Here’s How to Use A Loss On Direct Appeal To Support A Postconviction Challenge

Most of the time, a direct appeal will expose a defense lawyer’s errors. But it’s hard to see them because too often they are disguised as errors made by the court. If you want to find good ineffective assistance of counsel (IAC) claims, slow down and look at the direct appeal. It will tell you a lot about the defense lawyer.

In this case, Mr. Mora-Carrillo was arrested in 2021 for illegally reentering the United States after being deported numerous times over the last three decades. This time, he was also trying to smuggle other illegal aliens in with him.

At trial, Mr. Mora-Carrillo’s defense counsel requested a jury instruction be given that he was under duress when he committed the offense. He argued in favor of it by claiming that gangs had beaten him in Mexico and had made death threats against him. The jury didn’t buy it and found him guilty. He was sentenced to just under 9 years in federal prison.

Mr. Mora-Carrillo appealed, raising several grounds, including that the district court erred in denying his request for an instruction to the jury on the duress defense. His conviction was affirmed by the Fifth Circuit, which explained why the district court did not err by not giving the duress instruction to the jury.

Duress is an affirmative defense that has four elements, according to the 5th Circuit Jury Pattern Instructions in Criminal Cases:

  1. That the defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded fear of death or serious bodily injury to himself;
  2. That the defendant had not recklessly or negligently placed himself in a situation where he would likely be forced to choose the criminal conduct;
  3. That the defendant had no reasonable legal alternative to violating the law, that is a reasonable opportunity both to refuse to do the criminal act and also to avoid the threatened harm; and
  4. That a reasonable person would believe that by committing the criminal action, he would directly avoid the threatened harm.

In order to prove duress, the defense must prove all four elements. If one element is missing, the duress defense fails.

Courts have further held that duress exists only if there is a real emergency leaving no time to pursue any legal alternative. In other words, the person must be in serious danger at the moment he commits his offense, and that fear of future harm is insufficient to prove duress.

But because duress is an affirmative defense, it is the defendant who must prove duress; it is not enough to claim duress and then put the burden on the government to prove no duress existed.

Mr. Mora-Carrillo’s defense lawyer, however, did not attempt to prove all four elements, much less the first element, the court said. For this reason, his argument on appeal failed, and his client’s conviction was affirmed.

I think this is one of those cases where the court of appeals turns its focus on defense counsel and says, in effect, “We didn’t screw up; you did.” So when a person is denied on appeal, I take a look at the error raised on appeal and see if it’s one that could point back to defense counsel.

Too often, the finger is pointed at the district court on appeal. And too often, the court of appeals upholds the district court’s decision and says it was reasonable given the situation. But I think a good attorney pursuing postconviction relief for their client will dig a little deeper.

Looking beyond the court of appeals’ reasoning, there may be some evidence that counsel was ineffective for failing to properly pursue a defense or to catch a court’s error, if indeed it was the court’s error.

Ineffective assistance of counsel claims are the most popular claims in a postconviction motion, but they are also the most ineffectively argued claims during postconviction proceedings.

I think the starting point for a solid IAC claim should start with taking a harder look at the direct appeal and following the leads it gives.

United States v. Mora-Carrillo, Nos. 21-51125, 21-51126, 2023 U.S. App. LEXIS 24435 (5th Cir. Sep. 14, 2023)

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