August 31, 2015

Colorado Court of Appeals: Defendant Who Insisted on Proceeding at Hearing to Preserve Speedy Trial Rights, Despite Counsel’s Request for Continuance, Made Voluntary Waiver of Better-Prepared Counsel

The Colorado Court of Appeals issued its opinion in People v. Bryant on Thursday, March 14, 2013.

Unlawful Sexual Contact by Use of Force—Constitutionality of Sexually Violent Predator Designation—Effective Assistance of Counsel—Use of Force Evidence.

Defendant Joseph Bryant appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of unlawful sexual contact by use of force. He also appealed his designation as a sexually violent predator (SVP). The judgment was affirmed.

Evidence at trial showed that as 17-year-old A.M. and her friend were about to walk into a Starbucks, Bryant attacked A.M. by wrapping a hand around her neck and grabbing her vaginal area with his other hand. He held her for about eighteen seconds and tried to pull her away from the entrance. She screamed and struggled and then jammed her elbow into his stomach. He released her and ran away.

That evening, Bryant approached D.P. at a bus stop. He “bumped” into her, stared at her, asked her age, and then followed her onto the bus. When D.P. got off the bus, Bryant followed her off the bus. She decided to wait at the bus stop, because it was well-lit and there were stores nearby. Bryant waited with her for thirty minutes. He offered several times to pay her $300 if she would accompany him to a motel room, and she declined. He then grabbed her breasts four to six times and her vagina once. D.P. asked him to stop and tried pushing him away. He grabbed her hand and put it on his crotch.

Bryant followed her onto a second bus and off that bus. D.P. asked him to stop following her. He grabbed her breasts twice, and she pushed him away. Bryant walked away and was arrested later that evening.

Bryant was charged with two counts of unlawful sexual contact by force and was found guilty by a jury. The trial court made a preliminary finding that he was an SVP and sentenced him to five years to life in the Department of Corrections on each conviction, to run consecutively. The court, after a hearing, made a final determination that Bryant was an SVP.

On appeal, Bryant argued he was deprived of his right to effective assistance of counsel when the court denied his counsel’s motion to continue the trial two weeks beyond the Uniform Mandatory Disposition of Detainers Act (UMDDA). The Court of Appeals found he waived that right. On November 27, 2009, Bryant’s counsel learned his trial had been rescheduled from December 15 to December 1 to comply with Bryant’s speedy trial rights under the UMDDA. Counsel objected to the earlier trial date, but Bryant insisted on a speedy trial despite the judge’s warnings against proceeding pro se. Bryant decided to proceed pro se, and counsel assumed she had been removed from the case.

On December 1, counsel appeared with Bryant and explained that Bryant did not want to proceed pro se. She requested a two-week continuance because she was not prepared for trial. The court found the request reasonable, but then engaged in a colloquy with Bryant wherein Bryant ultimately chose to proceed with unprepared counsel rather than waive his UMDDA rights. The Court found the record reflected that Bryant made a voluntary, knowing, and intelligent waiver of better-prepared counsel in favor of his right to a speedy trial under the UMDDA. Therefore, there was no error.

Bryant also argued there was insufficient evidence to show he caused each victim’s submission by force because there was no evidence that he used force apart from the unlawful contact, and the victims were able to escape. The Court disagreed. The statute requires evidence of physical force, which is “force applied to the body.” The fact that the victims were able to escape does not render insufficient the evidence that showed Bryant used physical force.

Bryant further contended that SVP evaluation procedures violate one’s right to remain silent, because offenders who do not participate in the SVP assessment interview are evaluated using an alternative scale that increases the likelihood they will be designated SVPs. This argument presumes the Fifth Amendment applies to the SVP evaluation procedures, but it does not. The Fifth Amendment privileges apply during sentencing, but the SVP designation is not part of a defendant’s sentence. Its purpose is not to punish the defendant, but to protect the public and aid law enforcement.

The Court also rejected Bryant’s equal protection argument. Equal protection challenges require that the people allegedly subject to disparate treatment be similarly situated. Bryant’s argument didn’t meet this threshold test because offenders who participate in the interview are not similarly situated to offenders who do not participate.

Summary and full case available here.

Colorado Court of Appeals: Plea Counsel for Criminal Defendant Should Have Advised of Mandatory Deportation but No Prejudice Shown

The Colorado Court of Appeals issued its opinion in People v. Campos-Corona on Thursday, February 28, 2013.

Crim.P. 35(c)—Ineffective Plea Counsel.

Defendant appealed from an order denying his motion for relief pursuant to Crim.P. 35(c). The judgment was affirmed.

Defendant was charged with one count of possession of a schedule II controlled substance with intent to distribute, and one count of conspiracy to distribute a schedule II controlled substance. He pleaded guilty to an added count of distribution of a schedule II controlled substance in exchange for dismissal of the original charges and a more favorable sentencing range. After successfully completing his sentence to probation, he faced deportation proceedings.

Defendant filed a Crim.P. 35(c) motion to seek to withdraw his plea on the ground that plea counsel was ineffective in advising him regarding the immigration consequences of his guilty plea. At the post-conviction hearing, plea counsel testified that he advised defendant that a guilty plea would make renewing his permanent residence status difficult, if not impossible, and he would likely be deported. Plea counsel stated that defendant wanted to plead guilty to try to be sentenced to probation and would deal with the immigration issue later. Plea counsel acknowledged that he had not told defendant that the plea would subject him to a mandatory removal provision from which no discretionary relief could be had.

Defendant testified that plea counsel advised him that he “would [or] could have problems” renewing his permanent resident status. He gave conflicting testimony as to whether he was advised he could be deported as a result of pleading guilty. He testified that if he had been told in absolute terms that he would be deported, he would not have entered a guilty plea. The post-conviction court found plea counsel’s representations were adequate regarding potential deportation.

On appeal, defendant argued it was error to deny his petition for post-conviction relief. The Court of Appeals found that counsel’s performance was deficient, but agreed the petition was properly denied for failure to sufficiently demonstrate prejudice. A criminal defendant is entitled to relief for ineffective assistance of counsel by showing that (1) counsel’s performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that but for counsel’s errors, the defendant “would not have pleaded guilty and would have insisted on going to trial.”

Here, 8 USC § 1227(a)(2)(B)(i) mandates removal for violation of any law relating to controlled substances other than a single offense involving possession of marijuana for personal use of thirty grams or less. Defendant admitted a significant quantity of cocaine was found in his possession and at his home. He was not advised that pleading guilty would subject him to mandatory, permanent removal. Plea counsel’s performance was not reasonable and the trial court’s finding otherwise was in error.

However, the Court agreed that even if inadequate advice was provided, defendant failed to show he was prejudiced. The Court deferred to the trial court’s findings that his testimony established only that he wanted to avoid prison and therefore it would not have been rational for him to proceed to trial. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Certificate of Appealability Denied Because Applicant Failed to Make a Substantial Showing of the Denial of a Constitutional Right

The Tenth Circuit published its opinion in United States v. Cordova on Monday, February 11, 2013.

Mr. Cordova pleaded guilty in the district court to conspiracy to possess with intent to distribute and to distribute 500 grams or more of methamphetamine. He was sentenced to 216 months’ imprisonment. On direct appeal, Mr. Cordova argued that his guilty plea was involuntary, that his trial counsel was ineffective, and that his sentence was procedurally unreasonable. The Tenth Circuit affirmed Mr. Cordova’s conviction and sentence, declining to address the ineffective assistance of counsel claim because further development of the record and an opinion by the district court was needed for the Tenth Circuit’s review. Mr. Cordova then sought § 2255 relief to vacate, set aside, or correct his sentence, which the district court denied. The district court also denied Mr. Cordova’s certificate of appealability (“COA”). Mr. Cordova sought to appeal.

A COA will be issued only if the applicant makes “a substantial showing of the denial of a constitutional right.” Because Mr. Cordova made no such showing, the Tenth Circuit denied Cordova’s application for a COA and  dismissed the matter.

Colorado Supreme Court: Crim. P. 35(c) Post-Conviction Relief Inapplicable but Defendant May Seek to Withdraw Plea Under Crim. P. 32(d) for a “Fair and Just Reason”

The Colorado Supreme Court issued its opinion in Kazadi v. People on Thursday, November 20, 2012.

Criminal Law—Post-Conviction Review—Crim.P. 35(c) and 32(d)—Deferred Judgment—CRS § 18-1.3-102—Withdrawal of Guilty Plea—Ineffective Assistance of Counsel.

In this appeal, petitioner Yanick Kazadi, a legal permanent resident born in the Congo, sought Crim.P. 35(c) post-conviction review of his felony plea leading to a deferred judgment. Kazadi claimed ineffective assistance of counsel for counsel’s failure to notify him of possible deportation consequences for pleading guilty to obtain a deferred judgment and sentence.

The Supreme Court affirmed the ruling of the court of appeals, holding that Kazadi may not seek review of his deferred judgment and sentence under Crim.P. 35(c) while in the deferred judgment period because, in a deferred judgment situation, there has not been a judgment of conviction that makes Crim.P. 35(c) review available. Kazadi may, alternatively, seek to withdraw his guilty plea under Crim.P. 32(d). This rule allows a defendant to move to withdraw a guilty plea before sentence is imposed. In the unique situation of a deferred judgment, the defendant’s case is continued and there is no imposition of sentence and entry of judgment while the deferred judgment is in effect. Therefore, Kazadi may seek to withdraw his guilty plea pursuant to Crim.P. 32(d) for a “fair and just reason.”

Summary and full case available here.

Tenth Circuit: Defendant Received Ineffective Assistance of Counsel When His Attorney Disregarded His Request to Appeal

The Tenth Circuit issued its opinion in Clayton v. Jones on Friday, November 16, 2012.

Mr. Clayton entered a blind guilty plea to five counts in state court, including second degree murder. He received a life sentence for the murder charge. He was represented by counsel. During the plea and  sentencing proceedings, the state court informed Mr. Clayton that he had a right to appeal the decision and that he had ten days in which to do so. The court also asked his attorney to stay on as Mr. Clayton’s attorney for a period of ten days and stay on through any appeal time that might run. Neither an application to withdraw the plea nor a direct appeal was filed. Mr. Clayton filed both a pro se application for post-conviction relief (which was denied), and then appealed the state court’s ruling to the Oklahoma Court of Appeals, which affirmed the state court’s denial of post-conviction relief.

Mr. Clayton filed a petition for habeas relief in federal district court, which was denied as procedurally barred. The Tenth Circuit granted a certificate of appealability, vacated the district court judgment, and remanded for a hearing to determine whether Mr. Clayton requested counsel to file an appeal.

At this evidentiary hearing, evidence was presented that Mr. Clayton asked his state court attorney to file an appeal, but no appeal was filed. The State failed to refute Mr. Clayton’s allegation. The magistrate recommended the case be held in abeyance for not longer than 120 days to allow Mr. Clayton to withdraw his guilty plea.

On appeal, the State first argued that the district court committed clear error in finding that Mr. Clayton asked his attorney to file an appeal. Because appeals are part of the criminal process, a defendant is denied effective assistance of counsel if he asks his lawyer to perfect an appeal and the lawyer fails to do so. Ample evidence supported the district court’s finding that Mr. Clayton’s attorney failed to comply with his request to file an appeal. The Tenth Circuit concluded that Mr. Clayton received ineffective assistance of counsel when his attorney disregarded his request to appeal.

The district court further granted Mr. Clayton a conditional writ, allowing him 120 days to withdraw his guilty plea. The State argued this remedy was an abuse of discretion. Since neither the magistrate’s report nor the district court’s order explained why this was the appropriate form of relief, the Tenth Circuit was unable to review the district court’s decision. To facilitate review, the Tenth Circuit ordered a limited remand to allow the district court to clarify why it granted Mr. Clayton a withdrawal of his guilty plea, rather than an appeal out of time.

The Tenth Circuit retained jurisdiction over the appeal.

Colorado Supreme Court: Determination that Instructional Error Did Not Constitute Plain Error Does Not Control Determination of Prejudice Because the Two Standards Differ

The Colorado Supreme Court issued its opinion in Hagos v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Hagos’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis. Thus, the Court affirmed the court of appeals’ judgment, albeit on different grounds.

Summary and full case available here.

Colorado Supreme Court: Plain Error Standard Differs from Standard Defined in Strickland v. Washington

The Colorado Supreme Court issued its opinion in Villareal v. People on Monday, November 5, 2012.

Crim.P. 35(c) Postconviction Proceedings—Ineffective Assistance of Counsel—Plain Error Review.

The Supreme Court, employing the reasoning of Hagos v. People, 2012 CO 63 (No. 10SC424), affirmed the judgment of the court of appeals. The Court held that a determination on direct appeal that instructional error did not constitute plain error does not control a determination of prejudice under Strickland v. Washington, 466 U.S. 668, 684-86 (1984), because the two standards are not the same. The plain error standard requires that an error impair the reliability of the judgment of conviction to a greater degree than the Strickland prejudice standard. Villarreal’s ineffective assistance of counsel claim, nonetheless, failed under the separate, fact-specific Strickland analysis.

Summary and full case available here.

Colorado Court of Appeals: Defense Counsel’s Assistance at Trial Court Was Effective in Several Ways

The Colorado Court of Appeals issued its opinion in People v. Aguilar on Thursday, October 25, 2012.

Crim.P. 11 and 35(c)—Second-Degree Murder—Felony Murder—Burglary—Ineffective Assistance of Counsel—Expert Witness—Jury Instruction—Double Jeopardy Rights—Providency Hearing—Sentencing.

Defendant, appearing pro se, appealed the district court’s order denying his Crim.P. 35(c) motion for post-conviction relief alleging ineffective assistance of counsel. The order was affirmed.

Defendant and his companions broke into the victim’s home, bound and gagged the victim, and covered him with a mattress. They then ransacked the victim’s home and carried items away. The victim was unable to free himself and consequently died. A jury found defendant guilty of first-degree burglary, second-degree burglary, theft, robbery, and conspiracy to commit robbery. The jury could not reach a verdict on a charge of felony murder and a mistrial was granted with respect to that charge. Before the scheduled retrial, defendant pleaded guilty to second-degree murder in exchange for dismissal of the felony murder charge.

Defendant contended that he received ineffective assistance of trial counsel because counsel failed to hire an expert to observe and rebut the prosecution’s use of consumptive DNA testing. Defense counsel’s decision to call or not call his own DNA expert was a matter of trial strategy. Defendant failed to allege facts establishing that counsel’s choice was outside the wide range of professionally competent assistance. Consequently, defendant was not entitled to a hearing on this claim.

Defendant also contended that counsel was ineffective for failing to tender a reckless manslaughter instruction at trial. Defendant’s theory of defense was that he did not cause the victim’s death. Therefore, reckless manslaughter was inconsistent with defendant’s theory of defense and defendant cannot prove that counsel’s performance was deficient in this regard.

Defendant also argued that his trial counsel was ineffective for not advising him of his double jeopardy rights. Specifically, defendant argued that because the jury had convicted him of first-degree burglary, a lesser-included offense of felony murder, he could not be retried for felony murder and, therefore, his counsel was ineffective in neglecting to advise him that he should not plead to another lesser included offense of felony murder. The jury convicted defendant of burglary and expressly hung on the charge of felony murder. The implied acquittal rule does not bar retrial of a greater offense when a jury deadlocks on that charge but convicts on a lesser-included offense. Therefore, a retrial for felony murder would not have violated defendant’s double jeopardy rights. Consequently, his claim that counsel was ineffective for allowing his guilty plea to avoid a second trial failed.

Defendant further contended that he received ineffective assistance of counsel during the Crim.P. 11 providency hearing. However, the plea agreement signed by defendant and the record of the plea hearing do not support defendant’s argument. Because defendant was advised orally or in writing of each of the asserted errors, he failed to establish that his plea was not voluntary, knowing, or intelligent, or that his defense counsel provided deficient performance.

Finally, because defendant’s convictions were not supported by identical evidence, his counsel was not ineffective in failing to secure concurrent sentences. The order was affirmed.

Summary and full case available here.

Tenth Circuit: Court Denied Defendant’s Claims that His Statements Were Involuntary and that He Received Ineffective Assistance of Counsel

The Tenth Circuit published its opinion in Davis v. Workman on August 28, 2012.

An Oklahoma jury convicted Defendant Davis of the first degree murder and rape of Josephine “Jody” Sanford. After unsuccessfully appealing to the Oklahoma Court of Criminal Appeals (OCCA),  and pursuing postconviction relief in state court, Defendant unsuccessfully sought relief under 28 U.S.C. § 2254 in the United States District Court for the Western District of Oklahoma. The district court denied a certificate of appealability (COA) but the Tenth Circuit granted a COA on three issues: (1) whether Defendant’s statements to police officers while he was hospitalized were knowing, intelligent, and voluntary; (2) whether his counsel was ineffective in failing to present scientific evidence that he was impaired while making those statements; and (3) whether Defendant’s trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning.

The Court’s review in a § 2254 proceeding is highly deferential.

(1) Defendant contended that his morphine medication kept him from being fully aware of the rights being abandoned during the second hospital interview. Statements to the police during a custodial interrogation are inadmissible if the defendant did not waive his Miranda rights knowingly and voluntarily. What Defendant presented on appeal failed to overcome the deference owed to the OCCA decision. The expert report merely stated that there was a possibility of impairment from the medication. The Tenth Circuit held that the state court did not unreasonably determine the facts or unreasonably apply clearly established federal law in concluding that Defendant knowingly and intelligently waived his rights.

(2) Defendant argued his counsel was ineffective in failing to present scientific evidence that he was impaired while making statements in the hospital. To succeed on an ineffectiveness-of-counsel claim, Defendant must show: that counsel’s representation fell below an objective standard of reasonableness, rendering his or her performance deficient, and that the deficiency prejudiced the defense through errors so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. To demonstrate prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the jury would have had a reasonable doubt respecting guilt.  The Tenth Circuit held that Defendant did not make the necessary showing that the OCCA “unreasonably concluded that [he] was not prejudiced” by counsel’s failure to present at trial the additional evidence of impairment.

(3) Finally, Defendant contends that his trial and appellate counsel were ineffective for failing to present evidence and argue that his hospital statements were coerced by the officers’ refusing to allow him to receive morphine for his pain until they had completed their questioning. For Defendant to prevail on his claim of ineffective assistance of counsel, he must establish that any competent attorney would have raised the morphine coercion claim and that he was prejudiced by the failure of his attorneys to do so. However, the Court found the evidence that Defendant felt coerced by the withholding of morphine very weak, if not nonexistent. Accordingly, this claim was also denied.

Tenth Circuit: Certificate of Appealability Denied Except to Amend Motion to Add Claims that Counsel Was Ineffective for Failing to Challenge Calculation of Criminal History

The Tenth Circuit Court of Appeals published its opinion in United States v. Roberts on Friday, July 20, 2012.

The Tenth Circuit granted Petitioner a certificate of appealability (COA) on one issue, and denied it regarding all other issues. Petitioner sought a COA so he could appeal the district court’s denial of the motion to vacate, set aside, or correct sentence after being convicted of being a felon in possession of a firearm. The judgment of conviction was affirmed by the Tenth Circuit in 2011 but later raised four claims of ineffective assistance of trial counsel. The district court denied relief on all four claims.

Petitioner cannot appeal the denial of his motion until he first obtains a COA from the Tenth Circuit. “To be entitled to a COA, [Petitioner] must make ‘a substantial showing of the denial of a constitutional right.’ To make the requisite showing, he must demonstrate ‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.’ . . . Although [Petitioner] need not demonstrate his appeal will succeed to be entitled to a COA, he must ‘prove something more than the absence of frivolity or the existence of mere good faith.’ In his COA application and appellate brief, [Petitioner] challenges the district court’s disposition of his four claims and also argues the court abused its discretion by refusing to permit him to amend his § 2255 motion.”

The Court concluded that Petitioner “is not entitled to a COA on any claim except the one relating to the district court’s refusal to permit him to amend his § 2255 motion to add claims his trial and appellate counsel were ineffective for failing to challenge the calculation of his criminal history. The district court’s resolution of the remaining claims on which [Petitioner] seeks a COA is not reasonably subject to debate and the other issues he seeks to raise on appeal are not adequate to deserve further proceedings.”

Colorado Court of Appeals: Criminal Defendant Does Not Have Right to Review All Discovery Obtained by Counsel or to Testify at Pre-Trial Suppression Hearing

The Colorado Court of Appeals issued its opinion in People v. Krueger on May 10, 2012.

First-Degree Murder—Substitute Counsel—Advisory Counsel—Search Warrant—Prosecutorial Misconduct—Evidence—Felony Convictions—Mistrial.

Defendant Ryan Krueger appealed the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder and conspiracy to commit first-degree murder. The Court of Appeals affirmed the judgment of the district court.

Defendant contended that the district court erred by declining to appoint substitute counsel because he had a conflict with the assigned public defenders, thus making his waiver of his right to counsel ineffective. However, a criminal defendant does not have either a right to review all discovery materials obtained by his counsel or a constitutional right to testify at a pretrial suppression hearing where his counsel decides not to call him as a witness. The Court therefore determined that the district court did not err in finding that defendant had failed to establish good cause warranting substitution of counsel on this basis.

Defendant also contended that the district court erred by (1) declining to continue the first trial and appoint advisory counsel to represent him; and (2) failing to advise him that it could appoint advisory counsel to represent him in the second trial. Both contentions, however, are premised on his assertion that his waiver of the right to counsel was ineffective. Because his waiver was effective, these arguments were rejected.

Defendant further argued that the district court erred by admitting wiretapped phone conversations and cell phone records because the search warrants were based primarily on stale information. The search warrants, however, were not for tangible evidence that could have been destroyed or removed since the murder. Therefore, the affidavits alleged sufficient facts that a person of reasonable caution would believe that communications about the murder would soon take place on the phones for which records and wiretaps were being sought.

Defendant also argued that the district court abused its discretion by allowing prosecutorial misconduct. The Court determined that the district court did not abuse its discretion by allowing the prosecutor’s remarks that they could not subpoena a witness to testify and that a question is not evidence, regardless of whether an attorney or a pro se defendant asks it.

Defendant claimed the district court abused its discretion by allowing the prosecution to introduce evidence of his felony convictions to impeach his statements introduced through cross-examination of another witness. However, because defendant got his own exculpatory statements into evidence through another witness, he opened the door to introduction of his felony convictions.

Defendant next contended that the district court abused its discretion by denying his motions for a mistrial after (1) his wife testified that she had met him in jail before trial, and (2) two witnesses implied that he had been tried previously for the murder. The prosecutor asked whether (not where) defendant’s wife had met with defendant on the specified dates. Additionally, neither witness testified that defendant previously had been tried for the charges then at issue. Thus, the drastic remedy of a mistrial was not warranted.

Summary and full case available here.

Tenth Circuit: Certificate of Appealability Denied; No Facts to Suggest Defendant Prejudiced by Attorney’s Purported Ineffectiveness

The Tenth Circuit Court of Appeals published its opinion in United States v. Moya on Monday, April 16, 2012.

The Tenth Circuit denied Petitioner’s request for appeal. Petitioner, proceeding pro se, filed a motion for relief under 28 U.S.C. § 2255 in the United States District Court for the District of New Mexico. The district court denied the motion and rejected his application for a certificate of appealability (COA). He then sought a COA from the Tenth Circuit, which was denied and his appeal dismissed “because no reasonable jurist could debate the district court’s decision. [Petitioner] argues that his counsel was ineffective in negotiating his plea agreement and that the district court erred in refusing to hold an evidentiary hearing on his attorney’s ineffectiveness. But he has not alleged facts to support a finding that he was prejudiced by his attorney’s purported ineffectiveness.”