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7th Circuit rules trial attorneys not ineffective

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The 7th Circuit Court of Appeals declined to find a defendant's trial attorneys' representation objectively deficient or ineffective pertaining to how they handled a man’s sentencing hearing.

David Swanson was convicted of various fraud, tax and money laundering offenses. At his sentencing hearing in March 2003, his trial counsel filed 13 pages of objections, including one to the four-level U.S.S.G. Section 3B1.1(a) enhancement in two separate paragraphs. That section deals with organized crime.

Swanson’s attorneys did not orally object to the enhancement, and ultimately U.S. District Judge Sarah Evans Barker in the Southern District of Indiana imposed it. Swanson was originally sentenced to 180 months imprisonment, which was later reduced on appeal to 151 months. He appealed again, but this time he raised an objection to the Section 3B1.1(a) enhancement, which he did not raise in his first appeal. The 7th Circuit declined to rule on it since it wasn’t originally raised.

Then Swanson filed his 28 U.S.C. Section 2255 petition maintaining there was no evidence to support that enhancement and that his trial counsel withdrew the objection at sentencing in a way that failed to preserve it for review on his first appeal. The District Court denied it. Barker found that the trial counsel did not intentionally waive or forfeit the objection to the enhancement and extensively advanced Swanson’s interests. She also found Swanson didn’t suffer any prejudice because she believed his sentence wouldn’t have been lower without the enhancement.

The 7th Circuit agreed with Barker, finding the written objections to the application of the enhancement were sufficiently developed. They also disagreed with Swanson that his attorneys waived his objection to the enhancement. Although initially there was miscommunication between an attorney and Barker at the sentencing hearing, that miscommunication is no basis for finding waiver, Judge John Tinder wrote in David H. Swanson v. United States of America, 11-2338.

Swanson also failed to show the attorneys' representation was objectively deficient.

 

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  1. First comment on this thread is a fitting final comment on this thread, as that the MCBA never answered Duncan's fine question, and now even Eric Holder agrees that the MCBA was in material error as to the facts: "I don't get it" from Duncan December 1, 2014 5:10 PM "The Grand Jury met for 25 days and heard 70 hours of testimony according to this article and they made a decision that no crime occurred. On what basis does the MCBA conclude that their decision was "unjust"? What special knowledge or evidence does the MCBA have that the Grand Jury hearing this matter was unaware of? The system that we as lawyers are sworn to uphold made a decision that there was insufficient proof that officer committed a crime. How can any of us say we know better what was right than the jury that actually heard all of the the evidence in this case."

  2. wow is this a bunch of bs! i know the facts!

  3. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  4. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  5. It's a capital offense...one for you Latin scholars..

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