Ineffective Assistance of Counsel

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Civil

7th Circuit Court of Appeals

Officials: WOOD, Chief Judge, and BAUER and MANION, Circuit Judges

Ineffective Assistance of Counsel

No.13-3889 Israel Ramirez v. United States of America

Failure of counsel to presentence report characterization of appellant crimes and failure to timely request for certificate of appealability necessitates a reversal.

We agree with Ramirez that trial counsel’s performance was deficient. An attorney’s failure to object to an error in the court’s guidelines calculation that results in a longer sentence for the defendant can demonstrate constitutionally ineffective performance. See United States v. Jones, 635 F.3d 909, 916 (7th Cir. 2011). Ramirez points out that sentencing counsel believed at the time that Ramirez had the requisite convictions to make him a career offender. But by that time, Be‐ gay had been decided and counsel should have known that the two Texas convictions were suspect. See Begay, 553 U.S. at 141. Counsel also said that he unsuccessfully had tried to get the Texas records. He complained that he would have had to subpoena them from the Texas county in which Ramirez was convicted, and that this “would have been extremely difficult to do and time consuming.” This lack of desire to uncover the truth was deficient. See Strickland v. Washington, 466 U.S. 668, 690 (1984); Wilson v. Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (deficient performance includes errors arising from “oversight, carelessness, ineptitude, or laziness”). (Ramirez’s new counsel obtained the records with little difficulty, and they are now available to this court.)”

Vacated and remanded.

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.