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US Supreme Court beefs up standard for ineffective assistance appeals

Federal courts taking up ineffective assistance-based appeals involving plea bargains must apply a “doubly deferential” standard of review that gives significant weight to state court determinations, the U.S. Supreme Court has ruled, reversing a 6th U.S. Circuit Court of Appeals ruling in Burt v. Titlow, No. 12-414.

The decision gave the justices one of their first opportunities to clarify the limits of the right to counsel at the plea bargaining stage established by the 2011 ruling in Lafler v. Cooper, No. 10-209.

In Titlow, the 6th Circuit held that a Michigan murder defendant must be reoffered a favorable plea deal that she accepted but later rejected after consulting with an attorney she claimed gave deficient counsel. The defendant was ultimately convicted of second-degree murder and given a harsher sentence than what was offered in the plea deal.

But the Supreme Court found that the defendant’s proclamation that she was swayed by bad advice was not enough to trump the Michigan Court of Appeals’ determination that her attorney acted reasonably.

“[T]he Antiterrorism and Effective Death Penalty Act of 1996 and Strickland v. Washington do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attorneys,” Justice Samuel Alito Jr. wrote in the court’s unanimous ruling.

Claim of innocence

The case involved Vonlee Titlow, a transgender woman who was named Harry Titlow at the time she allegedly helped her aunt murder her uncle. The state claimed Titlow poured alcohol down the uncle’s throat before her aunt suffocated him with a pillow, and that Titlow’s aunt paid her $100,000 for her help and silence. Titlow used some of the funds for gender reassignment surgery.

Titlow, who claims she is innocent, originally agreed to plead guilty to manslaughter with a 15-year sentence in exchange for testifying against her aunt. She later asserted that while she was in custody a sheriff’s deputy advised her not to plead guilty if she was innocent and referred her to attorney Fred Toca.


After Toca advised her to withdraw her plea acceptance, Titlow claimed, she went to trial and was subsequently convicted of second-degree murder and sentenced to 20 years. Toca has since been disbarred for a number of ethical violations, including accepting the publication rights to Titlow’s story as partial payment.

Titlow appealed her conviction, arguing that Toca was ineffective because he failed to conduct any investigation. The Michigan Court of Appeals rejected that argument, finding that the advice offered by Toca came after Titlow’s own proclamation of her innocence.

But the 6th Circuit granted habeas relief, ordering the state to reoffer Titlow the plea arrangement despite the fact that her aunt had been acquitted and had since died.

The court noted that unlike other jurisdictions, the 6th Circuit “does not require that a defendant must support his own assertion that he would have accepted the offer with additional objective evidence.”

But the Supreme Court held that a higher burden of proof was required to show that the state court’s determination was unreasonable.

“The record readily supports the Michigan Court of Appeals’ factual finding that Toca advised withdrawal of the guilty plea only after respondent’s proclamation of innocence,” Alito wrote. “[W]e recognize that Toca’s conduct in this litigation was far from exemplary. He may well have violated the rules of professional conduct by accepting respondent’s publication rights as partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case.

“But the Sixth Amendment does not guarantee the right to perfect counsel; it promises only the right to effective assistance, and we have held that a lawyer’s violation of ethical norms does not make the lawyer per se ineffective.”

Alito’s opinion was joined by all but Justice Ruth Bader Ginsburg, who filed a concurrence. Justice Sonia Sotomayor, who joined Alito’s opinion, also filed a separate concurring opinion.

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