Gunner v. Welch

The prosecutor offered petitioner a plea that would have eliminated the mandatory-minimum sentence of 10 years for drug trafficking with a sentence of three to 10 years. Petitioner was then 18 years old and had no felony record. The prosecutor disclosed the nature of “exceptionally compelling” evidence planned for trial Petitioner did not accept the plea because, he alleges, his attorney encouraged him to go to trial “if I got 10 years on a plea bargain, I had no chance to appeal … I was never told that if I had never been to prison before, the Judge was required to at least consider giving me the minimum sentence … that if I took the plea bargain and got the maximum 10 years sentence, it could be appealed.” After his conviction, petitioner’s mother explained the rejection of the plea to his first counsel on appeal, Long, who viewed the conviction as “shooting fish in a barrel.” He did not advise them of the filing deadline, but let the 180-day period for challenges outside the trial record pass. After the Ohio appeals court affirmed the conviction another attorney unsuccessfully tried to reopen the appeal on the basis of ineffective assistance by Long. Petitioner then sought federal habeas relief, acknowledging that his ineffective trial counsel claim should have been raised in a post-conviction proceeding, but arguing that failure to do so should be excused by Long’s actions. The district judge denied relief, reasoning that appointed appellate counsel was not obligated to provide advice outside the direct appeal, for which there is no constitutional right to an attorney. The Sixth Circuit reversed. View "Gunner v. Welch" on Justia Law