2006: United States v. Morris
470 F.3d 596 (6th Cir. 2006) (affirming in part United States v. Morris, 377 F. Supp. 2d 630 (E.D. Mich. 2005)).
Counsel was ineffective in felon in possession of a firearm case brought under Project Safe Neighborhoods, a joint program of the
federal and state prosecutors in Michigan, for failing to adequately advise the defendant with respect to the state’s plea offer. The defendant was initially charged in state court and offered
a deal for one to four years on a marijuana charge and two additional years on the weapons charge. The state prosecutor required an immediate decision, however, and the defendant was
informed that if he declined the deal, he would be transferred to federal court which could result in a more severe sentence. Counsel, who did not have complete discovery at that time, was
able to speak only briefly with the defendant in the “bull pen” with others present and no ability for privileged communications prior to a hearing. State counsel was not familiar with the federal
sentencing guidelines and relied on what the state prosecutor told her based on his information from the federal prosecutor. She, thus, informed the defendant that if transferred to federal court,
he could receive a sentence of 62 to 68 months when he actually faced 101 to 111 months under the federal guidelines. The defendant rejected the deal and was transferred to federal court
where he filed a motion to dismiss the federal indictment and to “remand” him to state court and to reinstate the plea. The District Court granted the motion on the basis of ineffective assistance
of counsel. The Sixth Circuit found that it was proper to dismiss the indictment because the federal prosecutor was involved in the state court plea offer, which included dismissal of the federal charges
as part of the agreement, but the federal court could not remand to state court and order reinstatement of the plea offer. The court held that the defendant was constructively denied counsel under
United States v. Cronic, 466 U.S. 648 (1984), and prejudice was presumed..
The fact that . . . counsel gave him some advice does not preclude a finding of constructive denial of counsel under this standard. Rather, the
circumstances, such as the lack of time for adequate preparation and the lack of privacy for attorney-client consultation, would have precluded any lawyer from providing effective advice. This is demonstrated
here in part by the fact that . . . counsel was precluded from taking basic preparatory steps such as looking at his prior record in conjunction with the federal sentencing guidelines so as to make an accurate
prediction of his guideline range, and instead had to rely on the erroneous estimate provided by an Assistant United States Attorney. . . .
Alternatively, the court held that counsel provided ineffective assistance of counsel under Strickland. Counsel’s conduct was deficient in failing to adequately inform the defendant of the likely consequences
of rejecting the plea offer and being transferred to federal court. Prejudice found because the defendant would likely have accepted the plea offer and entered a plea of guilty if he had been adequately advised.
*
Hoffman v. Arave
455 F.3d 926 (9th Cir. 2006).
Under pre-AEDPA law, counsel ineffective in capital case for advising the defendant to
reject a plea bargain that would have removed death penalty option. Although counsel
reasonably suspected that the state's death penalty statute might be found
unconstitutional, he conducted insufficient research into that conflicted area of the law,
and rejection of the plea bargain risked much in exchange for very little, given high
probability that defendant would be convicted at least for aiding and abetting murder,
which would support first-degree murder conviction and death penalty. Prejudice found
because there was a reasonable probability that the defendant would have accepted the
plea agreement had he received accurate advice.
2005:
Riggs v. Fairman
399 F.3d 1179 (9th Cir. 2005) (affirming 178 F. Supp. 2d 1141 (C.D. Cal. 2001).
Counsel was ineffective in plea bargaining in case of felony petty theft and “three strikes” sentencing. The defendant had four prior robbery convictions, all of which were resolved in a single proceeding. During plea negotiations on the felony petty theft charge, the prosecutor did not realize that each robbery count could be used as a “strike” and offered the defendant a five year sentence in exchange for a guilty plea. Because the defense counsel had not investigated and was unaware of the defendant’s prior convictions, counsel advised the defendant that the maximum sentence he faced on the felony theft charge was nine years when it was actually 25 years to life. The defendant rejected the deal and proceeded to trial. Because the state court summarily denied relief, the Ninth Circuit conducted an “independent review of the record” in its AEDPA analysis. Counsel’s conduct was deficient in failing to investigate and giving advice that “was not only erroneous, but egregious, considering the discrepancy between the two punishments.” Id. at 1183. Prejudice found because the defendant and “any reasonable person” would have accepted the state’s offer given the sentencing disparities and the strength of the state’s case. Because the state’s offer had been based on the state’s misunderstanding of the law, which could have been discovered prior to an actual guilty plea, the court would not order the state to comply with the prior offer but did return the case to the plea negotiation stage.
2004:
United States v. Grammas
376 F.3d 433 (5th Cir. 2004).
Counsel ineffective in altering vehicle identification number case
for failing to realize (and, therefore, failing to advise the defendant)
that his prior convictions were crimes of violence that raised the base
offense level for sentencing. Counsel’s conduct was deficient because
failure to properly advise the defendant of the maximum sentence that he
could receive falls below an objective standard of reasonableness. The
defendant was prejudiced because there is a reasonable probability that
if he had known of the greater sentencing exposure, he would have plead
guilty and availed himself of a guidelines reduction for acceptance of
responsibility.
2003: Nunes v. Mueller
350 F. 3d 1045 (9th Cir. 2003).
Counsel was ineffective in second degree murder case for giving the
defendant incorrect information and advice concerning the state’s plea
offer, which resulted in the defendant rejecting the offer. The
defendant was initially charged with murder during the first two trials,
the jury hung. After the third trial, the defendant was convicted of
second degree murder but that conviction was reversed on appeal. Prior
to the fourth trial, the state offered the defendant a sentence of
eleven years in exchange for a guilty plea to voluntary manslaughter.
Counsel met only briefly with the defendant and did not adequately
explain the offer. The defendant believed the offer was for a 22 year
sentence. The first time the defendant was able to talk to counsel again
and clarify the offer was on the day of trial when the offer had
expired. The defendant was convicted of second degree murder and
received a 15 year to life sentence. Without holding an evidentiary
hearing, the state court held that the defendant had not made out a
prima facie case for prejudice and denied relief. Analyzing the
case under the AEDPA, the Ninth Circuit found that the state court
decision was an unreasonable application of the law to the facts and an
unreasonable application of clearly established Supreme Court law. The
court held that there was ample evidence in the record to establish a
prima facie. The state court also unreasonably required the
defendant to prove prejudice with absolute certainly when he needed only
to demonstrate that there was a reasonable probability that he would
have accepted the plea offer. Here, the defendant met that burden. To
the extent the state court demanded more, it applied the
Strickland test unreasonably. To the extent that the state court
had made findings of fact, the court held that deference was not
required because the state court did so without holding a hearing.
Prejudice was clear here in that the defendant’s strategy through all
four trials was to argue that he was guilty only of voluntary
manslaughter. Thus, the court found that it was reasonable to infer that
he would have accepted an offer to plead guilty to voluntary
manslaughter. To the extent that the state court made contrary
inferences without a hearing, the court found that the state court
decision was objectively unreasonable because there were equally valid
inferences that could have been drawn in the defendant’s favor. The
court ordered the defendant released unless the state made an identical
plea offer to the defendant.
2002: United States v. Day
285 F.3d 1167
(9th
Cir. 2002)
Counsel ineffective in drug case
for incorrectly advising the defendant that he would have to go to trial
in order to argue that the government "had engaged in sentencing
entrapment." This erroneous advice caused the defendant to reject a plea
offer that included a three-point reduction for acceptance of
responsibility. Prejudice found because the defendant may well have pled
guilty if adequately advised. Remanded for resentencing and for the
District Court to make specific findings on deficient conduct because
the District Court did not address this issue in the first instance.
2001: Magana v. Hofbauer
263 F.3d 542
(6th Cir. 2001)
Counsel ineffective in drug case involving
two counts and mandatory consecutive terms of ten to twenty years’
imprisonment for advising the defendant incorrectly in rejecting plea
offer to ten years that he could not receive consecutive sentences and
that he would get ten years whether he went to trial or not. Because the
state courts did not discuss the question of deficient performance, the
court assumed that they concluded that counsel’s performance was
objectively deficient under Strickland. Id. at 549. The
state courts’ determination of no prejudice was unreasonable because the
state court applied a standard that required that the defendant prove
that he would have accepted the offer to show prejudice rather than
Strickland’s standard of a reasonable probability that he would
have accepted the state’s offer. Id. at 550. The sentence was set
aside with instructions to reinstate the plea offer of else overcome a
presumption of vindictiveness.
Wanatee v. Ault
259 F.3d 700 (8th Cir.
2001) (affirming 101 F. Supp. 2d 1189 (N.D. Iowa 2000))
Counsel
ineffective in murder case for failing to properly advise defendant
about the felony-murder rule while the defendant was considering the
state’s oral plea offer to plead guilty to second degree murder in
exchange for "cooperation" with the government. As a result, the
defendant rejected plea offer and was tried and convicted of first
degree murder. The state court determination that petitioner was not
prejudiced because he ultimately received a fair trial was an
unreasonable application of clearly established federal law. The
District Court’s finding of prejudice was not clearly erroneous.
[District court held: While the defendant repeatedly expressed
unwillingness to cooperate with government and be branded a "snitch,"
court found a reasonable probability that he would have accepted the
plea agreement and cooperated if he had been properly advised of the law
and had known that he could receive some real benefit in exchange for
cooperation. Instead, defendant rejected plea offer and was tried and
convicted of first degree murder. Prejudice found because, although
defendant knew there was a great disparity of possible sentences between
first and second degree when he chose to reject offer and go to trial,
he was not aware due to lack of adequate advice that he would almost
probably be found guilty of first degree murder if he proceeded to
trial.]
2000: Mask v. McGinnis,
233 F.3d 132 (2nd Cir. 2000) (affirming 28
F. Supp. 2d 122 (S.D.N.Y.
1998))
Counsel ineffective in robbery case
for failing to discover that a conviction would make the defendant a
second violent offender instead of a persistent felony offender under
state law. Prior to trial, the state offered a deal to plead to one of
the three robberies charged for a sentence of 10 years to life, the
minimum sentence under persistent offender statute. During trial, the
state again repeated the offer and said that was as low as she could go.
Trial counsel was ineffective for failing to recognize that the
defendant was not a persistent offender under state law. The defendant
was prejudiced because had he been properly qualified as a second
offender he would have accepted a reasonable offer from the prosecution
and the record reflects that the prosecutor would have offered a more
favorable deal if she had not been under the mistaken impression that he
was a persistent offender. Actual minimum was 6-12 years instead of
10-life. At trial, defendant got 20-40 years. Convictions set aside
unless state would agree to reduce sentence to 8-16 years. State court
decision found to be contrary to federal law because state court
insisted on "certainty" that outcome would have been different and
failed to refer to "reasonable probability." State court fact-findings
also given no deference because based on unreasonable application of
facts to wrongful "certainty" standard.
1997:Boria v. Kean
99
F.3d 492, clarified on reh’g, 90 F.3d 36 (2nd Cir.
1996), cert. denied, 521 U.S. 1118 (1997)
Counsel
ineffective in drug case for failing to advise client concerning the advisability
of accepting the state’s
offered plea bargain even though counsel believed that "his client’s
decision to reject the plea bargain was suicidal." Client rejected
deal for one to three years and got twenty to life.
1988:Turner v.
Tennesse
858 F.2d 1201 (6th Cir. 1988)
(affirming 664 F. Supp. 1113 (M.D. Tenn. 1987)), vacated on
other grounds, 492 U.S. 902
(1989)
Petitioner was denied EAC when
his trial counsel advised him against accepting two-year plea offer
after co-defendant received 70 year sentence and he received sentence of
life imprisonment for murder plus 40 years on each of two kidnapping
counts.
U.S.
District Court Cases
2006: United States v. Hernandez
450 F. Supp. 2d 950 (N.D. Iowa 2006).
Counsel ineffective in conspiracy to distribute methamphetamine case for failing to
adequately advise the defendant concerning the possible sentence, which resulted in the
defendant declining to plead guilty and testifying during the trial rather than just relying
on his pretrial statement, which had negative consequences under the Guidelines due to
an obstruction of justice enhancement. While counsel believed that the defendant should
plead guilty, even without a plea agreement, he never told the defendant that he believed
he would be convicted and did not lean on him to plead guilty. He simply advised the
defendant incorrectly that he would likely get a sentence of about 14 years rather than the
360 months to life range of the guidelines and the 360 months the defendant got.
Prejudice established because the defendant would have entered a guilty plea, if counsel
had performed adequately, and would have received a lesser sentence. At minimum, he
would not have had the obstruction of justice enhancement because he would not have
testified at trial, falsely or otherwise, and would have received a reduction for acceptance
of responsibility. The court ordered resentencing based on a guilty plea with no plea
agreement, with a range of 210 to 262 months of imprisonment.
United States v. Livingston
425 F. Supp. 2d 554 (D. Del. 2006)
Counsel had an actual conflict of interest and was ineffective in felon in possession of weapon case. Counsel had previously represented the defendant on criminal matters and had advised the Defendant that he could possess a gun after he completed his probation for that offense. After the defendant’s son accidentally shot a friend with the defendant’s gun, counsel advised the defendant that it was “fine” to cooperate with law enforcement. Counsel was retained in an agreement to assign to counsel any money received in connection with the settlement of a pending civil lawsuit being pursued by counsel. Counsel told the defendant that he was charged in error because he was not a felon and erroneously advised the defendant concerning the punishment range if the defendant were convicted. During trial, counsel did not present any evidence that he had advised the defendant that he could own a gun. Counsel also made no argument for leniency in sentencing “because such arguments would have necessarily implicated and exposed [counsel’s] incorrect legal advice.” If counsel had adequately advised the defendant, the defendant would have plead guilty in order to receive a lesser sentence. Counsel’s conduct was deficient because his “legal advice was not just erroneous as a matter of law, it was manifestly unreasonable in light of the totality of the circumstances” and compounded by counsel’s failure to take any steps to correct the misapprehensions created by his erroneous advice. Counsel’s fee arrangement was also “questionable ethical conduct.” The defendant was prejudiced because, if he had been adequately advised, the defendant likely would have plead guilty in exchange for a lesser sentence.
2005: United States v. Morris
377 F. Supp. 2d 630 (E.D. Mich. 2005).
Counsel was ineffective in felon in possession of a firearm case brought under Project Safe Neighborhoods, a joint program of the federal and state prosecutors in Michigan. The defendant was initially charged in state court and offered a deal for one to four years on a marijuana charge and two additional years on the weapons charge. The state prosecutor required an immediate decision, however, and the defendant was informed that if he declined the deal, he would be transferred to federal court which could result in a more severe sentence. Counsel, who may or may not have had complete discovery at that time, was able to speak only briefly with the defendant in the “bull pen” with others present and no ability for privileged communications prior to a hearing. State counsel was not familiar with the federal sentencing guidelines and relied on what the state prosecutor told her based on his information from the federal prosecutor. She, thus, informed the defendant that if transferred to federal court, he could receive a sentence of 62 to 68 months when he actually faced 101 to 111 months under the federal guidelines. The defendant rejected the deal and was transferred to federal court. Because of the cooperative relationship between the federal and state prosecutors, the court determined that it had “the power to remedy any constitutional errors.” The court held that the “plea bargaining stage is a critical stage at which the right to effective assistance of counsel attaches.” The court held that defendant was constructively denied counsel under United States v. Cronic, 466 U.S. 648 (1984), and prejudice was presumed because “the lack of time and information allotted counsel impeded her ability to advise” the defendant adequately. The procedure used of discussing the offer in the “bull pen” also deprived the defendant “of a meaningful and private communication with his attorney and contributed to a constructive denial of counsel.” The court was also disturbed by the fact that criminal defendants who choose to exercise their right to trial or with prepared counsel are penalized by Project Safe Neighborhoods’ plea offer-federal referral process and the fact that state counsel received only $40 in payment if there was no plea agreement and at least $500 if the plea offer was accepted. Alternatively, the court held that counsel provided ineffective assistance of counsel. Counsel’s conduct was deficient in failing to adequately inform the defendant of the likely consequences of rejecting the plea offer and being transferred to federal court. The court did not directly address prejudice under Strickland v. Washington, 466 U.S. 668 (1984) but discussed the importance of the preliminary hearing, which was avoided by making plea offers dependent on acceptance before the preliminary hearing. “To avoid the important role of the preliminary exam as a cost saving measure is false economy which undermines the important protections which exist to protect the innocent and achieve appropriate results.” The court dismissed the federal charges and reinstated the state’s plea offer.
Pitcher v. United States
371 F. Supp. 2d 246 (E.D.N.Y. 2005).
Counsel ineffective in drug conspiracy case for inadequately advising the defendant during plea negotiations by misinforming the defendant about the benefits of cooperation and the risks of trial, which resulted in the defendant rejecting the prosecution’s plea offer. Prior to the defendant’s arrest, a co-conspirator confessed, implicated the defendant, and participate in taped, incriminating phone calls with the defendant. From the time of the defendant’s arrest, the prosecution made it clear that they were interested in the defendant’s cooperation against the main “dealer,” who was yet to be arrested. The defendant indicated that he was willing to cooperate, but asked for counsel. He then informed counsel that he was innocent. Because counsel believed this information, he believed that the prosecution’s offer, which required an admission of guilt, could not be accepted and advised the defendant accordingly. During trial, the defendant testified to his innocence, but he was convicted. After trial, but before sentencing, counsel still tried to convince the prosecutor’s that the defendant was innocent until the main “dealer” was arrested and confessed and agreed to cooperate with the prosecution. When confronted with this information, the defendant admitted his guilt to counsel and counsel sought a deal with the government, which apparently fell through. The defendant was sentenced to 121 months. Counsel’s conduct was deficient because counsel based his actions solely on his belief of the defendant and his incorrect belief that the evidence did not establish the necessary state of mind to commit the crimes charged because the defendant admitted knowledge of a conspiracy involving Ecstacy rather than heroin, which was the charged drug. Even if true, this was sufficient for conviction. In short, counsel’s “optimistic assessment of petitioner’s chances of victory at trial was unjustified.” The court found it to be only minimally relevant that the defendant maintained his innocence because
Any experienced defense attorney knows that guilty defendants often insist on their innocence to their counsel. Furthermore, even an innocent defendant is entitled to an assessment that does not mislead him as to the current strength of his case and the threat of conviction.
In addition:
Although he did lie to his attorney, there is no basis for assuming he would have stuck to this story is [counsel] had provided reasonable advice concerning the serious danger of conviction and the comparative advantages of cooperation. [Counsel], by unreasonably telling petitioner that his story was a good one . . ., and that the government’s case was weak, gave petitioner precious little incentive to say anything else.
Prejudice found because the government was eager for the defendant’s cooperation and he had an excellent chance of doing little or no jail time if he had cooperated, when conviction after trial required a minimum of ten years. As a remedy, the court resentenced the defendant to time served.
United States v. White
371 F. Supp. 2d 378 (W.D.N.Y. 2005
Counsel was ineffective in drugs and weapons case for failing to know of and to adequately advise the defendant of the consequences of a second conviction of possessing a firearm in furtherance of a drug crime, which resulted in the defendant rejecting a plea agreement. Counsel’s conduct was deficient, because even conviction of more than one count of the statute, even if contained in a single indictment, required a 30-year mandatory consecutive sentence. If the defendant had been adequately advised, he most likely would have accepted the plea offer that would have required a plea to only one count of this offense and would have required a sentence of 147 to 168 months under the Sentencing Guidelines. Although the defendant had been convicted at trial, but not yet sentenced, the court found that habeas review under 28 U.S.C. 2241(c) was appropriate. The court ordered that the rejected plea agreement would be enforced and set aside the convictions not in line with that agreement and scheduled sentencing for a later date.
2002: United States v. Quiroz
228 F. Supp. 2d 1259 (D. Kan.
2002
)
Counsel was ineffective in cocaine distribution
case for giving erroneous advice regarding the defendant’s possible
sentences, which resulted in the defendant rejecting a plea offer.
Counsel had sent the defendant a letter advising him of the possible
penalties for possession of marijuana when the defendant was actually
charged with possession of cocaine and there was a great difference in
the possible penalties. As a result the defendant believed that the
differences between the plea offer and conviction at trial was only a
matter of six months. The court found that counsel’s conduct was
deficient and prejudicial because the defendant had been advised that he
could face 21 to 27 months when he actually faced 120 months. There was
objective evidence that the defendant would have accepted the
government’s plea offer had he known his true sentencing exposure. The
court set aside the plea and ordered that the defendant would be given
the opportunity to except the plea offer with new counsel.
1998: United States v. Robertson,
29 F. Supp. 2d 567 (D. Minn. 1998)
Acting on its own motion, the Court
vacated the jury's guilty verdicts--after convictions but prior to
sentencing-on the basis of ineffective assistance of counsel. The
defendant along with five co-defendants was charged with a number of
violent armed robberies of jewelry stores. Prior to trial, three
co-defendants entered pleas in exchange for a downward departure from
sentencing guidelines and received sentences of 60-90 months. Prior to
Robertson's trial, the Government stated that he had confessed to the
crimes and was facing over 85 years, but the Government was willing to
enter a plea agreement that would allow a sentence commensurate with
co-defendants if he would testify against another co-defendant. Defense
counsel stated, however, that he was philosophically opposed to entering
agreements to testify for the government. Even with the defendant facing
a mandatory sentence of over 90 years, the defense still rejected the
government's offer-after conviction-to testify against co-defendant in
exchange for government filing a motion for downward departure from
guidelines. The Court held, however, that in "the interests of justice,"
Slip Op. at *3, the convictions would be set aside, because where the
legal representation was so inadequate as to violate Sixth Amendment
rights, "a trial court's failure to take notice sua sponte may be a
plain error." Slip Op. at *4. The Court held that given the overwhelming
evidence against Robertson, including his confession and the testimony
of co-defendants, and the potential penalties involved, counsel was
ineffective for not advising his client to accept the plea agreements
offered by the government. "[I]t is [counsel's] absolute duty as a
criminal defense attorney to put his client's interests before his own."
Slip Op. at *4. The Court was also troubled by the fact that only two
motions were filed by counsel prior to trial; during the trial, counsel
was admonished several times and held in contempt for sexist and racist
comments; and following convictions, counsel filed no objections or
position paper in sentencing even though client was facing in excess of
90 years in prison. The Court did not act until sentencing because
prejudice was not established until the government announced during
sentencing that it would no longer offer plea agreement. Court set aside
convictions and appointed new counsel. [Subsequently, the portion of the
order vacating convictions was vacated due to a Post Conviction
Agreement negotiated by new counsel.]
State
Cases
2006: Hall v. State,
929 So. 2d 1148 (Fla. App. 2006)