Monday, April 14, 2014

"A Tale of Woe" Insufficient to Prove Ineffective Assistance

U.S. v. Tuakalau, 2014 WL 1303295 (4/2/14) (Ut.) (unpub'd) - The 10th indicates it expects very little from defense counsel when the defendant alleges ineffective assistance of counsel. Counsel was not deficient in failing to anticipate that the government would pursue a RICO prosecution against the defendant based on the offenses he pleaded guilty to and others that were dismissed pursuant to a plea agreement. This circumstance is different from anticipating deportation in Padilla because that was presumptively mandatory whereas the RICO prosecution was discretionary. And there was no prejudice shown anyway because surely the defendant would have taken the plea offer, regardless of the RICO possibility, because he faced 185 years and was guaranteed 30 under the agreement. His "rosy" prediction that counsel's pursuit of a motion to suppress his statements would have succeeded was "speculative." In any event, the RICO prosecution was eventually dismissed. The "stress, trauma and notoriety" resulting from the prosecution was not the kind of prejudice for which ยง 2255 relief is available under Strickland. As the 10th so sympathetically sums it up: "More than a tale of woe is required."