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

6TH SAYS CLASHING § 2255 AFFIDAVITS REQUIRE A HEARING

When a prisoner files a 28 USC § 2255 post-conviction motion claiming his conviction or sentence was marred by poor lawyering, district courts often manage to find all manner of ways to believe the government’s version over the inmate’s.  Last week, the 6th Circuit offered a rare reminder that this isn’t how it is supposed to work.

The Assistant U.S. Attorney prosecuting Amaury Villa’s case emailed Amaury’s counsel in January 2016 with an offer to enter into a cooperation agreement. Amaury’s lawyer says he told Amaury about the offer the day it was made. Amaury says that he learned about that offer only years later – after his conviction was final – when he obtained the relevant portion of his lawyer’s case file.

As soon as he got the file, Amaury amended his pending 28 USC § 2255 habeas corpus motion with his own affidavit, claiming his lawyer was ineffective for not disclosing the offer at the time. Not to be outdone, the government filed an affidavit from Amaury’s former lawyer, claiming he had told his client right away about the proposed deal.

The district court summarily adopted the government’s view of the facts and denied Amaury’s motion to amend as untimely. Last week, the 6th Circuit reversed and ordered an evidentiary hearing.

“When a defendant presents an affidavit concerning a factual narrative of the events that is neither contradicted by the record nor inherently incredible and the government offers nothing more than contrary representations to contradict it,” the Circuit said, “the defendant is entitled to an evidentiary hearing.”

In this case, the 6th observed, the record contained conflicting affidavits regarding whether Amaury knew of the government’s offer. Thus, the record before the district court did not “conclusively show” that Amaury was not entitled to relief.

The government met with Amaury in 2016, a meeting his lawyer did not attend because the attorney’s father had passed away the night before. “Although an interpreter was not present at the meeting and (according to Villa) his English was ‘not very good,’” the Circuit said, the AUSA told Amaury that the government wanted him to testify against another defendant (for which Amaury presumably would have gotten credit in the form of a better sentence). The AUSA did not mention a cooperation agreement as such, and the meeting was a short one. Amaury later pled guilty without a plea agreement.

On appeal, the government argued that based on the AUSA’s comments in the short meeting, Amaury should have been aware there was a cooperation agreement on the table. The Circuit rejected that argument: “During that meeting… the AUSA mentioned neither the cooperation agreement nor anything else about what Villa might receive in return for his testimony. Thus, to discover the AUSA’s earlier offer to Villa’s attorney, Villa himself, in effect, would have needed to commence bargaining with the AUSA — by asking what he might have received in exchange for his testimony… That is too much to ask of an uncounseled defendant conversing in his second language with a federal prosecutor.”

Villa v. United States, Case No. 22-5437, 2023 U.S.App. LEXIS 12 (6th Cir., January 3, 2023)

– Thomas L. Root

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

WHAT WAS THE LAWYER THINKING? 4TH CIRCUIT REMANDS § 2255 CASE TO FIND OUT

James Pressley (aka Bubba, according to the court) was interrogated after an alleged drug buy. He said the interrogation was custodial, and no one read him his rights. The cop said it was a friendly, roadside consensual chat. Whatever it was, Bubba implicated himself and got convicted.

On a post-conviction habeas corpus motion filed pursuant to 28 USC § 2255, Bubba claimed his lawyer rendered ineffective assistance by failing to file a motion to suppress his incriminating statements. Bubba said he asked counsel to file such a motion, but counsel never did so. The district court denied Bubba’s § 2255 motion without holding an evidentiary hearing. The court found Bubba admitted that he made the incriminating statements after the government offered potential benefits in exchange for cooperation, the cops told Bubba he was not under arrest, and Bubba voluntarily got into the car with the officers.

Last week, the 4th Circuit reversed. Bubba told a version of the interrogation that was much different from the district court’s. He said the police followed him, threaten to intercept him, surrounded him, and pointed weapons at him. But the § 2255 record did not show whether Bubba ever told his lawyer that. What’s more, while his lawyer provided an affidavit to the court, he did not explain any reasons – strategic or otherwise – for declining to file a motion to suppress.

District courts seldom hold hearings on § 2255 motions, and this case was no exception. The 4th said that here, “the record contains only a sworn statement from Pressley’s brother, who relayed a conversation with counsel in which counsel purportedly stated that he would not seek suppression because Bubba “made the statement on himself” and counsel “did not think [a suppression motion] would do any good…. We thus are left to speculate regarding what information counsel knew about the circumstances of the interrogation, and how he evaluated that information before deciding not to file a motion to suppress.”

The Circuit conceded that “under the circumstances presented here, counsel could have made a reasonable and informed legal judgment not to file such a motion, after balancing the likelihood of success on the motion with the risk of requiring Pressley to testify at a suppression hearing.” But without knowing what counsel was thinking, Bubba’s § 2255 motion could neither be granted nor denied. “Without knowing what information was available to counsel at the time, or the tactical considerations that competent counsel would be obliged to consider, we cannot determine whether counsel acted within the wide range of professionally competent assistance when he refused to file a motion to suppress.”

United States v. Pressley, Case No. 19-6222, 2021 U.S. App. LEXIS 7150 (4th Cir., March 11, 2021)

– Thomas L. Root

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

SAYIN’ IT DON’T MAKE IT SO

Over 50 years ago, the Supreme Court made it clear in Machibroda v. United States that a hearing should be held whenever a post-conviction motion under 28 USC § 2255 does not “conclusively show that the prisoner is entitled to no relief.”

Yet, § 2255 more than a half century later, hearings remain as rare as hen’s teeth, as district courts routinely contort themselves and the record to deny 2255s based on tissue-thin justifications.

The 10th Circuit last week gave district courts a well-needed wake-up call that a defendant is not proven conclusively wrong simply because a defense lawyer’s affidavit says so.

Larry Herring filed a 2255 claiming his trial attorney had been ineffective for not filing a notice of appeal after Len asked him to do so. His former attorney responded with an affidavit saying that he had told Larry that he did not do appeals, and had given his client a list of lawyers to contact. The lawyer stated emphatically that “I was never asked by Mr. Herring to file an appeal on his behalf.”

Citing that affidavit and arguing that the court told Lenny at sentencing about his appeal rights, the Government argued that Len’s complaint was meritless. The district court agreed.

Last week, the 10th Circuit reversed, reminding courts that attorney affidavits contradicting the defendant do not justify denial: “When a district court refuses to grant an evidentiary hearing,” the Circuit ruled, “first, we ask whether the defendant’s allegations, if proved, would entitle him to relief… Here, we hold that, if true, the facts Herring alleged in his section 2255 motion to support his ineffective assistance of counsel claim would entitle him to relief. Therefore, the record does not ‘conclusively show’ that Herring is entitled to no relief, and, accordingly, the district court abused its discretion by failing to hold an evidentiary hearing to resolve Herring’s section 2255 motion.”

As for the argument that the district court advised Herring of his rights and defense counsel gave him some appellate attorneys’ names (none of whom he ever contacted), the 10th said, “Trial attorneys cannot outsource their constitutional obligation to advise their clients about filing an appeal nor their duty to make a reasonable effort to discover their clients’ wishes. Once the duty to consult is invoked by a defendant expressing interest in appealing, trial attorneys must properly advise their client and assess their client’s wishes before withdrawing from the case.”

Herring v. United States, Case No. 18-4023, 2019 U.S. App. LEXIS 25759 (10th Cir. Aug. 27, 2019)

– Thomas L. Root