finding it “highly improbable” that the defendant would have proceeded to trial where “the evidence of his culpability was overwhelming, and the possible sentence he faced was far greater than what he got under his plea agreement”
How later courts described this case
- finding it “highly improbable” that the defendant would have proceeded to trial where “the evidence of his culpability was overwhelming, and the possible sentence he faced was far greater than what he got under his plea agreement”
- recognizing that the defendant could not “satisfy the prejudice prong in the absence of any statement that he is actually innocent, or would have gone to trial if his attorney’s performance had been different”
- holding that the defendant could not “satisfy the prejudice prong in the absence of any statement that he is actually innocent, or would have gone to trial if his attorney’s performance had been different”
- holding that government’s failure to raise waiver in § 2255 proceeding in the district court resulted in forfeiture of the right to rely on the waiver on appeal
Written by the judges who cited it.
The opinion
MOORE, Circuit Judge,
concurring.
I concur in the majority opinion. I write separately to observe that our precedent does not foreclose the possibility that a petitioner could satisfy the Stñckland prejudice prong without demonstrating a willingness to go to trial.
In Hill v. Lockhart, 474 U.S. 52, 58 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985), the Supreme Court held that the Strickland “test applies to challenges to guilty pleas based on ineffective assistance of counsel.” With regard to the prejudice prong, the Court stated that this requirement
focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that 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.
Id. at 59 , 106 S.Ct. 366 .
Although Hill literally requires a petitioner who has pleaded guilty to show that but for counsel errors he would have insisted on going to trial, I do not believe that the opinion forecloses the possibility that in an appropriate case a petitioner could satisfy the Strickland prejudice prong by demonstrating a reasonable probability that but for the alleged errors “the conditions of [petitioner’s] guilty plea or his sentence would have been different.... ” Newman v. United States, No. 96-6326, 1998 WL 553048 , at *3 (6th Cir. August 19, 1998) (unpublished opinion). Hill simply did not involve or, therefore, consider this possibility, and this court has not addressed the question in a published opinion. A panel of this court did conclude, however, that, in a case in which the petitioner alleged that a conflict of interest prevented his counsel from expeditiously negotiating a favorable plea agreement, the petitioner would be permitted to establish prejudice without demonstrating a willingness to go to trial. See Newman, 1998 WL 553048 , at *3. Because the government is always free to reject a plea agreement, however, I believe that it will be a rare case in which a petitioner can establish to a reasonable probability that effective counsel could have negotiated a more favorable agreement. I agree with the majority that clearly Hunter has not done so in the present case.