Wake Forest Law Review

By Ali Fenno

On November 23, 2016, the Fourth Circuit issued a published opinion in the criminal case of Rodriguez v. Bush.  In Rodriguez, the Fourth Circuit addressed whether the failure of Nicanor Perez Rodriguez’s (“Rodriguez”) trial counsel, James Ervin (“Ervin”), to object to a trial judge’s rejection of Rodriguez’s plea agreement constituted “ineffective assistance of counsel” that justified relief under 28 U.S.C. § 2254.  After applying a deferential review standard for ineffective assistance and state-adjudicated § 2254 claims, the Fourth Circuit held that Ervin’s conduct did not constitute “ineffective assistance of counsel” because the alleged omitted objection would have been meritless and thus did not prejudice Rodriguez’s case.  Accordingly, the Fourth Circuit affirmed the trial court’s denial of Rodriguez’s § 2254 petition.

Factual and Procedural Background

In 2006, a South Carolina trial court convicted Rodriguez on multiple counts of drug trafficking and sentenced him to 45 years’ imprisonment.  He had accepted a plea agreement on the first day of trial that recommended a 20-year sentence, but the plea agreement had been rejected by the trial judge without explanation the very same day.

In 2010, Rodriguez filed a motion for post-conviction relief (the “PCR Motion”), alleging that the rejection of the plea agreement constituted a violation of his federal due process rights and that Ervin provided ineffective assistance of counsel by failing to object to the rejection and thus preserve the issue for appeal.  The state court denied the PCR Motion, holding that Rodriguez failed to show that (1) Ervin should have objected to the plea deal, and (2) Ervin’s failure to object prejudiced Ervin’s case.  The Supreme Court of South Carolina affirmed.

Rodriguez then filed this § 2554 petition in the United States District Court for the District of South Carolina.  The district court denied the petition, and Rodriguez appealed.

Issues on Appeal and Standard of Review

In deciding whether Rodriguez’s § 2254 petition should have been granted, the Fourth Circuit first identified a de novo standard of review for § 2554 issues.  But it then noted that § 2254(d) only permits a federal court to grant a § 2254 petition previously adjudicated by a state court on the merits when the state court adjudication:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

The court then reasoned that because the trial court addressed whether Ervin’s conduct constituted “ineffective assistance of counsel” to deny Rodriguez’s PCR Motion, the § 2254 petition could only be granted if the Fourth Circuit determined that the state court unreasonably applied the “ineffective assistance of counsel” standard.  The Fourth Circuit identified the correct standard as a two-pronged test articulated in Strickland v. Washington, which enables a party to prevail on an ineffective assistance of counsel claim if he or she demonstrates that (1) “counsel’s performance was deficient” and (2) “the deficient performance prejudiced the defense.”  Accordingly, the single issue on this appeal was whether any reasonable argument could be made that Ervin satisfied the Strickland test.

Failure to Meet Strickland’s Prejudice Prong

To address this issue, the Fourth Circuit first noted that pursuant to Harrington v. Richter, review of the Strickland test is highly deferential to the state court, and “doubly” deferential when applied in conjunction with § 2554.  The court then looked at the prejudice prong of the Strickland test, reasoning that it did not need to first address the issue of a deficiency because it would be so easy to dispose of the ineffectiveness claim on prejudice grounds.  It articulated that to demonstrate prejudice, a petitioner “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”  The court further defined a reasonable probability as “a probability sufficient to undermine confidence in the outcome,” and noted that, pursuant to Lockhart v. Fretwell, a petitioner will not show prejudice if the “omitted objection” is “wholly meritless under current governing law.”

In applying these rules to the facts of Rodriguez, the court concluded that the Ervin’s “omitted objection” to the rejection of the plea agreement was “wholly meritless.”  To come to this conclusion, it noted that in Missouri v. Frye, Santobello v. New York, and Lafler v. Cooper the Supreme Court clearly articulated that there is no federal due process right that a plea agreement be accepted by a judge.  Thus, the Fourth Circuit determined that any objection made by Ervin asserting that the plea agreement’s rejection violated Rodriguez’s federal due process rights would have been entirely without merit.  Accordingly, Rodriguez was not prejudiced by Ervin’s failure to make a meritless claim, and Ervin’s omission did not amount to an “ineffective assistance of counsel” justifying relief under § 2254.

Conclusion

Because Ervin’s omitted objection was wholly meritless, the Fourth Circuit determined that it was reasonable for the district court to conclude that Rodriguez did not demonstrate the requisite prejudice for an ineffective assistance of counsel claim.  Accordingly, the Fourth Circuit affirmed the district court’s judgment, holding that the district court did not err when it denied Rodriguez’s request for relief under 28 U.S.C. §2254.

By M. Allie Clayton

Today, in the criminal case of United States v. Powell, a published opinion, the Fourth Circuit affirmed the District Court in holding that a juror’s statement of “everything would be alright” and that the father needed to give his son “a good kick in the butt” was too ambiguous to establish actual juror bias.  Because the statement was ambiguous, Powell’s counsel’s response was within the range of competent representation, and thus not a violation of Powell’s Sixth Amendment right.

Facts and Procedural History

In June 2005, Powell was convicted by a jury of numerous drug and firearms charges. The district court sentence of 300 months’ imprisonment was affirmed by the Fourth Circuit on direct appeal. The Supreme Court vacated the judgment and remanded for resentencing due to Kimbrough v. United States. On remand, the District Court resentenced Powell to the same term.  Powell again appealed the judgment, which was affirmed by the Fourth Circuit, and the Supreme Court denied certiorari.

In this case, Powell has filed a 28 U.S.C. § 2255 with 16 different challenges to his conviction and sentence, most of which allege ineffective assistance of counsel. The specific claim as to ineffective assistance of counsel in this case is that his trial counsel’s performance was deficient because she did not bring to the attention of the trial court the fact that a juror approached Powell’s father and told him “everything would be alright” and that “he needed to give his son ‘a good kick in the butt.’” Powell alleged that the statement by the juror demonstrated that the juror was biased against him and if his counsel had brought this to the attention of the court, the court would have inquired about the juror’s prejudgment, and possibly removed the juror and replaced her with an alternate.

The Issue

Is the juror’s statement of “everything would be alright” and that “[Powell’s father] needed to give his son ‘a good kick in the butt’” sufficient to demonstrate a juror’s actual bias—thus requiring Powell’s counsel to bring that to the court’s attention?

Sixth Amendment Right to Effective Assistance of Counsel

Under Strickland v. Washington, there are two requirements for a defendant to prove a violation of the Sixth Amendment right to effective assistance of counsel: (1) the counsel’s performance was deficient and (2) the deficient performance prejudiced the defense.

Under the first prong, the defendant must meet a high bar. The defendant must prove that his counsel’s representation fell below an objective standard of reasonableness, and that counsel’s errors were “so serious that counsel was not functioning as ‘counsel.’” The court is required to give a great amount of deference to the counsel’s decision-making and must be careful to eliminate any hindsight distortion and evaluate the decision from the counsel’s perspective at a time.

Sixth Amendment Right to an Impartial Jury

There is a presumption that jurors are impartial, unless there are indications to the contrary.  To be impartial, under the Sixth Amendment, the jury must be able to decide the case based on the evidence before it.  The question regarding juror impartiality is whether a juror can lay aside her opinion and render a verdict based on the evidence presented in court.

Reasoning

As it relates to this specific case, the “question is whether the juror’s statement to Powell’s father indicated that the juror was biased and unable to decide the case solely on the evidence.” The next question is “whether counsel’s failure to bring the statement to the attention of the court amounted to constitutionally deficient representation.”

In this case, the statement’s meaning is not clear. A reasonable lawyer who was told of the statement could conclude that the juror’s statement was “so ambiguous that it could not be taken as indicating that the jury was actually incapable or unwilling to base a verdict solely on the evidence presented at trial.”  The actions of the lawyer in not bringing the matter up were reasonable not only due to the ambiguous content of the statement, but also the risk of alienating the juror based on the mere act of inquiring about the juror’s bias. A reasonable lawyer could have concluded that the client’s interests were best served by not bringing the statement to the attention of the court.

The record further established that the lawyer was reasonable in not bringing the matter up because of how unsure she was as to the significance, if any, of the statement.  Even Powell and his father only described the statement as “troubling” or “strange.”  Powell and his father never stated that they felt panicked when they realized the person who made the statement was a juror in Powell’s trial. Those facts alone indicate that even Powell and his father did not take the juror’s statement as demonstrating a “clear and unmistakable bias against Powell.”

Disposition

While it might have been more prudential to bring the matter to the attention to the court, the failure to pursue the issue with the court was not so problematic as to make defendant’s counsel’s performance constitutionally deficient.  Therefore, the district court’s order denying Powell’s § 2255 motion is affirmed.

By John Van Swearingen

On Wednesday, November 23, 2016, the Fourth Circuit issued a published opinion in the civil case Rodriguez v. Bush. This matter was a habeas corpus petition brought by an offender sentenced to forty-five years in prison for drug trafficking. The United States District Court for the District of South Carolina denied Rodriguez’s petition under 28 U.S.C. § 2254 (2012), holding that Rodriguez’s claim for ineffective assistance of counsel failed to establish that his defense was prejudiced by his counsel’s performance. Rodriguez’s claim was rooted in his counsel’s failure to object to state trial judge’s denial of Rodriguez’s accepted plea offer. The Fourth Circuit Court of Appeals affirmed the district court’s denial of Rodriguez’s petition on the basis that there is no federal or constitutional right to have a plea bargain accepted by a trial court, and therefore, his counsel’s failure to object could not establish prejudice to Rodriguez’s defense.

Facts and Procedural History

In 2009, on the day Rodriguez’s trial, the prosecutor offered Rodriguez and his co-defendants various plea bargains. The offer to Rodriguez was for a recommended sentence of 20 years, and Rodriguez’s co-defendants were made similar offers. The offers to the co-defendants were accepted by the court.

However, when Rodriguez’s counsel presented the plea offer to the trial judge, the judge rejected the offer, stating that “he was not going to accept the plea and that he was ready to try a case this week.” While Rodriguez’s counsel did attempt to convince the judge to accept the plea deal, he did not object on the record to preserve the rejection for appeal.

The state court denied Rodriguez’s motion for post-conviction relief, stating that his counsel’s failure to object did not prejudice Rodriguez’s defense and the trial court’s denial of the plea offer did not violate Rodriguez’s due process rights. Rodriguez then appealed to the South Carolina Supreme Court, but certiorari was denied. Rodriguez then filed a petition in federal court under § 2254.

The Ineffective Assistance of Counsel Claim

Strickland v. Washington, 466 U.S. 668, 687 (1984), governs ineffective assistance of counsel claims. Under Strickland, to prove ineffective assistance of counsel, Rodriguez must show (1) “that counsel’s performance was deficient” and (2) “that the deficient performance prejudiced the defense.”

Despite being a two-pronged test, a reviewing court is free to examine the prejudice prong first, as it is dispositive to the claim. Rodriguez was not prejudiced by his counsel’s failure to object to the rejection of the plea deal, because a defendant cannot be prejudiced by a claim that has no merit under governing law. Therefore, Rodriguez’s ineffective assistance of counsel claim fails.

There is No Due Process Claim to Have a Plea Deal Accepted by the Court

In Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012), the Supreme Court held that there is no federal right to have a judge accept a plea deal. The Court further clarified this point in Lafler v. Cooper, 132 S. Ct. 1376, 1387 (2012), explicitly stating that there can be no due process claim even where “a plea deal is accepted by the defendant but rejected by the judge.” Even further, there is no constitutional claim under the same facts. Fields v. Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992).

Therefore, the governing law clearly states that Rodriguez, nor any other similarly-situated defendant, claims a right to have an accepted plea offer honored by a presiding judge. Rodriguez based his due process claim on the premise that such a right existed. Since the claim has no support under governing law, and because this same claim forms the basis of his ineffective assistance of counsel claim, both of his claims on appeal fail.

                                                                    Disposition

The Fourth Circuit affirmed the district court’s denial of Rodriguez’s petition under § 2254. Both the ineffective assistance of counsel and due process claims were based on the premise that a defendant has a right to have a plea deal accepted by a presiding judge. Because no such right exists, Rodriguez’s claims were properly denied.