{"id":89869,"date":"2020-08-28T15:50:48","date_gmt":"2020-08-28T19:50:48","guid":{"rendered":"https:\/\/sentencing.net\/?p=89869"},"modified":"2020-09-01T15:30:01","modified_gmt":"2020-09-01T19:30:01","slug":"attacking-the-guilty-plea-part-ii-ineffective-assistance-of-counsel","status":"publish","type":"post","link":"https:\/\/sentencing.net\/trial\/attacking-the-guilty-plea-part-ii-ineffective-assistance-of-counsel","title":{"rendered":"Attacking the Guilty Plea Part II: Ineffective Assistance of Counsel"},"content":{"rendered":"

More than 95 percent of state and federal prisoners plead guilty, and most of them do so on the advice of their lawyer. A successful attack on a guilty plea would then depend on showing that counsel\u2019s bad advice to plead guilty rendered the plea not \u201cknowing and voluntary.\u201d<\/p>\n

We covered the knowing and voluntary nature of a guilty plea in my last column in this series on attacking the guilty plea (which you can find here<\/a>). In this column, we will go over the ineffective assistance of counsel (\u201cIAC\u201d) standard in the guilty plea context.\u00a0<\/span><\/p>\n

A.\u00a0\u00a0The Negotiation of a Guilty Plea of a \u2018Critical Phase\u2019 of a Criminal Case<\/h2>\n

Criminal defendants are expected to rely on their lawyer\u2019s advice in deciding to plead guilty. And the U.S. Supreme Court has recognized as much. In Padilla v. Kentucky<\/em>, 559 U.S. 356 (2010), the Court reaffirmed its longstanding position on the issue and held that \u201cthe negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.\u201d<\/p>\n

The Court\u2019s statement was hardly a surprise. For over 70 years, the Court has said lawyers are required to give clients their \u201cinformed opinion as to what plea should be entered.\u201d Von Moltke v. Gillies<\/em>, 332 U.S. 708 (1948). The Court further said that an \u201cintelligent assessment\u201d of the advantages to pleading guilty is \u201cimpossible\u201d without counsel\u2019s advice. Brady v. United States<\/em>, 397 U.S. 742 (1970).<\/p>\n

These are just a sampling of the Supreme Court cases that have all said the same thing over and over: counsel\u2019s advice on whether to plead guilty is very important. The decision to take or reject a plea, go to trial, plead without a plea agreement, or any combination of these rests so much on counsel\u2019s advice that bad advice can render a guilty plea involuntary.\u00a0<\/span><\/p>\n

B.\u00a0\u00a0IAC Implicates the Voluntariness of a Guilty Plea<\/h2>\n

\u201cA guilty plea can be involuntary as a result of the ineffective assistance of counsel,\u201d says the U.S. Court of Appeals for the Sixth Circuit. United States v. Gardner<\/em>, 417 F.3d 541 (2005). Have you ever wondered why this is true? Sure, bad advice to plead guilty can be \u201cprejudicial\u201d because the outcome of your case could have been significantly different (better) had a different choice been made. But, that\u2019s only part of why IAC makes a guilty plea involuntary.<\/p>\n

Your decision to plead guilty stems from the information and advice you received from your lawyer. The amount of prison time you faced, any fallout from the conviction (e.g., deportation), and any rights you waived by pleading guilty are all affected by the decision to plead guilty. All of this formed your understanding of the guilty plea \u2014 or the \u201cknowing and voluntary\u201d nature of the plea. Bad advice to plead guilty, then, taints the voluntariness of your plea because it affects your understanding of your plea. United States v. Keller<\/em>, 902 F.3d 1391 (9th Cir. 1990) (\u201cA claim of ineffective assistance may be used to attack the voluntariness and hence the validity of a guilty plea\u201d).<\/p>\n

This reasoning was the basis of the Supreme Court\u2019s decision in Tollett v. Henderson<\/em>, 411 U.S. 258 (1973). In that case, the Supreme Court held that a defendant who pleads guilty \u201cmay only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [the Court\u2019s decision on effective assistance of counsel].\u201d The Tollett Court recognized that other constitutional violations may \u201cplay a part\u201d in determining the voluntariness of a guilty plea, but \u201cthey are not themselves independent grounds for federal collateral relief.\u201d Instead, it\u2019s all about the advice of counsel to plead guilty.<\/p>\n

Let\u2019s take a look at how counsel\u2019s advice could make a guilty plea not \u201cknowing and voluntary.\u201d In the child sexual exploitation case against Subway\u2019s ex-pitchman Jared Fogle, the former head of Fogle\u2019s charitable foundation, Russell Taylor was charged with multiple counts of producing child pornography, in violation of 18 U.S.C. \u00a7 2251, depicting \u201csexually explicit conduct.\u201d Immediately, Taylor\u2019s lawyer advised him to plead guilty because he faced such a high sentence if he lost at trial. Taylor pleaded guilty to the charges upon his lawyer\u2019s advice and received a 27-year sentence.<\/p>\n

When Taylor later challenged in a motion under 28 U.S.C. \u00a7 2255 that his guilty plea was not knowing and voluntary, claiming that his lawyer never advised him that his conduct did not amount to the crimes charged, the court agreed and vacated his conviction and sentence.<\/p>\n

The court found that Taylor\u2019s lawyer had not only failed to advise him that he didn\u2019t break the law he was charged with, but also that he failed to object to the presentence report\u2019s \u201cinaccurate description\u201d of the offense conduct. Additionally, he failed to advise the court that Taylor\u2019s conduct didn\u2019t meet the elements of the charged offenses. He even stipulated in the plea agreement with the government that Taylor\u2019s conduct met the elements of the charges.<\/p>\n

The court tossed his guilty plea based on the shockingly bad advice by counsel to plead guilty, despite the fact that Taylor stood before the court, under oath, and pleaded guilty to the charges, saying that he had understood the charges. His understanding, though, was poisoned by his counsel\u2019s ineffective assistance, and his plea was therefore not knowing and voluntary, the court concluded. Taylor v. United States<\/em>, 2020 U.S. Dist. LEXIS 34341 (S.D. Ind. 2020).<\/p>\n

Not only can counsel\u2019s bad advice kill a guilty plea but so can counsel\u2019s bad acts that led up to the plea. In Missouri v. Frye<\/em>, 566 U.S. 134 (2012), the Court noted a distinction from its earlier cases that it wasn\u2019t counsel\u2019s advice that led to an invalid plea but \u201cthe course of the legal representation that proceeded it.\u201d The Court held that counsel\u2019s failure to advise of a more favorable plea offer made the defendant\u2019s guilty plea under a harsher agreement not fully informed and therefore invalid.<\/p>\n

IAC in any form undermines the knowing and voluntary nature of a guilty.\u00a0<\/span><\/p>\n

C.\u00a0\u00a0Strickland v. Washington<\/em> in the Guilty Plea Context<\/h2>\n

\u201cDefendants facing felony charges are entitled to the effective assistance of competent counsel,\u201d the Supreme Court said in Hill v. Lockhart<\/em>, 474 U.S. 52 (1985). But how do you measure whether counsel was \u201ccompetent\u201d? The year prior to Hill<\/em>, the Court had established in Strickland v. Washington,<\/em> 466 U.S. 668 (1984), a two-part test in assessing whether counsel\u2019s performance meets the Sixth Amendment guarantee to the right to counsel in criminal cases. In Hill<\/em>, the Court extended the Strickland<\/em> test to IAC claims in the guilty plea context (Strickland<\/em> was about counsel\u2019s performance during trial).<\/p>\n

The familiar Strickland<\/em> standard requires a showing (1) \u201cthat counsel\u2019s representation fell below an objective standard of reasonableness\u201d and (2) \u201cthat there is a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u201d The second prong, known as the \u201cprejudice\u201d prong, is crucial because without showing prejudice counsel is not constitutionally ineffective.<\/p>\n

The Supreme Court has recognized three different \u201cprejudices\u201d in the guilty plea context: (1) accepting a guilty plea that wouldn\u2019t have been accepted absent IAC, (2) rejecting a favorable plea offer because of IAC, and (3) IAC that led to the failure to communicate a plea offer or option. We go over these in detail in subsequent columns on attacking the guilty plea, so we won\u2019t spend much time on these here. But the whole idea under each prejudice showing is that the guilty plea would have been different without the IAC.<\/p>\n

In establishing prejudice after a guilty plea, courts apply the Strickland<\/em> principles. A \u201creasonable probability\u201d under Strickland<\/em> simply means to \u201cundermine confidence in the outcome,\u201d the Court said. This reasonable probability bar is significantly lower than the \u201cbeyond reasonable doubt\u201d standard and is even lower than the \u201cmore likely than not\u201d standard. As one circuit court of appeals noted, \u201cStrickland asks if a different result is \u2018reasonably probable,\u2019 not if it is possible.\u201d Brown v. United States<\/em>, 729 F.3d 1316 (11th Cir. 2013); see also United States v. Carthorne<\/em>, 878 F.3d 458 (4th Cir. 2017) (\u201ceven when a district court has not committed plain error, counsel can have rendered ineffective assistance when counsel\u2019s errors were the result of a misunderstanding of the law\u201d).<\/p>\n

Strickland<\/em> embraced the idea that counsel\u2019s strategic decisions are insulated from being attacked as IAC. But this doesn\u2019t mean anything if counsel didn\u2019t do her homework. The failure to investigate and research the case and the law is not a \u201cstrategy\u201d by anyone\u2019s definition. Taylor (\u201cbecause [counsel] never considered an alternative to a [guilty] plea, his pursuit of a [guilty] plea was not a reasonable strategic decision\u201d).<\/p>\n

D.\u00a0\u00a0Relief is Available for State Prisoners in Federal Court<\/h2>\n

After exhausting their state court remedies, state prisoners attacking their guilty pleas can take their challenges to federal court if denied by the state courts. Under 28 U.S.C. \u00a7 2254(d)(1), a state prisoner may file a habeas corpus petition in federal court if the state court\u2019s denial \u201cresulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.\u201d<\/p>\n

Since Strickland<\/em> is \u201cclearly established federal law,\u201d a state court decision that\u2019s contrary to or is an unreasonable application of the Supreme Court\u2019s holding would be open to further attack in federal court. Lafler v. Cooper<\/em>, 566 U.S. 156 (2012) (\u201cthe state court\u2019s adjudication was contrary to clearly established federal law. And in that circumstance the federal courts in this habeas action can determine the principles necessary to grant relief.\u201d).<\/p>\n

But it\u2019s not enough for the state court to apply Strickland incorrectly. You must show that the state court applied Strickland<\/em> in your case \u201cin an objectively unreasonable manner.\u201d Rompilla v. Beard<\/em>, 545 U.S. 374 (2005). In other words, the state court\u2019s decision must not only be wrong, you must show that any reasonable judge would not have made the same mistake. That\u2019s the \u201cobjectively unreasonable\u201d measuring stick.<\/p>\n

Since we\u2019re dealing with IAC and guilty pleas, the actual standard that the state court must apply is the one that the Supreme Court announced in Hill, which applied Strickland to the guilty plea context. You must show that the court violated the Hill standard, not just Strickland. Your research will likely have better results if you include cases that have applied Strickland<\/em> under the Hill<\/em> decision, even though Hill<\/em> was largely about finding Strickland<\/em> prejudice in the face of a guilty plea.<\/p>\n

Conclusion<\/h2>\n

IAC can clearly lead to a guilty plea that is constitutionally invalid and open to collateral attack. Becoming familiar with Strickland<\/em> will help in identifying whether your lawyer\u2019s errors were grave enough to render your guilty plea not knowing and voluntary. In the next column in this series, we will begin our journey into the various ways the Supreme Court has recognized Strickland<\/em> prejudice in attacking the decision to plead guilty, starting with the Hill<\/em> prejudice standard.<\/p>\n

Editor\u2019s note: This is the second column in an ongoing series on attacking the guilty plea.<\/em><\/p>\n

This article originally appeared in the May, 2020 issue of Criminal Legal News.\u00a0\u00a0It is reprinted with permission.\u00a0\u00a0Copyright, 2020 Criminal Legal News<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

More than 95 percent of state and federal prisoners plead guilty, and most of them do so on the advice of their lawyer. A successful attack on a guilty plea would then depend on showing that counsel\u2019s bad advice to plead guilty rendered the plea not \u201cknowing and voluntary.\u201d We covered the knowing and voluntary…<\/p>\n","protected":false},"author":17,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[321],"tags":[],"yoast_head":"\nAttacking the Guilty Plea Part II: Ineffective Assistance of Counsel - Sentencing.net<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/sentencing.net\/trial\/attacking-the-guilty-plea-part-ii-ineffective-assistance-of-counsel\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Attacking the Guilty Plea Part II: Ineffective Assistance of Counsel - Sentencing.net\" \/>\n<meta property=\"og:description\" content=\"More than 95 percent of state and federal prisoners plead guilty, and most of them do so on the advice of their lawyer. 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