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January 7, 2011

SCOTUS takes up two plea bargaining cases and another ACCA

Big late Friday news for sentencing fans from the US Supreme Court, as the Justices decided to add three new criminal cases to its docket. Here is an effective description of the new cases from this post at SCOTUSblog:

In two cases, which involve a related issue but will be heard separately, the Court will be deciding whether an individual who rejects a plea offer from prosecutors because the lawyer advised that course has a claim for ineffective legal assistance if that advice was either flawed or produced a less favorable outcome than if the individual had gone to trial. In agreeing to hear state officials’ appeals in Leflar v. Cooper (10-209) and Missouri v. Frye (10-444), the Court told counsel in both to brief and argue an additional question: “What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?” Presumably, the Court will hear the two cases in back-to-back arguments.

In another criminal case, McNeill v. U.S. (10-5258), the Court will decide whether a conviction under state law can be treated as a serious drug offense for purposes of a longer sentence under the federal Armed Career Criminal Act, if the state law violated did not at the time of federal sentencing did not set a maximum prison term of at least ten years, but had done so at the time the crime was committed. The federal government urged the Court not to hear the issue in a North Carolina case.

The fact that the Justices felt compelled to take up yet another ACCA case is yet another sign that ACCA has to get fixed legislatively ASAP. But that is the B-story here. The two cases dealing with plea practices and ineffective assistance are now arguably the two biggest constitutional cases of the current Term for sentencing law and policy fans.  This AP story about the cert grants provide a bit of factual background on the two cases:

In Michigan, Anthony Cooper's conviction for shooting a woman in the thigh and buttocks after missing a shot to her head was overturned by the 6th U.S. Circuit Court of Appeals in Cincinnati because his lawyer gave him bad advice.  His lawyer told him not to take a plea offer, thinking that there could not be a finding that Cooper intended to murder his victim.  But Cooper was convicted of assault with intent to murder and other charges....

In Missouri, prosecutors offered Galin Edward Frye two deals while seeking his conviction for driving while his license was revoked, but his lawyer never told Frye about the offers. Frye pleaded guilty to a felony charge and was sentenced to three years in prison.

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"The two cases dealing with plea practices and ineffective assistance are now arguably the two biggest constitutional cases of the current Term for sentencing law and policy fans."

Lafler v. Cooper, since it is an AEDPA case, may not make a broad pronouncement. The Sixth Circuit really goatroped that one. Judge Kennedy couldn't cite a Supreme Court case on point (which is what is required by AEDPA). Not surprisingly, Judge Cole joined this nonsense. Why can't federal courts of appeals simply follow AEDPA?

Posted by: federalist | Jan 7, 2011 9:32:53 PM

In the Sixth Circuit, the habeas corpus issue of ineffective assistance of counsel during plea bargaining is presently controlled by "United States v. Morris", 470 F.3d 596, 602-602 (6th Cir.2006) (Boyce Martin, C.J.). In Morris, defense counsel incorrectly advised his client, who was considering a plea offer, that he was facing Guidelines of 60 to 68 months (based on an estimate obtained by inexperienced defense counsel from the prosecutor) if he went to trial and was convicted. Following conviction, defendant was sentenced to serve a much longer term than had been estimated, because the correct Guidelines were 101 to 111 months. The 6th Circuit held that they correct Habeas remedy is to give the defendant the benefit of the plea bargain he turned down, based upon ineffective assistance by counsel.

I wrote the briefs in a 2255 Habeas Corpus case on this issue, which is presently pending in the Eastern District of Kentucky, involving an M.D. convicted at trial of prescribing Oxycontin without a medical necessity. The doctor was sentenced to the statutory maximum sentence of 20 years (of which he has already served 9 years). The doctor had turned down a plea offer for 41 months prior to trial, based upon counsel's representation that he could get him acquitted based upon entrapment. At the time of plea bargaining, defense counsel provided no estimate of the Guidelines the doctor was facing, if convicted at trial, which turned out to be 235 to 293 months (but with a 240 month statutory cap). Defense counsel was at the time only 3 years out of law school and had never previously defended a Federal criminal case. Counsel did not purchase a copy of the Sentencing Guidelines Manuel until after his client was convicted at trial. Defense counsel is now a state Circuit Court Judge in Eastern Kentucky.

Posted by: Jim Gormley | Jan 7, 2011 10:17:49 PM

Given that whether or not to plead guilty is one of the few decisions that is left ultimately at the offender's feet I would say that there can be no ineffective assistance on that call. However Padilla already chipped away at that idea. How long until SCOTUS continues the trend (also indicated by the case where they ruled there are people competent to stand trial but who are not not fit to represent themselves) and say they it's okay for a lawyer to enter a plea over their supposed client's objection? That would certainly speed up processing.

Posted by: Soronel Haetir | Jan 8, 2011 3:13:36 AM

Soronel, I believe you underestimate the enormous complexity of current sentencing laws and are confusing the distinction between decisions whether or not to go to trial when the ineffectiveness claim is based on a representation of a certain factual outcome, like acquittal to some or all charges, and what sentencing law would apply to you if you are convicted.

I might possibly agree with you in the situation where the lawyer says "I believe we can persuade a jury to find you not guilty" but I don't agree with you when the lawyer says, "If you are convicted you face a mandatory minimum
sentence of 66 months ," when in fact if the lawyer properly understood the sentencing grids, the mandatory minimum sentence is 80 months

Or, if the lawyer says "if you reject the plea offer to indecent liberties, the state can not submit a new bill of indictment for first degree statutory sex offense" thereby increasing the potential punishment from five years to a sentence of life. The lawyer who said this was oblivious to Bordenkircher v Hayes.

I have both of these issues currently pending in postconviction motions.

How in the world can a defendant understand what potential sentence they are facing when I routinely read transcripts in which the lawyer had no clue what the def was facing?. Sad but true. And, in my opinion, a consequence of the desire of the legislature over the last twenty years to micromanage criminal sentencing for two reasons. One, political gain, since being tough on crime garnered votes. And two, a legitimate and genuine concern to address geographic disparity in sentencing. It used to be we had huge differences between mountain area sentences and coastal plain sentences. Between urban sentences and rural sentences, etc. Now we have incomprehensible multi-axis grids.

Doug, this is huge and in much need of addressing. Sentencing, particularly the impact of recidivism, has gotten so complicated that sometimes it makes my head hurt thinking about it.


Posted by: bruce cunningham | Jan 8, 2011 7:25:35 AM

All this is nice, but the rejected plea situation is fundamentally different from a situation where a defendant accepts a guilty plea. A guilty plea is a substitute for a fair trial, and therefore the defendant has rights associated with that act. A rejection of a guilty plea followed by a fair trial doesn't implicate the same concerns. The right to effective assistance of counsel isn't there for its own sake, but to guarantee a fair trial, so when the criminal gets a fair trial, there cannot be any constitutional harm. See Cronic and Mickens v. Taylor. This is not hard, and that a federal habeas court couldn't figure it out shows either complete stupidity or a pro-criminal bias. I know that Judge McConnell also made the same mistake. I don't know what his blind spot was.

Posted by: federalist | Jan 8, 2011 9:59:11 AM

federalist, have you perhaps considered that not everyone who disagrees with you is "complet[ly] stupid[]" and that perhaps the issue is more complex than you make it out to be?

If you were right that the Sixth Amendment guarantees only a fair trial, Padilla would have come out differently. Lawyers must effectively represent their client. Part of that representation includes providing reasonably accurate -- or, at least, not false -- information to the client, so the client can intelligently exercise his or her rights. The right not to incriminate yourself, for example, is rendered meaningless in a case in which the lawyer tells the client he has no such right and that the judge will be required to give him a higher sentence for his refusal to testify. The same is true with respect to the client's right to plead guilty. If the lawyer gives the client information that is so egregiously false that no competent lawyer would give the client such information, I think it's pretty clear under existing precedent that a Sixth Amendment violation has occurred.

Posted by: baffled | Jan 8, 2011 10:57:21 AM

Doesn't inadequate counsel imply that the outcome was mistaken? An innocent man was found guilty because his lawyer was drunk or asleep half the time, failed to make basic objections to protect the legal rights of his innocent client? The right to adequate counsel is meant to avoid this mistake.

Was the defendant innocent and falsely convicted? The number of legal measures not done any lawyer, including the Dream Team, is literally infinite. When one runs out of potential defense arguments not made, one may start making them up. These cases are not about due process violations, but about lawyer nit picking to generate more hearings, and rent seeking, lawyer job generation.

Posted by: Supremacy Claus | Jan 8, 2011 11:01:08 AM

Perhaps, baffled, you could accurately characterized what I have written. The Sixth Amendment doesn't only guarantee a fair trial, and I never ever said that it did. I agree with Scalia's 5-4 opinion that it also applies to the ability to choose counsel. Moreover, I never said that it didn't apply to guilty pleas either. What I did say, and Mickens and Cronic unimpeachably back it up is that where the defendant gets a fair trial, he cannot complain that IAC led him to reject a guilty plea. And I also noted the obvious difference between a situation where a guilty plea is entered and where the defendant rejects a guilty plea and proceeds to trial.

Here's the quote from Mickens: "The Sixth Amendment provides that a criminal defendant shall have the right to 'the Assistance of Counsel for his defence.' This right has been accorded, we have said, 'not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.'" (quoting United States v. Cronic, 466 U. S. 648, 658 (1984)).

And here's the quote from Cronic: "Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt."

I don't see how your conclusion that the precedent is pretty clear that the Sixth Circuit got Lafler right can be squared with the quotes I just mentioned.

These quotes are pretty tough to get around. Moreover, baffled, you'll note that Lafler v. Cooper is a habeas case where AEDPA deference is required. Certainly, the idea that where a defendant gets a fair trial he cannot complain of constitutional harm because his counsel gave him bad advice on a beneficial plea offer is a reasonable interpretation of existing Supreme Court precedent (which is all that counts under AEDPA). In fact, a Third Circuit case (which I cannot remember off the top of my head) stated that the argument has "some force" (i.e., reasonable). Point to Supreme Court case law which settles the question about rejected guilty pleas and IAC. Oh you cannot (that's why SCOTUS granted cert. here). Which means that I am right about the Sixth Circuit's silliness.

By the way, baffled, I do give you credit for actually debating this on the merits (although you get demerits for misreading my posts), most people on your side whine that I call people like Sotomayor or Chatigny idiots. Given that I can point to stuff that they have said or written, I don't think that the whine really gets it done. If anyone can defend Sotomayor's idiotic statement that Ginsburg's dissent would have affirmed the Second Circuit in Ricci, I'd like to see it.

Posted by: federalist | Jan 8, 2011 11:29:27 AM

Baffled--where is that right to plead guilty? I checked my Constitution and couldn't find it.

Posted by: federalist | Jan 8, 2011 11:37:09 AM

Federalist is smarter than everyone in the world. A very strong majority of judges and lawyers around the country almost certainly disagree that his views are beyond dispute. But he knows he is correct and anyone who disagrees is stupid or an idiot.

Posted by: Tim Holloway | Jan 8, 2011 11:43:55 AM

Once again, Tim, this is an AEDPA case, if those judges are so right, then point to the existing Supreme Court caselaw which requires a reversal of a conviction resulting from a fair trial where defense counsel's performance fell below existing norms in advising a client to reject a plea deal.

Oh, you cannot.

Posted by: federalist | Jan 8, 2011 11:50:36 AM

Here's the "some force" case:


So, guys, if a federal appeals court case acknowledges that the position of the State of Michigan, how, in the absence of controlling Supreme Court precedent, can the Michigan courts' position to reject the "I would have pled guilty but for IAC" argument be unreasonable, as is required by AEDPA?

Posted by: federalist | Jan 8, 2011 12:01:33 PM

last post should read "that the position of the State of Michigan has some force"

Posted by: federalist | Jan 8, 2011 12:02:56 PM

Baffled: You may be correct technically that a defendant not testifying should not be penalized. However, that goes against ordinary human nature. I am innocent. I have been put through the legal wringer. Even if pathologically shy and tongue-tied, I will want to loudly testify to anyone who will listen. That is how the jury thinks. Allowing the defendant to not testify has failed most of the time, so much so that it represent defense lawyer malpractice. It is a foreseeable result in the minds of juries and even judges, only the guilty refuse to testify.

So any defendant who has not testified has had inadequate representation. In the absence of clear evidence of a mistaken verdict, should all defendants refusing to testify get a retrial? If the answer is yes, in your mind, then the sole purpose of these cases is to generate lawyer jobs, not to generate an accurate verdict.

Posted by: Supremacy Claus | Jan 8, 2011 12:21:06 PM

federalist, you may not want to hang your hat so heavily on AEDPA deference in Cooper. You claim that "Cooper is a habeas case where AEDPA deference is required." Not so.

The Court added the issue you argue, and it was not the rationale of the state court in affirming the conviction. Accordingly, there is a serious issue about whether AEDPA deference applies on that issue. Specifically, the state court did not rest its holding on -- in your words -- "the idea that where a defendant gets a fair trial he cannot complain of constitutional harm because his counsel gave him bad advice on a beneficial plea offer." That is the argument the government is advancing in the federal courts, but that is not the grounds relied upon by the state court. While that may be a "reasonable" interpretation, no deference is required (and no federalism/comity interests are present) to a rationale never relied on or considered by the state tribunal.

Further, another reason AEDPA deference may not apply is because the state court never considered the argument advanced by the defendant. As explained by the Circuit: "Rather than addressing
petitioner’s argument that he received legally erroneous advice from his counsel, the court of appeals rejected entirely different – and considerably weaker – claims of ineffective assistance of counsel. ... To the extent that petitioner’s claim was addressed, it is not clear from the court’s abbreviated discussion (only two sentences of the opinion is even arguably responsive to petitioner’s claim) what the court decided, or even whether the correct legal rule was identified." Accordingly, AEDPA deference should not apply to the state court's analysis.

In sum, you may or may not be correct under a de novo analysis. But reliance on AEDPA deference is unwarranted.

Posted by: DEJ | Jan 8, 2011 12:37:38 PM

Federalist: You stated, "Once again, Tim, this is an AEDPA case, if those judges are so right, then point to the existing Supreme Court caselaw which requires a reversal of a conviction resulting from a fair trial where defense counsel's performance fell below existing norms in advising a client to reject a plea deal.

Oh, you cannot."

I did not say they were "so right" (although I tend to think they are). What I said is that they disagree with you, therefore you believe they are stupid and/or idiots. Pretty pompous on your part.

Also, have you ever worked on an AEDPA case? It is not nearly as dry and cut --- in terms of finding a SCt opinion factually on point, especially in the context of ineffective of counsel --- as you are suggesting in some of your posts. I suggest, as a starting point, you read Williams v. Taylor and tell entire world how easy it is to determine what is "contrary to" and/or and "unreasonable application" of US SCt precedent. Also, that standard becomes irrelevant if there was no decision on the merits in state court. I have no idea if this was the case in the Sixth Circuit plea case as I have not read it (at least not recently).

Finally, there is nothing new under the sun about the requirement that a plea be voluntary and knowing as a matter of Due Process(if I recall correctly). Granted, I think but am not certain that SCt opinions in this area involved guilty pleas (not rejection of offers) . . . but I believe the language in the cases support the idea that a decision whether to plea is a big event and must be based on a voluntary and knowing decision as a matter of Due Process. That voluntary and knowing requirement is impacted by the advice given. I believe there was a trilogy of cases in the 70s on this (McMann, Brady and I cannot remember the other one). I also believe there has been more since then.

Posted by: Tim Holloway | Jan 8, 2011 1:02:37 PM

DEJ answered the question that was on my mind, whether the state court even addressed the issue that was the subject of the 6th Circuit opinion. I believe the following is pretty consistent with other circuits. The statute speaks of a decision on the "merits" as the basis for triggering AEDPA deference.

Only when a state court “adjudicates a claim on the merits” is there is any basis for giving the legal conclusions of the state court deference. Danner v.
Motley, 448 F.3d 372, 376 (6th Cir. 2006) (“The AEDPA standard of review applies only to ‘any claim that was adjudicated on the merts in State Court proceedings.”) quoting 28 U.S.C. § 2254(d); Nields v. Bradshaw, 482 F.3d 442, 449-450 (6th Cir. 2007) quoting Danner and quoting 28 U.S.C. § 2254(d).

Posted by: Tim Holloway | Jan 8, 2011 1:08:57 PM

As a trial prosecutor, if the remedy is includes reversing an otherwise valid judgment and sentence, I am considerably more likely to decline to make an offer. This is especially true if I have questions regarding the attorney representing the defendant.

Of course, across the criminal justice system offers will continue to be made in high volumes simply because of the numbers, but there is no doubt in my mind that, for me personally, with certain cases and/or certain counsel, no thanks. It might seem unfair, but no defendant is constitutionally entitled to a plea bargain.

Posted by: David | Jan 8, 2011 1:55:49 PM

It may be true that "no defendant is constitutionally entitled to a plea bargain" but I'm not sure that ends the matter. It could be that when a plea offer is in fact made, a defendant is constitutionally entitled to a) be informed of that offer (the issue in Frye), and b) be given legally correct advice about the consequences of going to trial (the issue in Copper).

I tend to think that when an attorney a) doesn't inform the client of a plea offer so that the client can decide on what do with it, or b) provides the client with inaccurate information in making his decision on whether to go to trial or about the consequences of a trial, then the client has not received the adequate "Assistance of Counsel for his defence."

Posted by: DEJ | Jan 8, 2011 2:37:32 PM

First, curious how none could answer the quoted language in Mickens and Cronic.

Second, yes I have done a habeas appeal, but the guy died during the pendency of proceedings, plus I helped my spouse with one as well.

Third, perhaps we ought to actually read the Sixth Circuit's decision in Lafler--here's the quote:

"However, we need not decide how much deference the terse analysis provided by state court of appeals is entitled to here, because '[w]ith or without such deference, our conclusion is the same." Smith v. Spisak, 130 S. Ct. 676, 688 (2010). Even full deference under AEDPA cannot salvage the state court's decision.'"

But is this even a situation where the Michigan courts failed to address the claim? Hmmmm. Let's see.

Here's the quote from the Sixth Circuit:

"Here, the Michigan Court of Appeals, 'the last state court to issue a reasoned opinion on the issue,' Joseph v. Coyle, 469 F.3d 441, 450 (6th Cir. 2006) (quoting Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005)), failed to appreciate the nature of petitioner's claim. Rather than addressing petitioner's argument that he received legally erroneous advice from his counsel, the court of appeals rejected entirely different — and considerably weaker — claims of ineffective assistance of counsel. See Cooper, 2005 WL 599740, at *1. To the extent that petitioner's claim was addressed, it is not clear from the court's abbreviated discussion (only two sentences of the opinion is even arguably responsive to petitioner's claim) what the court decided, or even whether the correct legal rule was identified."

The sentence that starts with "[r]ather" is unclear. Maybe I am missing something, but I fail to understand how "erroneous legal advice" isn't a claim of IAC. (By the way, "erroneous legal advice" has to rise to a certain level before it becomes IAC. So it's not like the Sixth Circuit's opinion is a paragon of clarity either, yet the panel criticizes the Michigan Court of Appeals.) So it seems to me that the Michigan courts did address the claim--just not very artfully. Well, inartful isn't ignoring the claim, and if the guy claimed that "I would have pled" and the Michigan courts said "no IAC", it's hard to argue that the claim wasn't addressed at all, unless there were. Habeas courts don't exist to grade the papers of the state courts. And the judgment here was that there was no IAC. And that's not contrary to SCOTUS precedent or an unreasonable application thereof. Now maybe the Supreme Court is going to start requiring more from state courts, maybe not, but they haven't as yet. Of course, none of that saves the Sixth Circuit because they analyzed the claim under AEDPA deference.

Posted by: federalist | Jan 8, 2011 3:09:25 PM

DEJ, how do you get around the quotes from Mickens and Cronic? I don't think you can. Your position untethers the right to effective assistance from its moorings. Where the defendant receives a fair trial (a situation not present where he pleads guilty), he cannot complain of any prejudice because he has suffered none. And flip it around, can federal courts undo the criminal judgments of state courts that result from a fair trial?

Posted by: federalist | Jan 8, 2011 3:19:15 PM

You take short quotes out of two cases that have nothing to do with this issue and think this answers the question at hand? Mickens (conflict of interest); Cronic (complete absence of counsel at a critical stage results in a presumption of prejudice). There are also cases that talk about pre-trial errors that do not affect the "fairness" of the trial(except in the sense that the attorney did not protect the defendant by suppressing relevant evidence) but involve an attorney boo-boo. The primary issue in Kimmelman v. Morrison was whether the attorney screwed up by not making a motion to suppress even though the granting of a motion based on 4th Amendment issues has nothing to do with the "fairness" of the trial.
If you think the language about a fair trial in Mickens and Cronic resolves all issues related to counsel's advice, consider that the Supreme Court has indicated a number of times that there are "critical stages" prior to trial. With this in mind, what if a defendant had to decide whether to take a plea at a critical stage in the proceedings when the defendant had no counsel? Voluntary decision? No prejudice if the defendant went to trial with an attorney and received a fair trial?
Also, Williams v. Taylor indicated that "prejudice" for purposes of Strickland involves whether there is a "reasonable probability" that the "outcome of the proceedings" would have been different. It specifically stated that an additional requirement of a lack of a "fair trial" was unreasonable or contrary to SCt precedent. While this is not on point in relation to the plea/IAC issue, it is at least as relevant (and may I suggest more relevant) than the language you pulled from Mickens and Cronic.

Posted by: Tim Holloway | Jan 8, 2011 4:04:58 PM

Also, with regard to your suggestion that, in order for an ineffective assistance opinion to be "contrary to" or an "unreasonable application" of SCT precedent there must be something factually similar, consider the fact that ineffective assistance standards have been applied to different proceedings and/or factual settings without breaking any "new" ground for purposes of Teague. I think a number of appellate courts have indicated something similar to this in the context of the AEDPA (i.e., we all know what the 2nd prong of Strickland involves - a reasonable probability of a different outcome).

Consider this from Williams --- the outcome of the proceedings inquiry does not involve some extra inquiry into fairness.

In Williams v. Taylor, 529 U.S. 362 (2000) the Court held that the Virginia Supreme Court’s requirement that the defendant show more than is required for
purposes of ineffective assistance of counsel under the Strickland standard was entitled to no AEDPA deference. In part III of Stevens’ opinion, joined by a
majority of the Court, the Court stated: “[T]he Virginia Supreme Court read our decision in Lockhart [v. Fretwell, 506 U.S. 364 (1993)] to require a separate inquiry into fundamental fairness even when Williams is able to show that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding.” The Court indicated the Virginia trial court had set forth
proper formulation of Strickland’s prejudice prong as whether there was a reasonable probability that the outcome of the proceeding would have been different. Williams, 529 U.S. at 393-394. “The trial judge analyzed the ineffective-assistance claim under the correct standard; the Virginia Supreme Court did not.” Williams, 529 U.S. at 395 (emphasis added).

The following indicates the application of the Strickland standard may be applied to different proceedings without there being something new that is not controlled by Stickland. I think you can find more on this in the Circuits.

The standard of prejudice regarding ineffective assistance of appellate counsel has been clear for many years. Roe v. Flores-Ortega, 528 U.S. 470, 481-
482 (2000) citing Smith v. Murray, 477 U.S. 527 (1986) (ineffective assistance of counsel on appeal), Penson v. Ohio, 488 U.S. 75 (1988) and Smith v. Robbins, 528
U.S. 259 (2000) (ditto) (other citations omitted). The prejudice inquiry, set forth in Robbins and Roe, for claims of ineffective assistance of appellate counsel
“breaks no new ground, for it mirrors the prejudice inquiry applied in Hill v. Lockhart, 474 U.S. 52 (1985), and Rodriguez v. United States, 395 U.S. 327
(1969).” Roe, 528 U.S. at 485 also citing Evitts v. Lucey, 469 U.S. 387 (1985).
The inquiry regarding prejudice was first established in Strickland and Cronic and “reaffirmed in Robbins.” Roe, 528 U.S. at 484; accord, Webb v. Mitchell, 586 F.3d 383, 699 (6th Cir. 2009) (“Robbins merely explains Strickland without creating a new rule”)

Posted by: Tim Holloway | Jan 8, 2011 4:32:24 PM

First of all, the quotes in Mickens and Cronic logically cover this--so we're not ripping things out of context. If there's a fair trial, then hard to complain of prejudice, and that's what Cronic says. And good God, how many times do I have to say it, IAC applies to guilty pleas. I get that plea negotiations are a "critical stage", but that is irrelevant where the defendant gets all that the right to effective counsel guarantees him--i.e., a fair trial. Make no mistake, if the Supreme Court decides that the right to effective assistance allows people like Cooper to undo the results of a fair trial, it will be a significant extension. And I really don't get your "voluntary" decision stuff. Are you really saying that the decision to acquiesce to a criminal conviction is the same as one to make the government prove you did it?

Second of all, this is an AEDPA deference case, and certainly those quotes could be relied upon to show that, in the absence of controlling Supreme Court precedent, Michigan got it right when it rejected the claim. So let's go back to the beginning, huh? Can anyone defend the Sixth Circuit here? No. I note how you completely ignore that part.

Finally, let's look at the awful policy here. Are we really going to let defendants have their cake and eat it too? They got the trial, and now, not liking the result, they are going to get the benefit of a plea?

Posted by: federalist | Jan 8, 2011 4:42:08 PM

federalist, I truly have no strong belief on how these cases will turn out. I think they are very interesting cases that raise very interesting issues. But the most frustrating thing with your comments is your inability to view any opinion that *potentially* disagrees with you as, by necessity, being dumb or biased or unreasonable. Things are never as black-and-white as you accuse them of being.

Let's review what I've said, but I think you are mistaken on some key points.

What I have first said is that your argument that "yeah, but he still received a fair trial, so no 6A violation" may or may not be correct under de novo review, but reliance on AEDPA in Cooper is probably unwarranted. In your response to that, you have not addressed the fact that the argument you advance was not the one relied on by the state court, so AEDPA deference is not applied to that argument. And as you recognize, AEDPA deference is certainly not relevant in Frye.

I have further said that, based on the facts of these cases as I know them, my feeling is that these defendants were not served by effective assistance. You don't seem to object to that, but argue the defendants weren't prejudiced. The question, therefore, becomes what entails "prejudice."

If prejudice means the defendant must shown that the outcome of the criminal proceedings would have been a different, more favorable result had counsel performed effectively (which is a common way of describing prejudice), then that standard could easily be met here, especially in Frye. Even under that standard, however, we still must ask what is the remedy? I think that's why the Court added the issue it did.

You claim that IAC prejudice means the defendant must show that the trial itself (or a substituted guilty plea) was unfair. (Is that a fair statement of your argument?) In support, you point to the statements in Mickens and Cronic. I am not convinced those two cases control, and I do think you are taking them out of context.

Both of those cases were asking the Court to presume or infer prejudice in certain IAC claims during the course of a trial. One asked the Court to presume trial prejudice when a conflict-of-interest was shown; the other asked the court to infer trial prejudice given the circumstances of the attorney. The Court rejected any invitation to assume trial prejudice, reiterating that it must always be shown.

Accordingly, Cronic does not stand for the proposition that “If there's a fair trial, then hard to complain of prejudice,” as you say it does. Rather, Mickens and Cronic both stand for the proposition that prejudice must always be shown. In the context of an argument that IAC occurred during a trial, the Court observed that the defendant must show how the errors impacted a fair trial.

If you are correct on your view of prejudice, then, as Tim points out, how do you explain the holding of Kimmelman v. Morrison, 477 U.S. 365 (1986)? There, the Court specifically said “we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.” Id. at 380.

In sum, I don’t know how this opinion will turn out, but a) I do think AEDPA deference is not likely warranted, b) the defendants were not served well by their counsel, and c) the issue of prejudice is not controlled by Mickens or Cronic, and your view of those cases is undermined by Kimmelman.

Posted by: DEJ | Jan 8, 2011 5:29:38 PM

*Should read "...being anything other than dumb..."

Posted by: DEJ | Jan 8, 2011 5:47:00 PM

It's not an AEDPA case, but the Sixth Circuit granted AEDPA deference--ok gotcha. There's no question that the Sixth Circuit's analysis was silly and wrong. Perhaps SCOTUS will so conclude that "on the merits" means that the state court has to write its opinion well enough to satisfy federal judges, but it seems very clear to me that the Michigan courts dealt with the IAC argument--not well, no doubt about that, but they did nonetheless. But once again, my conclusion that the Sixth Circuit judges issued a dumb ruling is unimpeached.

I never mentioned Frye.

"If you are correct on your view of prejudice, then, as Tim points out, how do you explain the holding of Kimmelman v. Morrison, 477 U.S. 365 (1986)? There, the Court specifically said 'we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.' Id. at 380."

Why don't we get back to principles ok? First of all, there's no question that where evidence is admitted in contravention of the Fourth Amendment because of lawyer incompetence, so long as there's prejudice, the case law is clear--there's a violation of the Sixth Amendment right to effective counsel. But is anyone arguing that the trial was a fair one? Second, as Mickens makes clear, the right to effective assistance is one that is tied to the guarantee of a fair trial. So where there is a fair trial, it seems surpassing silly to conclude that that right was violated. Third, this guilty plea stuff is just a red herring. A guilty plea is a substitute for a trial. So it's patently obvious that guilty pleas resulting from lawyer incompetence trigger Strickland's guarantee. But that's very different from the situation where the guy rejects the plea and gets a fair trial.

Posted by: federalist | Jan 8, 2011 6:09:52 PM

your kidding right federalist? so i guess this means all those cases where the da's and cops have lied, comitted fraud and used blackmailed testimony and bogus evidence are fair trials?

Posted by: rodsmith | Jan 9, 2011 5:16:55 PM

Well, DEJ, I am going to take your concession that this issue isn't a slam dunk for the criminal as conclusive that under the heightened AEDPA standard, the Sixth Circuit was wrong. Funny, I got criticized for that, but I win that argument.


Posted by: federalist | Jan 9, 2011 10:28:34 PM

Of course, federalist, you always win . . . in your own mind.

Posted by: Tim Holloway | Jan 10, 2011 9:37:42 AM

No Tim, I have won because neither you nor DEJ could show how where there's AEDPA deference, the Michigan decision should not have been upheld. This is an open question, which as DEJ concedes, could go either way, and where the decision could go either way, the state decision stands. See Carey v. Musladin.

Posted by: federalist | Jan 10, 2011 1:29:53 PM

federalist, how many times do I have to explain to you that the MI court did NOT decide the following issue: "can a defendant who received IAC during plea negotiations show prejudice when he cannot show that his subsequent trial was unfair." My argument on AEDPA deference has nothing to do with how well the state court wrote its opinion. The issue was simply not decided (or possibly even considered) by the state court. In fact, the MI Court's opinion appears to rest on the first prong of Strickland, not the prejudice prong. Accordingly, there is no deference to apply to that issue.

And, again, your constant failure to see anyone who disagrees with you as anything but silly is not a trait one should aspire to have.

Posted by: DEJ | Jan 10, 2011 2:28:23 PM

DEJ, how many times to I have to tell you that the Sixth Circuit analyzed this as an AEDPA deference case (in the alternative). I get the argument that deference wasn't required, but they gave deference, and then found against the state anyway. "Even full deference under AEDPA cannot salvage the state court's decision."

Posted by: federalist | Jan 10, 2011 2:45:06 PM

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