Ineffective Assistance of Counsel

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7^th Circuit Court of Appeals

Case Name: Ivy T. Tucker v. United States of America

Case No.: 16-4182

Officials: BAUER, SYKES, and BARRETT, Circuit Judges.

Focus: Ineffective Assistance of Counsel

In 2010, a jury convicted Petitioner Ivy Tucker of conspiring to distribute more than one gram of heroin in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He was sentenced to 40 years’ imprisonment after the district court found that his drug distribution resulted in a death. After his conviction was affirmed on direct appeal, Tucker filed a petition pursuant to 28 U.S.C. § 2255, alleging that he received ineffective assistance of counsel. The district court denied his petition, and this appeal followed.

Regardless, the question of whether Tucker’s counsel should have known, based on existing case law, to make the argument is not dispositive in this case because he made a strategic decision not to do so. By agreeing to the stipulation, he made the reasonable calculation that his client would be better off if the jury did not hear any evidence regarding the resulting death. It would lead to an absurd result if Tucker were able to gain the benefit of taking that factual issue away from the jury, only to turn around and argue that the district court was also barred from resolving it. Because the issue was not yet settled in this Circuit, and because Tucker’s counsel made a reasonable tactical decision, we cannot say that the failure to object to the application of the enhancement constituted deficient performance. See Johnson, 624 F.3d at 792. For the foregoing reasons, the judgment of the district court is AFFIRMED.

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.