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Lawyer Raising Ineffective Assistance Claim Is the Subject of One Herself

For a lawyer, filing a claim of ineffective assistance of counsel (IAC) can be tough. Of course, ethically, lawyers have no choice but to raise a valid IAC claim -- after all, it's part of the duty to zealously represent a client. But at the same time, it's hard to attack another lawyer (particularly if he or she was well meaning) for an error that you might just as easily have committed yourself.

And in fact, that's what happened in Stallings v. United States, a case out of the 7th Circuit. There, the lawyer who raised an IAC claim about her client's previous lawyer was herself found ineffective because she failed to preserve an argument about the legality of the sentence length under the Supreme Court's holding in Booker.

As discussed at  Sentencing Law Blog, Stallings was sentenced to 188 months of imprisonment just prior to the Booker decision holding mandatory sentencing guidelines unconstitutional, and a few months after the 7th Circuit's ruling reaching the same conclusion. In imposing the sentence, the court specifically stated that it had no choice under mandatory guidelines. Stalling's appellate counsel raised an IAC related to his attorney's representation at trial, but did not challenge his 188-month sentence under Booker.  Stallings then filed a habeas petition, claiming that his appellate counsel was ineffective for failing to make the Booker argument and asking for a reconsideration of his sentence.

The 7th Circuit agreed, ruling that Stallings' appellate counsel was ineffective for failing to request a limited remand "to determine whether the sentencing court would have imposed the same sentence under an advisory guidelines regime." However, Stallings doesn't necessarily receive relief; the case has been remanded to the lower court to determine whether the failure to raise the Booker claim was prejudicial.

Posted by Carolyn Elefant on July 31, 2008 at 02:08 PM | Permalink | Comments (0)