Tag Archives: ineffective assistance of counsel

How Will the Florida Bar’s Ethics Opinion Prohibiting Waivers of Claims of Prosecutorial Misconduct and Ineffective Assistance of Counsel Be Enforced?

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Florida’s criminal defense attorneys are probably aware by now that the Florida Bar has adopted the highly debated ethical opinion which prohibits waivers of claims of prosecutorial misconduct and ineffective assistance of counsel in plea bargains.  According to the Florida Bar News report, although representatives from the United States Attorneys offices for the Southern, Middle, and Northern Districts of Florida argued against the adoption of the ethical opinion, the Board of Governors adopted the proposed ethical opinion with only a few dissenting votes.

The ethical opinion is a step in the right direction, but how will the opinion will be enforced?  For those of you who practice in State court, if your client is offered a plea that contains a waiver of claims of ineffective assistance of counsel or prosecutorial misconduct, perhaps you could bring the new ethical opinion to the prosecutor’s attention.  If that fails, you could bring the ethical opinion to the attention of the court.

However, if you practice in Federal court, the ethical opinion may not necessarily change anything.  Federal court criminal defense practitioners may know that the Department of Justice does not require that the Assistant United States Attorneys be admitted to their state bar.  In other words, AUSAs in the Southern, Middle, and Northern Districts may not necessarily be members of the Florida Bar.   If the AUSAs are not members of the Florida Bar, they would not be bound by any of the Florida Bar’s ethical rules.  Therefore, unless the U.S.  Attorneys in the districts of Florida voluntarily adopt a policy prohibiting plea offers containing waivers of prosecutorial misconduct and ineffective assistance of counsel, Federal court criminal defense practitioners may see little to no change with regard to plea offers.  I would hope that the US Attorneys take it upon themselves to change their policies, but, given their opposition to the ethical opinion, I wouldn’t expect it.

Pagan v. State, No. 2D11-3804: Florida’s Second DCA Issues Opinion Touching On Issue of Plea Bargain Waivers of Claims of Ineffective Assistance of Counsel

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On November 14, 2012, the Second DCA issued an opinion in Pagan v. State, No. 2D11-3804, wherein the court held that the trial court erred in summarily denying Pagan’s Rule 3.170(l) motion to withdraw his plea based on misleading advice of counsel.  According to the opinion, after Pagan was sentenced to 30 years for his involvement in the death of a child, Pagan moved to withdraw his plea.  The trial court appointed conflict free counsel to represent Pagan, and a hearing was set.  Just before the hearing commenced, the State offered Pagan a reduced sentence of 15 years in exchange for Pagan’s waiver of any right to seek collateral relief.  The court gave Pagan time to consult with his attorney, after which Pagan accepted the State’s offer.  The court resentenced him to the lesser term, remarking to Pagan that “you would be agreeing that you will withdraw this motion to withdraw your plea and you will also be agreeing that you will not file any further post-conviction motions attempting to reduce this sentence that I am about to impose.”  Later the court added: “And just to reiterate part of the deal is you will not be filing any more post-conviction motions.  This—this is it. You filed it.  It worked for you.”  After resentencing, Pagan filed several Rule 3.850 motions, alleging that he received ineffective assistance in connection with the State’s offer to resolve his rule 3.170(l) motion.  Predictably, the trial court denied each of his motions.  On appeal, the Second District reversed.

In support of its holding, the Court first noted that a Rule 3.170(l) motion is not a postconviction matter, and that a defendant is entitled to effective assistance of counsel in connection with such motion.  See Pagan, slip op., pg. 3.  The Court also observed that “a defendant can waive his right to collaterally attack his judgment and sentence when the waiver is expressly stated in the plea agreement and he knowingly and voluntarily agrees to the waiver.”  See Pagan, slip op., pg. 4 (citing Stahl v. State, 972 So. 2d 1013, 1015 (Fla. 2d DCA 2008); Williams v. United States, 396 F.3d 1340, 1342 (11th Cir. 2005)). However, “ineffective assistance of counsel claims attacking the advice received from counsel in entering into the plea and waiver cannot be waived.”  See Id.

While the opinion seems to have reached the right result by holding that Pagan did not waive his claim of ineffective assistance of counsel, it is troubling that the court’s opinion closed with a cautionary note:

We remand to the circuit court to conduct an evidentiary hearing on
Pagan’s allegations of ineffective assistance in connection with the agreement to
resolve his rule 3.170(l) motion. We caution that Pagan may subject himself to a worse
result if he goes forward with this process, but that is his decision to make.

Pagan, slip op. pg. 4.

I also find it troubling that the Court failed to address the obvious ethical issue presented by the opinion: whether a defendant can be offered a plea bargain that requires him or her to waive future claims of ineffective assistance of counsel (or prosecutorial misconduct)?  Florida’s criminal appeals and criminal defense attorneys may remember that this past August, the Professional Ethics Committee of the Florida Bar issued Proposed Ethics Advisory Opinion 12-1, which states that plea bargains which require defendants to waive future claims of prosecutorial misconduct or ineffective assistance of counsel violate Bar rules.

To view a few of the articles that appeared in the Florida Bar News regarding the Advisory Opinion, click here and here.  Although the Advisory Opinion has not yet been adopted by the Florida Bar Board of Governors, if there is no appeal of the proposed opinion, the Advisory Opinion will become final.

Padilla v. Kentucky: Will it Apply Retroactively? United States Supreme Court Oral Argument Set for October 30, 2012

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Criminal defense and criminal appeals lawyers may be interested to know that on October 30, 2012, the United States Supreme Court will be having OA in the case of Chaidez v. United States, No.11-00820, to consider the question of whether Padilla v. Kentucky, 130 S. Ct. 1473 (2010), will apply retroactively to defendants whose convictions became final before the Padilla decision was rendered.  The formal Question Presented, as framed by the Court, reads as follows:

11-820 CHAIDEZ V. UNITED STATES
DECISION BELOW: 655 F.3d 684
CERT. GRANTED 4/30/2012
QUESTION PRESENTED: In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal
defendants receive ineffective assistance of counsel under the Sixth Amendment
when their attorneys fail to advise them that pleading guilty to an offense will
subject them to deportation.  The question presented is whether Padilla applies to
persons whose convictions became final before its announcement.
LOWER COURT CASE NUMBER: 10-3623

The Florida Supreme Court is considering the retroactivity issue as well, in the case of State v. Hernandez, No. SC11-1357.  According to the docket, the Florida Supreme Court held OA in May of 2012.  Since the Florida Supreme Court has yet to issue a decision, perhaps it’s waiting to see what the United States Supreme Court decides in Chaidez.  My last post on the Hernandez case can be found here.

United States Supreme Court Addresses Claims of Ineffective Assistance of Counsel for Failure to Communicate Plea Offers: Missouri v. Frye, No. 10-444

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Any experienced criminal defense lawyer should know that he or she has a duty to communicate plea offers to their client.  But did you know that failing to communicate a plea offer might subject you to a claim of ineffective assistance of counsel?  The United States Supreme Court recently addressed this issue in Missouri v. Frye, No. 10-444.  In Frye, the defendant entered a plea of guilty to the charge of driving with a revoked license.  After being sentenced, he filed a motion for postconviction relief based on his attorney’s failure to communicate a plea offer which had lapsed prior to his entering the plea.  Predictably, Frye testified at an evidentiary hearing that he would have entered a guilty plea to the misdemeanor had he known about the offer.  In its Opinion, the Court focused on the factual “context of claimed ineffective assistance that led to the lapse of a prosecution offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later.”  Slip Op. at pg. 1.  The Court therefore framed the issue as “whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected.”  Slip Op. at pg. 1.

In holding that the right to counsel extends to such plea offers, the Court reasoned that today’s criminal justice system has become dominated by the plea-bargaining process.  As noted by the Court, because today’s system is based on pleas, as opposed to trials, “the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant” for purposes of the Sixth Amendment’s right to effective assistance of counsel.  Slip op. at pg. 8.  Next, the Court held that “defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”  Slip op. at pg. 9.  Because counsel failed to communicate the formal offer to Frye, the Court held that counsel had performed deficiently under Strickland v. Washington, 466 U. S. 668, 686 (1984).

Turning to the prejudice prong of Strickland, the Court then stated that defendants must show (1) a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel; and, (2) a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law.   The Court further noted that to establish prejudice, a defendant would have to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.  Slip op., pg. 12.

As I was reading the rather dry majority opinion, something was not sitting right with me.  I wondered: how can the Court reconcile its decision (that counsel can be deemed ineffective for failing to communicate a plea offer) with the fact that a defendant has no right to be offered a plea in the first place, or a federal right to have the trial court accept a plea?  After all, the majority opinion acknowledged such fact at pages 5 and 12 of the slip opinion (citing Weatherford v. Bursey, 429 U. S. 545, 561 (1977); and Santobello v. New York, 404 U. S. 257, 262 (1971)).

Then, reading the opening paragraph of Justice Scalia’s dissent, I had one of those “aha!” moments.  Scalia wrote,  “Counsel’s mistake did not deprive Frye of any substantive or procedural right; only of the opportunity to accept a plea bargain to which he had no entitlement in the first place.”  Scalia Dissent, Slip. Op. at pgs. 1-2.  Scalia further noted that the majority acknowledged that the plea that Frye ultimately accepted was not tainted by any attorney error.  Scalia Dissent, Slip Op. at pg. 2.

Against those two points, Scalia presents a logical argument: that the majority opinion certainly seems to be out of sync with previous jurisprudence in this area.  The remainder of Justice Scalia’s dissent contains a good discussion of the difficulties that the Court’s majority opinion has left the lower courts, and criminal defense lawyers, to deal with.  I highly suggest that anyone who practices in this area to take a few moments to read the opinion.

In my next post, I’ll discuss Lafler v. Cooper, No. 10-209, another opinion released on the same day as Frye, which addresses other questions relating to ineffective assistance with respect to plea offers, including remedies.

Some Encouraging News for Florida Criminal Defense Attorneys

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As I was reading the latest edition of the Florida Bar News, dated October 15, 2011, I came across two points of encouraging news that I wanted to pass along on this rainy day in South Florida.

The first report states that the Florida Bar’s Professional Ethics Committee has voted to consider issuing an advisory opinion saying that it would be unethical for prosecutors to ask, as part of a plea bargain, that criminal defendants waive future claims of prosecutorial misconduct, and for criminal defense attorneys to advise their clients to waive any claim of ineffective assistance of counsel.  From my experience, the practice of requiring waivers as part of the plea bargaining process is more prevalent in Federal court than in State court.  While I served as a Law Clerk in the Southern District of Florida, I was amazed to see that so many plea offers contained waivers of such basic rights to due process.  While I am glad to see that the issue is being given serious consideration, I find it really sad that the practice of requiring Florida’s criminal defendants to waive some of their basic rights to due process can only be stopped by the issuance of a formal ethics opinion.

In a second report, the economics behind Florida’s death penalty are discussed.  According to the Florida legislators who back HB 4051, it is actually more expensive to carry out the death penalty than to house prisoners for life.  If passed, HB 4051 would eliminate Florida’s death penalty.  (Note: a previous Senate Bill, SB 1898, died in committee in May of 2011).

Finally, in a third report, the Florida Bar’s Criminal Law Section has decided to begin a review of Florida’s death penalty procedures.   Those who read my blog are familiar with my thoughts on the issue, so I won’t say anything more than “It’s about time!”  Since I’m a skeptic when it comes to government, I’m not going to sit here and expect major changes overnight, but at least someone in Tallahassee, apart from the Florida Supreme Court dissenting Justices, is starting to take a look at the serious problems with Florida’s death penalty procedures.


United States Supreme Court to Decide Issues in Federal Habeas, 4th Amendment Cases

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The new term of the United States Supreme Court will begin in October, 2011.  The Court has already granted cert in some interesting criminal appeals cases.  Some of the cases where the Court granted cert include:

(1) MAPLES V. THOMAS, INTERIM COMMISSIONER, AL D.O.C., No. 10-63, (lower court cite 586 F.3d 879).  According to the description of the facts, this is a “capital case, where a divided Eleventh Circuit held that Alabama may execute a state inmate without any federal court review of the merits of serious constitutional claims because of a missed filing deadline that indisputably occurred through no fault of petitioner and after the State failed to take any action when court orders mailed to petitioner’s lead attorneys of record were returned to a court clerk unopened with “Return to Sender – Left Firm” written on an envelope.”  The Court will decide the issue of “whether the Eleventh Circuit properly held – in conflict with the decisions of this Court and other courts – that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the State’s own conduct contributed to the default, and petitioner’s attorneys of record were no longer functioning as his agents at the time of any default.

(2) LAFLER V. COOPER, No. 10-209, (lower court cite 376 Fed.Appx. 563).  The Court’s granting of cert states that “Anthony Cooper faced assault with intent to murder charges.  His counsel advised him to reject a plea offer based on a misunderstanding of Michigan law.  Cooper rejected the offer, and he was convicted as charged. Cooper does not assert that any error occurred at the trial.  On habeas review, the Sixth Circuit found that because there is a reasonable probability that Cooper would have accepted the plea offer had he been adequately advised, his Sixth Amendment rights were violated. The writ was conditioned on Michigan reoffering the plea agreement.  The question presented is: Is a state habeas petitioner entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial?”  The parties were also asked to brief the issue of “WHAT REMEDY, IF ANY, SHOULD BE PROVIDED FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA BARGAIN NEGOTIATIONS IF THE DEFENDANT WAS LATER CONVICTED AND SENTENCED PURSUANT TO CONSTITUTIONALLY ADEQUATE PROCEDURES?”

(3) MISSOURI V. FRYE, No. 10-444,  (lower court cite 311 S.W.3d 350).  The parties were also asked to brief the issue of “WHAT REMEDY, IF ANY, SHOULD BE PROVIDED FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA BARGAIN NEGOTIATIONS IF THE DEFENDANT WAS LATER CONVICTED AND SENTENCED PURSUANT TO CONSTITUTIONALLY ADEQUATE PROCEDURES?”

(4) GREENE V. FISHER, No. 10-637 (lower court cite 606 F.3d 85).  Question presented: For purposes of adjudicating a state prisoner’s petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?”

(5) MESSERSCHMIDT V. MILLENDER: No. 10-704 (lower court cite 620 F.3d 1016).  “This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”  United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335, 341, 344-45 (1986).  The questions presented  are, (1) Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on-point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? (2) Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?”

(6) GONZALEZ V. THALER: No. 10-895 (lower court cite 623 F.3d 222).  The Court is considering the issue of timeliness of a petition for writ of habeas corpus.  The questions being considered include “1. WAS THERE JURISDICTION TO ISSUE A CERTIFICATE OF APPEALABILITY UNDER 28 U.S.C. § 2253(C) AND TO ADJUDICATE PETITIONER’S APPEAL? 2. WAS THE APPLICATION FOR A WRIT OF HABEAS CORPUS OUT OF TIME UNDER 28 U.S.C. §2244(D)(1) DUE TO “THE DATE ON WHICH THE JUDGMENT BECAME FINAL BY THE CONCLUSION OF DIRECT REVIEW OR THE EXPIRATION OF THE TIME FOR SEEKING SUCH REVIEW”?

(7) FLORENCE V. BOARD OF CHOSEN FREEHOLDERS, No. 10-945 (lower court cite 621 F.3d 296).  Question presented: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances?

While all of the above cases present interesting questions, I think the opinion I am most wanting to read is that which will come in UNITED STATES V. JONES, No. 10-1259 (lower court case number 615 F.3d 544), where the Court will consider the issue of “Whether the warrantless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment.”  The Court also directed the parties to specifically address the issue of “”WHETHER THE GOVERNMENT VIOLATED RESPONDENT’S FOURTH AMENDMENT RIGHTS BY INSTALLING THE GPS TRACKING DEVICE ON HIS VEHICLE WITHOUT A VALID WARRANT AND WITHOUT HIS CONSENT.”  I mentioned in my previous post that because the lower Federal courts are split on the issue of whether a finding of probable cause is needed to obtain cell site information, the Court might have to take up the issue sooner rather than later.  Who knew I’d be right?

Florida Supreme Court Considers Appeals of Denials of Motions for Postconviction Relief in Two Death Penalty Cases: Paul Christopher Hildwin v. State, SC09-1417, and Michael Coleman v. State, SC04-1520 and SC09-92

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On June 2, 2011, the Florida Supreme Court issued two opinions involving appeals of motions for postconviction relief in death penalty cases: Paul Christopher Hildwin v. State, SC09-1417, and Michael Coleman v. State, SC04-1520 and SC09-92.  In both cases, the Court analyzed the Defendants’ claims of ineffective assistance of counsel under the two-part test of Strickland v.Washington, 466 U.S. 668 (1984), and came to opposite conclusions regarding counsel’s performance.  (A copy of Strickland can be found here).

In Hildwin, the Court concluded that counsel for Hildwin did not render ineffective assistance of counsel when he failed to present the testimony of a mental health expert at a second penalty phase proceeding, and that counsel was likewise not ineffective for failing to provide certain mental health records to another mental health expert prior to the second penalty phase proceeding.  However, even assuming arguendo that counsel was ineffective, the Court went on to conclude that Hildwin failed to show that he was prejudiced because, after consideration of all the aggravators and mitigators present in the case, Hildwin failed to show that confidence in the outcome of the penalty phase proceedings had been undermined, as required by Porter v. McCollum, 130 S. Ct. 447, 455-456 (2009).  (A slip opinion of Porter can be found here).  Finally, the Court rejected Hildwin’s ineffectiveness claim based on counsel’s failure to object during closing argument.  In so doing, the Court found that Hildwin failed to show that he was prejudiced because the arguably objectionable comments were relatively brief and not emphasized by the prosecutor.

In Coleman, after Coleman was convicted of first degree murder, the jury recommended a sentence of life imprisonment.  However, the trial court overrode the jury recommendation and imposed four death sentences.  The sentences were affirmed on direct appeal based in part on the lack of mitigation presented by counsel.  On appeal of the lower court’s denial of his subsequent motions for postconviction relief, the Court reversed Coleman’s death sentences.  In its rationale, the Court concluded that counsel was ineffective for relying on Coleman’s alibi defense, and for failing to conduct any investigation into Coleman’s background to search for possible mitigating evidence.  No doubt, important factors influencing the Court’s decision were the facts that (1) an evidentiary hearing revealed that a significant amount of mitigation evidence was available, but never presented by Coleman’s counsel; and, (2) Coleman’s counsel admitted at that same evidentiary hearing that he did not retain an investigator or seek a mental health evaluation because he believed Coleman’s alibi defense and because he did not spend much time preparing for the penalty phase of the trial.  As stated by the Court, failing to conduct a reasonable investigation or failing to present mitigation absent a waiver constitute ineffective assistance of counsel.  The Court also determined that Coleman was prejudiced by counsel’s ineffectiveness because a presentation of mitigation would have precluded the trial judge from overriding the jury’s recommendation of life imprisonment, and would have allowed the Court to make a more informed disposition of Coleman’s previous direct appeal.

Apart from the legal conclusions on the narrow issues of ineffective assistance of counsel, the opinions in Hildwin and Coleman are also noteworthy for two other reasons.  First, in both Hildwin and Coleman, the Court reiterated the applicable standard of review, noting that because both prongs of the Strickland test present mixed questions of law and fact, after a hearing on the ineffective assistance claim, the Court would defer to factual findings of the trial court so long as they were supported by competent substantial evidence, but would review the application of the law to those facts under the de novo standard.

Second, in Coleman, the Court clarified the resentencing procedure to be employed in postconviction cases involving jury overrides.  After admitting to inconsistencies in previous cases, the Court receded from prior decisions where the cases had been remanded to the trial court for resentencing, and reaffirmed a more recent decision where the Court remanded the matter to the trial court for the imposition of a life sentence.  The Court also restated the applicable standards for jury override cases.