Tag Archives: ineffective assistance

Local Lawyer Makes Bad – Update for December 10, 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.

PLEA AGREEMENT BY COMMITTEE

pleadeal161116Elvin Torres-Estrada hired a pair of New York City lawyers to represent him in a Puerto Rican drug conspiracy case. When out-of-district laws come to town in a case like this, they have a local lawyer sponsor them to appear pro haec vice, literally “for this event,” without having to get admitted to practice before the district court. Elvin hired a local lawyer, Garcia, to do so and to act as local counsel to his out-of-town hired guns.

Early on, Elvin’s lawyers concluded that he might benefit from a joint plea deal with one of his co-defendants. With Elvin’s OK, the two attorneys began coordinating with the co-D’s attorneys and learned the government had refused a proposed 11-year term of imprisonment for the co-defendant and would be seeking a sentencing recommendation for Elvin roughly two years longer than whatever the co-D ultimately got. Local lawyer Garcia did not attend most of their meetings with the co-D’s people, consistent with his limited role as local counsel.

The government offered Elvin 188 months. Elvin’s NYC lawyers got the co-D’s lawyers to agree that the defendants would jointly counteroffer with 144 for the co-D and 168 for Elvin. Elvin reluctantly OK’d the deal. But before the scheduled meeting with the government, Garcia met with his client and talked him into authorizing a 156-month counter instead of the previously agreed-to 168. When the New York lawyers found out, they convinced Elvin to raise it to 164.

Garcia then blindsided the NYC lawyers by throwing the 156-month counteroffer out in the middle of the meeting anyway, and then upping it to 162 when the government rejected the 156 months out of hand. The government said it would “think about” it.

Plea negotiations broke down, the government obtained a second indictment against Elvin for a separate conspiracy, and he ended up with a 288-month sentence. Elvin filed a 28 USC § 2255 petition arguing that Garcia rendered ineffective assistance by undercutting the New York lawyers’ careful plea negotiations.

Last week, the 1st Circuit upheld the denial of Elvin’s 2255.

chinashop241210The Circuit seemed to acknowledge that Garcia was a bull in a china shop but said that he had compromised with a counteroffer that was only two months lower than what Elvin had authorized and that the government “still responded by saying he would think about it.” The 1st said, “The circumstances surrounding the meeting thus diminish the force of Elvin’s claim that Garcia’s disruptive actions were incompatible with an attempt by competent counsel to secure the best possible deal for his client. Given the government’s stated willingness at the meeting to consider the rogue 162-month proposal, one could reasonably say that Garcia’s aggressive (though discourteous) tactics had advanced the plea negotiations and, accordingly, were within the range of competence demanded of attorneys in criminal cases.”

reallawyer170216Even if Garcia’s performance had been deficient, the Circuit said, Elvin had not been prejudiced. The record “makes plain that Garcia’s conduct did not result in termination of the plea-bargaining process. Rather… after [the government] was told that Garcia “spoke out of turn and inconsistent with Elvin’s instructions,” it “agreed to revisit” the possibility of lowering the offers to both defendants. And more than two weeks after Garcia’s hijacking of the negotiation session, the original offer of fifteen years/eight months (188 months) remained on the table.”

“In sum,” the Circuit held, “we need not view Garcia’s disruptive performance in advance of, and during, the meeting as entirely defensible to conclude that Elvin has failed to establish a violation of his 6th Amendment right to the effective assistance of counsel…

Torres-Estrada v. United States, Case No. 19-1485, 2024 U.S. App.  LEXIS 30919 (1st Cir., December 6, 2024)

– Thomas L. Root

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

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

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

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‘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

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

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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

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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.

“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

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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.

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