Lafler Playing Out: IAC

So here we go: we're starting to see ineffective-assistance cases fleshing out Lafler.

Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012) (for publication).

Have a great Memorial Day weekend, everyone!

Chief Judge Batchelder, Judges Clay and Gilman.

Chief Judge Batchelder dissented. 

State prisoner appealed dist ct's denial of her habeas petition.  She was convicted of second-degree murder.  COA reversed.  Ineffective-assistance-of-counsel claim arising out of plea-bargaining process had merit.  Inmate's second attorney was ineffective b/c he failed to investigate case before recommending that the inmate withdraw her plea.  Under plea, inmate would have received a 7-to15-year sentence.  After being convicted by a jury, the inmate received a 20-to-40-year sentence.  COA conditionally granted the habeas petition and gave the state 90 days to reoffer the original plea or to release the inmate.

Plea:
* Inmate was represented by an attorney who negotiated a plea deal.  Charges reduced to manslaughter, 7-to-15-year sentence.  Defendant to submit to a poly and testify against co-defendant.  Defendant would not challenge the prosecutor's recommended sentencing range on appeal. 
* Defendant pleaded guilty.
* After plea, the defendant spoke with a sheriff's deputy at the local jail.  This fellow advised the defendant not to plead guilty if she believed she was innocent.  He referred the defendant to another attorney.  This attorney agreed to represent the defendant in exchange for jewelry and media rights. 
* Defendant withdrew her plea.  Based on defendant declining to testify against the co-defendant.

Post-Plea Proceedings:
* The new attorney did not obtain the file, inspect the state's discovery materials, or speak with the prior attorney for a month and a half after the withdrawal of the plea. 
* After obtaining the file, the attorney moved to withdraw.  Claimed lack of $$$ from client. 
* State court appointed a third attorney.
* Jury convicted the defendant and she got 20 to 40 years of custody.  Co-defendant was acquitted. 
* Mich Ct App affirmed sentence on direct appeal and rejected all constitutional challenges.  Mich S Ct denied leave to appeal.  Motion for relief from judgment denied.  Mich Ct App denied leave to appeal that decision. 

Habeas Review:
* The inmate sought fed habeas review.  Dist ct denied, but granted certificate of appealability.

COA Conclusions:
* While decision to plead guilty rests with client, attorney has duty to inform client of options.  Attorney must reasonably investigate case.  Defendants have the right to expect counsel to review their cases and explain the elements, evidence, and sentencing exposure.   
* As Lafler has told us, "the simple fact of a higher sentence after trial is sufficient to demonstrate prejudice" for an IAC claim. 
* Substantial disparity b/t plea offer and post-trial sentence provides evidence that a defendant would have accepted a plea deal. 
* COA recognizes that "defendants may have legitimate reasons for continuing to maintain their innocence during and even after plea negotiations." 
* No need for a defendant to support with objective evidence an assertion that they would have accepted a plea offer.
* No evidence that the second attorney explained the elements of the charges, explained the defendant's sentencing exposure, or discussed the evidence.  Attorney failed in his obligations. 
* Not sound professional judgment or strategic choice.
* Inmate can show the court would have accepted the plea and the sentence would have been less.  The court accepted the plea the first time around.  Sentence the inmate got was substantially higher than the one available under the plea. 

Remedy:
* Lafler kind of leaves this door open. . . .
* Problem here is the plea deal was based in part on the inmate's agreement to cooperate against the co-defendant.  Co-defendant was acquitted and then died, so that basis for the plea deal is now gone.
* State should reoffer the plea.  State trial court would then have discretion to vacate the trial conviction and accept the plea or leave the conviction undisturbed.  State court should recognize the plea deal as a "baseline" to consult in fashioning an appropriate remedy.
* But COA acknowledges there may be a problem if the state court just reimposes the last sentence.  But Lafler says the state court must at least consult the initital plea agreement in crafting a new sentence.  Ct's discretion is not unfettered.  If there's a problem (eg, new sentence is greater than origianl plea deal), the later remedy in fed ct is a question for another day. 

Chief Judge Batchelder's dissent:
* Mich Ct App's denial of IAC claim was reasonable. 
* It was not counsel's advice that motivated the defendant to withdraw her plea.  And even if counsel encouraged the withdrawal, such advice did not fall below an objective standard of reasonableness.
* Counsel represented the inmate for only three days before the plea withdrawal.  No time to review case file. 
* Lafler distinguishable b/c that petitioner "presented actual evidence that he received deficient advice." 
* Lafler does not require the trial ct to consult the original plea agreement.  Lafler "simply says that the 'baseline' of the original plea offer 'can be consulted in finding a remedy.'"
* Lafler does not require resentencing. 

More Death-Penalty Sentencing

United States v. Galan, No. 08-4552 (6th Cir. Aug. 19, 2011) (unpublished). Panel of Judges Guy, Cook, and Stranch.

Defendant appealed his drug-conspiracy conviction and his life sentences for murder with a firearm in the course of a drug conspiracy. Court affirmed the drug-conspiracy conviction, but vacated the life sentences. Remanded for resentencing.

The defendant's first argument was that the district court erred in not instructing the jury concerning the effect of the five-year statute of limitations applicable to the drug conspiracy charge. Plain-error review b/c argument not raised in district court. Five-year statute of limitations under 18 U.S.C. 3282(a). Conspiracy here was a "chain conspiracy." Evidence supported jury's decision to convict the defendant for the charged conspiracy.

Bigger issue was the alleged sentencing error. Defendant argued that district court erred in instructing the jury to choose b/t death or life imprisonment. Defendant argued that the court should have instructed the jury on imprisonment for any term of years as well. Plain-error review here too. Government conceded and appellate court agreed that plain error occurred. Under 18 U.S.C. 924(j)(1), the murder was punishable by death "or by imprisonment for any term of years or for life." Section 924(j) incorporates only the definition of murder found in 18 U.S.C. 1111(a). It does not incorporate 1111(b)'s penalty provisions. Failing to give the jury the option of permitting the judge to sentence a defendant to a term of years is plain error. Resentencing necessary.