United States v. Sharon Gandy et al. (6th Cir. June 2019)

The Court held there was sufficient evidence to convict the defendants of identify theft and mail fraud. The Court also rejected the argument that the defendants received ineffective assistance from conflicted counsel after the defendants filed bar complaints against them. The Court held that the defendants failed to show that their attorneys had a conflict of interest, let alone were ineffective, since “the state-bar grievances did not create conflicting obligations” and thus did not put the attorneys in a position to have to choose one interest over another.

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United States v. Sergio Murillo (4th Cir. June 2019)

The Court vacated the defendant's sentence and conviction after finding that he received ineffective assistance of counsel when trial counsel advised him that his plea would only trigger his possible deportation, where deportation was actually mandatory and the evidence reflected that the defendant would not have pleaded guilty if he knew deportation was mandatory. The Court added that the boilerplate language int he plea agreement indicating that deportation was mandatory was not dispositive.

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United States v. Alicia Norman

United States v. Alicia Norman, et al, No. 17-3070 (D.C.C. June 11, 2019)

ISSUES: Criminal Procedure, Pleas, Ineffective Assistance of Counsel, Sentencing Guidelines

On an appeal from a bribery and marijuana distribution case, the Court rejected the defendants’ numerous allegations of error except to the extent it held that one of the defendant’s had raised a colorable claim of ineffective assistance of counsel.

First, the Court held that the district court did not impermissibly interfere with plea negotiations. The defendant had initially expressed an intention to plead guilty, but after three hearings, maintained her not-guilty plea. During the first hearing, the court had overhead the defendant say “I did not” while reviewing the factual statement with her attorney, leading the court to question her further and ultimately reschedule the hearing because there was no “meeting of the minds” between the defense and the prosecution regarding the factual statement. The court advised the attorneys she’d consider anything they agreed to and referred them to the magistrate judge to further determine that the defendant’s plea was voluntary.

At the last sentencing hearing, the district court advised the defendant of her rights, the risks and benefits of trial, and clarified with the attorneys which facts the defendant was pleading guilty to. The Court held that all of this was within the district court’s duty to ensure a guilty plea was knowing, voluntary, and has a factual basis, a duty which included further investigating the factual basis based on the defendant’s statement, “I did not.”

The Court also affirmed the district court’s decision to sentence another defendant under the drug offense guidelines, U.S.S.G. § 2D1.1, rather than the bribery guidelines, § 2C1.1., despite the defendant being acquitted of all drug charges. The Court cited precedent that a court may calculate a sentence based on acquitted conduct, though it also cited dissents and concurrences by the D.C. Circuit and Supreme Court suggesting that the practice is constitutionally dubious.

Finally, the Court held that one of the defendant’s raised a “colorable proffer” of ineffective assistance of counsel based on his alleged lack of an opportunity to review the discovery or call witnesses at trial. The Government conceded that a remand was necessary to establish whether the defendant had these opportunities.

Concurring, Judge Henderson expressed reservations regarding the majority’s ruling on the Rule 11 plea issue but agreed it was not plain error. She expressed that the court had usurped the role of defense counsel at the change of plea hearings and gone beyond its duty to ensure a factual basis by interrupting the defendant while she was conferring with her counsel off the record. Judge Henderson also noted that the court had gone beyond advising a defendant of the risks and benefits of trial when the judge said, “I’m really wondering what’s the benefit of your client in doing this instead of just going to trial….where she may end up with the same thing.”

Judge Henderson also disavowed the majority’s “reluctant recognition” of precedent allowing sentencing courts to consider acquitted conduct, describing it as “sound” precedent.

Appeal from the District of Columbia

Opinion by Sentelle, joined by Griffith

Concurring opinion by Henderson

Michael Wade Nance v. Warden (11th Cir. April 2019)

Reviewing a petitioner’s § 2254 motion, the Court held that the state court’s rejection of petitioner’s ineffective claim was objectively reasonable since trial counsel’s decision to refrain from presenting certain mitigation evidence at death penalty sentencing was a strategic decision. The Court also held that the state court did not go against clearly established federal law in holding that the trial court did not err in requiring defendant to wear a stun belt under his clothes because the Supreme Court has only established that requiring visible restraints is prejudicial.

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Sumnar Brewster v. Gary Hetzel (11th Cir. January 2019)

The Court reversed the district court’s denial of petitioner’s § 2254 motion, finding that petitioner received ineffective assistance of counsel when trial counsel failed to object or move for a mistrial after the court coerced a deadlocked jury into reaching a verdict. In response to reports that a lone juror was holding out, the trial court issued a formal Allencharge, three additional instructions to continue deliberating, and removed all of the reading material from the jury room after hearing that the holdout juror was doing crossword puzzles.

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