Lafler, Frye Don't Warrant Second or Successive Motions

By Robyn Hagan Cain on May 31, 2012 | Last updated on March 21, 2019

The Eleventh Circuit Court of Appeals issued another opinion examining the practical implications of the Supreme Court's Lafler v. Cooper and Missouri v. Frye decisions last week. If you do criminal appeals, this decision is bad news.

As you'll recall, the Supreme Court ruled in March that the right to effective counsel includes the right to representation during the plea bargaining process. In this appeal, the Eleventh Circuit ruled that Lafler and Frye do not justify second or successive motions to vacate, set aside, or correct a federal sentence.

Michael Perez filed an application seeking an order authorizing a district court to consider a second or successive motion to vacate, set aside, or correct his federal sentence. Authorization for such appeals can only be granted under 28 U.S.C. §2255(h) if the Eleventh Circuit certifies that the motion contains a claim involving:

  • Newly-discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
  • A new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

One of Perez's claims to justify his §2255 motion was that he had ineffective counsel during plea bargaining because his attorney didn't inform him about conditions of the plea, like the offer expiration date and whether the offer could be adjusted after he pleaded guilty.

The court rejected Perez's request, concluding that Lafler and Frye did not announce new rules of law. Instead. The court said the cases were merely an application of the Sixth Amendment right to counsel, defined in Strickland, to a specific factual context.

The Eleventh Circuit took the position that Frye and Lafler do not constitute new rules of constitutional law because the Supreme Court "rarely, if ever, announces and retroactively applies new rules of constitutional criminal procedure in the post conviction context."

For your future post conviction appeals, keep in mind that the argument that a recent Supreme Court decision gives your client a new right is a long shot.

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