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May 18, 2010

Interesting ineffective assistance ruling from the Sixth Circuit

A Sixth Circuit panel has an intriguing ruling on an ineffective assistance of counsel issue today in US v. Munoz, No. 09-5357 (6th Cir. May 18, 2010) (available here).  Here is how it gets started:

This case reaches us in an unusual posture: the government appeals the district court’s grant of a new trial under Federal Rule of Criminal Procedure 33.  In the underlying trial, defendant Richard Munoz was found guilty of conspiracy to distribute methamphetamine and aiding and abetting distribution of methamphetamine.  Approximately two months after the verdict, but before sentencing, Munoz obtained new counsel.  Thereafter, Munoz belatedly moved for a new trial, arguing that trial counsel had provided constitutionally ineffective assistance.  After an evidentiary hearing, the district court granted the motion, specifically grounding its new-trial grant on the violation of Munoz’s Sixth Amendment right to effective assistance of counsel.

We hold that the district court did not abuse its discretion in determining that Munoz’s untimely filing of his Rule 33 motion was the result of excusable neglect. However, because we find that trial counsel’s assistance more than met the minimum standard required by the Sixth Amendment, we reverse the district court’s grant of a new trial.  We leave for another day the question, addressed neither by the district court nor the parties on appeal, whether a district court may grant a new trial based on lackluster representation that does not fall below the constitutionally required standard.

I find the question that here gets left for another day -- namely whether "whether a district court may grant a new trial based on lackluster representation" --- to be especially fascinating.

May 18, 2010 at 10:53 AM | Permalink


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This opinion repeats a pet peeve of mine, which is to treat claims that "fail" or simply lose as being "without merit" or "meritless." To me, meritless or without merit means "without any merit," which is essentially the same as frivolous; I certainly didn't see the claims in this case as being frivolous, even if they ultimately were losers.

I know courts across the country say this (I personally think it is fairly clerk driven, as clerks want to use the legal terms -- and "meritless" sounds legalistic -- and they also want to be extreme at times), but I really wish they'd get away from the practice.

Posted by: Gregory | May 18, 2010 11:02:51 AM

Wow, for a decision that claims not to answer the question because it does not need to, Judge Boggs puts forth considerable effort analyzing the issue and hinting not-so-subtly what he thinks the answer ought to be. And for a judge who preaches judicial restraint and the avoidance of dicta, this seems to go against the word. And there is clearly a reason. On remand, the defendant's attorney essentially has to renew her motion seeking a new trial on Rule 33's "interest of justice standard" instead of Strickland. The district judge will take one look at Judge Boggs' opinion and say "I know which way this is going" because, if he grants the renewed motion, the government will again appeal and, under Sixth Circuit practice, the case will go to the same panel.

Posted by: A.Nony.Mous | May 18, 2010 11:12:05 AM

@A.Nony.Mous: Is that really Sixth Circuit practice? I see the same Sixth Circuit case go to different panels on subsequent appeals all the time.

@Gregory: I don't know if "meritless" really equals "frivolous." Dictionary.com says that the definitions of "merit" include "something that deserves or justifies a reward or commendation." When a court says a claim lacks merit, I imagine that it means that the claim does not "deserve[]" to be "reward[ed]" with a favorable ruling, not that it's utterly frivolous and couldn't have been asserted in good faith.

Posted by: Max Power | May 18, 2010 11:55:31 AM

Ummm, either representation meets the 6th amendment threshold or it doesn't. I fail to see how that question has not already been settled.

I do, however, like the idea of making an IAC determination early rather than forcing the offender to wait for habeas review. The earlier real mistakes are caught the better.

Posted by: Soronel Haetir | May 18, 2010 1:26:10 PM

@Soronel: the question is whether granting a new trial under rule 33 (which can be done, according to the rule, when "the interest of justice requires" it) requires a reversible legal error or whether the district judge's sense that justice has not been done is enough. The language of the rule doesn't state that any constitutional violation or reversible error is required, the way 2255 does.

Posted by: Max Power | May 18, 2010 1:35:12 PM

I would say that "interests of justice" should be a fairly high bar. If constitutionally sufficient representation has been rendered I fail to see how the interests of justice could possibly require anything more. To require the government to once more prove a case beyond a reasonable doubt when adequate representation was present should be an abuse of discretion (at least if adequacy of representation is the issue, there could of course be other events in a single trial that meet the standard).

Posted by: Soronel Haetir | May 18, 2010 1:53:31 PM

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