- Did the Sixth Circuit fail to give appropriate deference to the Michigan Court of Appeals under the Antiterrorism and Effective Death Penalty Act of 1996?
- Is subjective testimony that a convicted defendant would have accepted a plea, but for ineffective-assistance-of-counsel, sufficient to show that the defendant would have in fact accepted the plea?
- Does the Supreme Court’s holding in Lafler v. Cooper require a state court to resentence a defendant where the defendant has shown that he would have accepted a plea deal but for ineffective-assistance-of-counsel? Should the resentence itself serve as the remedy?
On August 12, 2000, police officers found Donald Rogers dead on his kitchen floor. Donald’s wife and niece had engaged in “burking,” a practice of inebriating a person with alcohol to the point of unconsciousness and then smothering the person to death. Donald’s niece, Vonlee Nicole Titlow (a transgender individual hereinafter referred to as a male), accepted a plea deal in exchange for testifying against Donald’s wife, but later withdrew from the plea. The prosecutor charged Titlow with murder rather than manslaughter, and a jury subsequently found Titlow guilty of second-degree murder. On appeal, Titlow argued that his trial attorney was ineffective for allowing Titlow to withdraw his plea. The Michigan State Court of Appeals rejected this argument and affirmed the trial court’s decision, and Titlow subsequently filed for habeas relief. The District Court for the Eastern District of Michigan denied Titlow’s petition, but the Sixth Circuit reversed and ordered the prosecutor to re-offer the plea, concluding that the state court based its decision on an unreasonable determination of the facts. In this case, the Supreme Court will consider (1) whether the Sixth Circuit gave appropriate deference to the Michigan state courts, (2) what type of evidence is required to show that a defendant would have accepted a plea deal but for ineffective-assistance-of-counsel, and (3) what state courts are required to do when such defendants succeed on their ineffective-assistance claims. This case will address issues regarding the integrity of the country’s plea-bargaining system, and the evidentiary standards defendants must meet to be successful on ineffective-assistance-of-counsel claims.
Questions as Framed for the Court by the Parties
- Whether the Sixth Circuit failed to give appropriate AEDPA deference to a Michigan state court by holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence.
- Whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea.
- Whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right, or merely requires a re-offer of the plea.
Respondent Vonlee Titlow is a transgender male prisoner currently serving a twenty-to-forty year sentence. A Michigan state court jury convicted Titlow of second-degree murder for assisting his aunt, Billie Rogers, in killing his uncle, Donald Rogers, in August 2000. Titlow had been living with Billie and Donald Rogers at the time of Donald’s death. On August 12, 2000, police officers arrived at Donald’s house and found him dead on his kitchen floor with a drinking glass in his hand. The medical examiner never performed an autopsy on the body, and the cause of death was initially determined to be a heart attack.
Shortly after Donald’s death, signs began to emerge that foul play may have been involved in the death. Such signs included: (1) the unnatural position of Donald’s body at the crime scene; (2) small scrapes found on Donald’s nose consistent with impressions made by a pillow; (3) reports from Titlow’s boyfriend that Titlow admitted to killing Donald; and (4) shortly after Donald’s death, Titlow received $100,000 and a new car from Billie, the sole beneficiary of Donald’s estate.
In January 2001, police arrested Titlow and Billie and charged them with first-degree murder. Titlow’s attorney, Richard Lustig, negotiated a plea agreement on Titlow’s behalf. Under the agreement, prosecutors agreed to reduce the first-degree murder charge to manslaughter if Titlow agreed to submit to a lie-detector test, testify against Billie at her trial, and not challenge on appeal the prosecution’s recommended sentencing range of seven-to-fifteen years imprisonment (even though the sentencing guidelines recommendation for manslaughter was much lower). At his plea hearing, Titlow admitted to aiding Billie in killing Donald, and confirmed that he had reviewed the plea agreement with Lustig and that he understood the sentencing range he faced.
Prior to his sentencing hearing, Titlow requested to withdraw his guilty plea and subsequently hired new counsel, Frederick Toca. At a hearing to withdraw Titlow’s guilty plea, Toca made no representations on the record that Titlow was withdrawing his guilty plea because he believed he was innocent. Instead, Toca claimed that Titlow was unsatisfied with the particularly long sentencing range stipulated in the plea agreement, and also stated that he did not want to testify at Billie’s trial. The court ultimately accepted the withdrawal of Titlow’s guilty plea and the case proceeded to trial. Prior to Titlow’s plea-withdrawal hearing, however, Toca never obtained Titlow’s file from Lustig, nor did he review discovery materials provided by the government. This was discovered on Titlow’s direct appeal to the Michigan Court of Appeals.
After receiving Titlow’s file, and just before Titlow’s trial date, Toca withdrew himself as counsel. The court then appointed William Cataldo as Titlow’s new counsel. At trial, Titlow took the stand and admitted to pouring vodka down Donald’s throat, covering Donald’s mouth with his hands, and witnessing Billie smother Donald’s face with a pillow. In addition, he admitted that he accepted $100,000 from Billie to keep quiet about their actions. The jury convicted Titlow of second-degree murder, and the court ultimately sentenced him to twenty-to-forty years of imprisonment.
The Michigan Court of Appeals affirmed Titlow's sentence on direct appeal, and the Michigan Supreme Court denied leave to appeal. Titlow then filed a motion for relief from judgment in state trial court, which was denied. The Michigan Court of Appeals subsequently denied leave to appeal, and the Michigan Supreme Court did the same.
In August 2007, Titlow filed a petition for writ of habeas corpus against the warden, Sherry Burt, raising a number of ineffective-assistance-of-counsel claims. The district court denied the petition in October 2010, but allowed Titlow to appeal on all of his claims. The Sixth Circuit reversed in part, granting Titlow’s petition on the claim that his attorney was ineffective in the plea bargaining stage. The court ordered prosecutors to re-offer Titlow his original plea agreement within ninety days. The Supreme Court granted certiorari on February 25, 2013.
This case presents the Supreme Court with the opportunity to determine important issues regarding the effectiveness of a criminal defendant’s legal counsel. Burt argues that Titlow should not be allowed to reenter his original plea agreement given that a jury has already found him guilty. Titlow, however, contends that he wouldn’t have withdrawn the plea but for his counsel’s ineffective assistance, and therefore should be allowed to reenter the plea.
EFFECTS OF INEFFECTIVE COUNSEL ON PLEA BARGAINING
Burt and supporting amici argue that allowing a criminal defendant to successfully claim that his counsel ineffectively advised him to withdraw a guilty plea endangers important facets of the plea-bargain system. Amicus United States of America raises questions regarding the fairness of the Sixth Circuit’s decision forcing prosecutors to re-offer a plea after a criminal defendant has withdrawn the original plea and then lost at trial. For instance, the United States asserts that prosecutors originally offered Titlow a plea agreement that included a lesser sentence and a lesser charge than he would have faced at trial because he agreed to testify against his aunt at her trial. The unfairness, the United States contends, stems from the fact that the Sixth Circuit is forcing prosecutors to re-offer Titlow the same plea agreement even though the state will no longer receive any benefits, given that Billie’s trial has passed. In the United States’ view, requiring the state to reoffer the terms of its previous plea offer “interfere[s] with [the prosecutor’s] discretionary functions, i.e., determining what he feels is fairest in light of the defendant’s circumstances, the government’s resources, and the statute involved.” Finally, the United States worries that in the future, similarly situated defendants will claim that their counsel was ineffective, have their withdrawn plea reinstated, and prosecutors will receive no benefit in return.
Respondent maintains that even though Titlow can no longer provide testimony in Billie’s trial, he is still entitled to effective counsel under the Sixth Amendment, which he did not receive. Amicus Center on the Administration of Criminal Law (“CACL”) at NYU School of Law further supports Respondent’s contention, pointing out that egregious attorney behavior would go unpunished in many instances if a defendant were not given the opportunity to reenter his plea. In addition, CACL argues that Respondent misconstrues the scope of unfairness at stake in such situations, as judges have the wisdom and experience to determine whether a defendant has legitimately received ineffective assistance of counsel, or whether he is attempting to beat the system to gain a better outcome. CACL contends that because trial judges oversee plea and sentencing hearings daily, they are well-equipped to determine whether a defendant’s claim of ineffective assistance is legitimate.
This case presents the Court with three interrelated issues relating to ineffective-assistance-of-counsel claims.
DEFERENCE TO STATE COURT DECISIONS UNDER AEDPA
The Court must first determine whether the Sixth Circuit gave appropriate deference to the Michigan Court of Appeals under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). AEDPA provides that “[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim– (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.” AEDPA also provides that in a habeas hearing where the individual is in custody pursuant to a state court judgment, “a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.”
Burt argues that the Sixth Circuit failed to give appropriate AEDPA deference to the Michigan Court of Appeals. She contends that the Court, in Strickland v. Washington, held that a convicted defendant’s ineffective-assistance claim must show (1) deficient performance by counsel and (2) that such deficient performance prejudiced the defense. Here, Burt argues that Titlow has not satisfied these requirements because (1) Titlow did not adequately rebut the state court’s presumption of correctness, (2) the Michigan Court of Appeals’ decision was not contrary to existing law, (3) Titlow did not provide any evidence that Mr. Toca gave deficient advice, and (4) Titlow has not shown that Toca’s actions prejudiced the defense. Burt also claims that Titlow, in a lower court reply brief, did not “quibble” with the finding that “[Toca’s] advice was set in motion by defendant’s statement to a sheriff’s deputy that [Titlow] did not commit the offense.”
Titlow counters that AEDPA deference does not apply here because the Michigan Court of Appeals based its decision on an unreasonable determination of the facts. He claims that he never made a claim of innocence, that other evidence in the record contradicts this assertion, and that the Michigan Court of Appeals based its finding on an affidavit that contained “quadruple hearsay.” Titlow also argues that the reply brief cited by Burt “is irrelevant to Mr. Toca’s duty to conduct a reasonable investigation before advising Ms. Titlow in connection with [his] plea.” Titlow contends that the Michigan Court of Appeals did not properly assess Toca’s actions, that Toca did not even review Titlow’s file before the plea-withdrawal hearing, and that “[r]elying on innocence as a short-cut around Strickland was an unreasonable application of that decision.”
SUBJECTIVE TESTIMONY THAT A DEFENDANT WOULD HAVE ACCEPTED A PLEA
The second issue before the Court is whether “a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective-assistance-of-counsel, is, standing alone, sufficient to demonstrate reasonable probability that defendant would have accepted the plea.” In Laffler v. Cooper, the Supreme Court articulated a three-part test for determining whether deficient counsel deprived a defendant of his constitutional right to plea-bargain. According to Laffler, “a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.”
Burt argues that, except for Titlow’s “self-serving, post-conviction, unsworn statements,” Titlow has not provided any evidence that he would have accepted the plea absent Toca’s advice. Burt concedes that such subjective testimony is sufficient in the Sixth Circuit to demonstrate a reasonable probability that a defendant would have accepted a plea. However, Burt urges the Sixth Circuit to adopt the position of several other federal circuits in holding that “some objective evidence of the defendant’s intent is required.” In the event that the Sixth Circuit does not adopt this standard, Burt argues that Titlow’s statements must still be credible. She claims that Titlow’s statements are contradicted by the fact that Titlow ultimately withdrew his plea, that Titlow contends he was dissuaded by the minimum sentence in his plea, which went above the sentencing guidelines, and that Titlow maintained his innocence even after the prosecutor re-offered the plea.
Titlow counters that the Sixth Circuit actually did consider objective evidence that Titlow would have accepted the plea but for Toca’s advice, including: (1) the fact that the plea was initially presented, accepted, and approved; (2) the existence of highly incriminating evidence against Titlow; and (3) the disparity between the plea sentence and the sentence Titlow ultimately received. Moreover, Titlow contends that there is no actual conflict among the circuits, because each circuit evaluates the credibility of a defendant’s subjective statement “to determine whether it constitutes adequate proof to satisfy the [Lafler] standard.” Titlow argues that subjective statements are a “key component of the evidentiary package that courts consider in determining whether [a habeas petitioner] would have accepted a plea offer.” He asks the Court to reject the “more stringent” standard proposed by Burt, arguing that such a standard would require each piece of evidence to separately satisfy every element of Lafler’s three-part test.
Finally, the Court will consider whether Lafler requires a state trial court to resentence a defendant who would have accepted a plea deal but for ineffective-assistance-of-counsel. At the center of this debate is the Sixth Circuit’s statement that “[i]f the State in fact re-offers the plea and Titlow accepts, the state court may then exercise its discretion to fashion a sentence for Titlow that both remedies the violation of [his] constitutional right to the effective assistance of counsel and takes into account any concerns that the State might have regarding the loss of Titlow’s testimony against [his] aunt.”
Burt argues that the Sixth Circuit’s holding violates Lafler and unfairly limits the state court’s discretion, thereby rendering the Lafler remedy erroneous. Burt also contends that the Sixth Circuit should not require the state court to “consult the initial plea agreement as a baseline in crafting a new sentence.”
In response, Titlow argues that the Sixth Circuit did not err in applying Lafler, because its decision only requires the state court to re-offer the plea but does not require the state court to accept the plea. According to Titlow, this question would only become ripe if the state accepted the re-offered plea “based on an understanding that it had no other choice under the Sixth Circuit’s order or under [Lafler].”
The Court will consider whether a convicted criminal defendant can succeed on an ineffective-assistance-of-counsel claim based on his subjective testimony that he would have accepted a plea but for his ineffective counsel’s advice. The Court will also address whether, in this instance, prosecutors must re-offer the original plea agreement, or whether the trial court must resentence the criminal defendant. The Court’s ruling will impact defendants’ ability to raise ineffective-assistance-of-counsel claims after being found guilty at trial. In addition, this case will influence prosecutors’ decision-making at the plea bargaining stage.
- On Point by the Wisconsin State Public Defender, Sherry Burt, Warden v. Vonlee Titlow, USSC 12-414, cert granted 2/25/13, Mar. 11, 2013.
- Brian Mahoney, Supreme Court Takes Up Another Inadequate-Defense Case, Feb. 25, 2013.