting Rick introduce evidence that John had also offered to take a polygraph, too, at least before he lawyered up and withdrew his offer.

The court instead struck the remark from the record and admonished the jury twice not to consider any testimony “about other people offering to go take a polygraph.”

After the government rested its case, Rick moved for a mistrial, arguing that the court’s instruction did not remedy the damage caused by the agent’s statement.  The court denied the motion and, of course, John got convicted.

John hired a new lawyer, who raised six issues on appeal. His conviction was upheld, with the Circuit specifically finding that the district court had not abused its discretion in rejecting lawyer Rick’s polygraph offer and instead giving a limiting instruction.

John filed a § 2255 motion arguing that Rick was ineffective by not investigating his autism sufficiently and by bungling the polygraph mistrial argument. The district court denied the motion after a hearing, and John appealed.

Last week, the 6th Circuit affirmed the district court. An attorney making a strategic decision must adequately investigate his options and make a reasonable choice between them. A strategy is reasonable, the Circuit said, if it falls within the range of logical choices an ordinarily competent attorney… would assess as reasonable to achieve a specific goal. Strickland demands a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

The 6th ruled that Rick took reasonable steps to investigate the autism issue. Based on the evidence he obtained, Rick consulted with his client and concluded that presenting autism evidence entailed the risk that the jury would perceive John “as a mentally ill ‘monster’ who could not control his impulses to sexually abuse children.” While Rick had an expert who would testify that such a conclusion was wrong, Rick thought such caution would “not matter” to a jury, and that risk outweighed any benefit the autism testimony might gain John.

Skunk241028

His concern was the old-time “skunk in the jury box” problem. The autism argument might well be a skunk in the jury box. Once there, the jury was unlikely to disregard the smell just because the judge instructed it to do so.

John’s § 2255 lawyer produced a new expert’s opinion that John was much more autistic, “functioning in many ways like a ten-year-old child,” than the trial experts had found.  John said that it should have been obvious to Rick that he needed to perform more research and introduce autism evidence. The 6th, however, said John’s § 2255 motion failed to “clearly explain why having a more severe diagnosis would have mattered.”  The question where attorney effectiveness is concerned is whether the evidence shows that Rick should have been aware at the time of the trial “that additional investigation would produce more favorable evidence than the previous experts had provided.”

The 6th concluded that the evidence could not.

The fact that Rick might have gotten a more severe diagnosis if he had hired a third expert doesn’t show that hiring two experts and doing the research he did not put Rick on notice that more investigation should be done.

polygraph180925John also claimed Rick was ineffective for not demanding an immediate evidentiary hearing on whether the government agent deliberately brought up the polygraph offer, which should have caused a mistrial. In the § 2255 hearing, the agent admitted that John’s trial was her first time testifying, that she mistakenly made the polygraph remark, and that she immediately felt “like an idiot” afterward. The district court found her explanation credible, a finding an appellate court “gives great deference to.”  John had no evidence that the agent’s polygraph reference was intentional, the 6th observed, and the polygraph offer remark was, at best, “only a small part of the evidence against John.”

If Rick had demanded and gotten an immediate hearing on the agent’s mistake, the appellate court concluded, there was no reasonable probability that the outcome would have been different.

Rick’s “strategic decision, based on sufficient investigation,” the Circuit ruled, “fell well within the range of reasonable representation.”

Neuhard v. United States, Case No. 22-2120, 2024 U.S. App. LEXIS 27126 (6th Cir., October 25, 2024)

– Thomas L. Root

Courts Should Favor 2255 Motion Decisions on the Merits, 9th Circuit Holds – Update for August 20, 2024

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RULE 4 SHOULD BE USED SPARINGLY IN 2254/2255 CASES, 9TH HOLDS

A 28 USC § 2255 motion often seems to be stacked against the movant. The district court can throw it out on its own if the judge thinks it “plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” If the court tells the government to answer, the judge can then deny the motion without allowing for discovery or an evidentiary hearing. If there is a hearing, the court can then deny it.

Lose200615So many ways to lose!

The court’s right to dismiss the § 2255 motion without even asking for a response from the prosecutor is enshrined in Rule 4 of the clumsily-named Rules Governing Section 2255 Proceedings. 2255. Rule 4 is a lot like Rule 4 of the Rules Governing Section 2254 Proceedings (except that in the § 2255 rules, a judge may also rely on “the record of prior proceedings,” something the Court does not have available to it in a 28 USC § 2254 review of a state habeas proceeding.

Pat Neiss filed a state habeas claim that his Montana conviction should be set aside because his lawyer was ineffective. He was denied by the state courts, so he filed a 28 USC § 2254 petition in district court. Thirteen days after he filed, the district court summarily dismissed Pat’s petition with prejudice, holding that Pat’s claim was not cognizable because his trial counsel “moved repeatedly, in different contexts, to suppress the evidence,” even though he failed to make the one suppression motion – a particularity claim – that would have worked.

The district court cited Strickland v, Washington’s statement that “Counsel’s decision to focus on certain aspects of these attacks rather than on others does not cause their performance to ‘f[a]ll below an objective standard of reasonableness.”

A 9th Circuit decision last week reversed the summary dismissal, warning judges to err on the side of the petitioner in applying Rule 4.

The Circuit held that Rule 4 permits summary dismissal of claims on the basis of lack of cognizability only where the allegations in the petition are vague, conclusory, palpably incredible, or patently frivolous or false.” Rule 4’s standard, the Court said, “essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted… Our case law has made clear that as long as a petition has any potential merit, it is not so frivolous or incredible as to justify summary dismissal under Rule 4. The legal term ‘frivolous’ is defined in Black’s Law Dictionary as ‘lacking a legal basis or legal merit; manifestly insufficient as a matter of law.’ And 9th Circuit case law is in accord.”

stupidlawyr191202Here, the 9th said, Pat’s petition alleged that his trial counsel provided ineffective assistance when counsel waived a meritorious particularity objection to a search warrant. The Supreme Court has recognized that an ineffective assistance of counsel claim may be based on defense counsel’s failure to litigate a 4th Amendment claim competently. Thus, these allegations state a cognizable claim on which relief could be granted, the Circuit held.

Nothing on the face of Pat’s petition plainly showed that his particularity objection to the search warrant lacked merit as a matter of law or that trial counsel’s failure to object on that ground could not have prejudiced him. But rather than conducting this analysis, the district court ruled that regardless of whether a particularity challenge was made, counsel’s wide and repeated efforts to get the computer search evidence suppressed were objectively reasonable.”

At the summary dismissal stage,” the 9th held, “district courts must consider only whether a claim is frivolous, not whether it is ultimately—or likely—a winner or loser.”

Neiss v Bludworth, Case No. 22-35877, 2024 U.S. App.  LEXIS 20752 (9th Cir., August 16, 2024)

– Thomas L. Root

3rd Circuit Holds Lawyer’s Sentence Misadvice is Ineffective Assistance – Update for July 29, 2024

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WHEN LAWYERS AREN’T JUST WRONG, BUT VERY, VERY WRONG

It’s long been held that a lawyer’s duty during plea negotiations is to advise a defendant on the strength of the government’s case and the difference between the sentence you’d get at trial and the one you’ll get taking the plea. But what if your lawyer blows it?

wrong160620Many a prisoner has complained in a § 2255 motion that his or her lawyer badly misestimated the sentence, and if counsel had gotten it right (or close to right), the defendant would have accepted the deal. And many of those prisoners have lost their 2255s because the court holds that their lawyers’ bad guesses are not the same as ineffective assistance.

But sometimes, the miss is just too wide.

Steven Baker had committed a series of armed bank robberies. When he faced trial in 2010, Steve’s attorney advised him that he faced a total of 15-17 years’ imprisonment if he accepted a government offer to plead to one robbery and one 18 USC § 924(c) gun charge, but if he didn’t take the deal, the government would charge him with two other armed robberies. Counsel said the three potential § 924(c) counts would give him 21 years consecutive to his bank robbery Guidelines.

Wrong, wrong, wrong. This was all before the First Step Act passed in 2018, so Steve faced a consecutive 57-year mandatory minimum sentence under the § 924(c) “stacking” provision then in effect. Based on the difference between 17 years with a plea and 21 years rolling the dice at trial, Steve turned down the plea. He was charged with the other robberies and went to trial, where he, of course, was convicted on all counts. He got 57 years on the § 924(c) counts plus 87 months more on the bank robbery charges.

Steve filed a § 2255 motion claiming his lawyer was ineffective in advising him so badly about 21 years versus 57 years. The district court turned him down, but last week, the 3rd Circuit vacated his conviction.

pleading170502“When addressing a guilty plea, counsel is required to give a defendant enough information to make a reasonably informed decision whether to accept a plea offer,” the Circuit held. “We have little difficulty concluding that this more than three-decade miscalculation of Baker’s sentence exposure on the three potential § 924(c) counts is objectively unreasonable.”

The bigger issue was whether Steve had proven he was prejudiced, that is, that he would have taken the 17-year plea deal if his lawyer had accurately explained the likely 57-year stacked sentence if he went to trial. The trial court found Steve’s testimony that he would have taken the deal to lack credibility, but the 3rd Circuit said the very fact that the difference between the 21 years estimated by counsel and the 57 years plus he got was all the evidence it needed.

Considering the sentence-exposure disparities as evidence of prejudice “makes good sense,” the 3rd ruled.

A great disparity provides sufficient objective evidence—when combined with a defendant’s statement concerning his intentions—to support a finding of prejudice… Moreover, while a defendant’s calculus in accepting or rejecting a plea offer may involve many variables, knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial. Large sentence-exposure disparities weigh directly on this “crucial” decision.

hammer160509Steve’s actual sentencing range was “extraordinarily greater than the 15-17 years he would have received had he accepted the plea offer,” the Circuit said. “As Baker states, the 57-year mandatory minimum alone would almost certainly mean that he would ‘die in prison.’ This great sentence-exposure disparity, the true scope of which Baker did not know due to his counsel’s underestimate of the sentence for the potential firearm charges, weighs heavily in favor of prejudice.”

Baker v. United States, Case No. 23-2059, 2024 U.S. App. LEXIS 18333 (3d Cir., July 25, 2024)

– Thomas L. Root

Supreme Court Denies a Habeas Corpus, But With An Interesting Twist – Update for February 23, 2024

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WHERE THERE’S A WILL, THERE’S A PROCEDURAL WAY

hobbsact200218Mike Bowe was convicted of an attempted Hobbs Act robbery, during which a gun was fired. So he was convicted as well of an 18 USC § 924(c) violation for the gun and received a sentence for an additional 10 years. After the Supreme Court decided United States v. Davis back in 2019, Mike filed a motion for 11th Circuit permission to file a second § 2255 motion arguing that his predicate Hobbs Act attempt was not a crime of violence to which a § 924(c) could attach.

The Circuit turned him down, holding that Mike’s § 924(c) conviction was predicated in part on attempted Hobbs Act robbery, which remained a qualifying “crime of violence” (COV) under circuit precedent. But after that, the Supreme Court decided United States v. Taylor in 2022, holding that an attempted Hobbs Act robbery was not COV, meaning that Mike had been right all along.

Being right doesn’t count for much in the world of habeas corpus. When Mike again asked for permission to file a successive § 2255 motion, the 11th Circuit again turned him down, this time because 28 USC 2244(b)(1) – part of the statute governing the procedure for getting permission for a successive § 2255 motion – barred him from raising an issue already denied in a prior § 2255 motion. No matter that the Circuit had denied that claim under erroneous, pre-Taylor precedent. Mike did everything right; his § 924(c) conviction was plainly invalid; and, but for the misapplication of § 2244(b)(1), he would now be a free man.

Under 28 USC § 2244, a prisoner who is denied the right to bring a second or successive § 2255 motion is not allowed to appeal the denial any further. It’s over. But Mike had some canny lawyers, and they filed a petition for habeas corpus with the Supreme Court, a permissible but seldom used gambit. They pointed out that under 28 USC § 2244(b)(1), a federal court must dismiss a “claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application.” 28 USC § 2244(b)(1). But state prisoners seek federal post-conviction relief under § 2254. Federal prisoners seek post-conviction relief under § 2255. Mike argued that three Circuits agreed that § 2244(b)(1) only affected state prisoners: Mike was free to bring his attempted Hobbs Act COV claim again, and that their position – not the view of the six circuits going the other way – should prevail.

The Government agreed with Mike.

habeas191211On Wednesday, the Supreme Court denied Mike’s § 2241 petition for habeas corpus. No surprise there: the Court hasn’t granted habeas to a federal prisoner in a long time. But what is noteworthy is that Justice Sonia Sotomayor joined Justice Kavanaugh in calling for a grant of review to decide the split.

But how to do that? Because the Government agrees § 2244(b)(1) doesn’t apply to federal prisoners, if one of the three circuits agreeing with that position grant permission for a second-or-successive § 2255, there will never be a petition for certiorari filed by the Government. But if the petitioner is in one of the six circuits that say that § 2244(b)(1) applies to federal prisoners as well as state prisoners, permission to file a second-or-successive § 2255 in a case like Mike’s will never be granted, and the unfortunate prisoner will not be allowed to seek certiorari.

Justice Sotomayor admitted that “[t]here are considerable structural barriers to this Court’s ordinary review via certiorari petition.”

A petition cannot reach the Supreme Court from the three Circuits that read § 2244(b)(1) to apply only to state prisoners. Before a federal prisoner can file a second or successive habeas corpus § 2255 motion, a court of appeals must certify it. When a federal prisoner files a second or successive § 2255 motion that raises an issue he has raised previously, neither the court of appeals nor the district court will apply § 2244(b)(1)’s bar. If the court of appeals certifies the motion, the district court will decide it on the merits.

A petition cannot reach the Supreme Court from the six Circuits that apply § 2244(b)(1) to both state and federal prisoners either. In those Circuits, the court of appeals will apply § 2244(b)(1)’s bar and deny certification to any second or successive § 2255 motion that raises an issue the prisoner has previously raised. Neither the Government nor the prisoner can seek review of that interpretation of § 2244(b)(1) from this Court, however, because the law bars petitions for certiorari stemming from “[t]he grant or denial of an authorization by a court of appeals to file a second or successive application.”

sotomayor240223Mike tried to invoke the Supreme Court’s jurisdiction to entertain original habeas petitions under § 2241(a). However, as Justice Sotomayor said, “The standard for this Court’s consideration of an original habeas petition is a demanding one. A petitioner must show both that ‘adequate relief cannot be obtained in any other form or from any other court” and “exceptional circumstances warrant the exercise of the Court’s discretionary powers. Whether Mike has met that demanding standard here is questionable,” the Justice wrote, “because it is not clear that, absent § 2244(b)(1)’s bar, the 11th Circuit would have certified his § 2255 motion.”

But the Circuit split needs to be settled, the Justice said, and thus, she “would welcome the invocation of this Court’s original habeas jurisdiction in a future case where the petitioner may have meritorious § 2255 claims. The Government also suggests that a court of appeals seeking clarity could certify the question to this Court.  In the meantime, in light of the demanding standard for this Court’s jurisdiction over original habeas petitions, I encourage the courts of appeals to reconsider this question en banc, where appropriate.”

Writing in his Sentencing Law and Policy blog, Ohio State law professor Doug Berman observed, “I still recall fondly when the Second Circuit in United States v. Penaranda, a full 20 years ago, certified three questions to SCOTUS concerning the application of Blakely to the federal sentencing system. I am not sure if there have been any other circuit certifications in the last two decades, but I am sure it is interesting to have two Justices flag this notable means of getting an issue on the SCOTUS docket”

Where there’s a will on the Supreme Court to hear an issue, there’s a way to get it there. Just not for Mike and not for today.

In re Bowe, Case No. 22-7871, 2024 U.S. LEXIS 988 (February 20, 2024)

Sentencing Law and Policy, SCOTUS order list includes a notable statement in a habeas denial (February 20, 2024)

– Thomas L. Root

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

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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

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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

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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

Instructive § 2255 Procedural Decision from the 7th – Update for August 24, 2023

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WAKE UP AND SMELL THE COFFEE

coffee230824I always start my day with a hot cup of Death Wish coffee. The caffeine jolt is sufficient to enable me to write about consequential but deadly dull topics, topics such as the “relation back” doctrine as applied to 28 USC § 2255 motions.

I’ll wait while you pour another cup. Or two. This procedural topic is as dry as unbuttered toast, but it’s important to some folks.

“Some folks” includes Freddie Coleman. A decade ago, Fred was sentenced to life in federal prison for conspiring to distribute crack cocaine. The district judge based the sentence on 21 USC § 841(b)(1)(A), which (at the time) mandated a life sentence for a defendant with two or more prior drug distribution felonies. (The statute changed as a result of the First Step Act, but that change was not retroactive).

After losing his appeal, Freddie filed a pro se motion under 28 USC § 2255 to vacate his sentence, arguing that his attorney had provided ineffective assistance by not advising him early on that the government had filed a notice that he should get an enhanced sentence – in this case life in prison –  because of some prior state drug distribution felonies.  Such notices are filed pursuant to 21 USC § 851 and are generally known as “851 notices.”

Later, after the § 2255(f)5 deadline for filing passed – which usually is the cutoff for specifying the issues on which a § 2255 movant intends to proceed  – Freddie tried to amend his pleading expanding on his allegations and claiming for the first time that his lawyer was also ineffective by failing to object to the § 851 notice on the grounds that under the categorical approach adopted in Taylor v. United States, Freddie’s prior Illinois cocaine convictions did not qualify as prior felony drug offenses given that Illinois defined “cocaine” more broadly than federal law.

lawyermistake170227The district court ruled against Fred’s claim that his lawyer never told him about the potential life sentence. On top of that,  the district court denied Freddie’s motion to amend, finding that the amendment did not “relate back” to his initial pleading as required by Federal Rule of Civil Procedure 15(c) because “the claims rested on distinct types of attorney misfeasance and were supported by different facts.”

Last week, the 7th Circuit reversed, vacating Fred’s life sentence.

Everyone knows about statutes of limitations, laws that require people to file claims within a certain period of time or lose them forever.  The same is true of adding new claims to an existing action: those new claims have to be raised within the limitations period or they are barred.

Rule 15(c) provides a limited exception to the limitations bar against amended claims. The subsection allows that “amendments relate back to the date of the original pleading when the claim asserted in the amended plea ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'”  Fred argued that his claim that his attorney was ineffective not just in one way but in two where the § 851 notice was concerned was allowable because it all related back to the same transaction.

The Circuit agreed:

Even where an amendment invokes a legal theory not suggested by the original complaint and relies on facts not originally asserted,” the 7th said, “relation back is in order so long as the original and amended petitions state claims that are tied to a common core of operative facts… Even ‘significant’ changes to a complaint… can relate back so long as the defendant had fair notice of the substance of the new allegations from the outset.

Construing Fred’s original pro se § 2255 petition liberally, the Circuit ruled, “as we must… we conclude that the government was reasonably on notice of the claims contained within Coleman’s amended petition. Those claims are substantively similar in time and type to those asserted in his original motion: his attorney’s failure to provide legal advice as to the contents and impact of the § 851 notice.”

lawyerjoke180807Both of Fred’s claims – that his lawyer failed to advise him of the risks of a life sentence because of the § 851 notice and his lawyer’s failure to research whether the § 851 notice was right – challenged his attorney’s conduct as to the § 851 notice. But because the claims relied on different facts, the district court found, the amendment did not relate back. The appellate court thought this was “too crabbed a view” of Fred’s claims, “particularly given his pro se status at the time.”

Just because an amended claim “may involve some different facts than those originally alleged,” the Circuit held, “does not necessarily mean that that claim is not tied to the original claim via a common core of operative facts… Coleman’s success on either of his theories would require the district court to inquire into his attorney’s treatment of the § 851 notice and the adequacy of advice he provided to Coleman as to the impact the notice may have had on the case. This commonality is enough to unite the claims.” And because the government had gotten the district court to rule that Fred’s § 2255 motion meant he had waived the attorney-client privilege as to anything to do with the § 851 notice and the potential life sentence,” the government had the ability to “uncover the facts underlying Coleman’s amended claims.”

“Accordingly, the 7th said, “on balance, any prejudice the government may suffer by allowing the amended complaint to relate back to the original filing is outweighed by the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits.”

needcoffee230824After all of this dry resolution of Rule 15(c)’s “relation back” application to Fred’s case, the appellate court found that Fred’s attorney seemed to have dropped the ball by not arguing that the overbroad Illinois statute counted as a prior “felony drug offense” that would enhance his minimum sentence. “It would have been objectively unreasonable for Coleman’s defense counsel to have not even considered a categorical challenge to the government’s reliance on prior Illinois cocaine convictions to enhance Coleman’s sentence,” the Circuit said. “Of course, if counsel did consider the argument but had credible strategic reasons for not raising it, that would be a different question.  But because the claim alleged in Coleman’s amended § 2255 motion, if proven, would entitle him to relief, we find that an evidentiary hearing on this issue is necessary. “

Time for another cup of coffee…

Coleman v. United States, Case No. 22-1678, 2023 U.S. App. LEXIS 21201 (7th Cir. Aug. 15, 2023)

Taylor v. United States, 495 U.S. 575 (1990)

– Thomas L. Root

2255 Hair-Splitting and the Power of Advertising – Update for August 15, 2023

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A 2255 PAIR

Two federal appellate court decisions last week of interest on motions for post-conviction relief under 28 USC § 2255:

Denaturalization is Too Collateral for Padilla, Circuit Says: In 2006, Abe Farhane – a naturalized American citizen – pled guilty to lying to the government and conspiring to commit money laundering. After Abe was released in 2017, the government started denaturalization proceedings to strip him of his citizenship under 8 USC § 1451(a) for having become a citizen by “concealment of a material fact or by willful misrepresentation.”

deport170113Abe was still on supervised release after his prison sentence, which entitled him to file a 28 USC § 2255 motion for post-conviction relief. Abe filed a § 2255 motion claiming he received ineffective assistance of counsel because his lawyer never told him he might lose his citizenship and be deported due to his guilty plea. Had he known that, Abe argued, he never would have entered a guilty plea.

His § 2255 was denied, and last week, the 2nd Circuit upheld the decision.

splithair170727The Supreme Court held in the 2009 Padilla v. Kentucky decision that a lawyer has a duty to “inform her client whether his plea carries a risk of deportation,” noting that there was no “distinction between direct and collateral consequences” of a guilty plea when measuring the effectiveness of counsel. But the 2nd Circuit said that Padilla had no role in this case, because “civil denaturalization is a separate proceeding that may or may not occur following the plea. The government exercises considerable discretion in bringing denaturalization cases, as does the district court in evaluating the evidence… indeed, the government could seek to denaturalize Farhane without relying on his guilty plea. Instead, it turns on the defendant’s actual conduct.”

The Court’s hair-splitting seems to be a distinction without a difference, as the dissenting judge in the 2-1 decision pointed out.

Farhane v. United States, Case No. 20-1666, 2023 U.S.App. LEXIS 20960 (2d Cir. Aug. 11, 2023)

Advertising Makes Illinois Drug Statute Overbroad: After Otis Elion pled guilty to distributing meth, and he was sentenced as a career offender under USSG § 4B1.1. That Guideline increases sentencing exposure dramatically for someone with two prior convictions for crimes of violence or serious drug felonies.

Otis’s attorney did not challenge that designation, and the court imposed a 167-month prison term.

In a § 2255 motion, Otis argued his attorney’s failure to object amounted to ineffective assistance because two of the three predicates were convictions under Illinois law for “look-alike” drugs, and those offenses did not fit within the statute’s definition of serious drug felonies.

Otis’s district court denied relief.

Last week, the 7th Circuit reversed, concluding that Otis was properly sentenced as a career offender and, therefore, did not suffer prejudice from counsel’s performance.

A “serious drug felony” is a federal drug trafficking offense or a state offense that matches the Guidelines definition of controlled substance offense. If the elements of the state crime are the same as, or narrower than, the elements of the Guidelines offense, “the crime of conviction qualifies as a predicate offense.”

advertising230815Otis’s Illinois offense made it “unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a lookalike substance,” and defines advertise as “the attempt, by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire” a controlled substance.

The 7th said the Illinois statute is broader than 21 USC § 841 and thus could not be a predicate for Guidelines “career offender” status. “Advertise is an independent word in the statute, and its definition uses the term induce, not sell or distribute. Given this, we decline to read ‘advertise’ as merely restating, in narrower terms, what other statutory language already covers. For these reasons, the look-alike statute’s inclusion of ‘advertise’ means it punishes a broader range of conduct than the Guidelines controlled substance offense.”

The Circuit reversed the denial of his § 2255 motion and remanded the case “for an evaluation of counsel’s performance.”

Elion v. United States, Case No. 20-1725, 2023 U.S.App. LEXIS 20286 (7th Cir. Aug. 7, 2023)

– Thomas L. Root