In another second circuit case, on October 19, 2010, the court departed from its usual practice of deferring “ineffective assistance” of counsel claims until after the defendant exhausted his direct appeals. The rationale for the practice is well founded. Generally there is not enough evidence in the record for a judge or an appeals court to make a determination whether a lawyer has acted ineffectively. But now the court makes clear that this practice is not without its exceptions, and defendants who are having a hard time with their lawyers, even before the case has matured, may be able to make the claim before their appeals are exhausted. In the case before the court, the defendant had gone to trial, was convicted, but had not been sentenced.
Defendant was convicted after a jury trial of drug trafficking offenses and two § 924(c) (weapons) counts, and was sentenced to the resulting 40-year mandatory minimum. The trial came after months of plea negotiations, including an offer by the government to resolve the case with a 20-year sentence.
Before trial, Defendant had filed a motion with the district court seeking to compel the government to follow up on a different plea offer that, apparently, was in the nature of a cooperation agreement. The court denied the motion and the case proceeded to trial.
But after trial, Defendant’s counsel renewed that motion and, this time, the government’s opposition indicated that the government had extended a 20-year offer before trial. Before sentencing, Defendant filed a pro se habeas corpus petition under 18 U.S.C. § 2241 claiming that (1) his counsel had never told him about the 20-year offer and (2) that Defendant would have accepted the offer had he known about it. His specific allegation was that counsel had been ineffective.
The district court refused to hear the petition before sentencing, concluding that the argument should instead be raised in a § 2255 motion afterwards. Defendant filed an interlocutory appeal, which the circuit dismissed without prejudice to any direct appeal or subsequent 2255. The district court then imposed sentence.
On this, Defendant’s direct appeal, the circuit held that it was error for the district court to consider sentencing as a prerequisite to reviewing Defendant’s claim of ineffectiveness. Here, there was no reason to wait, since the district court was “in a position to take evidence, if required, and to decide the issue pre-judgment.” Thus, the court held, “when a claim of ineffective assistance of counsel is first raised in the district court prior to the judgment of conviction, the district court may, and at times should, consider the claim at that point in the proceeding.”
The factors for a district court to consider in deciding whether to adjudicate such a claim include the potential disruption to the proceedings and whether a new attorney would need to be appointed. But here, the district court “should have considered” the claim prior to sentencing. It had already relieved the attorney alleged to be ineffective and thus had “no good reason to postpone inquiry” into the merits of Defendant’s claim. Moreover, the claim was “facial[ly] plausibl[e].” The AUSA confirmed that he had extended the 20-year offer before trial; when asked, defense counsel “equivocated” as to whether he had communicated the offer to Defendant; there was a “significant … disparity” between the sentence to which Defendant was exposed and that contemplated by the offer; and Defendant had consistently indicated that he would have accepted the offer had he known about it and was “persistent in his efforts” to secure a plea deal before trial.
On these facts, the district court erred in concluding that it was required to defer consideration of Defendant’s claim to a post-judgment § 2255 motion and remanded the case for further proceedings on the issue.
The court also discussed the remedy. If the district court were to find that Defendant’s counsel did not extend the 20-year offer and that Defendant would have accepted it, the district court “would be required to place [him] in the position he would occupy had counsel been effective,” which means giving him “the opportunity to accept the never-communicated plea offer.”
Finally, in a footnote, the circuit agreed with the district court that a § 2241 petition is the incorrect vehicle for raising a pre-judgment ineffectiveness claim. The proper procedural avenue is a motion for a new trial under Fed.R.Cr.P. 33. But, since Defendant was acting pro se, the court “should have denominated Defendant’s § 2241 petition a Rule 33 motion, and it should have, at least in these circumstances, proceeded to reach the substance of the claim.” If a defendant pled guilty, a motion pursuant to Rule 33 would not be the vehicle, since in a plea situation there is no new trial to ask for. However, a motion pursuant to 28 U.S.C. 2255 is available, as is a motion to withdraw the plea alleging ineffective assistance of counsel.
* Thanks to the Second Circuit Blog, written by the Federal Defenders of New York City.