Hendrickson claims Mark Lane ineffective due to stroke

[Pottapaug1938]

On his ineffective assistance of counsel claim . . . can you really claim ineffective assistance of one counsel when you had two other counsel at the table?

Hey, when the other players at the table have full houses and fours of a kind, and all you have is Jack high, you play with what you've got if you are unwilling to fold.

[ArthurWankspittle]

I didn't say "in open court". I meant an in-chambers, private discussion.

However, I believe your objection might not be sustained regarding courts in England. From my extremely limited experience there (as a spectator), their rules of civility seem to boil down to: You can say almost anything as long as you are polite and use proper grammar.

There also seems to be an element of indirectness used. You don't say "You are lying", you say "I put it to you that you are not being entirely accurate".

[LPC]

Jack Hendrickson wrote:

One of the key exhibits prepared by the Defense Team under Mr Lane's direction consisted of several chapters of Mr Hendrickson's book. Simple. Obvious. Comprehensive. Telling.

Self. Serving. Hearsay. No?

Good point.

I believe that, to prove a claim of ineffective counsel, one must show that there was something that counsel could have (should have) done differently that could have lead to a different result.

If all Hendrickson is alleging is that there were exhibits that should have been introduced, and those exhibits are mainly self-serving hearsay, then the error should be considered harmless.

Now, the exhibits might have been offered to show Hendrickson's state of mind, and not for the truth of the matters asserted in the exhibits, which would take them out of the category of hearsay, but I'm not sure that flies. I'm not sure that a defendant can introduce evidence of his own prior statements in order to prove the sincerity of those statements, or the firmness of his beliefs. (A defendant can introduce prior consistent statements to contradict an allegation of inconsistency, but the government was not arguing that Hendrickson was inconsistent, but merely that he was aware of the law that he was violating.)

[Joey Smith]

Probably the majority of criminal appeals have an ineffective assistance of counsel claim.

"I lost; ergo, my counsel was ineffective."

Maybe in a capital case this gets some transaction just because the penalty is so severe, but on a criminal tax case? It is a waste of good paper to even make the argument.

[Gregg]

I have often thought that in cases where a court agrees with a claim of ineffective counsel, that there should be some sanction against the ineffective attorney in question. Has this ever happened?

[Joey Smith]

Not that I have ever heard of, but there are the occasional referrals to the Bar.

[Gregg]

There was a case in the 6th Circuit here a few years ago, a death penalty case where the original trial was in the 80s so I don't remember it, where they say the defense attorney fell asleep in court and other such terrible things, and they remanded the case, but I don't think anything was ever said about the guy who they were arguing about. It was a PD, which brings up another question. Attorneys are required to do public service work, are they not? I know most counties have regular staff attorneys who are full time public defenders, but is it not also common for lawyers to do pro bono work? Does this include taking on the occasional PD engagement? Maybe not the trial work, which I can see on a capital case is a significant commitment in time to do that could potentially mean putting the paying customers on hold, but would not an appeal be a lot easier to work your regular practice around? And in the case I mentioned before, I seem to recall that this guy was not a county staff attorney, he was assigned the case by the judge. Is there a list of lawyers looking for work? Can a county judge just tell anyone practicing in his jurisdiction "Your turn"?

Sorry, to ask so many questions, it just bothers me that anyone gets assigned a lawyer so bad as this guy is made out to be, not only because I think the state bares some responsibility to provide better counsel, but honestly, because it also means they have to reopen a 30 year old case, which makes it damn hard to get a fair trial, for the prosecution as much as the defense, and if the defendant is in fact guilty as sin, he may end up getting away with it, which bothers me as much as someone not getting a fair trial.
How many witnesses have died in the thirty years, how seriously can you take any testimony about an event that long ago? How much evidence has been misplaced? There are a lot of problems, if you see what I mean.

[jcolvin2]

There was a case in the 6th Circuit here a few years ago, a death penalty case where the original trial was in the 80s so I don't remember it, where they say the defense attorney fell asleep in court and other such terrible things, and they remanded the case, but I don't think anything was ever said about the guy who they were arguing about. It was a PD, which brings up another question. Attorneys are required to do public service work, are they not? I know most counties have regular staff attorneys who are full time public defenders, but is it not also common for lawyers to do pro bono work? Does this include taking on the occasional PD engagement? Maybe not the trial work, which I can see on a capital case is a significant commitment in time to do that could potentially mean putting the paying customers on hold, but would not an appeal be a lot easier to work your regular practice around? And in the case I mentioned before, I seem to recall that this guy was not a county staff attorney, he was assigned the case by the judge. Is there a list of lawyers looking for work? Can a county judge just tell anyone practicing in his jurisdiction "Your turn"?

Sorry, to ask so many questions, it just bothers me that anyone gets assigned a lawyer so bad as this guy is made out to be, not only because I think the state bares some responsibility to provide better counsel, but honestly, because it also means they have to reopen a 30 year old case, which makes it damn hard to get a fair trial, for the prosecution as much as the defense, and if the defendant is in fact guilty as sin, he may end up getting away with it, which bothers me as much as someone not getting a fair trial.
How many witnesses have died in the thirty years, how seriously can you take any testimony about an event that long ago? How much evidence has been misplaced? There are a lot of problems, if you see what I mean.

While it may vary by jurisdiction, most lawyers are not required to do pro bono work, or to take appointed counsel cases. Theoretically, judges could appoint any member of the bar to take a criminal case, but this rarely happens because most jurisdictions have a public defender's office as well as a cadre of attorneys who are willing to take appointed counsel cases.

As for long delays in cases where there was ineffective assistance of counsel, at least at the federal level, a defendant only has one year from the date his conviction became final (i.e. any direct appeal was resolved) to bring a habeas corpus action, raising ineffective assistance of counsel. (Ineffective assistance claims normally cannot be brought on direct appeal.) While the wheels of justice move slowly (and grind ever so fine), 30 year delays are an anomaly.

[fortinbras]

Usually the Public Defender office or Legal Aid Society is supposed to provide lawyers for indigent criminal defendants .... and many of those lawyers are pretty darn good. But some jurisdictions can't afford enough lawyers, so the courts appoint additional lawyers; in DC this is a continual possibility for every member of the bar, roughly like jury duty. Of course, just appointing random lawyers means that some lawyers totally ill-equipped for criminal defense are sometimes thrust into that situation (and a great many times the client is not making this any easier). There were some ugly incidents when the DC courts started appointing lawyers this way.

But compare this to a horror story from rural California about 20 years ago. Some rural county ran its PD program by soliciting low bids from the local lawyers; one and only one lawyer would be The Public Defender, and be paid a lump sum ... hiring additional lawyers and any other expenses he had to pay out of his lump sum. One guy had consistently put in the low bid and had been the PD for several years in a row. An enormous number of his clients were Mexicans (undoc.) accused of various crimes and they ALL ended up in the slammer! Finally, one such unfortunate's family raised the money to hire a Good Lawyer and everything hit the fan. It was discovered that the low bid PD was minimizing his expenses by (1) not hiring additional counsel when he had to defend multiple defendants, (2) not hiring any detectives or anyone else to investigate anything, (3) not running up any secretarial expenses by not working up depositions or pleadings, -- and, here's the cutest part, (4) rather than spend anything for a translator when meeting with his clients, he used off-duty cops (without identifying them to his clients) to play interpreter at these meetings! His workload was kept easy by plea bargaining nearly all his clients - and there was hardly any bargain because the County Prosecutor knew what an a-h he was. When this came out in court, dozens of his dissatisfied clients filed for (and were granted) new trials and many of them got much better results the second time around.

[ASITStands]

Hendrickson has filed a Motion to Disqualify Judge Friot...

Judge Friot sits in the Western District of Oklahoma.

I suspect you've mixed the Springer/Stilley case with Hendrickson's and mean Judge Rosen.

[Dezcad]

Hendrickson has filed a Motion to Disqualify Judge Friot...

Judge Friot sits in the Western District of Oklahoma.

I suspect you've mixed the Springer/Stilley case with Hendrickson's and mean Judge Rosen.

You are correct and I've edited my first post to reflect this. Thanks.

[Dezcad]

Motions denied since the conviction is still pending on direct appeal.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
Case No. 08-20585
v. Hon. Gerald E. Rosen
PETER HENDRICKSON,
Defendant.
______________________________/
ORDER DISMISSING DEFENDANT’S MOTIONS TO VACATE SENTENCE AND TO DISQUALIFY JUDGES

At a session of said Court, held in the U.S. Courthouse, Detroit, Michigan on April 21, 2011

PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court

Defendant Peter Hendrickson was convicted by a jury on ten counts of filing a false document with the Internal Revenue Service (“IRS”), in violation of 26 U.S.C. §7206(1), and he was sentenced to a 33-month term of imprisonment in a judgment entered on May 25, 2010. Defendant has appealed his conviction and sentence, and this appeal remains pending before the Sixth Circuit Court of Appeals. Nonetheless, through the present motions filed on April 14, 2011, Defendant seeks to challenge his conviction and sentence under 28 U.S.C. § 2255, and he requests that this matter be reassigned to and handled by a different District Judge.

Upon reviewing Defendant’s two motions, the Court readily concludes that they should not be addressed on their merits, but instead should be dismissed as premature. The Sixth Circuit and other courts have repeatedly emphasized that “in the absence of extraordinary circumstances, a district court is precluded from considering a § 2255 application for relief during the pendency of the applicant’s direct appeal.” Capaldi v. Pontesso, 135 F.3d 1122, 1124 (6th Cir. 1998); see also Smith v. United States, No. 95- 3980, 1996 WL 330864, at *1 (6th Cir. June 14, 1996); Landis v. United States, No. 87- 1200, 1987 WL 44458, at *1 (6th Cir. Sept. 25, 1987); United States v. Robinson, 8 F.3d 398, 405 (7th Cir. 1993) (collecting cases); United States v. Brown, 154 F. Supp.2d 1055, 1067 (E.D. Mich. 2001); Black v. United States, No. 09-20093, 2010 WL 5067415, at *1 (E.D. Mich. Dec. 7, 2010). This rule rests upon the recognition that “[a]n application under § 2255 is an extraordinary remedy and should not be considered a substitute for direct appeal,” as well as the practical consideration that “determination of the direct appeal may render collateral attack by way of a § 2255 application unnecessary.” Capaldi, 135 F.3d at 1124; see also Robinson, 8 F.3d at 405 (“The rationale for the rule is a sound one: the disposition of the appeal may render the § 2255 motion moot.” (internal quotation marks, citation, and alterations omitted)).

Defendant has not identified any extraordinary circumstances that would warrant the immediate consideration of his § 2255 motion while his direct appeal remains pending. To the extent that Defendant’s motion raises challenges to the Court’s evidentiary rulings at trial or the sufficiency of the evidence to sustain his conviction, these are matters that may readily be pursued (and perhaps are being pursued) in Defendant’s pending appeal, and this Court declines to interfere with the Sixth Circuit’s consideration of these or any other issues that are (or could be) pending before the appellate court. This leaves only Defendant’s challenge to the effectiveness of his legal representation at trial. While it is true that the Sixth Circuit often elects not to address such challenges on direct appeal, the courts nonetheless have declined to view this as an extraordinary circumstance that warrants an exception to the usual rule against addressing a § 2255 motion while a direct appeal is pending. See, e.g., Smith, 1996 WL 330864, at
*1; Robinson, 8 F.3d at 405. Accordingly, the Court finds that this usual rule is fully applicable here, and that Defendant’s motion should be dismissed as premature.

In light of this conclusion, it follows that there is no need for the Court to address Defendant’s motion for recusal at the present juncture. The only matter pending before the Court in this case, Defendant’s § 2255 motion, has now been dismissed. In the event that there are further proceedings before the Court in this case, Defendant may pursue his request for recusal at that time if he so desires. In the meantime, the Court elects to dismiss Defendant’s motion for recusal as not ripe for consideration or determination.

For these reasons,

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant’s April 14, 2011 motion to vacate, set aside or correct his conviction pursuant to 28 U.S.C. § 2255 (docket #117) is DISMISSED without prejudice. IT IS FURTHER ORDERED that Defendant’s April 14, 2011 motion to disqualify judges (docket #116) is DISMISSED as not ripe for the Court’s consideration.

s/Gerald E. Rosen
Chief Judge, United States District Court