United States Supreme Court Cases

 

INDICTMENT

 

 U.S. Court of Appeals Cases

 

2005: United States v. Jones,
403 F.3d 604 (8th Cir. 2005)

Counsel ineffective in possession of firearm case for failing to challenge indictment as multiplicious where the indictment included two counts of possessing the same firearm as two different dates. Counsel’s conduct was deficient because “a reasonably competent lawyer would be expected to know” that this was one offense because the evidence established that the possession was continuous. Prejudice found even though the sentences given were concurrent because: (1) the additional conviction could increase future sentences or be used to impeach the defendant’s credibility in future proceedings; and (2) the defendant had to pay an additional $100 statutory special assessment due to the second conviction.

2004:Young v. Dretke
356 F.3d 616 (5^th Cir. 2004)

Counsel was ineffective in murder case for failing to move to dismiss untimely indictment. Under a state statute effective at the time of the defendant’s trial, dismissal was required and re-prosecution was barred. The statute has since been amended to remove the bar to further prosecution following dismissal. The state court found that counsel’s conduct was deficient and that if counsel had moved for dismissal, petitioner could not have been tried or convicted. Nonetheless, the state court denied relief finding that under Lockhart v. Fretwell, there was no prejudice because the state court believed that prejudice was to be determined by reference to current law rather than the law at the time of the deficient performance. Because the state court failed to properly distinguish Fretwell and disregarded the interpretation of Fretwell in Williams v. Taylor, the state court’s decision was both contrary to and an unreasonable application of Supreme Court precedent, under the AEDPA. The court distinguished Fretwell because, in Fretwell, the petitioner sought to rely on a judicial decision of a court of appeals, which was not a final statement of law established by the Supreme Court. In this case, however, the defendant sought to rely on a statute, which is a final statement of the law. Because Strickland was controlling rather than the limited exception of Fretwell, petitioner was entitled to relief.

2001: Wilcox v. McGee, 
241 F.3d 1242 (9^th Cir. 2001)

Counsel ineffective in burglary case for failing to move, on double jeopardy grounds, for dismissal of second indictment charging the same offense. During first witness of first trial, state moved to amend or to dismiss the indictment without prejudice because the indictment listed the wrong date and address of the alleged offense. Defense objected that jeopardy had attached. Court overruled defense objection because not ripe and dismissed. After re-indictment, counsel failed to object. Court found deficient conduct because the grounds for dismissal "were both obvious and meritorious." Not strategy, "simply a mistake." Prejudice clear. Case was reviewed under AEDPA. Upon finding that petitioner met Strickland standard, court found that state court had unreasonably applied clearly established federal law without any further discussion of 28 U.S.C. § 2254(d) standard.

 

 

 State Cases

 

2001: Johnson v. State
796 So. 2d 1227 (Fla. Dist. Ct. App. 2001)

Counsel ineffective in trafficking of hydrocone case for failing to move to dismiss the indictment prior to trial. At the time, one district court had held that a defendant could be convicted of trafficking hydrocodone by possession by using the aggregate weight of the entire mixture. Another district court had reached the opposite conclusion. This district had not yet ruled. "A reasonably effective criminal defense attorney must keep himself or herself informed of significant developments in the criminal law, including decisions of other district courts around Florida." Id. at 1228. Prejudice found because this District agrees that it is error and the motion to dismiss would have been granted. Even if the trial court had not granted, the error would have been preserved for review and relief granted on direct appeal.

1997: Padgett v. State, 
324 S.C. 22, 484 S.E.2d 101 (1997)

Trial counsel ineffective for failing to object to first-degree burglary indictment which alleged burglary of dwelling, but the evidence revealed that the only building on the property was a barn in which no one lived.

1996: State v. Crosby,
927 P.2d 638 (Utah 1996)

Counsel ineffective in embezzlement case for failing to object to information which charged three counts of theft instead of one even though state statute required a single information on offenses which were part of a single plan or continuous transaction.

1994: Hopkins v. State, 
317 S.C. 7, 451 S.E.2d 389 (1994)

Trial counsel ineffective for failing to object to amendment of indictment which changed offenses from DUI causing great bodily injury to DUI causing death and thereby raised maximum punishment from 10 to 25 years. The amendment deprived the court of jurisdiction to accept guilty plea.

1993: Benbow v. State, 
614 So. 2d 398 (Miss. 1993)

Defendant denied effective assistance of counsel in plea to aggravated assault where he was represented by a law student under supervision of counsel, but counsel never met defendant and never discussed plea with him, was not in court for plea, and neither counsel nor student questioned potential defects on the face of the indictment.

1991: Salas v. State, 
591 So. 2d 257 (Fla. Dist. Ct. App. 1991)

Trial counsel ineffective for consenting to what amounted to amendment of information at trial to allege new offense.