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Sherry Burt, Warden v. Vonlee Titlow, USSC 12-414, cert granted 2/25/13

Questions Presented:

This case presents three questions involving· AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), this Court’s recent decision expanding ineffective-assistance-of-counsel claims to include rejected plea offers:

1. Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence.

2. Whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea.

3. Whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Lower court opinion: Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012)


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The issues statement refers to last term’s decision in Lafler v. Cooper, which held that a defendant has the right to effective assistance in plea bargaining (see On Point’s post here). But this case arrives on a different factual footing than Lafler. In that case, the defendant rejected a plea offer on the deficient advice of counsel; Titlow, by contrast, had already entered a plea under a favorable deal (which included testifying against his aunt, a co-defendant), but then fired his lawyer, hired a new lawyer, and withdrew his plea. After trial he was convicted of a greater offense and got a longer sentence than he could’ve received under the plea bargain. These differences may not matter, however, as it seems unlikely the Court will  reach the Lafler issue because of the other two issues it has to resolve first.

The first issue involves a federal habeas court’s deference to state court factual findings. In a nutshell, Titlow says he withdrew his plea on the deficient advice of his new lawyer. The state court concluded he did so because he asserted his innocence and wanted to withdraw the plea and have a trial. The Sixth Circuit Court of Appeals (over a dissent) held the state court’s decision was based on an unreasonable determination of the facts. This case will therefore give the Supreme Court the opportunity to expound on federal habeas court review of state court fact finding, but given the general trajectory of the Court’s cases reminding federal courts to be deferential (not a few of which have involved reversing the Sixth Circuit, as noted in our post on another recent cert grant), the Sixth Circuit’s conclusion looks vulnerable.

The second issue arises from an apparent circuit split as to whether it is enough that the defendant simply says he would have accepted the plea offer if hadn’t received bad advice from his lawyer—the Sixth Circuit’s approach—or whether some objective evidence of the defendant’s intent is required—the approach in preLafler cases in other circuits, including the Seventh. Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998). The analogy, of course, is the rule that objective evidence is needed to establish prejudice when a defendant claims he entered a plea due to counsel’s deficient performance. State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996), citing Hill v. Lockhart, 474 U.S. 52, 59 (1985).

If Titlow’s claim makes it past these hurdles, the Court will have to address the issue of remedy. The Sixth Circuit gave the state time to reoffer Titlow the original plea agreement and, if Titlow accepted, told the state court to exercise its discretion to fashion a sentence that remedies the violation of her constitutional right to the effective assistance of counsel. The dissent argued this left out a remedy Lafler itself provided: The discretion to leave the conviction and sentence from the trial undisturbed. Nor does Lafler make it the trial court’s responsibility to fashion a sentence that remedies the constitutional because, the dissent says, the remedy for the violation is the government’s reoffering of the original plea agreement. In short, while this case is a possible vehicle for clarifying the remedy required by Lafler’s rule, the chances are the Court doesn’t reach the issue.

UPDATE (10/8/13): For a more detailed discussion of the case posted in advance of today’s oral argument, see the article here (which goes so far as to suggest the parties’ disputes about what even happened in the case might lead the Court to dismiss as improvidently granted).

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