New Issue of FSR Considers Recent Developments Affecting Right to Counsel

In three cases since 2010, the U.S. Supreme Court has seemingly strengthened the chronically anemic right to effective assistance of counsel.  Padilla v. Kentucky, the first in the trilogy, indicated that defense lawyers must in some circumstances provide accurate information to their clients regarding the deportation consequences of a conviction.  The Court then followed up Padilla with decisions in Lafler v. Cooper and Missouri v. Frye that reaffirmed and clarified the right to effective assistance in plea bargaining.  (See my post here.)

Inspired by these decisions, Cecelia Klingele and I put together an issue of the Federal Sentencing Reporter devoted to recent legal developments affecting the right to counsel.  The issue is now out in print.

The issue includes commentary from several of the nation’s most astute observers of criminal procedure.  Here are the contents:   (more…)

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Habeas Corpus and the Right to Effective Assistance of Counsel

My new article on habeas corpus and the right to effective assistance of counsel is now out: Bypassing Habeas: The Right to Effective Assistance Requires Earlier Supreme Court Intervention in Cases of Attorney Incompetence, 25 Fed. Sent. Rep. 110 (2012).  Here is the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.

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What’s Next for the Right to Effective Assistance of Counsel?

I have a new article on SSRN that considers recent developments in the Supreme Court relating to effective assistance of counsel.  Here’s the abstract:

This article considers the interplay between habeas corpus law and the Sixth Amendment right to effective assistance of counsel. Certain peculiarities of federal habeas have given a schizophrenic character to recent Supreme Court decisions on ineffective assistance. At the same time that the Court has displayed a new willingness to extend Sixth Amendment protections to the plea-bargaining arena, the Court has also evinced a particular hostility to ineffective assistance claims arising in habeas. The present article identifies the roots of this schizophrenia in the Court’s 2000 decision in Williams v. Taylor. The Court’s trajectory from Williams to the present suggests that, absent a significant ideological makeover, the Court is unlikely in habeas cases to bring greater vigor and clarity to the right to effective assistance. The Court and advocates pushing the Court to adopt stronger Sixth Amendment protections should thus focus their efforts on cases emerging directly from state-court systems, rather than on collateral post-conviction challenges in federal court.

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Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver

Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government.  The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines.  Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination.  Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender.  By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do.  No appeal was filed.  By the time Dowell realized this, it was already too late for an appeal to be taken.  Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.  Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Earlier today, the Seventh Circuit reversed in Dowell v. United States (No. 10-2912).   (more…)

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Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea.  Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea.  While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation).  Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.  (more…)

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Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining.  More specifically, in Lafler v. Cooperthe Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant.  Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time.  In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years.  Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970′s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976).  The comparison is not meant as a compliment.   (more…)

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SCOTUS to Decide on Padilla Retroactivity

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whetherPadilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

(more…)

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A Good Week for the Right to Counsel

With three decisions this week, the U.S. Supreme Court has signficantly strengthened defendants’ right to effective assistance of counsel.  In my next post, I’ll cover the two decisions that have received the most press coverage, Lafler v. Cooper and Missouri v. Frye.  Here, I’ll comment on Martinez v. Ryan, a decision that seems much narrower than the other two, but that may ultimately prove no less significant.  At issue is the right to counsel in collateral proceedings — an issue that has been hotly contested at the Court for many years.

Here’s what happened.  An Arizona jury convicted Martinez of sexual conduct with a minor.  After trial, the state appointed a new lawyer to handle Martinez’s post-conviction challenges.  This lawyer pursued a direct appeal, which proved unsuccessful, and also initiated a state collateral proceeding by filing a “Notice of Post-Conviction Relief.”  Later, however, the lawyer filed another statement asserting that she could find no colorable claims for collateral relief.  Martinez then had 45 days to file a pro se petition in order to keep the collateral proceeding alive.  He did not do so, allegedly because his lawyer failed to advise him of what was happening in his case.  In any event, the state trial court then dismissed the collateral proceeding.

(more…)

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Supreme Court Review: Ineffective Assistance of Counsel

There are two ineffective assistance decisions worth discussing. I won’t say a lot about either one, though, because it’s not clear how much to read into them. For one thing, as is often the case with the Court’s ineffective assistance decisions, they turn on a lot of case-specific factual analysis, and we don’t get much by way of broad, clear statements of law. For another, both are decided in the habeas context, where there is a lot of deference required for the underlying state-court judgments. In these cases, we are often left uncertain whether and to what extent the decisions have any significance outside of habeas.

The first of the cases is Cullen v. Pinholster, 131 S. Ct. 1388 (2011). This was a capital case. The Ninth Circuit awarded habeas relief because defense counsel did little investigation to develop mitigation evidence for the sentencing hearing. This has been a recurring subject of concern in the Supreme Court’s ineffective assistance cases.   (more…)

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Seventh Circuit Rejects Retroactivity for Padilla

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the Supreme Court held that a lawyer provides ineffective assistance of counsel by failing to inform a client of the deportation risks that result from a guilty plea.  As is typical, however, the Court did not clearly indicate whether its holding must be applied retroactively to cases on collateral review, leaving the lower courts to sort out the mess.  A handful of district courts have already split on this issue.  Now, with the Seventh Circuit’s ruling last week in Chaidez v. United States (No. 10-3623), the circuits are also split.

A divided panel in Chaidez rejected both retroactivty and the Third Circuit’s reasoning to the contrary in United States v. Orocio, 645 F.3d 630 (3d Cir. 2011).  As the Chaidez majority observed, the key legal issue is whether Padilla announced a new rule, or merely represented an application of the established principles of ineffective assistance from Strickland v. Washington, 466 U.S. 668 (1984).  Under Teague v. Lane, 489 U.S. 288 (1989), a new rule may not be applied retroactively unless it falls into one of two exceptions that plainly do not encompass the Padilla holding.

Teague and least some of its progeny suggest what seems effectively a strong presumption in favor of a “new rule” finding (and hence against retroactivity).  Here is how the Chaidez majority characterized the law:

(more…)

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