John J. Keller

A. Petitioner’s Attorneys Were Prejudiciously Ineffective By Not Telling Him About The Government’s Request For Negotiations And Cooperation, And For Failing To Pursue Plea Negotiations, Discuss A Plea With Him, Or Advise Him Of The Comparative Sentencing Range. The constitutional right to counsel applies to all “critical stages” of a criminal prosecution, including proceedings that occur prior to a grand jury indictment. Meadows v. Kuhlman, 812 F.2d 72, 76 (2d Cir. 1987). Nonetheless, Jones failed to tell his client about the government’s early preindictment request for a meeting, negotiations, and cooperation. It is unknown if any of Miller’s attorneys received any formal plea offers, but if so they did not tell him. They clearly did not pursue plea negotiations. They also did not advise him of the advisability of a guilty plea, and did not discuss with him his comparative sentencing exposure. 1. The Defendant Has A Constitutional Right To Effective Assistance Of Counsel During The Plea Negotiations Process; Counsel Has The Duty To Convey All Offers To The Client And To Provide Him With His Informed Opinion Regarding What Plea The Client Should Enter. “The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages.” Missouri v. Frye, 566 U.S. ____ (2012) (Slip op., at 7). The Court also stated that plea bargaining “is not some adjunct to the criminal justice system. It is the criminal justice system.” Id. (quoting Scott & Stuntz, Plea Bargaining As Contract, 101 Yale L.J. 1909, 1912 (1992)). In today’s criminal justice system, therefore, the negotiation of a plea bargain, rather than the unfolding of a trial, is almost always the critical point for a defendant. Id., Slip op. at p. 8. As a result, criminal defendants “require effective counsel during plea negotiations.” Id. In Missouri v. Frye, defense counsel did not communicate plea offers to the defendant, and the offers then lapsed. The Supreme Court held that to be prejudicial ineffectiveness. In a companion case to Frye, the Supreme Court in Lafler v. Cooper, supra, rejected the idea that there can be no finding of Strickland prejudice arising from plea bargaining if the defendant is later convicted at a fair trial. Lafler v. Cooper, Slip op., at 5-6. Similarly, the Second Circuit recognizes that the decision whether to plead guilty is ordinarily the most important single decision in a criminal case, and counsel must advise his client on it. Boria v. Keene, 99 F.3d 492, 496-97 (2d Cir. 1996). Prior to trial an accused is entitled to rely on counsel to make an independent examination of the facts, circumstances, and laws involved and then to provide his informed opinion as to what plea should be entered. Id. at 497 (emphasis provided) (citing Van Moltke v. Gillies, 332 U.S. 708, 721 (1948)). That was not done in the instant case. “Knowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” United States v. Gordon, 156 F.3d 376, 380 (2d Cir. 1998) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). If a defendant relies on counsel’s erroneous advice regarding plea negotiations and the risks of going to trial, the client’s decision to reject negotiations, maintain his innocence and go to trial, is prejudicial ineffectiveness. Gordon, at 380. Also, “[w]hether the government had made a formal plea offer was irrelevant because Gordon was nonetheless prejudiced because he did not have accurate information upon which to make his decision to pursue further plea negotiations or go to trial.” Id. In the case sub judice Petitioner is not aware of any formal plea offers being made. As in Gordon, he nonetheless suffered prejudice because his attorneys did not give him the information necessary to make an informed decision. It is also well settled that criminal defense counsel must convey all plea offers to the client, and are under a “constitutional duty to give their clients professional advice on the crucial decision of whether to accept a plea offer from the government.” Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing Boria v. Keene, 99 F.3d 492, 497-98 (2d Cir. 1996)). Additionally, counsel “must give the client the benefit of counsel’s professional advice on this crucial decision” of whether to plead guilty. Boria, 99 F3d at 497 (quoting Anthony G. Amsterdam, Trial Manual 5 for the Defense of Criminal Cases (1988). See Model Rules of Professional Conduct, Rule 1.4(1995) (“A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representations.”). Counsel should inform the defendant of the strengths and weaknesses of the case against him, as well as the alternative sentences to which he will most likely be exposed. Purdy v. United States, 208 F.3d41, 45 (2d Cir. 2000). Accord, Gordon, 156 F.3d at 380 (counsel must inform defendant of his maximum sentencing exposure if he were to be convicted after trial). In this case, Miller’s attorneys failed entirely in their responsibilities.