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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. Your article is a good intro the recent amendments to Fed.R.Civ.P. For a much longer - though not necessarily better -- summary, counsel might want to read THE CHIEF UMPIRE IS CHANGING THE STRIKE ZONE, which I co-authored and which was just published in the January issue of THE VERDICT (the monthly publication of the Indiana Trial Lawyers Association).

  2. Thank you, John Smith, for pointing out a needed correction. The article has been revised.

  3. The "National institute for Justice" is an agency for the Dept of Justice. That is not the law firm you are talking about in this article. The "institute for justice" is a public interest law firm. http://ij.org/ thanks for interesting article however

  4. I would like to try to find a lawyer as soon possible I've had my money stolen off of my bank card driver pressed charges and I try to get the information they need it and a Social Security board is just give me a hold up a run around for no reason and now it think it might be too late cuz its been over a year I believe and I can't get the right information they need because they keep giving me the runaroundwhat should I do about that

  5. It is wonderful that Indiana DOC is making some truly admirable and positive changes. People with serious mental illness, intellectual disability or developmental disability will benefit from these changes. It will be much better if people can get some help and resources that promote their health and growth than if they suffer alone. If people experience positive growth or healing of their health issues, they may be less likely to do the things that caused them to come to prison in the first place. This will be of benefit for everyone. I am also so happy that Indiana DOC added correctional personnel and mental health staffing. These are tough issues to work with. There should be adequate staffing in prisons so correctional officers and other staff are able to do the kind of work they really want to do-helping people grow and change-rather than just trying to manage chaos. Correctional officers and other staff deserve this. It would be great to see increased mental health services and services for people with intellectual or developmental disabilities in the community so that fewer people will have to receive help and support in prisons. Community services would like be less expensive, inherently less demeaning and just a whole lot better for everyone.

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