ILNews

Ineffective counsel claim sufficient to overcome waiver in plea agreement

Back to TopCommentsE-mailPrintBookmark and Share

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.”
 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

  2. Don't we have bigger issues to concern ourselves with?

  3. Anyone who takes the time to study disciplinary and bar admission cases in Indiana ... much of which is, as a matter of course and by intent, off the record, would have a very difficult time drawing lines that did not take into account things which are not supposed to matter, such as affiliations, associations, associates and the like. Justice Hoosier style is a far departure than what issues in most other parts of North America. (More like Central America, in fact.) See, e.g., http://www.theindianalawyer.com/indiana-attorney-illegally-practicing-in-florida-suspended-for-18-months/PARAMS/article/42200 When while the Indiana court system end the cruel practice of killing prophets of due process and those advocating for blind justice?

  4. Wouldn't this call for an investigation of Government corruption? Chief Justice Loretta Rush, wrote that the case warranted the high court’s review because the method the Indiana Court of Appeals used to reach its decision was “a significant departure from the law.” Specifically, David wrote that the appellate panel ruled after reweighing of the evidence, which is NOT permissible at the appellate level. **But yet, they look the other way while an innocent child was taken by a loving mother who did nothing wrong"

  5. Different rules for different folks....

ADVERTISEMENT