November 27, 2015

Tenth Circuit: AEDPA Standard Severely Constrains Tenth Circuit Review as to State Appellate Court Ruling

The Tenth Circuit Court of Appeals issued its opinion in Frost v. Pryor on Friday, April 25, 2014.

Frost was convicted in Kansas state court of aggravated indecent liberties with a child. During the trial, the child’s mother testified about certain medical treatment she sought for the child. Frost instructed his attorney to obtain medical records to rebut the mother’s testimony, but the attorney did not do so. Frost also wanted his attorney to obtain witness testimony that the mother threatened to send him back to prison, which the attorney did not do. Frost moved for a new trial based on ineffective assistance of counsel, but the state court denied his motion and he was sentenced to 204 months in prison. Frost appealed his conviction to the Kansas Court of Appeals based on ineffective assistance of counsel. The Kansas court upheld his conviction, determining that although the trial counsel provided deficient performance by failing to request the child’s medical records, the counsel’s performance did not prejudice Frost. The Kansas Supreme Court declined review.

Frost then sought a writ of habeas corpus due to ineffective assistance of trial counsel regarding the failure to obtain the medical records, and on several other grounds as well. The federal court denied relief on the first ineffective assistance claim relating to the child’s medical records because of the deference owed to state court decisions on the merits under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). The court dismissed Frost’s remaining claims as procedurally barred. However, it issued a certificate of appealability on the sole issue of whether Frost’s trial counsel was unconstitutionally ineffective regarding the failure to obtain the medical records.

Frost appealed to the Tenth Circuit, arguing that the district court incorrectly denied habeas relief based on the ineffective assistance of the trial counsel, and also arguing for relief on his procedurally barred claims. After an extensive analysis of the lower court rulings and AEDPA’s mandates, the Tenth Circuit determined that the severe constraints of AEDPA review precluded reversal and affirmed.

Colorado Court of Appeals: Correct Burden of Proof Applied in Determining Whether Counsel’s Assistance was Ineffective

The Colorado Court of Appeals issued its opinion in People v. Washington on Thursday, April 10, 2014.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Burden of Proof—Prejudice—Evidence.

The victim was shot and killed outside an auto parts store. According to eyewitness accounts, after the shooting, the shooter ran from the store to a car, and the car drove away. One witness viewed a photo lineup and identified defendant Kevin Washington as the person who ran from the store. A jury subsequently convicted Washington of first-degree murder. Thereafter, Washington filed a pro se Crim.P. 35(c) motion alleging ineffective assistance of trial counsel. The post-conviction court rejected Washington’s claims.

On appeal, Washington contended that the post-conviction court reversibly erred in applying the incorrect burden of proof on the prejudice prong of his ineffective assistance claim. The Court of Appeals concluded that the post-conviction court applied the correct burden of proof. Specifically, the Court stated that for Washington to prove prejudice under the 1984 U.S. Supreme Court ruling in Strickland v. Washington, 466 U.S. 668, 8 687-94, he must show that there is a reasonable probability that but for counsel’s unprofessional errors, the result of the proceeding would have been different. The Court further found that Washington’s claims of prejudice were pure speculation. Accordingly, the court did not err.

Washington also contended that contrary to the post-conviction court’s findings, the evidence at the post-conviction hearing conclusively established that his trial counsel was ineffective. The evidence, however, supported the post-conviction court’s finding that Washington failed to show how trial counsel’s choice not to introduce evidence or present testimony regarding this case, or not to investigate and introduce alibi evidence concerning a 1995 incident, was outside the range of professionally competent assistance. Further, Washington failed to demonstrate any prejudice arising from counsel’s alleged failure to object to the prior acts evidence when it was offered at trial. Therefore, the post-conviction court did not err in finding that trial counsel was not ineffective. The trial court’s judgment was affirmed.

Summary and full case available here.

Tenth Circuit: Collateral Order Doctrine Did Not Apply; Appeal Dismissed for Lack of Jurisdiction

The Tenth Circuit Court of Appeals published its opinion in United States v. Tucker on Tuesday, March 11, 2014.

A grand jury indicted Michael Scott Calhoun, Tommy Wayne Davis, and William Jeffrey Tucker (“Defendants”) on 60 counts of wire fraud, mail fraud, and conspiracy to commit wire and mail fraud. The indictment was based on Mr. Calhoun’s grand jury testimony in which he incriminated himself, Mr. Davis, and Mr. Tucker. Mr. Calhoun testified upon the advice of his counsel at the time, Tom Mills, who was paid by Texas Capital Bank, the alleged victim of the fraud.

After Mr. Calhoun secured new counsel, the Defendants moved to quash the indictment and suppress Mr. Calhoun’s grand jury testimony, contending the indictment was obtained in violation of the Fifth Amendment Indictment Clause, Mr. Calhoun’s Fifth Amendment privilege against self-incrimination, and Mr. Calhoun’s Sixth Amendment right to effective assistance of counsel. The district court denied the Defendants’ motion. Defendants appealed under the “collateral order” exception to the final judgment rule.

The Tenth Circuit held the collateral order doctrine did not apply and dismissed the appeals for lack of jurisdiction.

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949) recognizes a small class of district court orders that determine claims of right separable from, and collateral to, rights asserted in an action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated. To fall within this small class, a district court order must satisfy three requirements: it must [1] conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the case, and [3] be effectively unreviewable on appeal from a final judgment. The Supreme Court has instructed that courts should use the exception to the finality requirement sparingly in the criminal context. Very few motions to dismiss an indictment—even if founded on a valid constitutional right—will give rise to interlocutory appellate jurisdiction.

Applying the Cohen factors, the parties agreed that the first two requirements were satisfied. The district court’s order (1) conclusively determined that (2) the indictment was substantively valid—an important conclusion that was separate from the Defendants’ guilt or innocence. The crucial question centered on the third collateral order requirement: whether the district court’s order was “effectively unreviewable” on appeal from final judgment.

The court concluded it was not. Defendants failed to demonstrate that they could not secure a remedy after trial on appeal from a final judgment. Here, Defendants could proceed to trial and, if convicted, raise the same challenges they presently brought in hopes of having their convictions overturned.

The Tenth Circuit DISMISSED the appeal for lack of jurisdiction.

Tenth Circuit: Appellant Entited to Evidentiary Hearing on Ineffective Assistance of Counsel Claim

The Tenth Circuit Court of Appeals published its opinion in Milton v. Miller on Friday, March 7, 2014.

Appellant Antonio Milton is an Oklahoma state prisoner serving a life sentence without parole for drug-trafficking-related convictions. After exhausting his state court remedies, Milton filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his counsel on direct appeal was ineffective for failing to assert a claim of ineffective assistance of trial counsel, specifically that Milton’s trial counsel failed to inform Milton of a favorable pretrial plea offer. The district court denied Milton’s petition, but the Tenth Circuit granted Milton a certificate of appealability to challenge the district court’s ruling.

The Tenth Circuit concluded that the Oklahoma state courts’ resolution of Milton’s ineffective assistance claim could not survive scrutiny under 28 U.S.C. § 2254(d)(1), and that unresolved issues of fact prevented the court from completing its de novo review of the claim. The court concluded that reasonable jurists could debate the merit of Petitioner’s claim of ineffective assistance based on the counsel’s alleged failure to inform him of the plea offer.

Milton argued on appeal that the OCCA’s resolution of his ineffective assistance of appellate counsel claim was contrary to, or an unreasonable application of, clearly established federal law. In turn, Milton argued, he was entitled to a federal evidentiary hearing to resolve his claim.

Milton correctly identified Strickland v. Washington, 466 U.S. 668 (1984) as the clearly established federal law applicable to his ineffective assistance of appellate counsel claim. Milton challenged the Oklahoma Court of Appeals (OCCA’s) analysis of his ineffective assistance of appellate counsel claim, arguing that the OCCA’s decision was both contrary to and an unreasonable application of clearly established federal law because the OCCA misstated the legal tests governing the proper inquiry under federal law.

The Tenth Circuit agreed with Milton that the OCCA misstated the standard for analyzing the issue of whether appellate counsel’s performance was deficient. The result was the requirement that the Tenth Circuit review de novo Milton’s ineffective assistance of counsel claim, rather than deferring to the OCCA’s resolution of that claim.

In applying the two-pronged Strickland test, the Tenth Circuit agreed with Milton that Milton’s appellate counsel clearly performed deficiently in failing to promptly and meaningfully convey to Milton the existence of a plea offer made by the prosecution at some point prior to the October 30, 2007 preliminary hearing. The focus then turned to the second prong of the Strickland analysis, i.e., whether Milton was prejudiced by his appellate counsel’s deficient performance. The court concluded there was conflicting evidence in the record regarding the precise nature of the plea offer that was purportedly made by the prosecution prior to the October 30, 2007 preliminary hearing. The court concluded there was a reasonable probability that, had Milton’s appellate counsel raised on direct appeal the issue of whether trial counsel failed to inform Milton of the pre-preliminary hearing plea bargain, Milton would have prevailed on this issue in his direct appeal.

The Tenth Circuit held that Mr. Milton was entitled to a federal evidentiary hearing to resolve the disputed factual issues relating to his ineffective assistance of appellate counsel claim, since disputed issues of fact existed that precluded the court from completing its de novo review of Milton’s ineffective assistance of appellate counsel claim.

The Tenth Circuit REVERSED and REMANDED to the district court with directions to conduct an evidentiary hearing on, and to subsequently review on the merits, Milton’s ineffective assistance of appellate counsel claim.

Tenth Circuit: Habeas Petition Denial Reversed Based on Ineffective Assistance of Counsel

The Tenth Circuit Court of Appeals published its opinion in Heard v. Addison on Wednesday, September 4, 2013.

David Glen Heard pled guilty to two counts of “knowingly and intentionally . . . [l]ook[ing] upon . . . the body or private parts of [a] child under sixteen . . . in [a] lewd and lascivious manner,” in violation of Oklahoma’s lewd molestation statute, Okla. Stat. tit. 21, § 1123(A)(2). In pleading guilty, Heard admitted that he positioned himself in a Tulsa Wal-Mart store so as to be able to “look under [their] clothes at [their] bod[ies] and at [their] undergarments.” Pursuant to the terms of the plea agreement, the court sentenced Heard to concurrent twenty-five year prison terms.

Soon after he was sentenced, a private attorney told Heard about an unpublished case out of the Oklahoma Court of Criminal Appeals (“OCCA”), Robinson v. State, which cast doubt upon whether Heard’s conduct fell within the ambit of § 1123(A)(2) because his victims were not naked. It was too late for Heard to withdraw his guilty plea or file a direct appeal. The OCCA denied Heard post-conviction relief and expressly disapproved its reasoning in Robinson and another unpublished case.

The district court denied Heard’s habeas petition and he appealed, claiming he was deprived of his right to due process when the Oklahoma sentencing judge accepted his guilty plea without a sufficient factual basis for convicting him under § 1123(A)(2) and the OCCA’s interpretation of that statute was so arbitrary and capricious that it violated his due process rights. The Tenth Circuit held that it did not have the power to review an Oklahoma court’s interpretation of its state law and his arbitrary and capricious claim failed because he did not raise it in his habeas petition.

Heard also raised a Sixth Amendment ineffective assistance of counsel claim that the OCCA rejected because it held his behavior did violate § 1123(A)(2). The Tenth Circuit held that this decision was not entitled to extra deference under AEDPA because the OCCA improperly relied on hindsight in rejecting his claim. If the OCCA decided Heard’s behavior fit within the statute based on well-settled law, it would have been entitled to deference. Here, however, the OCCA abrogated its reasoning in the only two cases interpreting the statute that existed at the time Heard entered his pleas.

The court analyzed Heard’s trial counsel’s performance and held the lawyer’s performance during the plea-negotiation stage was constitutionally deficient because she did not advise him of possible defenses based on either the potential unconstitutionality of the statute or the existence of the unpublished opinions. The court also held that he was prejudiced by his counsel’s ineffective performance so he was entitled to relief.

The court reversed the district court’s denial of Heard’s § 2254 petition and remanded to the district court to order his release unless the Oklahoma state court allows Heard to withdraw his pleas.

Colorado Supreme Court: Dismissal of Defendant’s Petition for Postconviction Relief Based on Opposing Motion from Defendant’s Own Counsel Improper

The Colorado Supreme Court issued its opinion in Dooly v. People on Monday, June 10, 2013.

Post-conviction Relief—Crim.P. 35(c)—Crim.P. 12(a)—Ineffective Assistance of Counsel.

Defendant Joshua Dooly sought review of the court of appeals’ judgment in People v. Dooly (No. 10CA1751), which affirmed the district court’s dismissal of his application for post-conviction relief pursuant to Crim.P. 35(c). The district court denied Dooly’s request for new counsel and instead granted his existing counsel’s motion to dismiss his application altogether, on the ground that the issues it raised failed to state a claim and therefore were without arguable merit. The court of appeals upheld the district court’s order of dismissal, reasoning that Crim.P. 12(a) provides for a motion to dismiss an application for post-conviction relief, and that the public defender, as Dooly’s counsel of record, could file motions on behalf of his client, including a motion to dismiss his client’s application for relief from his convictions despite being in clear contravention of his client’s wishes.

Every person convicted of a crime is provided a statutory right to make application for post-conviction relief and is entitled to a prompt review and ruling on any motion substantially complying with Form 4 of the Rules of Criminal Procedure. Therefore, the district court erred in granting the motion to dismiss against defendant’s wishes. The judgment of the court of appeals was reversed with instructions to order that defendant’s application for post-conviction relief be reinstated.

Summary and full case available here.

Tenth Circuit: Record Failed to Show Trial Counsel Labored Under Conflict of Interest That Deprived Defendant of Effective Assistance of Counsel

The Tenth Circuit published its opinion in United States v. Flood on Thursday, May 9, 2013.

In January 2003, the Securities and Exchange Commission (SEC) filed a civil suit against ClearOne Communications (ClearOne), as well as the company’s CEO, Frances Flood, and CFO, Susie Strohm. The SEC alleged that Ms. Flood and her codefendants had employed a scheme to defraud, falsely filed with the SEC, committed securities fraud, kept false records, and aided and abetted false bookkeeping. The law firm of Snow Christensen & Martineau (SCM) was retained to represent Ms. Flood.  The parties were at all times represented by separate counsel. During the SEC proceedings, Ms. Flood, Ms. Strohm, and ClearOne entered into a Joint Defense Privilege and Confidentiality Agreement (Joint Defense Agreement), which enabled them to share documents, litigation strategies, and other information without waiving attorney-client privilege. Ultimately, Ms. Flood settled with the SEC.

Around the same time, Ms. Flood executed an Employment Separation and Indemnification Agreement (Separation Agreement) with ClearOne. Under the Separation Agreement, Ms. Flood agreed to resign as CEO and surrender her stock options in exchange for $350,000 and ClearOne’s promise to indemnify her “for any liability and all reasonable attorneys’ fees and costs incurred by her in connection with the SEC Action or any Related Proceedings.”

Subsequently, the government brought criminal charges against Ms. Flood and Ms. Strohm. SCM continued to represent Ms. Flood, sending invoices for its attorney’s fees to ClearOne. Initially, ClearOne paid SCM’s invoices as they became due. However, in October 2007, ClearOne requested detailed information pertaining to Ms. Flood’s representation. SCM had learned that ClearOne was sharing materials prepared under the Joint Defense Agreement with the government. Accordingly, SCM refused ClearOne’s request, explaining that it would not “disclose work product and attorney-client information.”

In April 2008, ClearOne ceased paying Ms. Flood’s attorney’s fees. Ms. Flood, represented by SCM, brought suit against ClearOne to compel payment. SCM continued to represent Ms. Flood in the criminal proceedings.

In January 2009, the court granted a preliminary injunction against ClearOne, ordering ClearOne to pay Ms. Flood’s attorney’s fees. ClearOne initially complied, but stopped making payments. SCM filed a motion to compel payment. Shortly before the criminal trial concluded, ClearOne made another payment. The jury found Ms. Flood guilty on all counts.

Ms. Flood then filed her § 2255 motion, arguing that she received ineffective assistance of counsel because her attorneys labored under a conflict of interest. The district court denied her motion. Ms. Flood appealed to the Tenth Circuit, arguing that: 1) conflicts of interest adversely affected her trial counsel’s performance; 2) the district court abused its discretion by denying her motions for an evidentiary hearing, discovery, and judicial notice; and 3) she was denied effective assistance of counsel under Strickland.

The Tenth Circuit granted a Certificate of Appealability limited to issues one and two.

The Sixth Amendment guarantees the “right to representation that is free from conflicts of interest.” Wood v. Georgia, 450 U.S. 261, 271 (1981). To prevail on an ineffective assistance claim the defendant must show that her counsel’s performance was deficient and that prejudice resulted. Strickland v. Washington, 466 U.S. 668, 692 (1984). However, “[p]rejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected [her] lawyer’s performance.’” Strickland, 466 U.S. at 692.

After a thorough review of the record, the Tenth Circuit found that Ms. Flood offered no evidence that would suggest SCM served ClearOne’s interests instead of hers. The Court simply could not find a conflict of interest based on the facts.

Further, having carefully reviewed the entire record, including the trial transcript, the Tenth Circuit found no abuse of discretion by the district court in denying an evidentiary hearing. Nor did the Court find any abuse of discretion in the district court’s denial of Ms. Flood’s motions for discovery and judicial notice.


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.