On Rehearing, Tenth Again Rejects IAC Claim But On More Nuanced Grounds

U.S. v. Flowers, 2006 WL 2604607 (9/12/06, 3/22/06) - As you no doubt recall, this case was decided 6 months ago. However, the defendant's rehearing petition prompted the court to more thoughtfully consider the defendant's ineffective assistance-§ 851(a) notice claim before rejecting it once again. The defendant asserted his counsel unreasonably failed to object to the government's improper service of the notice of an § 851(a) enhancement (prior drug felony conviction). Contrary to its initial holding, the 10th holds this time that faxing the notice was not proper notice since the defendant did not consent to fax service, as required by Fed. R. Civ. P. 5(b)(2)(D), which is applicable to criminal cases by virtue of Fed. R. Crim. P. 49(b). Strict compliance with § 851 is required. But, counsel did not act unreasonably in failing to raise the invalid service question because counsel could have legitimately believed doing so at the plea hearing stage would only result in a continuance and proper service. Doing so later would violate the plea agreement, since acknowledging the prior conviction and its effect on sentencing was part of the plea agreement. It would not have resulted in a dismissal of the enhancement.