Courts Consider Ineffective Assistance of Counsel Claims

Cases involving Ineffective Assistance of Counsel

Ineffective Assistance for Failure to Challenge Career Offender Issue on Remand: Cannady

United States v. Cannady, No. 20-6906 (4th Cir. 2023)

In 2015, Cannady was found guilty of one count of conspiracy to distribute and possess with intent to distribute controlled substances and one count of attempt to distribute controlled substances, both in violation of 21 U.S.C. 846. At sentencing, the district court concluded that Cannady was a career offender under U.S.S.G. 4B1.1 for prior convictions for conspiracy to distribute and assault. While Cannady’s direct appeal was pending, he moved for a new trial based on newly discovered evidence that was previously undisclosed. The district court granted the motion and the government appealed. On the government’s appeal, the court reversed the grant of the new trial and remanded. Back on remand, the government moved to reinstate the original judgment and Cannady’s counsel consented.

However, two weeks before the mandate issued on the government’s appeal. the Fourth Circuit decided United States v. McCollum, 885 F.3d 300 (4th Cir. 2018) which held that conspiracy to murder in aid of racketeering was not a crime of violence under the career offender enhancement. The court held that conspiracy offenses that do not require proof of an overt act “criminalizes a broader range of conduct that that covered by generic conspiracy” and cannot be used for career offender purposes.

On remand, Cannady’s counsel consented to the government’s motion to reinstate the original career offender sentence, despite the fact that McCollum had just been issued. Counsel failed to raise the argument that Cannady was not a career offender under McCollum because 21 U.S.C. 846 does not require proof of an overt act.

Cannady filed a motion to vacate under 28 U.S.C. 2255, asserting that his attorney was ineffective for failing to challenge his designation as a career offender while his case was on remand. The district court denied the motion, concluding that there was no question that Cannady was a career offender without discussing McCollum at all. Cannady appealed the denial of his 2255 motion to the Fourth Circuit.

On appeal, the government argued that the court’s mandate foreclosed a McCollum objection and all the district court was permitted to do on remand was reimpose its prior judgment. The Fourth Circuit rejected the government’s mandate rule argument. The court had only ruled on a Brady issue unrelated to sentencing and issued a general remand. It concluded that nothing in the court’s remand restricted Cannady or the court from reevaluating the career offender enhancement.

But even if the mandate rule had applied, the court found that an exception would be applicable since McCollum was an intervening change in legal authority.

Finding that Cannady’s counsel was able under the mandate rule to bring a new challenge to the career offender enhancement, the Fourth Circuit concluded that counsel’s failure to do so constituted deficient performance. Turning to prejudice, the court noted that Cannady’s guideline range without the career offender enhancement would have been double to triple the career offender guidelines. The district court had reasoned that regardless of the career offender enhancement, it would have sentenced Cannady the same. However, the Fourth Circuit noted that a defendant sentenced under the wrong guideline range will most often demonstrate a reasonable probability that his sentence would have been different.

The Fourth Circuit held that counsel was ineffective for failing to object to Cannady’s career offender enhancement on remand, and that counsel’s failure prejudiced Cannady as a result. Accordingly, the district court’s judgment denying Cannady’s 2255 motion was vacated and the case remanded for resentencing.

 Immigration Ineffective Assistance of Counsel: Rodriguez

Rodriguez was charged by a grand jury with conspiracy to distribute and possess with intent to distribute methamphetamine and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. 846, 841(a)(1). Rodriguez agreed to plead guilty to the conspiracy charge pursuant to a plea agreement. As is typical, the plea agreement contained a broad appeal waiver that stipulated Rodriguez would not file an appeal or a 2255 motion attacking his conviction or sentence. The plea agreement further noted that Rodriguez recognized that by pleading guilty, his immigration status may result in removal from the United States.

At Rodriguez’ change of plea hearing, the district judge stated that removal was “a possible consequence” of Rodriguez’ guilty plea. Acknowledging this statement, Rodriguez entered his guilty plea and was ultimately sentenced to 12 months and one day imprisonment and 60 months of supervised release.

Rodriguez subsequently filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. 2255 alleging three claims of ineffective assistance of counsel: Rodriguez claimed that his attorney (1) incorrectly told Rodriguez that avoiding removal was “difficult” but “do-able” when in fact removal was virtually certain; (2) “wrongly urged [Rodriguez] not to withdraw his guilty plea and withheld advice that would have counseled in favor of a motion to withdraw prior to sentencing,” and (3) failed to investigate and advise him about the possibility of pleading guilty to a non-felony charge. In response, the government moved to dismiss Rodriguez’s 2255 motion on the basis of the waiver contained in the plea agreement.

In ruling on the motion, the district court found that Rodriguez’ first and second claims challenged the validity of his actual plea and was thus not waived by the plea agreement. Nonetheless, the district court denied Rodriguez’ claims on the merits without holding an evidentiary hearing. Rodriguez appealed to the Ninth Circuit and was granted a certificate of appealability.

In addressing whether Rodriguez’ claims were foreclosed by his plea waiver, the Ninth Circuit concluded that Rodriguez’ first claim that his attorney misinformed him of the likely immigration consequence of his plea was an attack on whether Rodriguez had knowledge of the effect of his guilty plea and was therefore not waived. The court next noted that Rodriguez’ second claim pertained to the withdrawal of his guilty plea rather than his initial agreement to plead guilty. However, the court held that the distinction was irrelevant. Both kinds of claims assert that the defendant is subject to the terms of his guilty plea only because of his attorney’s ineffectiveness, not because of his own free will. “Thus, a claim that an attorney misinformed or coerced the defendant to prevent a withdrawal of a guilty plea before sentencing suffices to attack the knowledge and/or voluntary nature of the plea and is exempted from the appeal/collateral attack waiver.”

Turning to the merits of Rodriguez’ claims, the Ninth Circuit ultimately concluded that the district court abused its discretion in not holding an evidentiary hearing on Rodriguez’ first claim of ineffective assistance of counsel. The court noted three pieces of evidence in the record that indicated Rodriguez considered immigration consequences when he weighed whether to accept his guilty plea: (1) the record showed Rodriguez spoke with his attorney at least twice about the immigration consequences of his plea before and after pleading guilty; (2) at his plea hearing, Rodriguez appeared surprised when the judge stated that his plea could cause him to be deported; and (3) Rodriguez hired an immigration attorney to consult with his defense attorney. While the court noted other evidence in the record that might contradict Rodriguez’ claim, the issue before the court was highly fact-intensive and required an evidentiary hearing. However, the Ninth Circuit concluded that the district judge did not abuse its discretion in denying Rodriguez’ second claim without an evidentiary hearing.

But because the record did not conclusively refute Rodriguez’ first claim of ineffective assistance of counsel, the Ninth Circuit reversed the district court’s judgment on the first 2255 claim and remanded to the district court to hold an evidentiary hearing on (1) whether Rodriguez’ attorney provided deficient performance by telling Rodriguez that deportation was “do-able,” and (2) whether Rodriguez would have proceeded to trial instead of pleading guilty had he not been inadequately advised.

Ineffective Assistance of Counsel in a 2254 Context:  Hughes

Hughes' Trial and Witness Issues

Hughes was charged with and convicted of second-degree murder charges.  Hughes indicated that the victim yanked on the barrel of the gun and pulled it towards him.  Both Hughes and the victim fell, the gun hit the victim’s chest and then the gun went off.  The forensic report indicated that “the trajectory of the bullet was consistent with either a struggle or with the victim being bent over.

There was only only neutral eyewitness.  At trial the witness indicated that she saw [the victim] back away from [Hughes].  Then she heard the gunshot and then saw that [the victim] fell to the ground.

In a previous statement the eyewitness said that she heard the gunshot first and then she went outside and saw the two men arguing.  When asked about the contradiction she said that she incorrectly transposed the events due to nerves.  The attorneys pressed her in the inconsistency and she stated that she saw the shooting.

After the jury found Hughes guilty the trial counsel became aware of an interview that the attorney believed indicated that the witness was inside at the time of the gunshot.  The lawyer filed for a new trial based on newly discovered evidence.  This was denied by the court and Hughes was sentenced to life.  Hughes’ direct appeal and petition to the state supreme court were denied.

Hughes' Post Conviction Arguments

After that, Hughes’ new counsel filed a state post conviction motion stating ineffective assistance because trial counsel never interviewed the eyewitness.  The eyewitness’ roommate stated that both her and the witness were watching TV when they both heard the gunshot.  The eyewitness re-stated what she said at trial (that she heard the arguing, went outside and then heard the shot).

Trial Counsel said that he was unaware that the eyewitness was going to testify until the week before trial when the prosecutor informed him of her anticipated testimony.  Trial counsel said that he thought that the eyewitness was going to say that she heard the shot and then came out and saw two people arguing.  Trial counsel thought this because it was what she put on her sworn statement.  Trial counsel did not attempt to interview the eyewitness before or after he became aware of her changed testimony.  This was because he believed that he was going to be able to cross examine her on the changed testimony.  Trial Counsel said that if he had interviewed the eyewitness he would have discovered her roommate, whose testimony was different than the eyewitness.

(remember:  Eyewitness said yelling, then went outside and saw and heard shot).(remember:  Roommate said heard shot and then went outside and saw two people arguing).

The [state magistrate] issued [the equivalent of a Report and recommendation] to rant relief for ineffective assistance of counsel.  But the [state district judge] overruled the [state magistrate] without any explanation or hearing.  The state appellate court also denied the [motion] and the state Supreme Court did too.  This was without a hearing or explanation.

Hughes then filed a 2254 in federal court based on ineffective assistance of counsel for failing to investigate the eyewitness.  The federal magistrate recommended that the “[state district] court’s ultimate legal conclusion was objectively unreasonable.”  The [federal district] judge agreed and ordered a new trial.  The state appealed.

Ineffective Assistance of Counsel and the 2254 motion

Ineffective assistance of counsel is in two parts:  Deficient Performance and Prejudice.  For Deficient Performance, Hughes “must show that [counsel] made errors so serious that counsel was not functioning as the counsel guaranteed by the Sixth Amendment.”

When considering why the state district court made the decision that they did, the appellate court is to “carefully consider all the reasons and evidence supporting the state court’s decision.” That the Louisiana Supreme Court decision does not explain its reasoning does not affect our review. We are required to “determine what arguments or theories could have supported the state court’s determination” and examine “each ground supporting the state court decision.”

“Counsel’s “decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” The American Bar Association standards, which the Supreme Court uses as a guide for determining what is reasonable, provide that “[i]t is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case…Accordingly, “trial counsel must not ignore ‘pertinent avenues of investigation,’ or even a single, particularly promising investigation lead.”

The court noted that the testimony of the eyewitness was the most pertinent piece of evidence.  The court noted that it might have been possible that the state court found no deficient performance because “[the lawyer’s] failure to interview [the eyewitness] was a strategic decision.”  But this was belied by the fact that “[the lawyer] admitted that there was no strategy behind his decision not to even attempt to interview [the eyewitness] personally or send an investigator to do so upon finding out that Allen would testify to seeing the shooting.

Further, the state court may have said that [the lawyer] only learned about [the witness] a few days before trial.  But [the lawyer] knew that she had been subpoenaed and that she was a witness.  Further, the witness’s statement was always going to be wrong because [the victim] collapsed after the shooting.  So the failure to do an investigation is even more magnified.  The Fifth Circuit indicated that even if the lawyer didn’t know that the witness was going to be a promising lead, when he learned about the new evidence right before trial he should have moved for a continuance or tried to investigate.

The Fifth Circuit determined in Bryant vs. Scott, 28 F.3d 1411, 1418 (5th Cir. 1994) that “[t]he fact that [counsel]’s cross examination was effective does not necessarily indicate that a reasonable lawyer, viewing the trial ex ante, would have regarded an interview of the eyewitnesses as unnecessary.... Moreover, assuming that [counsel]’s cross examination was effective, that is not to say it could not have been improved by prior investigation.”

Further, trial counsel did not have a reason as to why he did not interview the witness, or send an investigator.  The court found that there was no reasonable argument that trial counsel satisfied Strickland’s deferential standard of adequate performance.

Did Hughes Show Prejudice?

Hughes also was required to show prejudice as well.  “A reasonable probability ‘requires a substantial, not just conceivable, likelihood of a different result.’  The jury’s lack of unanimity in convicting Hughes indicates that the verdict was ‘only weakly supported by the record.’”

Further, “A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial.”  Hughes argued that a proper investigation would have uncovered the eyewitness’ television interview and the testimony of the roommate.

The television interview showed that the eyewitness said “I was sitting in the house watching TV and all of a sudden I heard someone holler for help, then I heard some gun shots go off.”  The fifth circuit stated that this was weak impeachment evidence.

Turning to the roommate’s testimony, the roommate stated “We heard the shot, and [Allen] jumped up and grabbed the phone. She heard somebody yell ‘help,’ and she went out the door.”  This testimony during trial would have casted doubt on the roommate.  And the government’s statement that trial counsel would not have discovered the roommate if he interviewed the eyewitness doesn’t hold up because the eyewitness said on the stand that the roommate was with her.  The trial counsel said that he would have found the roommate if he had interviewed the eyewitness.

As a result of this the appellate court found that no “fairminded jurist could conclude that the failure to introduce Lee’s testimony would not have “undermine[d] confidence in the outcome.”

The Appellate court affirmed the decision of the district court in ordering a new trial.  Hughes vs. Vannoy, 19-30979