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Fifth Circuit Finds Ineffective Assistance of Counsel on Case Where Lawyer Does Very Little

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In United States vs. Shepherd, No. 15-50991, the Fifth Circuit reversed the district court’s denial of a 2255 motion based on failure to properly investigate a claim.

Shepherd was charged with Indecent Exposure to a Minor (Count One), a class six felony in Arizona; and Public Sexual Indecency to a minor,  [“to a minor” is not listed after the attempted charge] (Count Two). Shepherd ended up pleading to Count Two, which was amended to “Attempted Public Sexual Indecency.” He was given a suspended sentence of 230 days and lifetime probation as well as being required to register as a sex offender.

Shepherd moved to Nevada and was charged with Indecent Exposure. He was sentenced to 12 to 34 months and was required under Nevada Law to register for life as a sex offender.

Shepherd moved to Texas, but never registered. Federal agents found out about his presence in the state and asked the Texas Department of Public Safety (DPS) who said that he would have to register based on the AZ prior only (not the Nevada prior).

Shepherd was charged with the federal crime of failing to register and update his registration as a sex offender. Shepherd said that he had not registered because he believed that he was not required to do so under Texas law. IN SEPTEMBER 2012 (this date is important), Shepherd pled not guilty and his lawyer filed an “Unopposed Motion to Continue” stating that he had newly received discovery and needed additional time to go over it with Shepherd. Shepherd ended up pleading guilty to the offense. The factual basis showed that BOTH his Arizona and Nevada convictions required registration. Shepherd was sentenced to 24 months of imprisonment and 30 years of supervised release.

When Shepherd tried to register, Texas DPS said that he did not have to register based on either his Arizona or Nevada conviction. Shepherd filed a 2255 motion. Shepherd said that he never had a legal duty to register in Texas and that his attorney was ineffective for failing to advise him of that.

Shepherd submitted a letter from a lawyer from DPS. The DPS lawyer said that his job is to make the determinations on who must register.  He looked at the Arizona and Nevada convictions and did not see that Shepherd had a duty to register as a sex offender. The attorney from DPS said that in the past they used a different method to determine this. The method was to look at the elements of the case, as well as the underlying facts to see if they are substantially similar to an offense that would require someone to report in Texas). ON AUGUST 30, 2012 (BEFORE SHEPHERD PLED), a case came out in a TEXAS STATE COURT ruling that DPS had to use a new method (where they could only look at the elements of an out of state offense and compare them to the elements of an in-state Texas reportable offense) (Texas Department of Public Safety v. Anonymous Adult Texas Resident, 382 S.W.3d 531 (Tex. App.—Austin 2012, no pet.)). Under the new method, Shepherd would NOT have to register. The DPS lawyer said that if he was asked on AUGUST 31, 2012 if Shepherd had to register the lawyer would have likely said no.

The district court said that DPS erred in saying that Shepherd did not have to register because the code section between the Arizona Law and the Texas Law were substantially similar. The district court granted a certificate of appealability as to whether Shepherd’s plea was rendered involuntary by “his lack of knowledge about DPS’ change in position . . . that his Arizona conviction did not, after all, require that he report.”

The appellate court noted that the standard of review here would be de novo and explained what is required to prove ineffective assistance of counsel, which is: “First, the defendant must show that counsel’s performance was deficient. … Second, the defendant must show that the deficient performance prejudiced the defense.” The court also mentioned that ineffective assistance of counsel applies to pleas. Also, the court must look at whether the lawyer was reasonable based on the facts viewed as of the time of counsel’s conduct.

Shepherd’s court appointed attorney said that the only thing he did was compare the Arizona Law with the Texas Law. The attorney did not read ANY case law. Also, he did not remember learning that his client had to register as a sex offender. The attorney also said that he did not know which statutes to compare to each other. The attorney also did not talk to anyone from the DPS about how they determined that Shepherd was supposed to register. The court said that at a minimum, the attorney should have tried to discern the method that the DPS uses to determine who is required to register. He could have done that by doing brief legal research. His research would have led him to the Anonymous Adult case. This was not part of legal strategy because there was no strategy offered by the attorney. All of this means that his attorney’s performance was deficient.

For ineffective assistance of counsel Shepherd must also show prejudice. In this case, it means that “there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” This depends on whether the evidence likely would have changed the outcome of a trial. “If the petitioner claims that counsel erred by failing to investigate or discover certain exculpatory evidence, the prejudice determination will depend upon whether the discovery of such evidence would have influenced counsel to change his advice regarding the guilty plea.”

Shepherd’s attorney said that if he would have looked at the law, specifically, Anonymous Adult, then he would have filed a motion to dismiss. These things go to Shepherd’s point. Even more so, if this case went to trial then Shepherd’s attorney would have been able to use the problems in the government’s case at trial as well. Also, Anonymous Adult came out before he pled, so he would have been able to know about it in his analysis.

The court ruled that Shepherd’s counsel was ineffective and as such his plea was involuntary. The opinion of the district court was reversed. United States vs. Shepherd, No. 15-50991.

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