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Sobering § 2255 Lessons – Update for September 10, 2020

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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.

A COUPLE OF CAUTIONARY 2255 DECISIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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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.

FATHER KNOWS BEST

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

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

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

Things went downhill fast.

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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3RD CIRCUIT ISSUES REMARKABLE INEFFECTIVE-ASSISTANCE DECISION

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

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

This is where the appointed counsel lottery comes in.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

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

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

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

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

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

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

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

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

billyjoe191015

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

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

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

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 2019

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6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root

‘Bang’ Goes the Jury: Lawyer Ineffective For Not Protesting Judicial Arm-twisting – Update for February 1, 2019

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BLOWING UP THE JURY

juryduty180226Simon Brewster was on trial in state court for bank robbery. The jury went out, but reported to the judge a few hours later that it was hopelessly deadlocked 9-3 for conviction. The judge gave the jury the Allen charge, known colloquially as the “dynamite charge,” which pressures the jurors to reach a decision by continued deliberation by appealing, essentially, to their desire not to have wasted their and the court’s time.

The jury remained deadlocked, and the judge gave another Allen charge, two additional admonitions that the jurors must continue deliberating, and finally, another long charge that included instructions to keep on deliberating. That lengthy charge emphasized that the jurors had taken an oath to follow the law, which meant they must deliberate more. The judge ended his instructions with the challenge that he had taken his oath seriously and hoped they would do the same.

Shortly thereafter, when told that the one juror who wouldn’t vote to convict was doing crossword puzzles, the judge ordered all the reading materials taken out of the jury room. That tactic turned out to be effective. The jury convicted 20 minutes later.

dynamitejury190201Last week, the 11th Circuit granted Simon’s habeas corpus motion, holding that his lawyer was asleep at the switch for not objecting to the court’s strong-arming the jury. The 11th decided that even if Simon could not prove that judge would have granted a mistrial if he had been asked to do so, Simon was prejudiced. “An assessment of the likelihood of a result more favorable to a defendant must exclude the possibility of arbitrariness, whimsy, caprice, nullification, and the like,” the Circuit said. “It does not matter for prejudice purposes whether the judge at a defendant’s trial would have sustained an objection; what counts is whether the judge would have been required to do so under the applicable law and, if so, whether doing so would have resulted in a reasonable probability of a different result.”

Brewster v. Hetzel, 2019 U.S. App. LEXIS 1931 (11th Cir. Jan. 22)
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– Thomas L. Root

6th Circuit Make Showing Prejudice on Botched Plea Deals Easier – Update for October 11, 2018

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6TH CIRCUIT EASES PREJUDICE SHOWING REQUIRED FOR INEFFECTIVE ASSISTANCE OF COUNSEL ON PLEA AGREEMENT

plea161116One of the biggest hurdles facing an inmate filing a post-conviction motion under 28 USC 2255 who argues his lawyer gave bad advice on taking a plea deal is proving that he would have gone to trial but for the bad advice. That is the old Hill v. Lockhart prejudice standard for ineffective plea advice. The problem is that often, there is no way the defendant would have gone to trial under any circumstances, but he would have tried to negotiate a different plea deal or even entered a blind “straight-up” guilty plea without a plea deal at all.

Until recently, unless you could show you would have gone to trial but for the bad advice, you could not win a 2255 ineffective plea claim. Last week, the 6th Circuit has joined five other circuits in holding that a 2255 defendant may demonstrate prejudice if he can show that, had he been properly advised, he would have bargained for a more favorable plea.

Daynel Rodriguez-Penton argued in a 28 USC 2255 motion that his lawyer failed to warn him that pleading guilty would get him deported. The district court denied his motion, relying on the Hill v. Lockhart prejudice standard.

The 6th Circuit reversed, holding that “the legal landscape for such claims has changed in material ways since Hill.” In Missouri v. Frye, the Supreme Court explained that “Hill applies in the context in which it arose. Hill does not, however, provide the sole means for demonstrating prejudice arising from the deficient performance of counsel during plea negotiations.” The Frye court ruled that petitioners who allege ineffective assistance of counsel during the plea process may satisfy the prejudice prong even without a showing that they would have gone to trial were it not for counsel’s deficient performance.

prejudice181011The Circuit said last week that such a prejudice showing may be made in different ways, such as by identifying similar plea agreements reached by others charged with similar crimes, by showing that the petitioner would have gone to trial, or by proving his decision-making process would somehow have been different. What is necessary, the Court said, is that, “no matter the route he takes, [the defendant] must still end up at the same place: he must present evidence sufficient to undermine confidence in the outcome of the plea-negotiation process.”

Daynel will now get a chance to prove he could have cut a plea agreement that would have kept him in the US.

Rodriguez-Penton v. United States, Case No. 15-6306 (6th Cir. Oct. 2, 2018)

– Thomas L. Root

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The Error Wasn’t Plain… But Your Lawyer Was Plainly in Error – Update for August 7, 2018

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GOVERNMENT PLEA BREACH NOT PLAIN ERROR, BUT DEFENSE COUNSEL WAS PROBABLY INEFFECTIVE
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal
A defendant is supposed to get what he reasonably believed he negotiated in a plea deal

Marquette Murray had a couple of problems, a federal drug conspiracy indictment and a couple of misdemeanors in D.C. Superior Court. His lawyer negotiated a favorable plea deal in which the government agreed Marquette was looking at Criminal History I and a sentencing range of 24-30 months.

After the deal was made, however, Marquette got sentenced in D.C. Superior Court before his federal sentencing. The presentence report used the misdemeanor convictions and made Marquette a Crim History II. His sentencing range rose to 27-33 months, and the government recommended a 33-month sentence.

On appeal with a different lawyer, Marquette claimed the government had breached the plea agreement, because in D.C., the government runs prosecutions in federal court and superior court. Because the government had the power, Marquette said, it should have delayed Superior Court sentencing so Marquette would have remained a Crim History I for federal sentencing purposes. To add insult to injury, the government demandedMarquette get 33 months, and thus breached its promise to recommend a within-range guidelines sentence.

ausalies171207What did in the government was that it agreed in the plea agreement that based on the information it knew, Marquette had a criminal history of I and a sentencing range of 24-30 months. Last week, the Court of Appeals agreed with Marquette that the government had welshed on the deal, but it denied Marquette relief… even while dangling a post-conviction carrot in front of him.

Sure, the Court ruled, the government breached the plea agreement. But because Marquette’s trial attorney did not object, the appeals court could only grant relief for FRCrimP 52(b) plain error. “And to find plain error,” the Court said, “it is not enough to base our reading on the parties’ ‘reasonable understanding’ and on ‘construing any ambiguities’ against the government. Rather, we must find that the breach was clear or obvious.”

While reasonable defendants could have understood the agreement the way Marquette did, the agreement did not expressly address whether the not-yet-entered pleas would affect his final criminal history category and Guidelines range, and the agreement does not expressly address the expected timing of those pleas. “In sum, we conclude that the government breached its plea agreement with appellant [Marquette]. But [Marquette] did not object to the breaches in the district court, and we therefore cannot provide him with relief because the breaches were not plain. Although his interpretation of the agreement’s ambiguous language is the best one, we cannot say that the breaches should “have been obvious to the trial court.”

However, the Court said in an unmistakable hint to Marquette, it seemed pretty clear his trial counsel was ineffective in not seeking a continuance in Superior Court and in not objecting to the government asking for more than 30 months.

lawyerjoke180807And because “in most cases the Guidelines range will affect the sentence,” the prospect that effective performance would have put [Marquette’s] 33-month sentence above the Guidelines range is sufficient to establish a reasonable probability of prejudice.

The Court strongly implied that Marquette might get the deal he was entitled to on post-conviction review, and it hinted to Marquette that he should be sure to file a 2255 motion, which he will no doubt be doing soon.

United States v. Murray, Case No. 17-3006 (D.C. Cir., July 31, 2018)

– Thomas L. Root

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Law Books and Ouija Boards – Update for Wednesday, March 14, 2018

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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.

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2255 FILERS: “IAC” IS NOT “INEFFECTIVE ASSISTANCE OF CLAIRVOYANT”

ouija180315One of the most common arguments made in a post-conviction motion under 28 USC 2255 – which is the federal prisoner’s stand-in for a writ of habeas corpus attacking the conviction or sentence – is that the defendant’s trial attorney rendered ineffective assistance. The Supreme Court has held that the 6th Amendment guarantees the right to counsel in felony cases, as every schoolchild knows, but the Court has gone beyond that, holding that the right to counsel is meaningless without the right to effective counsel, that is, an attorney who does not screw things up by committing what amounts to malpractice.

Unsurprisingly, to a prisoner employing hindsight, the end justifies the means (in a way). We once had a guy call us up to say, “I got convicted. My lawyer was ineffective.” We asked what his lawyer had done that constituted ineffective assistance, to which the inmate impatiently replied, “You don’t get it. My lawyer was ineffective. I got convicted.” We again asked how the lawyer had been ineffective, before it dawned on us that the inmate was saying that the fact of his conviction was proof of his lawyer’s ineffectiveness.

dumblawyer180108It really doesn’t work that way, as defendant Tyrone Kirklin learned last week. Ty was convicted of a string of robberies in which the jury found he had sent accomplices into banks with handguns. The jury did not find that the accomplices brandished the guns, which would have made Ty’s 18 USC 924(c) mandatory consecutive sentence at least seven years instead of five. However, at sentencing the judge found that Ty’s sidekicks had indeed brandished the weapons, and that Ty had convinced them to do so. He raised Ty’s mandatory consecutive sentence to seven years.

At sentencing, Ty’s lawyer did not argue that the jury – not the judge – had to make the “brandishing” finding, and that the finding had to be made beyond a reasonable doubt. But during Ty’s appeal, the Supreme Court handed down Alleyne v. United States, reversing its 2002 holding in Harris v. United States and holding that facts that set or raised a mandatory minimum sentence – like facts that raised a maximum sentence – had to be found by a jury beyond a reasonable doubt.

Ty’s Court of Appeals considered Ty’s appeal in light of the new Alleyne holding, but said that because Ty had not raised the issue in the district court, the seven-year minimum sentence could be reviewed for “plain error.”  Doing so, the Circuit affirmed his sentence because the court’s error did not affect the “fairness, integrity, or public reputation of the proceedings… The evidence that the accomplices brandished the firearms and that Ty was responsible for their having done so was overwhelming. It seemed ‘highly unlikely’ that the jury would have found him guilty of aiding and abetting the use or carrying of the firearms without finding him equally responsible for the brandishing.”

So Ty filed a 2255 motion, arguing his lawyer was constitutionally ineffective for not raising the Alleyne issue at sentencing. Last week, the 7th Circuit turned him down. After all, the Circuit said, Harris was the law when Ty was sentenced. It was not until three months after sentencing that the Supreme Court granted certiorari in Alleyne, which first “signaled that the Supreme Court would consider whether to overrule Harris.”

crystal180315Ty argued his attorney’s performance was objectively unreasonable because the lawyer should have anticipated the possible overruling of Harris, and thus should have objected that the district court made the brandishing finding instead of the jury (to preserve the objection in case something later happened at SCOTUS). Ty said a competent lawyer would have realized that the Alleyne decision overruling Harris was imminent.

The 7th said Ty’s “claim of ineffective assistance depends on hindsight, which Strickland v. Washington warns against… With the benefit of hindsight, the overruling of Harris can too easily seem almost inevitable. But it was not inevitable to Justice Scalia, who concurred in both Apprendi and Harris and dissented in Alleyne. Nor was it inevitable or appropriate in the view of the other Justices who dissented in Alleyne. We have said repeatedly that the guarantee of effective assistance of counsel does not require an attorney to anticipate every eventual change in the law.”

Kirklin v. United States, Case No. 17-1056 (7th Cir.  Mar. 5, 2018)

– Thomas L. Root

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Counsel Should Be Smart Enough to Know the Court is Wrong – Update for January 8, 2018

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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.

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IF ERROR WAS NOT PLAIN, WAS COUNSEL STILL INEFFECTIVE?

It has happened often enough before: A Circuit decision was plainly against a sentencing position the defendant wanted to take, and so counsel did not fight the issue. Then, after the defendant’s conviction is final, the law changes. Was counsel ineffective for not raising the issue?

violence151213Jolol Carthorne was sentenced as a Guidelines career offender in part because he had a Virginia prior for assaulting a police officer. Circuit precedent at the time held the crime to be a crime of violence, and his lawyer did not fight it, despite the fact that Virginia law held that the slightest touching was enough for conviction.

On appeal, Jolol argued that the assault should not count for career offender status. The problem, of course, was that Jolol did not raise the issue at sentencing, so he could only win the issue if the district court committed plain error. The Circuit agreed that his assault on the cop was not a crime of violence, but said that because its prior decisions (all of which had since discredited by Johnson and Mathis and other Supreme Court cases) were binding on the district court when Jolol was sentenced, the sentencing error was not FRCrimP 52(b) “plain error.” Jolol had noting coming.

assault180108Jolol then filed a 2255 motion complaining that his lawyer should have argued that a Virginia conviction for assaulting a cop was no longer a crime of violence. His lawyer admitted he was not even aware of the analysis required by the recent Supreme Court cases application offenses, such as Johnson v. United States, Mathis v. United States, and  Descamps v. United States, for purposes of the career offender enhancement. But the district court said that since there was no plain error in sentencing Jolol as a career offender, there was no ineffective assistance of counsel standard in not raising it.

On the Thursday before Christmas, the 4th Circuit ruled for Jolol. It said that the plain error standard and ineffective assistance of counsel are not the same thing. “The ineffective assistance inquiry focuses on a factor that is not considered in a plain error analysis, namely, the objective reasonableness of counsel’s performance. In addition, plain error review requires that there be settled precedent before a defendant may be granted relief, while the ineffective assistance standard may require that counsel raise material issues even in the absence of decisive precedent… Claims of ineffective assistance are evaluated in light of the available authority at the time of counsel’s allegedly deficient performance. But the plain error inquiry applies precedential authority existing at the time of appellate review.”

dumblawyer180108Defense counsel must demonstrate a basic level of competence regarding the proper legal analysis governing each stage of a case. Therefore, he or she may be constitutionally required to object when there is relevant authority strongly suggesting that a sentencing enhancement is not proper. The Circuit said that was the case here, where newer cases made clear that Virginia assault and battery did not categorically present serious risks of physical injury. Defense counsel should have known to make the argument, even though the district court probably would have rejected it because of circuit precedent.

United States v. Carthorne, Case No. 16-5613 (4th Cir., Dec. 21, 2017)

– Thomas L. Root

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