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Convicted Pot Grower's Habeas Petition Granted After Lawyer's Error

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By Mark Wilson, Esq. on November 11, 2014 4:57 PM

It's a rare occasion when a federal appellate court upholds a grant of habeas corpus. It's rarer still when the habeas petition centers on ineffective assistance of counsel. Nevertheless, last month, the Third Circuit overturned the district court's denial of habeas corpus to Dung Bui, a Pennsylvania resident convicted in federal court of growing marijuana.

So what exactly happened that led the Third Circuit to this infrequent result?

The High Burden of IAC

Ineffective assistance of counsel (IAC) is a high bar to meet. Under the two-prong Strickland v. Washington test, counsel's performance must have fallen below a reasonable standard and but for counsel's errors, there's a reasonable probability the defendant wouldn't have been convicted. Usually, even if defendants can meet the first prong, evidence of their guilt is so strong that even counsel's constitutionally deficient performance isn't enough to save them.

Not so for Dung Bui, who pleaded guilty rather than go to trial. This makes the appeal even rarer still because a guilty plea can only be attacked on the grounds that it wasn't knowing and voluntary. A defendant attacking a guilty plea on IAC grounds must show to a reasonable probability that, "but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial."

Bui's Attorney Should Have Known Better

One of the two counts two which Bui pleaded guilty was growing marijuana within 1,000 feet of a school -- in this case, Hampden Park athletic field in Reading, Pennsylvania, which was co-owned by the local school district and the city. But Bui's attorney thought that was fine, believing Bui could ask for a sentence reduction. After pleading guilty, Bui applied for a sentence reduction, but the trial court denied it, as the reduction explicitly isn't available for offense of growing drugs within 1,000 feet of a school.

Bui argued, and the Third Circuit agreed, that his attorney never advised him that it was debatable whether the park was a "school" for sentencing enhancement purposes. The record showed that counsel apparently didn't research the motion for sentence reduction "until immediately before the sentencing hearing." Had he done a more thorough job, the Third Circuit said, he would have discovered that his motion for a sentence reduction would have been futile -- and he also would have contested whether the athletic field was a "school."

OK, but would Bui have pleaded guilty, anyway? No, said the Third Circuit; he pleaded guilty based on counsel's representation that Bui could qualify for a sentence reduction, which he plainly couldn't.

A victory for Bui? Maybe -- the Third Circuit remanded this to the district court for an evidentiary hearing to determine whether the athletic field "is properly classified as real property comprising a school." (Notably, a different panel of the Third Circuit found that one of Bui's co-defendants -- who took the same deal, based on the same misinformation -- shouldn't get relief based on IAC.)

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