« How long until the Supreme Court takes up another Second Amendment case after Bruen? | Main | A glass-half-empty look at federal compassionate release data since FIRST STEP Act »

February 21, 2023

Brief dissent from the denial of cert on plea ineffectiveness from Justice Jackson

This morning's Supreme Court order list, which comes after the Justices were off for nearly a month, had no cert grants and had lots and lots and lots of cert denials.  One of those denials, in Davis v. United States, No. 22–5364, prompted this short dissent authored by Justice Jackson and joined by Justice Sotomayor.  Here are excerpts:

Our criminal justice system today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Against this backdrop, this Court has recognized that the loss of an opportunity for a favorable plea offer due to an attorney’s deficient performance can violate the Sixth Amendment right to effective counsel. Id., at 169–170; see also Missouri v. Frye, 566 U.S. 134 (2012). Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government. The question presented, then, is how can a defendant like Davis show “prejudice” as a result of this failure?...

The District Court concluded that Davis’s allegations in his 28 U. S. C. §2255 motion were insufficient, even if true, because he had not alleged “that a plea offer was made but not communicated to [him].”... Moreover, under the circumstances presented here, it was exceedingly likely that Davis would have prevailed with respect to the prejudice prong if the Eleventh Circuit had not applied that threshold requirement.  Davis’s allegations established that a favorable plea agreement was a strong possibility, even though no offer actually materialized, because each of Davis’s five codefendants had lawyers who negotiated favorable plea agreements with respect to the same series of armed robberies.  And while Davis (who was 18 or 19 years old at the time the crimes were committed) received a sentence of approximately 160 years of imprisonment after his attorney took him to trial, all of Davis’s codefendants received sentences of less than 40 years of imprisonment due to plea agreements that enabled the District Court to impose a sentence below the mandatory minimum. T he District Court’s statements at sentencing were also noteworthy: The judge specifically asserted that, while he thought the appropriate sentence for Davis was 40 years, he was bound by the consecutive mandatory minimums.

The Eleventh Circuit gave short shrift to these alleged facts, and others, which suggest that Davis was harmed by his counsel’s failure to initiate plea negotiations because it applied a bright-line rule that prejudice cannot be shown in the absence of a plea offer.  This petition presents the Court with a clear opportunity to resolve a Circuit split regarding whether having an actual plea offer is an indispensable prerequisite to making the necessary showing of prejudice.  I would grant certiorari to resolve that issue.

February 21, 2023 at 09:46 AM | Permalink


I don't know enough about this case to know if there were any good reasons for "not this case." But the issue ultimately needs to be resolved. This type of complaint -- that my attorney did not do enough to get me better options -- is becoming more common. For the most part, there are other flaws with the complaint (exactly what was the attorney supposed to have done), but knowing what needs to be proved for prejudiced would be a great benefit to practitioners.

Posted by: tmm | Feb 21, 2023 11:33:40 AM

Lafler v. Cooper was a truly awful decision--on so many levels--but there is no reason to cabin it to a situation of an actual offer. Joe Biden can always commute the sentence to 40 years.

Posted by: federalist | Feb 21, 2023 1:13:20 PM

Our firm litigated for 5+ years (the District Judge sat on the 2255 Motion for 3.5 years, and waited 7 months after holding the evidentiary hearing to enter an Order denying relief, which was reversed a year later on appeal to the Sixth Circuit) to get habeas corpus relief, based upon ineffective assistance of counsel at plea bargaining, for a former physician, who had received that statutory maximum sentence of 20 years under 18 U.S.C. 841(b)(C), after his attorney advised him to turn down a 41-month long plea offer. Counsel stated that he believed that he could get an acquittal, based upon entrapment by undercover police. In advising Sawaf to reject the 41-month plea offered, counsel failed to advise Sawaf that if he was convicted at trial, he might well be facing the 20 year maximum sentence. An additional problem was that the Government never put up any evidence of drug quantity at Saswaf's sentencing hearing, so they failed to carry their burden, but Sawaf's trial counsel never objected and failed to raise the issue on Sawaf's direct appeal. The AUSA got the District Judge to extrapolate from the trial testimony of the Government's expert physician witness, who had only reviewed a 5% sample of more than 2,000 patient files. The trial Judge extrapolated to all narcotics written for all patients in more than 2,000 files, without any physician ever examining or giving an expert opinion about the prescriptions written in 1,950+ patient files. Again, defense counsel failed to object, to preserve the issue for appeal, and then failed to raise the issue in Sawaf's first direct appeal, thereby waiving the issue. See, Ali H. Sawaf v. United States, 570 F. App'x. 544 (6th Cir. 2014). Ultimately, Sawaf served 13.5 years out of 20 years, and was re-sentenced to "time served", not to the lost plea of 41-months.
Sawaf's Federal criminal trial was the first such trial for his defense counsel (who was only 3 years out of law school), for the District Judge and for the AUSA (who had previously been a state court prosecutor). From my work on that case, I became knowledgeable about claims of ineffective assistance of counsel at plea bargaining. In its current form, there is little or no written evidence about plea communications between defense counsel and his client, unless defense counsel writes his client letters about plea bargaining as it progresses. Because plea bargaining generates so many claims of ineffective assistance of counsel, some thoughtful defense lawyers have suggested that State and Federal Courts should institute new, formal rules requiring that all issues about plea bargaining be reduced to writing and placed under seal into the Court's record. Thus, if a defendant later makes an allegation of ineffective assistance of counsel involving plea bargaining, there will be a substantial written record available to guide the Court and the parties in resolving a habeas corpus motion. In the kind of case the U.S. Supreme Court denied certiorari on today in David v. U.S., where the allegation is that counsel never initiated any plea discussions with the prosecutor or discussed plea negotiations with his client, the record would be void of any writing between counsel and either the prosecutor or his client, backing up the 2255 movant's position. A separate issue that hurts Movants like David is that the Supreme Court has long held that their is no Constitutional right an any plea bargaining at all. It would bee helpful if the Supreme Court revisited that issue, since 97% of all Federal criminal cases today end in a plea bargain. Plea bargaining and counsel's obligation to always explore plea bargaining should be of Sixth Amendment significance.

Posted by: JimGormley | Feb 21, 2023 1:37:17 PM

We should be more peeved that SCOTUS denied cert. in Novak v. City of Parma. The four days Mr. Novak spent in jail are far far more of an injustice than Davis' extra century.

Posted by: federalist | Feb 21, 2023 1:51:55 PM

Yeah, I was really struck that Novak did not get any statement from any Justice, federalist. Nothing like state power to bring the Justices together. Sigh.

Posted by: Doug B | Feb 21, 2023 2:19:01 PM

An interesting part of the Sawaf case is that defense counsel failed to consult the Federal Sentencing Guidelines Manuel, to determine how much time Sawaf might be facing if he was convicted at his 2000 trial, instead of taking the 41 month plea offer. We now know that Russell Alred never gave Sawaf an estimate of time because he did not own a copy of the Guidelines Manuel; it was his first ever Federal criminal case, so he has not yet bought the book. After Dr. Sawaf's conviction, his daughter-in-law (who is educated as both a criminal defense attorney and a physician) visited defense counsel Russell Alred's law office to inquire how much time Sawaf may be facing at sentencing. Alred advised that he was uncertain, and was waiting for his newly purchased copy of the Sentencing Guidelines Manuel to arrive in the mail from West Publishing Co. It is notable that the Sixth Circuit's opinion reversing Judge Karen Caldwell and ordering the granting of habeas corpus upon remand, completely omits mention of the name of defense counsel Russell Alred. He went on to get elected as the Circuit Judge of Harlan County, Kentucky (along the Tennessee border) only 6 years after passing the Ky. Bar Exam (the youngest possible age). Subsequently, he was removed from office by the Judicial Conduct Commission (unanimous vote of 6 members) for gross ethical misconduct, and that decision was affirmed by the Kentucky Supreme Court. See, Alred v. Commonwealth of Kentucky, Judicial Conduct Commission, 395 S.W.3d 417 (Ky. 2012). Interestingly, under Kentucky law, any Judge removed from office for misconduct can run again for the same judgeship in the next election. The idea is that the people get to elect whomever they want as a judge, so long as he still holds a law license.

Posted by: Jim Gormley | Feb 21, 2023 2:29:43 PM

I want to avoid being too tough on the defense lawyer. After all, we hear again and again that defense counsel gets pushed around to support a bargained guilty plea for his (as ever innocent) client. Here, the defense lawyer stood his ground, never groveled to the extortionist thug in the prosecutor's office, and vindicated the Constitution's clear preference for trials rather than some hidden, backroom deal. Why shouldn't we view his NOT having approached the prosecutor for one of these smelly, corrupt deals as a profile in courage -- bucking our present, sleazy bargaining system and standing up for the Constitution!!

Moral of story: You can't thunder again and again and again that plea bargains stink, and then turn around and express shock -- SHOCK, I tell you! -- that the defense lawyer wanted to no part of these awful things.

Posted by: Bill Otis | Feb 21, 2023 2:30:34 PM

And this is exactly the kind of thing that gives anti-government hatred justification. Basically, some dude exercised his free speech rights, and the government took him by force. It's a problem. In a sane world, the prosecutors and all the rest would see the inside of a prison cell. Where the hell did we get to where this is remotely ok, where cops don't like speech, and they retaliate. Nowak has a legit beef, and the Supreme Court was remiss in turning him away. Additionally, the Sixth Circuit opinion was just truly awful---citing his deletions of comments--are you f'in kidding me? What a joke.

This wasn't an honest mistake. This was micro-tyranny.

Posted by: federalist | Feb 21, 2023 2:32:41 PM

Bill nails it guys.

Posted by: federalist | Feb 21, 2023 3:08:21 PM


Rigged elections. Gotta love 'em.

Posted by: federalist | Feb 21, 2023 6:05:30 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB