July 17, 2019

Tenth Circuit: Barring Retrial as Habeas Remedy in Ineffective Assistance of Counsel Case Requires Powerful Justification

The Tenth Circuit Court of Appeals published its opinion in United States v. Bergman on Friday, March 28, 2014.

Gwen Bergman was convicted of hiring a person she thought was a hit man to kill her husband. After her trial, she eventually learned the man who represented her at trial was not an actual lawyer. She pursued a habeas motion under 28 U.S.C. § 2255 alleging a violation of her Sixth Amendment right to effective assistance of counsel at trial. The district court vacated her conviction and discharged her from supervised release. Assuming the court’s decision to vacate the conviction it won at Bergman’s first trial was without prejudice to a new trial with a (real) defense lawyer, the government asked the court to set a date. But the district court refused, stating that its discharge order “implicitly” forbade any effort to secure a valid conviction at a second trial. The government appealed that ruling.

First, the Tenth Circuit had to determine if it had jurisdiction to hear the appeal. Pursuant to 18 U.S.C. § 3731, the court may hear an appeal by the government from any “decision, judgment, or order of a district court dismissing an indictment.” The district court denied the government’s new trial request and entered an order saying so in both the civil habeas and the underlying criminal case but did not dismiss the indictment. The Tenth Circuit held that district court actions and orders having the practical effect of dismissing an indictment are subject to appeal under § 3731 even if they do not formally “dismiss” an indictment or happen to be labeled that way.

Bergman argued that the Double Jeopardy Clause prohibited further prosecution of her so the court could not hear the appeal. The court disagreed because, as in this case, “the Supreme Court has long held that the Double Jeopardy Clause does not prohibit the government from seeking a new trial when the defendant’s conviction is reversed because of a trial error unrelated to the question of guilt or innocence.”

The court rejected the government’s argument that it had an absolute right to retry a defendant absent a double jeopardy bar as other reasons may violate the legal rights of the defendant. However, it agreed that a § 2255 remedy must be tailored to the injury suffered from the Sixth Amendment violation and prohibiting a new trial in this case was not sufficiently tailored. The presumptively appropriate remedy for ineffective assistance is a new trail with an effective lawyer, barring problems that would render effective representation impossible. No evidence in the discharge order was sufficient to justify a discharge with prejudice. The court vacated the district court’s order and remanded. 

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  1. Cary Alburn says:

    You know, I’ve been practicing law for 46+ years, always striving to follow all of the Rules–of which there are many–to maintain my ability to practice. How in the world did this turkey, Howard Kieffer, get away with this so doggone long? Let’s face it–the practice of law is not easy, but here’s a guy who apparently practiced without a degree, without a license anywhere, almost like a check-kiting scheme, where he duped this court and that court in to believing he was licensed because he’d practiced in other courts.

    Something’s really wrong with our system, where a minor misdemeanor offense causes extensive investigations into the propriety of granting admission to some people, and others can practice literally for decades without any qualifications at all. He probably made good money doing it, too. Shades of Vinny Gambini!

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