Archive | ineffective assistance of counsel

Friday, December 9th, 2022

In this summary order, the Circuit vacates a district court judgment that summarily denied a 28 U.S.C. § 2255 motion, alleging that ineffective assistance counsel caused the petitioner to forego a direct appeal. Kenya Brown v. United States, No. 20-3404-pr (2d Cir. Dec. 6, 2022) (C.J.J.’s Livingston, Nardini, and Menashi) (“Summary Order”).

Petitioner-Appellant Kenya Brown was sentenced on December 28, 2016. But no notice of appeal was filed.

Brown had pleaded guilty, under a plea agreement, to conspiring to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 846; and possessing a firearm in furtherance of that conspiracy, in violation of 18 U.S.C. § 924(c). At the December 2016 sentencing, he received a sentence of 248 months’ imprisonment and five years’ supervised release — “a sentence on the low-end of the  Guidelines range.” See Summary Order at 2.

But about a year after the sentencing — on January 8, 2018 — Brown filed a pro se petition, under 28 U.S.C. § 2255, alleging that he was “denied effective assistance of counsel with regard to post-sentencing proceedings due to his counsel’s failure to ‘consult with Mr. Brown on the consequences of not filing a direct appeal.’” See Summary Order 2-3. Brown …

Posted By
Categories: 2255, ineffective assistance of counsel

Continue Reading
Wednesday, July 31st, 2019

Circuit Affirms Convictions for Producing and Distributing Child Pornography

United States v. DiTomasso, No. 17-1699 (2d Cir. July 30, 2019), involves a defendant who was convicted after a jury trial of producing and distributing child pornography. On appeal, he argued that the district court should have granted his motion to suppress certain electronic communications found through searches conducted by two Internet service providers (AOL and Omegle), and reported to the National Center for Missing and Exploited Children. He also argued that he should have been granted a hearing on whether his trial attorney was ineffective for not calling a witness (the defendant’s uncle) who supposedly would have confessed that he, not the defendant, was guilty of the charged crimes. The Circuit rejected all the defendant’s contentions and affirmed his convictions.

First, the Court held, the AOL searches did not afford a basis for relief. The district court found that the AOL searches constituted government searches for Fourth Amendment …

Posted By
Categories: Fourth Amendment, ineffective assistance of counsel

Continue Reading
Friday, May 18th, 2018

Supreme Court Roundup (including post-Dimaya GVRs)

This week the Supreme Court issued a number of significant criminal opinions, as well as a number of GVRs signalling that the holding of Sessions v. Dimaya likely extends to § 924’s residual clause (18 U.S.C. § 924(c)(3)(B)).

In McCoy v. Louisiana, 16-8255, the Court held that it was structural Sixth Amendment error for an attorney to concede a defendant’s guilt, against his wishes, in the hope of sparing him the death penalty. McCoy’s attorney argued that his client lacked the mental capacity to form the specific intent necessary for first-degree murder, see slip op. at 3 n.1, but conceded in his opening statement that the jury could not reach “any other conclusion than Robert McCoy was the cause of” the victims’ deaths. Id. at 4. This strategy, the Court held, violated the client’s Sixth Amendment rights regardless whether it was “counsel’s experienced-based view . . . that confessing …

Posted By
Categories: 924(c), Fourth Amendment, ineffective assistance of counsel, right to counsel, traffic stop, wiretaps

Continue Reading
Thursday, September 29th, 2016

Second Circuit Updates – September 29, 2016

Supreme Court to Decide Whether Johnson Applies to 18 U.S.C. 924(c)

The Supreme Court granted certiorari today in Lynch v. Dimaya, 15-1498, 2016 WL 3232911 (U.S., Sep. 29, 2016). The issue is whether the residual clause in 18 U.S.C. § 16(b), which has the same wording as the residual clause in 18 U.S.C. § 924(c), is void for vagueness under Johnson v. United States, 135 S. Ct. 2551 (2015). The Ninth Circuit held in Dimaya that Johnson applies to the residual clause in section 924(c) and there is a split in the Circuits. In light of certiorari grant, district judges should be urged not to deny Johnson claims involving section 924(c) convictions based on the Second Circuit’s decision in United States v. Hill, __ F.3d __, 2016 WL 4120667 (2d Cir. Aug.3, 2016). Courts should instead await the decision in Dimaya and resolution of the Hill rehearing …

Posted By
Categories: 924(c), ineffective assistance of counsel, Johnson

Continue Reading
Thursday, August 25th, 2016

Court rejects IAC claim because defendant cannot show that he would not have pleaded guilty absent counsel’s mis-advice about guidelines range

Only one summary order from the Circuit today in the criminal realm: In United States v. Jeremy Viles, Docket No. 15-885-cr, the Court (Livingston, Carney, Stanceu), rejected the defendant’s claim that he should be allowed to withdraw his guilty plea based on then-counsel’s allegedly erroneous advice regarding the advisory Guidelines range he would face at sentencing. Under Circuit law, in order to meet Strickland’s prejudice component in this context, the “‘defendant must show that there is a reasonable probability that were it not for counsel’s errors, he would not have pled guilty and would have proceeded to trial.’” Order at 2 (quoting United States v. Arteca, 411 F.3d 315, 320 (2d Cir. 2005)). Viles fails to do so.

Even assuming that counsel erred in telling him that he faced a range of 27 to 33 months (rather than a slightly lower range), Viles cannot show that he …

Posted By
Categories: guideline, ineffective assistance of counsel

Continue Reading
Wednesday, August 24th, 2016

Second Circuit Updates – August 24, 2016 – Part 2

I. A state court’s ruling denying collateral review of a “mixed claim” of  ineffective assistance of counsel (involving matters on the record and outside of the record),  on the procedural ground that the claim was not raised on direct appeal, was not “adequate” to bar federal habeas corpus review (28 U.S.C. § 2254).

Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), holds that a state prisoner’s claim of ineffective assistance of counsel (“IAC”) was not procedurally barred under 28 U.S.C. § 2254 .

A. The state trial

Petitioner Pierotti has been hearing impaired since childhood. He “wears hearing aids in both ears,” and “the only hearing aid he had with him in jail broke.”  At a pretrial hearing, his lawyer asked for a continuance to make “some accommodation for his hearing loss.”  The judge denied the request saying “this is a very small courtroom” and suggesting that …

Posted By
Categories: ineffective assistance of counsel, supervised release

Continue Reading

Second Circuit Updates – August 24, 2016 – Part 1

The Circuit issued three Opinions today that are relevant to people litigating issues of criminal law.  Below is a brief description, which will be followed up with more discussion later.

I. In Pierotti v. Walsh, No.15-1944-pr (Circuit Judges: Pooler, Livingston, and Lohier), the Circuit ruled in favor of a State prisoner. It holds that his claim of ineffective assistance of counsel, presented under 28 U.S.C. § 2254,  is not procedurally barred.

The petitioner in the case was hearing impaired since childhood and required two hearing aids.  His last hearing aid was destroyed while he was in jail awaiting trial.  The ineffective assistance of counsel (“IAC”) claim was that his trial lawyer did not take measures to ensure his hearing disability was accommodated at trial, so he could not understand much of what was occurring.

The IAC claim was not raised on direct appeal.  But it was presented in a …

Posted By
Categories: Hobbs Act, ineffective assistance of counsel, interstate commerce

Continue Reading
Tuesday, May 3rd, 2016

Second Circuit affirms above-guideline sentence; declines to consider one IAC claim on direct review, but rejects another where record below was sufficiently developed on the point

In United States v. Pendergrass, 15-1965, the Second Circuit affirmed the conviction of Terrence Pendergrass, a former captain at Rikers Island, on one count of willfully violating the constitutional rights of an inmate, who died following the ingestion of cleaning supplies, by refusing to get him medical attention and prohibiting other guards from getting him medical attention.  Pendergrass raised three issues:  that he received ineffective assistance of counsel at trial, that the District Court improperly instructed the jury regarding willfulness and conscious avoidance, and that his above-guideline sentence was unreasonable.

With respect to the ineffective assistance of counsel claims, the Court declined to consider Pendergrass’s first claim (that Pendergrass’s attorney was ineffective because he failed to call witnesses that would have been material to the defense) because the record with respect to the witnesses’ potential testimony was insufficiently developed to be considered on direct review.  The Court did reach …

Posted By
Categories: conscious avoidance, ineffective assistance of counsel, jury charge, substantive reasonableness, willful causation

Continue Reading
Thursday, April 21st, 2016

Second Circuit “Disturb[ed] That District Courts Do Not Routinely Follow” Rule 11

rule 11 meme

Today in United States v. Pattee, the Second Circuit (Calabresi, Lynch, Lohier, CJJ.) found it “disturbing that district courts do not routinely follow the minimal procedures put in place to protect defendants’ rights.”

In accepting a guilty plea to producing, distributing and possessing child pornography, the district court (Geraci, Ch.J.) failed to advise the defendant of “five of the approximately fifteen rights” listed in Federal Rule of Criminal Procedure 11.  The Circuit found this troubling, as the “Court has stated time and again that [w]e have adopted a standard of strict adherence to Rule 11” and that “compliance with Rule 11 is not a difficult task” because “errors can be avoided if a district or magistrate judge has a standard script for accepting guilty pleas. . . .  Yet failures to meet those requirements are a recurring issue.”  The Court further cautioned that “even strict adherence to Rule 11 …

Posted By
Categories: child pornography, ineffective assistance of counsel, Rule 11

Continue Reading
Thursday, April 7th, 2016

Second Circuit Updates – April 7, 2016

No decisions or orders out of the Second Circuit today. Two interesting notes:

  • An attorney in Albany received a public reprimand and a two-year ban from practicing as a CJA lawyer before the Second Circuit for “engaging in conduct unbecoming a member of the bar.” The attorney had failed to file documents in a timely manner on numerous occasions in at least 3 different cases, among other unprofessional conduct. The Second Circuit found two aggravating factors in making this finding. First, that the attorney had been privately reprimanded for the same sort of behavior previously and that the “misconduct occurred in criminal appeals, where important liberty interests are at stake.” Interestingly, the panel (Cabranes, Sack, and Wesley) made clear that the order “should not be perceived” as requiring reciprocal discipline in the district court, where the attorney can still practice. (See New York Law Journal article here.)
  • Yesterday a

Posted By
Categories: ineffective assistance of counsel, interstate commerce

Continue Reading
Sunday, June 17th, 2012

How Not To Hire An Investigator

Matthews v. United States, No. 10-0611-pr (2d Cir. June 14, 2012) (Kearse, Cabranes, Straub, CJJ)

Petitioner Michael Matthews was convicted of a 2006 bank robbery and received a life sentence under the federal “three strikes” statute, 18 U.S.C. § 3559(c). After exhausting his direct appeals, he filed a 2255 motion alleging, amongst other things, ineffectiveness of his trial counsel.

Matthew’s specific claim was that his counsel was ineffective because hired a private investigator, an ex-cop named Haumann, whom he knew had a conflict of interest. Matthews alleged that when Haumann was a police officer, he had arrested and “viciously assaulted” Matthews and had also treated him “with racial disdain and insensitivity.” Matthews backed this up with a newspaper article that confirmed the facts, except for the racial allegations. Nevertheless, the district court, adopting the government’s characterization of the claim as “general” “cursory” and “vague,” denied the petition without …

Posted By
Categories: conflict of interest, ineffective assistance of counsel, Uncategorized

Continue Reading