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Ineffective counsel claim sufficient to overcome waiver in plea agreement

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Despite a man’s plea agreement in which he waived his right to challenge his conviction under 28 U.S.C. 2255, the 7th Circuit Court of Appeals ruled he can seek to have his conviction overturned because the 2255 waiver does not bar his claim that his trial counsel was ineffective.

Thomas Hurlow was arrested on multiple drug and firearm charges after detectives with the Vigo County Drug Task Force searched his home. The defendant claimed he told his appointed trial counsel the circumstances surrounding the search that led to his arrest, arguing that his rights had been violated.

According to Hurlow, the attorney failed to listen and instead convinced him to plead guilty to avoid a sentence of 30 years to life. The plea contained a provision that Hurlow agree not to contest his conviction or sentence in a collateral attack under 28 U.S.C. 2255.

After the District Court accepted his plea and sentenced him to 248 months imprisonment, Hurlow filed a motion for post-conviction relief pursuant to 28 U.S.C. 2255, arguing, in part, that his plea agreement was involuntary because it resulted from the ineffective assistance of trial counsel.

The District Court denied his 2255 motion on the grounds that the waiver in the plea agreement barred Hurlow’s motion.

In Thomas H. Hurlow v. United States of America, 12-1374, the 7th Circuit reversed the district court’s denial of Hurlow’s petition and remanded for further proceedings.

The 7th Circuit explained to overcome the wavier provision in his plea agreement Hurlow cannot just assert that his trial counsel was ineffective for failing to raise the constitutional claim. He must allege that he entered into the plea agreement based on the advice of counsel that fell below constitutional standards.

In view of this standard, the 7th Circuit concluded Hurlow’s allegations in his 2255 petition were sufficient to trump the waiver in his plea. He first argued that his trial counsel failed to recognize the search violated his Fourth Amendment rights. Then he claimed that had he known he could contest the unconstitutional and unreasonable search, he would not have entered to the plea agreement.  

“It is not surprising that Hurlow said he was satisfied with counsel; when he told his counsel about the facts surrounding the search, his lawyer ignored him,” Judge Ilana Rovner wrote for the court. “Thus, his statement to the district court was made against the backdrop of his ignorance regarding the possibility of a successful motion to suppress.”
 

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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