Last updated 4:14 p.m.

The Supreme Court agreed on Monday to spell out the remedy that may be available for ineffective defense lawyer’s efforts during plea bargaining, if the individual was later convicted at a fair trial. The Court added that question to two that were raised in a death penalty case, Arave v. Hoffman (07-110). The other issues involved the Ninth Circuit Court’s finding that the lawyer’s advice in reaction to a plea offer was flawed. Click here to read the petition and here to read the brief in opposition.

In a summary decision, the Court ruled 7-2 that the one-year filing deadline for pursuing a federal habeas challenge to a state conviction is not interrupted while a defendant pursued an untimely challenge in state court, no matter how a state sets the time limit for such challenges. It makes no difference, the Court said in an unsigned opinion, that the specific time limit set in state law was provided as an affirmative defense for the state, or was a jurisdictional bar. Either way, the Court said, its ruling in 2005 in Pace v . DiGuglielmo requires that the failure to timely file the state challenge does not “toll” the habeas filing deadline. Repeating what it had said in the Pace decision, the Court commented: “When a postconviction petition is untimely under state law, that is the end of the matter for purposes” of the habeas filing deadline. The ruling came in the case of Allen v. Siebert (06-1680). Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented.

The case involves Daniel Siebert, sentenced to death for killing a hearing-impaired student at the Alabama Institute for the Deaf and Blind in 1986. He has been convicted of three murders overall, and reportedly has confessed to up to a dozen other killings. His death sentence was recently postponed by an Eleventh Circuit Court panel, but that order was set aside for en banc review by the full Circuit Court. Click the following links to read the petition, brief in opposition, and petitioner’s reply, as well as amicus briefs filed by nineteen states and the Criminal Justice Legal Foundation.

In the newly granted Arave case, prosecutors in Idaho offered Maxwell Hoffman a recommendation for a life sentence if he would plead guilty to first-degree murder. Hoffman’s lawyer, however, urged him to reject the offer, apparently in the belief that, if a death sentence were imposed, it would be reversed on appeal. The advice was based on what turned out to be a faulty interpretation of death sentencing law. The Ninth Circuit ruled that the lawyer had been ineffective in telling his client to turn down the plea, finding that it was based on incomplete research and because it made his client run a serious risk in return for little benefit. The Circuit Court also said the defense lawyer was ineffective in insisting that the state prove its case, based on a belief that the state could not prove a first-degree murder charge.

The state’s appeal challenged both facets of the Circuit Court ruling. The Supreme Court granted review of those issues, then added the following question: “What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?”

Hoffman was convicted of murder and sentenced to death. The Ninth Circuit, after finding that the defense was flawed, overturned the conviction and the death sentence, ordering the state as a remedy either to offer him virtually the same plea deal — plead guilty and avoid the death penalty — or release him. It is clear that, if the Supreme Court disagrees with the Ninth Circuit about the defense counsel’s performance, it would not reach the issue of remedy that it added for review. (Seven judges on the Ninth Circuit Court dissented when en banc review was denied.)

Among the list of cases denied review, the Court refused to clarify when a county sheriff operates as a part of state government, and thus shares the state’s Eleventh Amendment immunity to private damage lawsuits. The case was 2025 Emery Highway v. Bibb County, GA (07-132), involving claims by “an exotic theater and gentlemen’s club” in Macon, GA, that the county sheriff had engaged in a series of harrassing actions against the club. Click the following links to read the petition, brief in opposition, and the petitioner’s reply.

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