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October 8, 2013

"A messy follow-up to Lafler and Frye: Can 'fun' facts produce 'good' law?"

The title of this post is the title of this great case preview by Rory Little over at SCOTUSblog concerning today's notable Supreme Court oral argument on a topic that ought to interest sentencing fans. Here is how it begins:

When the Supreme Court, two Terms ago, extended Strickland’s “ineffective assistance of counsel” doctrine to plea negotiations (Lafler v. Cooper and Missouri v. Frye), Justice Alito objected in dissent to “its opaque discussion of remedy” and begged the Court to “come to the rescue” by providing better guidance.  Then Michigan’s Solicitor General sought certiorari to review the Sixth Circuit’s grant of habeas relief to a prisoner who claimed that bad lawyering led her to withdraw from a sweet plea deal.  Justice Alito, the only Justice not using the “cert. pool” to evaluate petitions, likely did not object -- and Vonlee Titlow’s pro se cert. opposition failed to highlight the messy and unsettled facts that Michigan’s petition glossed over.  But Tuesday’s oral argument in Burt v. Titlow may highlight problems with sometimes-too-speedy “cert. pool” grants. The Justices are likely to feel frustrated in extracting useful guidance from parties that can’t agree on even the most basic facts.

UPDATE:  With thanks again to SCOTUSblog, I see that the transcript from the oral argument in Burt v. Titlow is now available here.   I will do an additional update if anything special jumps off the page from the transcript.

October 8, 2013 at 10:06 AM | Permalink


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This is why SCt should appoint counsel to prepare the BIO to any state-on-top petition.

Posted by: HGD | Oct 8, 2013 11:44:21 AM

Not sure you need to appoint counsel on every state-on-top petition, many of them are not going much further than pro se-on-top petitions.

I think that it does indicate certain steps if a pro se case (regardless of whom is petitioner) appears potentially meritorious: 1) request record; 2) if, after reviewing record, it looks like something that might warrant full argument, appoint counsel to do amended petition/BIO.

Posted by: tmm | Oct 8, 2013 2:06:25 PM

it's much easier for the court to read a BIO than review the record, and a BIO ensures adversarial presentation.

Posted by: HGD | Oct 8, 2013 4:03:13 PM

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