Defendant in his 2255 claimed defense counsel promised that he could win a motion to suppress. Defense counsel denied it, saying he reviewed the file and told defendant it was a hopeless motion. A hearing has to be held. United States v. Harris, 2016 U.S. Dist. LEXIS 130436 (E.D.Va. Sept. 21, 2016):
Here, the parties have offered conflicting evidence as to whether Bullard misadvised Harris about the likelihood of success on a motion to suppress prior to Harris’s rejection of the plea offer, as well as about his sentencing exposure if Harris decided to reject the plea offer and proceed to trial. Harris asserts that Bullard told him that he would file a motion to suppress and that, based upon this advice, he rejected a ten-year plea offer. (ECF No. 72-1, at 1.) Harris states, however, that Bullard never filed the motion. (Id.) Harris further asserts that Bullard never advised him that he faced a 600-month sentence if Harris chose to reject the plea offer and proceed to trial, and that Bullard was unaware of the fact that any sentences imposed for convictions under 18 U.S.C. § 924(c) would be consecutive to any other sentence. (ECF No. 74-4, at 1.) Three of Harris’s family members aver that Bullard informed them that Harris only faced between thirteen and eighteen years of imprisonment if he was found guilty. (ECF No. 76-2, at 1; ECF No. 76-3, at 1; [*12] ECF No. 76-5, at 1.) Bullard, however, contends that he told Harris that he would not be filing a motion to suppress, and that Harris’s decision to reject the plea offer “was not connected to any advice given to him regarding any suppression motions.” (Bullard Aff. ¶ 2.) Bullard’s Affidavit is silent with respect to Harris’s assertions regarding advice about his sentencing exposure.
This conflict raises factual issues that cannot be resolved on the current record, as a “determination that counsel’s advice… was a strategic one is a factual determination requiring a credibility determination, or at least the receipt of evidence outside of the present record.” United States v. Dickerson, 546 F. App’x 211,214 (4th Cir. 2013) (citation omitted); see United States v. Robertson, 219 F. App’x 286,286 (4th Cir. 2007) (citations omitted) (noting that an evidentiary hearing is generally “required when a movant presents a colorable Sixth Amendment claim showing disputed material facts and a credibility determination is necessary to solve this issue”). Throughout his pleadings, Harris maintains that he would have accepted the plea offer if counsel had provided a more accurate prediction of the likelihood of success on a motion to suppress, as well as advice regarding his potential sentencing exposure should he choose to go to trial. The sentence Harris received was considerably greater than the ten-year sentence provided in the plea offer. The Court simply lacks enough information to determine whether Bullard reasonably advised Harris about the likelihood of success on a motion to suppress prior to Harris’s decision to reject the plea offer, as well as about potential sentencing exposure if he proceeded to trial. Accordingly, the Court is unable, at this juncture, to conclusively find that Harris is entitled to no relief. See 28 U.S.C. § 2255(b). Thus, Harris has made a sufficient threshold showing to warrant a hearing on these issues. Therefore, the Court will conduct an evidentiary hearing with respect to Claim One.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)
