Ineffective Assistance of Counsel

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7^th Circuit Court of Appeals

Case Name: Tyrone Kirklin v. United States of America

Case No.: 17-1056

Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.

Focus: Ineffective Assistance of Counsel

For the second time we review Tyrone Kirklin’s conviction for aiding and abetting a robbery where his co‐conspirator brandished the guns he gave her. In Kirklin’s first appeal, we found that the district judge erred by making the brandishing finding rather than requiring a jury to make this determination. The district judge had acted in accord with controlling Supreme Court precedent at the time.

After oral argument in Kirklin’s first appeal, the Supreme Court overruled its controlling precedent and held that the brandishing determination must be made by a jury. Because that later case controlled, we found the judge had erred. Nevertheless, we affirmed Kirklin’s conviction and sentence because his attorney did not raise the issue in the district court, and we found the error was not a plain error requiring reversal despite the lack of objection. United States v. Kirklin, 727 F.3d 711 (7th Cir. 2013).

Under 28 U.S.C. § 2255, Kirklin now asserts that his attorney’s failure to object in the district court amounted to ineffective assistance of counsel in violation of the Sixth Amendment. We disagree. The constitutional standard for performance under the Sixth Amendment does not require a criminal defense attorney to anticipate that the Supreme Court is about to overrule its controlling precedent, at least not in these circumstances, before the Supreme Court had granted review in a case presenting the question whether to overrule the controlling precedent. We affirm the district court’s denial of Kirklin’s motion to vacate his conviction.

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.