Federal Appeals Court Says Maintaining Innocence Doesn’t Kill a Claim that Person Would Have Taken a Plea Deal

When Marvin Johnson maintained his innocence and refused to plead guilty to a drug-related murder in a racketeering case, this did not undercut his claim in a postconviction motion that he would have taken a favorable plea offer. That’s what the U.S. Court of Appeals for the Second Circuit said when he appealed the denial of his motion to vacate his conviction under 28 U.S.C. § 2255.

Back in 1985, the Supreme Court held that a person claiming in a postconviction that their lawyer misinformed them about their sentence under a plea deal must show that they would have rejected the deal and gone to trial. Hill v. Lockhart, 474 U.S. 52 (1985).

In the years since, courts have refined this to mean that a person must show that the decision to go to trial would have been a rational one, but they don’t have to show that they would have won at trial.

Several more years passed, and the Supreme Court was faced with a case where the scenario was flipped: What must a person show if they went to trial but then found out that taking a plea deal would have been better? The Court applied the same logic as in Hill and said the person must show that the government would have extended the offer, that he would have taken it, and that the court would have accepted it. Lafler v. Cooper, 566 U.S. 156 (2012).

In that case, the defendant was wrongly advised by his lawyer that he had a good defense at trial, and he rejected a plea deal. After he lost and received a higher sentence than the plea deal, the Supreme Court said that he should have been given the chance to accept the plea deal since his lawyer was ineffective. Importantly, the Court didn’t say that maintaining his innocence killed his claim that he would’ve taken a deal.

What the district court did with Mr. Johnson’s § 2255 motion in this case was add one more requirement that the Supreme Court did not: That he could not have maintained his innocence, even though he went to trial. In other words, the court said that because he refused to say he was guilty and insisted on his constitutional right to a jury trial, he couldn’t come back later and say he would have taken a plea deal.

The Second Circuit said this was the wrong conclusion. A claim that someone would have taken a plea deal instead of going to trial cannot be rejected simply because the person maintained their innocence, the court said. Instead, the district court must hold a hearing or request affidavits to determine the validity of the claim.

While the Second Circuit did not give much reasoning for its decision to grant Mr. Johnson a certificate of appealability (COA) and hear his appeal, it’s likely because the courts have all come to realize that plea bargaining is the way the criminal justice system works. Even innocent people plead guilty to lesser charges just to avoid the huge risk of losing at trial.

Basically, it comes down to this: It’s not about innocence or guilt, but whether it’s worth the gamble of going to trial. When that gamble turns out to be a bad choice because of a defense lawyer’s bad advice, the defendant should not be penalized for it by not allowing them to claim they would have taken the plea deal.

Johnson v. United States, No. 22-68-pr, 2023 U.S. App. LEXIS 25803 (2d Cir. Sep. 29, 2023)

Dale Chappell is an expert on federal postconviction relief and the author of hundreds of articles and several books on challenging illegal and wrongful convictions and sentences. He is a former staff writer for Criminal Legal News Magazine and the author of the blog zenlawguy.com.

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