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Tuesday, December 27, 2011

Attorney's failure to conduct adequate investigation of mitigating circumstances constituted ineffective assistance of counsel

In Blystone v. Horn, Nos. 05-9002 & 05-9003 (3d Cir. Dec. 22, 2011), the Third Circuit denied the government's cross-appeal and upheld the district court's conclusion that trial counsel in a capital case provided ineffective assistance of counsel by failing to adequately investigate mitigating circumstances for the defendant's punishment phase of his death penalty case even though the defendant had indicated that he did not wish to present a mitigation case to the jury. The Court held that the duty to conduct a reasonable investigation of mitigating evidence exists independently of the duty to present a mitigation case to the jury. In fact, the Court found, the duty to conduct a reasonable investigation is a "necessary predicate" to the decision of whether to present a mitigation case.

Here, the trial attorney conducted a minimal investigation involving only four of the defendant's family members. He solicited no expert mental health testimony and failed to examine extensive institutional records accumulated by the defendant because the defendant had chosen to forego the presentation of his own testimony and that of his family members. The Third Circuit concluded, however, that the fact the defendant had chosen to forego presentation of the mitigating evidence the lawyer had collected did not permit the inference that, had counsel competently investigated and developed expert mental health evidence and institutional records, the defendant would have also declined their presentation.

With regard to the defendant's direct appeal, the Third Circuit held that a timely Rule 59(e) motion to amend or alter a judgment based on newly discovered evidence is not a second or successive petition, whether or not it advances a claim, and therefore such a motion lies outside the reach of AEDPA's jurisdictional limitations on collateral attacks. Nevertheless, the Court found that the defendant's evidence was not newly discovered as it had been in the defendant's possession for many months before the district court denied habeas relief. Accordingly, the Third Circuit affirmed the district court's denial of the defendant's Rule 59(e) motion.

Fact that co-conspirator helped plan robbery that led to high speed chase insufficient to warrant U.S.S.G. §3C1.2 enhancement

Defendant Dwayne Cespedes was part of a three-member conspiracy which planned and executed an armed bank robbery. After removing more than $20,000 from the bank safe, Cespedes and co-conspirator Michael Grant entered the getaway car driven by co-conspirator Curtis Whitehurst. Whitehurst refused to submit to an attempted traffic stop and led police on a high speed chase through two counties. During the chase, Cespedes and Grant got out of the car and fled on foot, while Whitehurst continued his reckless driving, ignoring traffic laws, running stop signs, traveling in the wrong direction on certain roads and nearly striking several pedestrians in a crosswalk.

At Cespedes's sentencing, the district court applied a two-level enhancement for recklessly endangering others while fleeing from law enforcement officers pursuant to U.S.S.G. §3C1.2. The court rejected Cespedes's objection that the enhancement was improper because he never possessed control over the getaway vehicle and had exited the vehicle due to his co-defendant's erratic driving. On appeal, the Third Circuit, in United States v. Cespedes, No. 10-3432 (3d Cir. December 21, 2011), joined a number of other circuits in concluding that some form of direct or active participation by a defendant is required in order to apply the §3C1.2 enhancement. The Court noted that Application Note 5 to §3C1.2 provides that a defendant is only accountable for the reckless conduct of another under §3C1.2 if the defendant "aided or abetted, counseled, commanded, induced, procured, or willfully caused" the reckless conduct. Thus, where a defendant is merely a passenger in a vehicle fleeing from police, a district court must clearly indicate on the record how the defendant was responsible for the driver's conduct. The proof here, indicating only that the conspirators collectively planned a robbery that led to a high speed chase was inadequate to qualify Cespedes, a passenger in the getaway car, for a reckless endangerment during flight enhancement. Accordingly, the Court vacated Cespedes's sentence and remanded his case for resentencing without the enhancement.