U.S. Seventh Circuit - The FindLaw 7th Circuit Court of Appeals Opinion Summaries Blog

7th Cir: Appellate Counsel Botched Ineffective Counsel Appeal

A jury convicted David Swanson of a number of fraud, tax, and money laundering offenses. He was sentenced to 180 months' imprisonment, which included a § 3B1.1(a) enhancement. Swanson appealed, replacing his trial counsel with new counsel who represented him in his first appeal, at resentencing, in a second appeal, and before the Seventh Circuit Court of Appeals.

A focus of Swanson's sentencing hearing was his objection to the PSR's use of the 2001 guidelines and whether the variances between that version and the 1998 edition, proposed by Swanson's trial counsel, mattered. The Seventh Circuit agreed, and Swanson was re-sentenced. This time, the district court gave him 151 months' imprisonment.

In yet another appeal, Swanson raised an objection to the § 3B1.1(a) enhancement. The Seventh Circuit Court of Appeals refused to consider the argument because it was not raised in the first appeal, and thus, had been waived. The court found that the district court did not have to revisit its decision to impose the § 3B1.1(a) adjustment because any factual dispute as to its application went beyond the scope of the remand, and Swanson couldn't use the accident of a remand to raise in a second appeal an issue that he could just as well have raised in the first appeal.

David Swanson appealed again, claiming that his trial counsel abandoned a poorly-developed but winning objection to the § 3B1.1(a) adjustment at sentencing that justified an ineffective counsel finding.

But the Seventh Circuit said that Swanson's trial counsel didn't abandon the objection; his appellate counsel just failed to raise it on direct appeal.

To obtain relief, Swanson had to show that his sentence was imposed in violation of the Constitution or federal law, the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it was otherwise subject to collateral attack. The Sixth Amendment's right to the effective assistance of counsel provides relief when counsel's performance was objectively deficient, and the defendant was prejudiced by the subpar representation.

The Seventh Circuit concluded that the written objections to the application of the § 3B1.1(a) enhancement were not insufficiently developed, and that the district court did not err in finding that trial counsel did not waive the § 3B1.1(a) objection.

Swanson didn't challenge his appellate counsel's effectiveness, and because trial counsel raised the objection in a sentencing memorandum (twice) and never withdrew it, the Seventh Circuit couldn't find that the trial lawyer's performance was objectively deficient.

So how does this apply to you?

You don't want an appellate court to write multiple pages in a published opinion criticizing your performance, like this guy. You don't want to known by a derogatory designation, like one of the "Mailroom of Death" lawyers. You don't want the Seventh Circuit to tell your client, "Hey, you're challenging the wrong attorney's effectiveness." You want to be one of the Super Lawyers. So comb your clients' case files, and make timely objections. Cross your Ts, dot your Is, and do by right by your appellate clients.

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