Issues
Whether a defendant is entitled to habeas relief when that defendant received constitutionally defective advice from counsel during plea bargain negotiations, subsequently rejected a plea offer based on that defective advice, and ultimately was convicted and sentenced to a more severe sentence after a fair trial.
In 2003, Respondent Anthony Cooper faced trial for assault with intent to murder. Prosecutors offered Cooper two plea deals carrying lesser sentences than he would have received under the sentencing guidelines. Pursuant to the advice of his trial counsel, Cooper rejected both offers and received a sentence demonstrably longer than either plea offer. Cooper claims that the Sixth Amendment guarantees effective assistance of counsel at all critical stages of a criminal proceeding, including the plea bargaining process. Cooper argues that his trial counsel’s ineffective assistance prejudiced his trial, and that he is entitled to reinstatement of the plea offer. Petitioner Blaine Lafler argues that rejection of a plea bargain is not a critical stage. Lafler contends that Cooper is not entitled to relief because Cooper received a fair trial and no Sixth Amendment violation occurred. This case will determine the availability of habeas relief to a defendant who may have received constitutionally defective advice from counsel during plea bargaining negotiations.
Questions as Framed for the Court by the Parties
Is a state habeas petitioner entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial?
What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?
Facts
On March 25, 2003, Anthony Cooper shot Kali Mundy four times below the waist. Mundy survived and was hospitalized, and Cooper was arrested and charged with Assault with Intent to Murder ("AWIM"”), Possession of a Firearm by a Felon, Possession of a Firearm in the Commission of a Felony, and Possession of Marijuana.
The State offered Cooper a plea bargain of 51–85 months imprisonment if Cooper pled guilty to AWIM. Cooper rejected this offer on the advice of his counsel, who advised him that the state could not prove AWIM at trial because Cooper had only shot Mundy below the waist. Cooper’s counsel thought that Cooper would receive a better plea offer at a later date, and hoped to receive an offer to plead guilty to Assault with Intent to do Great Bodily Harm Less than Murder, with a sentence of 18–84 months imprisonment.
On the first day of trial, Cooper indeed received another plea offer for 126–210 months imprisonment if Cooper pled guilty to AWIM. Cooper also rejected this second offer on the advice of his counsel. After trial, a jury convicted Cooper of AWIM and the presiding judge sentenced Cooper to 185–360 months imprisonment. After his conviction, Cooper filed a motion for post-conviction relief, alleging that his counsel provided ineffective assistance of counsel during the plea bargain stage. Cooper argued that he would have accepted the plea bargain and pled guilty to AWIM, if not for his counsel’s advice.
The Michigan state trial court rejected Cooper’s claims, holding that Cooper “made his own choices” in rejecting the plea bargain. The Michigan Court of Appeals affirmed, holding that Cooper’s attorney did not provide deficient advice, and that Cooper knowingly and intelligently chose to reject the plea offers and go to trial. The Michigan Supreme Court denied certiorari.
Cooper then petitioned the Federal District Court for the Eastern District of Michigan for habeas relief, based on the claim that his counsel had provided deficient assistance during plea bargain negotiations. The district court granted Cooper’s petition for relief, and the United States Court of Appeals for the Sixth Circuit unanimously affirmed, holding that the trial counsel’s assistance was deficient because he erroneously informed Cooper that there was insufficient evidence to convict him of AWIM. The Sixth Circuit further held that the attorney’s advice prejudiced Cooper because Cooper decided to go to trial based on his attorney’s advice. On January 7, 2011, the Supreme Court granted certiorari.
Analysis
The Sixth Amendment of the United States Constitution guarantees effective assistance of counsel during all “critical stages” of criminal proceedings. Respondent Anthony Cooper contends that he was prejudiced by his trial counsel’s ineffective assistance during the plea bargaining process. Cooper further contends that, given his counsel’s poor advice and the consequent Sixth Amendment violation, the appropriate remedy is a conditional writ reinstating the original plea offer. In opposition, Blaine Lafler argues that Cooper’s trial counsel’s ineffective assistance and advice did not violate Cooper’s Sixth Amendment rights, given that Cooper received a fair trial with a reliable result. Therefore, Lafler argues, Cooper was not prejudiced and is not entitled to relief.
Is Plea Bargaining a Critical Stage Requiring Effective Assistance of Counsel?
Lafler concedes that the acceptance of a plea offer is a critical stage in criminal proceedings, basing this conclusion on the Supreme Court's holdings in Padilla v. Kentucky, Iowa v. Tovar, and Hill v. Lockhart. Lafler contends, however, that the extension of this principle to the rejection of a plea offer remains undecided.
Cooper insists that the negotiation of a plea bargain is a critical stage in criminal proceedings. Cooper contends that effective counsel is necessary during the plea bargaining process so that a defendant may determine what he may be guilty of, and what the prosecutor may be able to prove at trial. Cooper states that Lafler’s position is contrary to the Supreme Court’s decision that a defendant is entitled to effective assistance of counsel during the negotiation of a plea bargain.
Did Cooper Demonstrate that his Trial Attorney Provided Ineffective Assistance?
Lafler contends that the Supreme Court’s decision in Strickland v. Washington, which established a two-prong test for demonstrating ineffective assistance of counsel, requires the defendant to show that the ineffective assistance of counsel resulted in the defendant receiving an unfair trial. Under the Strickland test, a defendant must prove that (1) counsel’s performance was deficient, and (2) that the “deficient performance prejudiced the defense.” Lafler notes that the Court further defined the Strickland prejudice test in Lockhart v. Fretwell, which provided that a defendant must prove that his attorney’s performance deprived him of a substantive or procedural right. Lafler argues that, because Cooper received a fair trial and his rejection of the plea offer did not impact the trial’s ultimate outcome, Cooper experienced no prejudice under Strickland. Lafler also argues that Cooper is unable to show that his attorney’s ineffective advice resulted in a substantive or procedural violation, because there is no constitutional right to plea offers or to particular plea offers.
In opposition, Cooper argues that his trial counsel’s ineffective assistance and poor advice during the plea bargaining process had a prejudicial impact. Rather than concentrate on the impact his ineffective counsel had on the ultimate outcome of the trial, Cooper focuses his argument on whether the ineffective counsel affected the outcome of the plea bargaining process. Cooper states that he demonstrated a reasonable probability that, but for the ineffective counsel’s advice, Cooper would have accepted the plea deal. Cooper argues that it is likely he would have accepted the plea deal if he had known that the minimum sentence he could receive at trial was ten years longer than the sentence offered in the plea deal.
Are the Michigan State Court Decisions Entitled to AEDPA Deference?
Lafler argues that Cooper’s habeas petition must fail because the Michigan state court decisions are entitled to deference. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court cannot grant habeas relief unless a state court ruling violated “clearly established” federal law. Lafler argues that the Michigan Court of Appeals decision, which contained limited reasoning, is entitled to deference under Harrington v. Richert, which gave AEDPA deference to an order containing no reasoning. Lafler contends that the Michigan trial court decision is also entitled to deference, because the Court of Appeals decision contained limited reasoning; therefore, the trial court decision is the last state court decision explaining the basis for its decision.
In response, Cooper argues that neither state court decision is entitled to AEDPA deference because both state courts decided the case under the wrong legal test. In particular, Cooper contends that the Michigan Court of Appeals did not use the established Strickland test to examine the validity of the guilty plea, but rather applied an incorrect standard. Cooper argues that the Michigan Court of Appeals should have considered whether Cooper’s trial attorney’s advice was within the level of competence required of attorneys in criminal cases, rather than whether Cooper knowingly and intelligently rejected the plea offer. Cooper further argues that, even if the state court decisions were entitled to AEDPA deference, they would fail under AEDPA review because Cooper’s trial attorney’s knowledge of the law was less than that of a reasonably competent attorney.
What is the Appropriate Remedy for Ineffective Assistance of Counsel?
Lafler contends that there is no appropriate remedy for a defendant who rejects a plea offer because of ineffective assistance of counsel. Lafler states that it is impossible to recreate and balance the risks and incentives that existed before the defendant received a fair trial. Lafler further argues that reinstating a plea offer or releasing a defendant would place the defendant in a better position than he would have been in before the ineffective assistance of counsel. Lafler asserts that it would also be inappropriate to conduct a new trial, because this remedy is unrelated to the harm that the ineffective assistance caused. Lafler contends that it does not make sense tohold a new trial because this will unnecessarily expend state resources and could result in the defendant's acquittal if evidence is unavailable at the second trial.
Cooper argues that the appropriate remedy is a conditional writ reinstating the plea offer. Cooper contends that reinstatement of the plea offer is proper because federal courts have broad discretion to dispose with federal habeas petitions under the federal habeas statute, 28 U.S.C. § 2243. Cooper argues that reinstatement of the plea offer is narrowly tailored to the harm that Cooper suffered as a result of his attorney’s ineffective performance; it would restore Cooper to the position he would have been in, but for the Sixth Amendment violation. Cooper further argues that a remedy of reinstatement will not encourage defendants to reject a plea offer, go to trial, and later claim ineffective assistance of counsel if they are upset with the conviction and sentence.
Discussion
In this case, the Supreme Court will determine whether a habeas petitioner is entitled to relief where his counsel gives him deficient advice during plea bargain negotiations and, after a fair trial, he is convicted of a crime. The decision in this case will affect the incentives of defendants and counsel during plea bargaining, and the number of petitions for post-conviction relief that defendants file with the courts.
Proper Incentives during the Plea Bargaining Process
Petitioner Lafler argues that allowing habeas relief for deficient advice of counsel during the plea bargain stage will distort the relationship between a defendant and the prosecutor, creating perverse incentives during the plea bargain stage. . Lafler asserts that allowing habeas relief for ineffective assistance of counsel during plea bargaining will lead to more reinstatements of plea bargains after trial, which will, in turn, discourage prosecutors from offering such plea bargains to defendants in the first place. Lafler further argues that allowing habeas relief will create poor incentives for defendants and their counsel, because it will give defendants two chances to accept a plea offer. Lafler contends that this will allow defendants to wait for the outcome of the trial, and then to demand that the prosecutor reinstate the plea offer on the grounds of ineffective assistance of counsel (if the defendants are dissatisfied with the verdict). In Lafler’s view, this would reduce the number of plea offers that defendants accept before trial, creating a large and unnecessary strain on law enforcement and prosecutors. The United States adds that allowing habeas relief will create incentives for defendants and their attorneys to collude in requesting a more lenient sentence, then arguing that the defendant pled not guilty in reliance upon his counsel’s advice.
Cooper responds that allowing habeas relief for deficient advice of counsel at the plea bargain stage will improve the incentives of defendants and counsel during plea bargaining. Cooper distinguishes between (1) cases where defendants are challenging their counsel’s strategic decisions, and (2) cases where defendants are challenging the counsel’s advice regarding the elements of the crime. Cooper argues that allowing habeas relief for attorney miscommunication of the elements of the crime will improve the effectiveness of plea bargaining, where defendants rely on their attorneys’ advice when deciding whether to accept a plea offer. The Center on the Administration of Criminal Law (“the Center”) adds that prosecutors possess vastly more information than defendants during plea bargaining negotiations, and that defendants would be at a disadvantage in this process without competent counsel.
Cooper rejects Lafler’s argument that allowing relief for an attorney’s bad advice during plea bargaining will cause defendants to decline a plea offer and take the risk of receiving a harsher sentence with the hope of petitioning for post-conviction relief. . Cooper contends that courts are able to distinguish counsel’s decisions about trial strategy from error that will harm the defendant. The American Bar Association adds that defense attorneys are unlikely to deliberately collude with defendants to reject plea offers (later demanding that prosecutors reinstate the plea offer if dissatisfied with the outcome of the trial) because it would subject attorneys to disciplinary sanctions.
Increase in Post-Conviction Claims
Lafler argues that allowing habeas relief based upon an attorney’s ineffective assistance during the plea bargaining stage will increase the amount of claims that defendants file for post-conviction relief. . Lafler asserts that, if defendants could file habeas petitions based upon an attorney’s advice during plea bargaining, every defendant whose attorney offered a reasonable but mistaken forecast of the likely outcome of the trial or the sentence could raise a claim of ineffective assistance of counsel.
Cooper responds that allowing habeas relief for ineffective assistance during plea bargaining will not flood the courts with post-conviction petitions because most criminal cases end in a guilty plea, and it is difficult for defendants to prove an ineffective assistance of counsel claim. The Center adds that other cases expanding habeas relief have not caused an increase in the amount of post-conviction claims.
Conclusion
The Sixth Amendment of the United States Constitution requires that defendants receive effective assistance of counsel at all critical stages of a criminal proceeding. Both parties agree that Respondent Cooper received incorrect advice from his counsel that led him to reject two plea offers. Cooper argues that the plea bargaining process is a critical stage of a criminal proceeding requiring effective assistance of counsel. Cooper contends that his trial counsel’s ineffective assistance of counsel during the plea bargaining process resulted in a violation of his Sixth Amendment rights, entitling him to a conditional writ reinstating the plea offer. In opposition, Petitioner Lafler argues that Cooper received a fair trial, was not prejudiced by the ineffective assistance, and is not entitled to reinstatement of the plea offer. This case will impact the availability of habeas relief on the grounds of ineffective assistance of counsel to defendants who reject a favorable plea bargain and are later convicted and sentenced at trial.
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Acknowledgments
Additional Resources
Am. Crim. L. Rev., Genny Ngai: Lafler v. Cooper: Attorney Mistakes, Plea Bargaining, and Remedies (Sept. 25, 2011)
Bizarro Law, LLC: High Court to Tackle Ineffective Assistance (Jan. 20, 2011)