Right to Counsel: One Step Forward, Two Steps Back

As part of its end-of-term flurry, the U.S. Supreme Court issued three notable decisions in the past week on the criminal defendant’s right to effective assistance of counsel. The results were a mixed bag.

First, the step forward: in Lee v. United States, the Court strengthened the defendant’s right to accurate legal advice in relation to plea bargaining. Lee, a South Korean who resided lawfully in the U.S. for more than three decades, faced a federal charge of possession with intent to distribute ecstasy. His attorney advised him that he would likely get a lighter sentence if he pleaded guilty, but Lee was concerned that he would be deported if convicted; deportation, not prison, seems to have been his primary concern. Lee’s lawyer assured him that he would not be deported, so Lee agreed to the guilty plea. However, the lawyer was wrong — Lee faced mandatory deportation as a result of his conviction. When Lee found out, he sought to withdraw his guilty plea on the basis of ineffective assistance of counsel.

The lower courts rejected his motion. For Lee to show a violation of his constitutional right to effective assistance of counsel, he was required to demonstrate both deficient performance by this attorney and prejudice. The lower courts seemed to accept that Lee’s lawyer performed poorly, but held that Lee could show no prejudice since he had no viable defense if the case had gone to trial. In other words, even with better information, Lee would have been convicted and deported anyway.

The Supreme Court reversed, holding that prejudice can be established in some cases based on the lost opportunity to have a trial, without regard to the likely outcome of that trial.  Continue reading “Right to Counsel: One Step Forward, Two Steps Back”

Obama Clemency Grants Pick Up Steam

Somewhat lost in the run-up to Labor Day weekend and wall-to-wall media coverage of the Clinton and Trump campaigns, President Barack Obama commuted the sentences of 111 federal prisoners on August 30. This builds on what has quietly become one of Obama’s most significant end-of-term domestic policy initiatives. He has now commuted 673 sentences, more than the previous ten presidents combined.

Commutation (that is, a reduction in the severity of a criminal sentence) is a form of executive clemency. The Constitution expressly grants clemency powers, and presidents since George Washington have used these powers in a variety of different ways. In recent decades, though, there has been a certain whiff of disrepute surrounding clemency. Bill Clinton’s pardon of financier Marc Rich and George W. Bush’s commutation of the sentence of I. Lewis “Scooter” Libby, among other scandals, contributed to a perception that clemency was unfairly used to benefit wealthy, powerful defendants.

Despite these negative perceptions of clemency, the Obama Administration announced in 2014 that it would welcome commutation applications from certain nonviolent federal offenders. In particular, the initiative focuses on offenders who were convicted many years ago of crimes that would result in a shorter sentence today. Federal sentencing law has undergone several important changes in the past decade, especially in relation to the sentencing of crack cocaine offenses. Federal crack sentences were notoriously severe for many years, with greatly disproportionate effects on black defendants. As a result of the recent changes, thousands of federal prisoners are now serving terms that would be shorter if they were imposed for the same offenses today.

In comparison to the secretive, ad hoc decisionmaking of previous presidents, President Obama’s initiative represents an admirably transparent, principled approach to clemency.  Continue reading “Obama Clemency Grants Pick Up Steam”

SCOTUS: No Automatic Reversal of Conviction When Judge Improperly Participated in Plea Discussions

Federal Rule of Criminal Procedure 11 sets forth various requirements and prohibitions relating to guilty pleas, including a ban on judges participating in plea discussions.  If there is a violation, Rule 11(h) specifies that a “variance from the requirements of this rule is harmless error if it does not affect substantial rights” — no harm, no foul.  However, at least two circuits have adopted a rule of automatic vacatur of the guilty plea if the judge participated in plea discussions.  Other circuits, including the Seventh, have applied the general 11(h) harmless error rule in these situations.

Earlier today, in United States v. Davila (No. 12-167), the U.S. Supreme Court unamimously resolved the circuit split in favor of the general harmless error rule.  As the Court saw it, the legal question was an easy one: “[N]either Rule 11 itself, not the Advisory Committee’s commentary on the Rule singles out any instructions [in Rule 11] as more basic than others.  And Rule 11(h), specifically designed to stop automatic vacaturs, calls for across-the-board application of the harmless-error prescription . . . .”

The Court declined to adopt any bright-line rules regarding the application of the harmless-error rule: “Our essential point is that particular facts and circumstances matter.”  Having determined that the lower court should have applied the harmless-error rule, the Court chose to remand for further consideration of the “particular facts and circumstances.”  At the same time, the Court did say, “Had Davila’s guilty plea followed soon after the Magistrate Judge told Davila that pleading guilty might be the ‘best advice’ a lawyer could give him, this case may not have warranted our attention.”  The suggestion seems to be that a guilty plea entered “soon after” the judge recommended such a plea would pretty clearly not fall into the category of harmless error.  What made Davila’s case more difficult was the three-month delay between the Rule 11 violation and the guilty plea.

Habeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths

The U.S. Supreme Court has issued a flurry of habeas corpus decisions in the past two weeks.  The habeas petitioner won in two of the cases and lost in the third.  There are no blockbusters in the group, but habeas fans may find hope in two of the decisions that long-awaited breakthroughs may be in the works.

One that will be welcomed by habeas fans is McQuiggin v. Perkins (No. 12-126).  Perkins was convicted of murder in state court, with the judgment becoming final in 1997.  More than eleven years later, Perkins filed a federal habeas corpus petition, alleging that he received unreasonably poor representation by his trial counsel.  The petition plainly violated the one-year statute of limitations for habeas petitions, but Perkins sought to get around the statute by presenting evidence that he was actually innocent of the crime of which he was convicted.  The Supreme Court has long recognized that actual innocence is an exception to the procedural default rule, which normally bars federal courts from considering habeas claims that were not timely raised in state court.  Perkins argued that there should also be an actual-innocence exception to the statute of limitations, and the Supreme Court agreed in a 5-4 decision.

Does this new exception threaten to eviscerate the statute of limitations?  Continue reading “Habeas Roundup: SCOTUS (Slightly) Eases Petitioners’ Paths”

Lessons From Sixteen Years of the PLRA and AEDPA

I have some reflections on the great 1996 prisoner litigation reforms in an essay newly uploaded to SSRN.  Here is the abstract:

In 1996, Congress adopted two sweeping statutes that were intended to restrict the ability of prisoners to obtain redress in federal court for violations of their constitutional rights. This essay introduces an issue of the Federal Sentencing Reporter assessing the legacy of these two laws, the Antiterrorism and Effective Death Penalty and Prison Litigation Reform Acts, and considers the extent to which these statutes highlight structural flaws in the way that the political and legal systems engage with prisoner litigation.

The essay, entitled “Not So Sweet: Questions Raised by Sixteen Years of the PLRA and AEDPA,” was published at 24 Fed. Sent. Rep. 223 (2012).

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.

District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds

The U.S. Sentencing Commission wisely made its 2011 reductions to the crack sentencing guidelines retroactive, but this decision left district judges with discretion to deny sentence-reduction requests based on, among other things, a defendant’s post-sentencing misconduct.

Larry Purnell has learned the scope of this discretion the hard way.  Purnell pled guilty to crack and firearms offenses in 2007.  In his plea colloquy, Purnell admitted to the gun allegations under oath.  Based on various concessions from the government in return for his guilty plea, Purnell’s guidelines range for the crack offense was 78-97 months, and he received a sentence at the bottom of this range.  Despite the relative lenience of this treatment, Purnell later mounted collateral attacks on the gun conviction, claiming that his alleged weapon was really only a BB gun — in contradiction to his own statements at the plea colloquy.

These collateral attacks failed, but Purnell was given a fresh opportunity for a sentence reduction thanks to the Commission’s retroactive changes to the crack guidelines.   Continue reading “District Court May Deny Crack Sentence Reduction Based on False Statements, Seventh Circuit Holds”

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.

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).   Continue reading “Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver”