Ineffective Assistance of Counsel

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7^th Circuit Court of Appeals

Case Name: Franchie Farmer v. United States of America

Case No.: 15-1483

Officials: POSNER, WILLIAMS, and SYKES, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In 2012 a jury convicted Franchie Farmer of armed bank robbery, see 18 U.S.C. § 2113(a) and (d), and brandishing a firearm during a crime of violence, see id. § 924(c)(1)(A)(ii). Farmer drove the getaway car and was not in the bank during the robbery. Her convictions were thus premised on an accomplice theory of liability as an aider or abettor under 18 U.S.C. § 2.

In 2014 the Supreme Court held that a § 924(c) conviction under an accomplice theory requires proof that the accomplice had “foreknowledge that his confederate [would] commit the offense with a firearm.” Rosemond v. United States, 134 S. Ct. 1240, 1249 (2014) (quotation marks omitted). The jury at Farmer’s trial was not instructed on a foreknowledge requirement for the § 924(c) charge. Understandably so; her trial predated Rosemond by two years. Nor did her counsel challenge the § 924(c) instruction, either at trial or in her direct appeal. See United States v. Farmer, 717 F.3d 559 (7th Cir. 2013) (affirming the district court on all counts).

Farmer did challenge the instruction, albeit obliquely, in a motion under 28 U.S.C. § 2255 after Rosemond was decided. She argued that her trial counsel was constitutionally ineffective for failing to object to the § 924(c) instruction. The district judge denied relief because Farmer failed to establish that she was prejudiced by her counsel’s failure to object.

Farmer’s argument has shifted somewhat on appeal. She now raises the Rosemond issue directly rather than through the prism of trial counsel’s ineffectiveness. Farmer procedurally defaulted this claim and must establish cause and actual prejudice to excuse the default. She hasn’t done so. The government presented plenty of evidence that Farmer had advance knowledge that a gun would be used in the robbery, so the Rosemond error was not grave enough to cause actual prejudice. We affirm.

Affirmed

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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.