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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. Indianapolis employers harassment among minorities AFRICAN Americans needs to be discussed the metro Indianapolis area is horrible when it comes to harassing African American employees especially in the local healthcare facilities. Racially profiling in the workplace is an major issue. Please make it better because I'm many civil rights leaders would come here and justify that Indiana is a state the WORKS only applies to Caucasian Americans especially in Hamilton county. Indiana targets African Americans in the workplace so when governor pence is trying to convince people to vote for him this would be awesome publicity for the Presidency Elections.

  2. Wishing Mary Willis only God's best, and superhuman strength, as she attempts to right a ship that too often strays far off course. May she never suffer this personal affect, as some do who attempt to change a broken system: https://www.youtube.com/watch?v=QojajMsd2nE

  3. Indiana's seatbelt law is not punishable as a crime. It is an infraction. Apparently some of our Circuit judges have deemed settled law inapplicable if it fails to fit their litmus test of political correctness. Extrapolating to redefine terms of behavior in a violation of immigration law to the entire body of criminal law leaves a smorgasbord of opportunity for judicial mischief.

  4. I wonder if $10 diversions for failure to wear seat belts are considered moral turpitude in federal immigration law like they are under Indiana law? Anyone know?

  5. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

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