Attorney-Client Issues - Ineffective Assistance of Counsel – Guilty Plea

Padilla v. Kentucky, 130 S. Ct. 1473 (2010)

The failure to advise a defendant about the deportation consequences of entering a plea in a felony drug case amounted to ineffective assistance of counsel. The Court held that in certain situations, the failure to provide any advice constitutes ineffective assistance – especially where the consequence of a plea is easy to determine and is “automatic” – while in other cases, it is required at a minimum that counsel advise the defendant that there may be immigration consequences and that the defendant should seek advice from an immigration law attorney. In other words, to be effective, an attorney may be required to actually provide accurate advice if the immigration consequences are clear; and at a minimum, should warn the defendant of possible consequences if the result of entering a plea is not so clear. The Court held that the right to effective assistance of counsel is not violated only when counsel provides erroneous advice.

Hill v. Lockhart, 474 U.S. 52 (1985)

When a defendant challenges a guilty plea after sentencing on the ground that his lawyer provided him ineffective assistance, he must demonstrate that (1) his counsel’s advice was not within the range of competence demanded of attorneys in criminal cases, and (2) 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.

Missouri v. Frye, 132 S. Ct. 1399 (2012)

Failure to communicate to the defendant a plea offer is ineffective assistance of counsel. To show prejudice where a plea offer has lapsed or been rejected because of counsel’s deficient performance, the defendant must demonstrate a reasonable probability both that he would have accepted the more favorable plea offer had he been afforded effective assistance of counsel and that the plea would have been entered without the prosecution’s canceling it or the trial court’s refusing to accept it, if they had the authority to exercise that discretion under state law.

Lafler v. Cooper, 132 S. Ct. 1376 (2012)

Where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

Hernandez v. United States, 778 F.3d 1230 (11th Cir. 2015)

The defendant was entitled to raise a Padilla claim based on his attorney’s statement, “The government almost never issues a detainer for a Cuban, because they won’t deport to Cuba.” The fact that the plea was entered one year prior to the decision in Padilla does not mean that the attorney was not ineffective in providing this inaccurate advice.

United States v. Bui, 795 F.3d 363 (3rd Cir. 2014)

Trial counsel erroneously advised the defendant that if he entered a guilty plea to possessing drugs within 1000 feet of a school, he could receive safety-valve relief and receive a shorter sentence. However, the safety-valve is not available for this drug offense. The attorney provided ineffective assistance in connection with the guilty plea and the plea was therefore set aside.

Roundtree v. United States, 751 F.3d 923 (8th Cir. 2014)

An evidentiary hearing should have been held to determine whether trial counsel failed to warn the defendant that he was facing a mandatory life sentence if convicted at trial.

Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014)

Counsel’s erroneous advice about the deportation consequences of a plea to misprision of a felony was grounds to award coram nobis relief.

Heard v. Addison, 728 F.3d 1170 (10th Cir. 2013)

The defendant entered a guilty plea in state court to child molestation and received a twenty-five year sentence. The Tenth Circuit granted a writ, because a state court unpublished decision (issued prior to the time the defendant entered his guilty plea) indicated that the precise conduct that was involved in defendant’s case was not a crime under Oklahoma law (looking under the dress of a girl who is wearing underwear). If the defendant had known about this ruling, he would not have entered a guilty plea. Interestingly, a decision issued by the Oklahoma courts after the defendant entered his plea suggested that his conduct would be criminal.

United States v. Reed, 719 F.3d 369 (5th Cir. 2013)

The Fifth Circuit remanded this § 2255 case back to the district court to conduct an evidentiary hearing on whether trial counsel was ineffective in failing to properly advise the defendant about what sentence he would have received had he entered a guilty plea. Trial counsel (according to the defendant), advised him that he would be sentenced to 36 months if he accepted the plea offered by the government. The defendant claimed in his § 2255 petition that he was actually facing between 8 – 14 months had he accepted the plea. A hearing on the merits of the claim was required.

Johnson v. Uribe, 682 F.3d 1238 (9th Cir. 2012)

Counsel provided ineffective assistance in advising the defendant about the plea offer that had been made by the state. The proper remedy, post-Lafler was to allow the defendant to re-plead, and not just have a re-sentencing. The decision was amended, and rehearing en banc was denied, at 700 F.3d 413.

United States v. Juarez, 672 F.3d 381 (5th Cir. 2012)

The defendant entered guilty pleas to illegal reentry, and filing a false firearm transaction report (regarding his citizenship). Counsel failed to investigate and research the possibility that defendant was actually a citizen under the principle of “derivative citizenship” since his mother was naturalized. This was ineffective assistance of counsel that tainted the guilty plea.

United States v. Smith, 640 F.3d 580 (4th Cir. 2011)

If a defendant claims that his lawyer was so deficient that it amounted to no counsel at all, this can taint a guilty plea. Though a guilty plea generally waives all non-jurisdctional defects, this doctrine does not bar a challenge to the right to counsel, because this affects the voluntariness of the plea.

United States v. Weeks, 653 F.3d 1188 (10th Cir. 2011)

In the context of reviewing an ineffective assistance of counsel claim for a defendant who entered a guilty plea to a conspiracy offense, the Tenth Circuit emphasized that a conspiracy conviction requires proof that the defendant knew that his agreement involved a violation of the law, not simply an agreement to engage in certain conduct: “An agreement with others that certain activities be done, without knowing at the time of the agreement that the activities violate the law, is therefore insufficient to establish conspiracy.” The defendant’s § 2255 petition in this case was sufficient to allege facts that necessitated a hearing on the question of whether he fully understood the nature of the charges. The plea colloquy was insufficient to show that the defendant understood the nature of the proof that was required to prove his guilt, given his reluctance to acknowledge that he knew, at the time the events occurred, that his conduct was illegal.

Tovar Mendoza v. Hatch, 620 F.3d 1261 (10th Cir. 2010)

The trial attorney’s grossly inaccurate statement to the defendant about the amount of time he would be required to serve if he pled guilty amounted to ineffective assistance of counsel and rendered the guilty plea involuntary. Defense counsel told the defendant his sentence would be three years. The sentence imposed was 25 years.

Bauder v. Department of Corrections, 619 F.3d 1272 (11th Cir. 2010)

The Eleventh Circuit held that the defendant’s attorney provided ineffective assistance of counsel because of his failure to advise the defendant of the possibility that his guilty plea to stalking under Florida law could lead to civil commitment as a sexually violent person under state law. The Eleventh Circuit relied on Padilla in holding that even though the law was not absolutely clear that civil commitment was a collateral consequence, the attorney had the obligation to at least warn the defendant of the possibility.

Williams v. Jones, 571 F.3d 1086 (10th Cir. 2009)

If an attorney gives bad advice to a client that prompts the client to go to trial and reject a plea agreement, this may constitute ineffective assistance of trial, even if the trial was conducted in fair manner. In this case, the defendant was offered a ten-year deal. His attorney told him that if he accepted the deal he “would be committing perjury” and the attorney would withdraw. The defendant went to trial and was convicted and sentenced to life without parole. The lower court found that the defendant was denied effective assistance of counsel and this was not appealed. The question facing the Tenth Circuit was the appropriate remedy. The Court refused to decide what the appropriate remedy should be and remanded to the lower court to fully explore the available options that would put the defendant in the situation he would be without having been deprived of his right to effective assistance of counsel.

Dasher v. Attorney General, Florida, 574 F.3d 1310 (11th Cir. 2009)

The defendant was offered a plea agreement that would require him to serve 13 months. He drew the line at 12 months (so he could serve the sentence in the county jail) and the attorney advised him to simply enter a plea “straight up” without a plea agreement and see if another month could be shaved off the sentence. The defendant took the advice and the judge sentenced the defendant to ten years. The attorney was unaware of prior convictions that changed the judge’s mind. The attorney provided ineffective assistance of counsel. Even without the recidivist issue, advising the defendant to reject a 13 months certain sentence and plead without an agreement to see if he could get 12 months was not sound advice.

United States v. Mooney, 497 F.3d 397 (4th Cir. 2007)

Trial counsel was ineffective in advising the defendant that he should plead guilty in this felon-in-possession case, because there was no justification defense available. The defendant seized the gun from his wife, who was threatening him, and promptly went to the police who were at his place of employment and gave them the weapon.

Julian v. Bartley, 495 F.3d 487 (7th Cir. 2007)

Counsel advised the defendant that pursuant to the (then) new decision in Apprendi, the state could not impose consecutive sentences based on the defendant’s recidivist status, because the prior offense was not set forth in the indictment. Because Apprendi exempted prior offenses from the scope of its decision (prior offenses need not be set forth in the indictment, or proved to a jury in order to affect the sentence), the attorney’s advice was ineffective assistance of counsel. The defendant rejected a plea offer and went to trial. The Seventh Circuit granted the writ. Oddly, the court held that the state is not required to offer the original deal. It may offer that deal, but it is not required to do so. The state may also simply re-try the defendant.

United States v. Morris, 470 F.3d 596 (6th Cir. 2006)

In a crowded state court holding cell, the defendant met his appointed attorney for the first time. He was offered a plea of four years, or face federal charges. The attorney had virtually no time to review discovery or have a private conversation with the defendant. She also provided inaccurate advice about the possible federal sentence if he did not take the state plea. This was ineffective assistance of counsel. The defendant rejected the state plea offer and was then prosecuted in federal court. The district court judge concluded that the federal indictment should be dismissed so that the defendant could be given a reasonable opportunity to consider entering a plea to the state charge.

Dando v. Yukins, 461 F.3d 791 (6th Cir. 2006)

Trial counsel was ineffective in failing to request expert funds in order to investigate the defendant’s possible duress (battered spouse) defense to charges that she assisted her boyfriend in a string of robberies. The attorney declined to hire the expert because he thought that funds were not available to investigate this type of defense. The defendant’s guilty plea was tainted by this ineffective assistance of counsel.

Satterlee v. Wolfenbarger, 453 F.3d 362 (6th Cir. 2006)

Trial counsel’s failure to communicate to the defendant a plea offer that was made by the prosecutor on the first day of trial was ineffective assistance of counsel.

United States v. Booth, 432 F.3d 542 (3rd Cir. 2005)

The Third Circuit held that the defendant was entitled to an evidentiary hearing on the question of whether the defense attorney was ineffective in failing to inform the defendant that he could enter a non-negotiated (“open”) plea to the indictment and thereby earn an acceptance of responsibility reduction in sentence. The defendant claimed that he was forced to either accept the plea agreement offered by the government, or proceed to trial.

Davis v. Greiner, 428 F.3d 81 (2d Cir. 2005)

The defendant gave a proffer to the state court prosecutors pursuant to an agreement that provided that if he were to proceed to trial, what he said could be used to impeach him. His attorney did not explain this to him. After giving the proffer and incriminating himself, he backed out of the deal and proceeded to trial, not realizing that if he testified, his statements could be used against him. The attorney provided ineffective assistance of counsel. The court ultimately concluded, however, that the ineffective assistance of counsel was not prejudicial.

United States v. Herrera, 412 F.3d 577 (5th Cir. 2005)

Had the attorney correctly advised the defendant of his exposure if he went to trial, the defendant claimed that he would have entered a guilty plea. The Fifth Circuit held that this claim merited an evidentiary hearing. The attorney supposedly told the defendant he faced a maximum 51 month guideline sentence, when, in fact, he faced a guideline range of 78 – 97 months after conviction at trial.

United States v. Kwan, 407 F.3d 1005 (9th Cir. 2005)

An attorney’s inaccurate advice about the immigration consequences of a guilty plea was ineffective assistance of counsel. Actually, the attorney’s initial advice was correct, but a change in the law rendered it incorrect and this change occurred between the time that the plea was entered and sentencing. The attorney had a duty to correct the advice when the law changed and the failure to do so tainted the defendant’s guilty plea. The Ninth Circuit held that coram nobis relief was appropriate in this situation.

United States v. Howard, 381 F.3d 873 (9th Cir. 2004)

The defendant offered proof in his § 2255 petition that he was under the influence of a powerful narcotic drug (painkiller) at the time he entered his guilty plea and that his attorney was aware of this. The district court erred in not conducting an evidentiary hearing to inquire into the factual support for this claim.

United States v. Grammas, 376 F.3d 433 (5th Cir. 2004)

Defense counsel erroneously advised the defendant that the base offense level for his crime was level 8, whereas the actual base offense level was 20. Counsel apparently was relying on the incorrect Guideline Manual, or did not realize that his client would be treated as an Armed Career Criminal. By underestimating the defendant’s sentencing exposure, counsel breaches his duty as a defense lawyer in a criminal case to advise his client fully on whether a particular plea to a charge appears desirable. A remand for a hearing on the issue of prejudice was necessary.

United States v. White, 366 F.3d 291 (4th Cir. 2004)

The defendant entered into a guilty plea, but claimed in a § 2255 petition that he was orally assured by his attorney and the AUSA that he could appeal the denial of the suppression motion. Both parties in the § 2255 proceeding agreed that defense counsel made this assurance. Both parties also agreed that this rendered the plea involuntary, because the defendant did not understand the consequences of his plea. The Fourth Circuit held that the trial court should have conducted a full evidentiary hearing to determine if the government did, in fact, orally assure the defendant that he could enter a conditional plea.

Moore v. Bryant, 348 F.3d 238 (7th Cir. 2003)

Trial counsel’s erroneous advice about good time credits was ineffective assistance of counsel and necessitated setting aside the conviction. The attorney advised petitioner that a change in the law would reduce good time credits, so if he were convicted at trial, he would be required to serve 85% of the time imposed, but if he entered a guilty plea, he would serve only 50%. However, the change in the law was not going to be retroactive, so this advice was erroneous.

Nunes v. Mueller, 350 F.3d 1045 (9th Cir. 2003)

Prior to trial, the state prosecutor offered a negotiated deal to the defendant that would have capped his sentence at eleven years. The defense attorney did not convey this offer correctly to the defendant (he portrayed the deal as a twenty-two year offer). The right to effective assistance of counsel includes the right to counsel during the plea negotiation process. The right that the defendant lost in this case was not the right to a fair trial or the right to a plea bargain, but the right to participate in the decision as to, and to decide, his own fate. The circumstances demonstrated the defendant would have accepted the offer had it been communicated to him properly.

Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003)

The defendant entered a guilty plea, having been advised by his attorney that he could still preserve for appeal his state speedy trial act claim. His advice was erroneous. This amounted to ineffective assistance of counsel. The Sixth Circuit remanded the case to the district court to evaluate the merits of the defendant’s speedy trial act claim, in order to determine whether he was prejudiced by the attorney’s ineffectiveness.

United States v. Couto, 311 F.3d 179 (2d Cir. 2002)

Trial counsel affirmatively misled the defendant into believing there were things that could be done to avoid deportation (when, in fact, there were none). This affirmative misrepresentation is different than a failure to advise the defendant of collateral consequences of a plea.

Smith v. United States, 348 F.3d 545 (6th Cir. 2004)

Trial counsel, according to the petitioner in this § 2255 petition, failed to advise him properly about a pending plea offer. At a minimum the court should have held a hearing on this matter. Specifically, petitioner claimed that he should have been fully informed about the various Sentencing Guideline scenarios that would exist following a trial, versus following the entry of a guilty plea. The possible sentence following trial was ten times harsher than the sentence that was offered in the negotiated plea and this information was not (according to the petitioner) conveyed to him.

Griffin v. United States, 330 F.3d 733 (6th Cir. 2003)

Trial counsel’s failure to advise the defendant of a plea offer was ineffective assistance of counsel. Though the defendant protested that he was innocent throughout the pretrial stage of the case, he still may have accepted a guilty plea. A hearing should have been conducted so the trial court could determine whether the defendant would, in fact, have been willing to accept the offer, had it been communicated to him by counsel.

Paters v. United States, 159 F.3d 1043 (7th Cir. 1998)

Prior to trial, the government offered the defendant a five-year deal. Defense counsel incorrectly advised the defendant that he did not face more than that if he went to trial. Counsel failed to explain the concept of relevant conduct, or acceptance of responsibility. Following a conviction at trial, the defendant was sentenced to 121 months. The government and the defendant agreed that the trial attorney’s performance was deficient. The Seventh Circuit held that the deficient performance was prejudicial, if the defendant could establish, on remand, that but for the incorrect advice, he would have accepted the plea agreement.

United States v. Alvarez-Tautimez, 160 F.3d 573 (9th Cir. 1998)

Two defendants were arrested for smuggling marijuana. Alvarez entered a guilty plea, but the court had not yet accepted the plea. Thereafter, the co-defendant won his motion to suppress – a motion that would have succeeded for Alvarez, as well. The government had already indicated that it would not appeal the co-defendant’s successful motion. Nevertheless, Alvarez’s counsel did not move to withdraw the guilty plea and re-assert a Motion to Suppress. This was ineffective assistance of counsel. Because the court had not accepted the guilty plea yet, the defendant was entitled to withdraw the plea. The case would then have been dismissed.

Meyers v. Gillis, 142 F.3d 664 (3rd Cir. 1998)

Trial counsel gave the petitioner incorrect advice as to his parole eligibility and the defendant relied on that advice to his prejudice. The petitioner believed that he would be eligible for parole at some point after entering his plea, when, in fact, the conviction resulted in a sentence of life without parole. Petitioner established that he would not have entered a guilty plea had he known about the life without parole sentence.

United States v. Gordon, 156 F.3d 376 (2d Cir. 1998)

Defense counsel’s erroneous prediction of the Guideline sentence that the defendant faced amounted to ineffective assistance of counsel.

Boria v. Keane, 99 F.3d 492 (2d Cir. 1996)

The trial counsel was ineffective in failing to advise the defendant that it was in his best interest to enter a guilty plea. The plea that was offered would have resulted in a sentence of one to three years. Following his rejection of this offer, the state re-indicted under the “Rockefeller Law” and the resulting conviction resulted in a sentence of twenty years to life. Trial counsel admitted that he never advised the defendant that it was advisable to accept the plea, before the state re-indicted him.

United States v. Hansel, 70 F.3d 6 (2d Cir. 1995)

The defendant pled guilty to two counts of the indictment which were barred by the statute of limitations. Though the guilty plea amounts to a waiver of the issue on appeal, he received ineffective assistance of counsel and the guilty plea was therefore not knowing and voluntary and the convictions on those counts would be set aside.

Teague v. Scott, 60 F.3d 1167 (5th Cir. 1995)

If counsel misinforms the defendant of the maximum possible sentence (as in this case, where the defendant was advised that the maximum sentence was twenty years, but the actual maximum was 99 years), this amounts to ineffective assistance of counsel. Prejudice can be shown by the defendant’s refusal to accept a plea offer which was far below the sentence which was ultimately imposed following a trial.

United States v. Acklen, 47 F.3d 739 (5th Cir. 1995)

In this §2255 proceeding, the petitioner contended that his counsel failed to investigate, prior to entering the guilty plea, whether the methamphetamine with which the defendant was charged was 1-methamphetamine, or d-methamphetamine. There is a substantial difference in sentencing liability between these two types of the drug. Without deciding whether the petitioner in fact proved that he was only responsible for the less serious type of drug, the court held that he was entitled to limited discovery on this issue. If the drug actually was 1-methamphetamine, then the trial counsel would have been ineffective in failing to prove this at sentencing.

United States v. Castro, 26 F.3d 557 (5th Cir. 1994)

The writ of error coram nobis is an extraordinary remedy available to a petitioner no longer in custody who seeks to vacate his conviction in circumstances where the petitioner can demonstrate that he is suffering civil disabilities as a consequence of the criminal conviction and that the challenged error is of sufficient magnitude to justify the extraordinary relief. Coram nobis relief is available if the petitioner can establish that he suffered from ineffective assistance of counsel. Here, the defendant entered a guilty plea, but his attorneys were unaware that they could seek a judicial recommendation against deportation and, therefore, they did not make this request. This was ineffective assistance of counsel and coram nobis relief should have been granted if the petitioner, on remand, could satisfy the Strickland standards.

Bouchillon v. Collins, 907 F.2d 589 (5th Cir. 1990)

The habeas court concluded that the petitioner was mentally incompetent at the time he entered his guilty plea and that his trial counsel was ineffective in failing to investigate his client’s competency to stand trial and a possible insanity defense. The Fifth Circuit affirms. In order to satisfy the prejudice prong of Strickland, the petitioner need only demonstrate a “reasonable probability” that he was incompetent, “sufficient to undermine confidence in the outcome.” This represents a lower burden of proof than the preponderance of evidence standard.

Lewandowski v. Makel, 949 F.2d 884 (6th Cir. 1991)

Trial counsel failed to advise the defendant accurately about the possible ramifications of successfully withdrawing a guilty plea – that is, that he could be tried and sentenced to life without parole. The Sixth Circuit agreed with the District Court that this was ineffective assistance and was prejudicial.

Hart v. Marion Correctional Institution, 927 F.2d 256 (6th Cir. 1991)

The defendant was incorrectly advised by his attorney about the actual amount of time he might face if he entered a guilty plea. This ineffective assistance of counsel was compounded by inaccurate advice at the guilty plea colloquy from the trial judge. The writ would be granted.

Sparks v. Sowders, 852 F.2d 882 (6th Cir. 1988)

Under state law, there is no such penalty as “life without parole.” This, however, was what trial counsel advised the defendant he would receive if he did not plead guilty. This constitutes gross misadvice rendering a guilty plea defective on the grounds of ineffective assistance of counsel.

Garmon v. Lockhart, 938 F.2d 120 (8th Cir. 1991)

Counsel advised the defendant that he would only have to serve 1/6 of his sentence. This was inaccurate advice. Actually, he would have to serve 15 years – not five years – before he was eligible for parole. This was ineffective assistance of counsel and necessitated granting a writ and vacating the guilty plea.

Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990)

The defendant pled guilty, relying in part on the advice of his attorney concerning his parole eligibility date. His attorney’s advice was erroneous. This constitutes ineffective assistance of counsel and also renders the guilty plea invalid. This is not simply a case of the attorney making a bad prediction. Here the misadvice was of a “solid nature” directly affecting the defendant’s decision to plead guilty.

United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994)

It is ineffective assistance of counsel to fail to communicate to a client a plea offer. The appropriate remedy is to reinstate the plea offer and allow the defendant to accept it if he so desires.

Montemoino v. United States, 68 F.3d 416 (11th Cir. 1995)

If an attorney fails to file a notice of appeal following a guilty plea and there is an issue relating to the sentencing guidelines, the defendant may obtain relief based on the ineffectiveness of his attorney. This is an exception to the rule that the failure to file an appeal following the entry of a guilty plea is not grounds for asserting ineffective assistance of counsel. The appropriate remedy is to permit an out-of-time appeal of any sentencing guideline issue.

Finch v. Vaughn, 67 F.3d 909 (11th Cir. 1995)

The defendant was on parole from a federal sentence when he was arrested by state agents on a drug charge. At the beginning of his state trial, he entered into a plea agreement which provided that he would plead guilty in exchange for receiving a ten-year sentence to run concurrent with his federal parole violation sentence. After the plea was entered, the federal government declined to revoke his parole, returning him to state custody. The government indicated that his federal parole would be revoked after he served his state sentence. Because it was clearly the defendant’s view that the sentences would run concurrent, this amounted to an involuntary plea of guilty. A voluntary plea requires an awareness of the consequences of the plea. Moreover, his counsel rendered ineffective assistance of counsel.

Yordan v. Dugger, 909 F.2d 474 (11th Cir. 1990)

The defendant’s attorney advised him that if he were to plead guilty to the charges, he would become eligible for parole after serving between five and seven years in prison. Actually, having pled guilty to the offense, he was not eligible for parole until having served twenty-five years. The Eleventh Circuit holds that further hearings must be conducted to determine whether the defendant was denied the effective assistance of counsel.

Betancourt v. Willis, 814 F.2d 1546 (11th Cir. 1987)

The judge told the defense attorney that he would reduce the sentences at some time in the future if the defendant would plead guilty. This agreement was never put in writing, and the attorney failed to make any mention of this statement by the judge during the plea agreement at the initial sentencing or taking of the plea. This represents ineffective assistance of counsel and the guilty plea was ordered withdrawn by the Eleventh Circuit.

United States v. Streater, 70 F.3d 1314 (D.C.Cir. 1995)

Counsel was ineffective in advising the defendant that he should enter a guilty plea. Counsel advised the defendant, after losing a suppression hearing, that having asserted standing to contest a search of the car (albeit without having testified), he could not then testify at trial that he did not know there were drugs in the car. This erroneous advice rendered the guilty plea involuntary.

United States v. Loughery, 908 F.2d 1014 (D.C.Cir. 1990)

The defendant agreed to enter a plea that would result in the dismissal of all the pending mail fraud counts in exchange for her plea on one other count. Just before the plea was entered, McNally v. United States was decided that rendered the mail fraud counts invalid. The attorney’s failure to appreciate the significance of this development — it meant that the government was giving up nothing in exchange for the plea — rendered his representation ineffective in advising the defendant in connection with the guilty plea.