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Habeas Petitioner's Counsel Was Not Ineffective For Rejecting Instructiions, Conceding Conspiracy

By Shari Allison

United States v. Gonzalez, ___ F.3d ___ , 2010 WL 702297 (10th Cir. 2010). After a direct appeal of his drug conspiracy conviction, defendant filed an unsuccessful post-conviction petition claiming errors and ineffectiveness by trial counsel. (1) Counsel rejected instruction on withdrawal from conspiracy even though trial strategy was to show withdrawal. The Court of Appeals agrees with district court that Defendant cannot show prejudice?the evidence at trial was insufficient for a jury to reasonably find that he withdrew from the conspiracy. While not endorsing a strategy of aiming for jury nullification, the Court attributes counsel?s rejection of the instruction to his realization that he could not meet the hurdle of sufficient evidence to satisfy the elements of the defense (it looked like the district court was going to give the instruction, and the government agreed to it, before defense counsel declined it), while still presenting the jury with some evidence of and claim of withdrawal, at least to some counts...continue to full post

Full post as published by Tenth Circuit Blog on March 03, 2010 (boomark / email).