D.Md.: Def did not go to trial because counsel misstated the chances of success of a suppression motion

Defendant’s ineffective assistance of counsel of counsel claim for allegedly misstating the chances of success of a suppression motion is rejected. It was complex but not frivolous, and it was rejected and affirmed on appeal. Defense counsel didn’t misstate anything. Moreover, defendant always wanted to go to trial, no matter what. United States v. Wilford, 2022 U.S. Dist. LEXIS 117148 (D. Md. July 1, 2022):

In any event, Wilford has not satisfied Strickland’s prejudice prong; that is, he has not shown that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.

In Wilford’s Declaration (ECF 661-1), submitted with the Second Supplement, he asserts that had Purpura described the suppression motions as having very little chance of success, he would have taken the government’s plea offer. But, such a conclusory, self-serving, and post hoc assertion, reflected nowhere else in the record, does not suffice. As the Fourth Circuit has remarked, in the analogous context of a defendant who claims he would not have taken a plea deal but for counsel’s ineffective advice: “[T]he defendant has an incentive to claim, in retrospect, that the result of the plea process would have been different regardless of whether that claim is, in fact, true. … Thus … we require defendants asserting deficiencies in the plea-bargaining process to provide evidence of their sincerity.” United States v. Murillo, 927 F.3d 808, 815-16 (4th Cir. 2019) (emphasis added); see also, e.g., Rosario-Dominguez v. United States, 353 F. Supp. 2d 500, 520 (S.D.N.Y. 2005) (noting that “no testimonial hearing is required” when defendant who went to trial “has submitted only conclusory and/or self-serving affidavits on the issue of whether [defense counsel] communicated plea offers to him”).

As the government notes (ECF 673 at 20), in Purpura’s motion to withdraw (ECF 285), filed in February 2014, he stated, id. ¶ 5:

During this time period counsel entered into plea negations with government counsel and obtained a plea (for a third time federal offender) that could have resulted in a favorable sentence and the return of certain specified assets. Mr. Wilford was fully aware if he were convicted at trial his decision not to negotiate a plea agreement would lead to a mandatory minimum sentence of 20 years up to a maximum sentence of life. Mr. Wilford followed his own advice, declined the government’s offer and demanded full litigation of all legal issues and a trial.

Sounds like some of my clients: “The plea offer is to a mandatory minimum of 10. The wiretap recording is coming in along with the product of the search. And they’re filing an 851 enhancement for 15-life if you don’t take it.” “The plea offer is rejected.”

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