Criminal procedure – Waiver of appeal – ineffective assistance

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Criminal procedure – Waiver of appeal – ineffective assistance

A waiver of the right to appeal in a plea agreement does not bar a claim that trial counsel was ineffective in negotiating the plea agreement.

“First, he alleged that his trial counsel was ineffective by failing to recognize that the detectives who obtained the critical evidence against him did so in violation of the Fourth Amendment: even though Hurlow apprised him of facts that indicated that the search violated Georgia v. Randolph, counsel refused to listen or investigate further. See Tollet, 411 U.S. at 266–67 (‘Counsel’s failure to evaluate properly facts giving rise to a constitutional claim, or his failure properly to inform himself of facts that would have shown the existence of a constitutional claim, might in particular fact situations meet this standard of proof.’). Second, Hurlow alleged that his decision to plead guilty resulted from counsel’s ineffectiveness. According to Hurlow, counsel failed to inform him that a challenge to the search was possible, and instead ‘persuaded’ and ‘cajoled’ him into pleading guilty by telling him ‘that if [he] did not plead guilty, that [he] would [receive] 30 years to life imprisonment.’ Hurlow alleged that had he known he could ‘contest the unconstitutional and unreasonable search[,]’ he ‘would not have entered into the one-sided government authorized plea agreement’ or ‘pled guilt[.]’ Thus, Hurlow is saying that he would not have agreed to the terms of the plea agreement had his counsel informed him of his potentially meritorious Fourth Amendment claim. Cf. Cieslowski, 410 F.3d at 360 (‘He does not say, however, that he would have not pleaded guilty but for the erroneous advice.’). This is sufficient to overcome the collateral review waiver in his plea agreement.”

Reversed and Remanded.

12-1374 Hurlow v. U.S.

Appeal from the United States District Court for the Southern District of Indiana, Lawrence, J., Bauer, J.

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