IAC Claims in Cross-Burning Case Rejected

U.S. v. Magleby, 2005 WL 1995581 (8/19/05) - Appellate counsel was not ineffective in raising certain challenges in a cross burning case. The possibility of success on appeal was not so great that counsel should have raised the issues when counsel did raise some worthy issues that took the 10th a whole 12 pages in the federal reporter to deal with. The instructions seemed to indicate clearly enough that the defendant could not be convicted of a violation of the victims' civil rights unless actual physical force was threatened. The conspiracy to violate civil rights instructions did erroneously fail to require physical force, but the error was harmless because the jury would have found physical force since it found the defendant guilty on the civil rights charge that required a physical force finding. It was not a First Amendment violation to enhance a sentence under 18 U.S.C. § 844(h)(1) based on the use of fire, even if it was used as a symbol. Threats using fire are particularly threatening and may be punished extra. The fire enhancement of the conspiracy conviction was okay enough so that it wasn't unreasonable for counsel not to raise the issue. The statute requires the fire to be used to commit the felony. The continuing offense of conspiracy did not end before the fire was set, as the defendant claimed.