In United States v. Graham, No. 20-832 (2d Cir. Oct. 14. 2022) (Park, joined by Walker; Pérez concurring separately in the judgment), the defendant was convicted after trial of conspiracy to commit mail, wire, and bank fraud. On appeal, she argued, inter alia, that her lawyer rendered ineffective assistance of counsel per Missouri v. Frye by failing to timely convey a pre-trial plea offer.
The facts as to counsel’s inaction were not in dispute. The government argued, in response, that the defendant needed to raise her claim in a Section 2255 motion, and had not established prejudice.
The appeal proceeded to oral argument where, it turns out, the Court had some questions about something else: waiver. More specifically, whether Graham had waived her ineffectiveness claim. Supplemental briefing was ordered.
Ultimately, the majority affirmed the conviction on the ground of . . . you guessed it . . . …