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September 28, 2012

Ninth Circuit orders hearing on bad plea advice over three-strikes sentencing

The Ninth Circuit today handed down a notable panel opinion in Miles v. Martel, No. 10-15633 (9th Cir. Sept. 28, 2012) (available here), concerning a possible Sixth Amendment violation based on bad plea advice concerning sentencing prospects.  Here is how the opinion begins:

“[C]riminal justice today is for the most part a system of pleas, not a system of trials. . . . [T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.”  Lafler v. Cooper, 132 S. Ct. 1376, 1388 (2012).  Because of “[t]he reality [ ] that plea bargains have become so central to the administration of the criminal justice system . . . ,” Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012), the Supreme Court recently recognized that the Sixth Amendment right to counsel “extends to the plea-bargaining process. During plea negotiations defendants are entitled to the effective assistance of competent counsel.” Lafler, 132 S. Ct. at 1384 (internal citations and quotation marks omitted); see also Frye, 132 S. Ct. at 1407.

Petitioner-Appellant Tyrone Wayland Miles (“Miles”) claims that he received ineffective assistance of counsel during plea-bargaining process.  He alleges that counsel advised him to reject a plea offer of six years’ imprisonment without alerting him that he was being charged with a crime that would qualify as a “third strike” under California law.  He later entered an open plea and was sentenced to a three strikes sentence of twenty-five years to life in prison. Without granting an evidentiary hearing, the California Supreme Court summarily denied his state petition for a writ of habeas corpus.  Following the United States Supreme Court’s recent decisions in Lafler v. Cooper and Missouri v. Frye, we reverse the district court’s denial of Miles’s petition for habeas corpus and remand to the district court to hold an evidentiary hearing on Miles’s claims.

September 28, 2012 at 04:01 PM | Permalink


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I don't understand--I thought that the result in Lafler resulted from the fact that the Michigan courts erroneously passed on whether the performance was deficient, which then opened the case up to review by the federal courts. Here, there was no state decision on the merits--thus, the habeas court should have looked to see if there was any reasonable basis for the denial of the petitioner's claims--and there was. The idea that since the guy got a fair trial he is not prejudiced is clearly reasonable. So why didn't the Ninth simply affirm?

Frye and Lafler remain jokes.

Posted by: federalist | Sep 28, 2012 8:52:22 PM


"[T]he right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences.”

Yep i'd think 97% is pretty damn central. Could sday damn near essential!

Posted by: rodsmith | Sep 28, 2012 10:58:02 PM

rodsmith --

Since you're a call-it-as-you-see-it guy, I wanted to ask you this. It's not an argument, just a question: Do you think that, when further proceedings are required because of grossly deficient advice, the attorney who gave the advice should have to pay for them?

Posted by: Bill Otis | Sep 29, 2012 8:59:48 AM

LOL good question bill and i would have to say yes...but you do remember that in a big part of the cases the lawyer doing the advice was in fact paid for by the state! So sounds like a nice type of insurance for lawyers might be needed. Looks like it's long past time for lawyer malpractice insurance! LOL

Posted by: rodsmith | Sep 29, 2012 11:30:59 AM

rodsmith --

Bingo! The way to get fewer errors at trial is to make those who commit the errors directly pay for the consequences. For example: (1) Once the cops see that they have to pay from their own pocket when they violate the Fourth Amendment, there will be fewer violations; and (2) Once defense counsel see that they have to pay from their own pocket for IAC episodes, there will be many fewer episodes, to everyone's benefit.

Posted by: Bill Otis | Sep 29, 2012 12:47:45 PM

LOL i agree completly which is one of the reaons i say the so-called "soveright immunity" is crap. Got to have a soveright to have soverign immunity and last one we claimed got invited to go back to england back in the 1700's!

IF and WHEN God or Allah or whoever wants to come down and TELL ME so and so speaks for HIM! then we can talk about it!

Till then forget it!

Problem we have right now bill is NOBODY is paying BUT the poor TAXPAYERS. They are paying for the idiots who fowl up the initial investigations...Followed by paying for a sham trial using the fowled up initial info. Even before you start talking about over charging and criminal prosectuions who play fast and lose with the law....or thier civilian version...the defense attorney!

then once the shame trial is done...time to pay for MORE attorneys to go back and see if the first bunch of fuckups did it right the first time and in all too many cases the answer is NO they did not!

Long Long Long past time to toss soveright immunity, prosecutorial immunity and the whole other bunch. They should all be replaced with a simple law!

IF what you are doing is legal...your covered. IF your actions would be CRIMINAL if done by another in any other cituation...guess what! it's CRIMINAL when YOU DO IT! and you will be charged and prosecuted.

In other words. if you lie, cheat, fake evidence, lab reports, police reports....hid witnesses or statements while claiming there are none. hide video.... you have comitted a FELONY!

Posted by: rodsmith | Sep 29, 2012 8:19:06 PM

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