Category: Ineffective Assistance
Hating The Game: Counsel’s Strategic Concessions in Rapper-Related Shooting Case Cannot Support IAC Claim
In United States v. Rosemond, 18-3561-cr (May 1, 2020) (Sack, Chin, Bianco), the Second Circuit held principally that Defendant-Appellant James R. Rosemond’s Sixth Amendment “Right to Autonomy” was not violated when his defense attorney, over his objection, conceded an element of the charged murder-for-hire offense—that he had hired individuals to shoot the victim—and instead argued that the government had failed to prove Rosemond’s intent to kill the victim. The court also rejected Rosemond’s ineffective assistance of counsel claim under Strickland and an evidentiary challenge. The case is a notable decision for the criminal defense bar, as it lays out the circumstances in which the Circuit believes that a defense lawyer must follow his client’s wishes in planning his defense strategy.
On April 15, 2020, the Second Circuit (Rakoff, by designation, Sack, Hall) vacated the conviction of Ralph Nolan, who was convicted of conspiracy and attempt to commit a Hobbs Act robbery, on ineffective assistance of counsel grounds. The panel ruled that Nolan’s trial counsel’s failure to challenge the introduction of eyewitness identification evidence against him or to call an expert witness to guide the jury on evaluating that evidence departed from the standard of reasonable professional care. The case, United States of America v. Ralph Nolan, No. 16-3423, represents a significant endorsement by the Circuit of research showing that in certain circumstances, such as those present here, eyewitness identification evidence will often be unreliable. Nolan will be cited frequently by defendants pressing forward to seek post-conviction relief and it will also serve as a wake-up call for defense counsel who might have been unfamiliar with this research or on the fence about whether to call an expert witness to testify on the subject of eyewitness identification.
In United States v. DiTomasso, Defendant was convicted of producing child pornography and transporting and distributing child pornography in the Southern District of New York. The Second Circuit (Kearse, Jacobs, and Sack) held that searches of Defendant’s emails and chats on internet service providers AOL and Omegle, used for a search warrant leading to evidence against Defendant, did not violate Defendant’s Fourth Amendment rights, and that Defendant failed to preserve on appeal his argument that an entity which reports illegal user activity to authorities was a government entity or actor, subjecting that entity’s search to the Fourth Amendment. In addition, the Circuit held that Defendant’s trial counsel was not ineffective where counsel made a strategy decision not to call Defendant’s uncle (“Marcus”)—who allegedly admitted to Defendant’s crimes—as a witness.
Circuit Grants Cooperating Witness Writ of Coram Nobis Based on Failure of Trial Counsel to Accurately Advise of Immigration Consequences
In Doe v. Unites States, the Second Circuit (Katzmann, Kearse, and Chin) reversed the district court’s denial of Doe’s petition for a writ of coram nobis. In a partially redacted opinion (we do not even know the district from which this appeal emanated), the panel took the government to task for inconsistent legal positions and recognized the right of a defendant to make plea decisions with knowledge about the immigration consequences. Therefore, granted the Court granted this “extraordinary remedy.”
The appeal in United States v. Galanis, 17-629 (Sack, Parker, Chin) resulted in a limited remand in a summary order so that the district court can determine whether there was ineffective assistance of counsel. The facts of the case are somewhat unusual. Galanis was indicted in two different and separately-charged securities fraud cases. In September 2015, Galanis was indicted in the Gerova matter, and in May 2016, he was indicted in the Wakpamni matter. He was represented by a California law firm in the Gerova matter, but that firm declined to appear in the Galanis matter (perhaps due to unpaid invoices by the client). This left Galanis unrepresented in the Genova matter.
Second Circuit Remands Ineffective Assistance Claim for Lawyer’s Failure to Apprise Naturalized U.S. Citizen of Denaturalization Risk Before Guilty Plea
In Rodriguez v. United States, the Second Circuit remanded the case to the district court to hear evidence on a defendant’s application to vacate her guilty plea, on the grounds that she would not have entered into the plea if her counsel had properly advised her as to its immigration consequences. The Circuit, in a summary order written by Judges Walker, Lynch, and Chin, concluded that there was a reasonable probability that, had she been properly advised, she may have chosen not to plead guilty and thus may have avoided the immigration consequences that later ensued. Accordingly, it remanded the case to the district court to develop an evidentiary record and make a finding on those issues. The order requiring a hearing on a defendant’s right to extraordinary relief represents a reminder to judges and prosecutors that the immigration consequences of a guilty plea are no less central to the plea allocution than the contemplated term of imprisonment. The decision follows the Supreme Court’s decision last term in Lee v. United States, 137 S. Ct. 1958, 1967 (2017). In Lee, the Court held that a defendant who would not have pleaded guilty but for counsel’s errors concerning the deportation consequences of his or her plea has demonstrated ineffective assistance.
In a summary order on January 2, 2018 in United States v. Reyes, the Court (Winter, Lynch, Droney) vacated and remanded a life sentence as procedurally unreasonable on the ground that the district court failed to properly apply a reduction for acceptance of responsibility under U.S.S.G. § 3E1.1. The decision reiterates that a three-level reduction is mandatory under certain circumstances if the district court has already imposed a two-level reduction, and that the government must formally move for a three-level reduction in order to bind the court’s hands. The third point of acceptance of responsibility under the Guidelines is not a matter of grace or kindness by the district court. When a defendant is entitled to receive the third point, the district court is obliged to award it.
Last week, in Weingarten v. United States, the Second Circuit denied the Section 2255 petition of a convicted child sex offender, who claimed that his counsel had rendered ineffective assistance by failing to challenge the timeliness of the Government’s indictment. The panel—consisting of Judge Wesley, who authored the opinion, as well as Judge Parker and Judge Droney—unanimously concluded that the timeliness issue was too complex, and too uncertain, to support a finding that trial counsel made a “significant and obvious” error by declining to raise it.
District Court Must Consider Significant Disparity Between Plea Offer and Ultimate Sentence When Assessing Ineffective Assistance Claims
In Reese v. United States, 16-516, the Second Circuit (Pooler, Wesley, Carney) vacated by summary order the order of the U.S. District Court for the Southern District of New York (Marrero, J.) denying Reese’s petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Reese claimed that his counsel had provided ineffective assistance, an argument the district court rejected on the grounds that Reese could not establish prejudice because the evidence of guilt presented at trial was “overwhelming.”