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More duties for appellate lawyers

Matthew Gunner made a choice, and wound up with a ten-year prison sentence.  Last week, the 6th Circuit held in Gunner v. Welch that this was likely his lawyer's fault.  In doing so, the court held that the case "raises a significant issue regarding the obligation of assigned appellate counsel in Ohio."

That got my attention.

Gunner was charged back in 2006 with drug trafficking offenses which carried a mandatory ten-year prison term.  It was almost impossible to beat - the 6th Circuit found that the State's evidence was "very compelling" - and so when the prosecution offered a deal which took the mandatory term off the table, that definitely deserved a look.  But Gunner's lawyer told him not to take it, so Gunner went to trial.  After the inevitable conviction, Gunner's mother spoke to that lawyer assigned to handle the appeal, and told him of the circumstances surrounding the rejection of the plea.  The lawyer brushed her off, telling her that the appeal was limited to what was in the record.

Which is true, as any appellate lawyer can tell you.  What the Gunner decision says is that they better tell you about post-conviction relief as well.

Ohio's post-conviction relief statute allows you to file a claim alleging that your constitutional rights were violated at trial, and to support that claim with evidence outside the record, such as affidavits.  It's a good vehicle for raising ineffective assistance claims that revolve around the lawyer's advice, such as in Gunner's case.  The problem is that there's a very short window for filing a PCR petition:   180 days after the transcript in the appeal is filed.  (If no appeal is filed, it's 180 days after one could have been filed, which works out to 210 days after the final judgment entry.)  If you blow the deadline, you're pretty much out of luck; you've got to show that the US Supreme Court has recognized a new right which applies to your situation, and that no reasonable juror would have found you guilty.

Gunner's appellate lawyer didn't tell him about post-conviction relief, or about the 180-day limit.  After his conviction was affirmed by the 6th District and the Ohio Supreme Court declined review, Gunner took it to Federal court on a habeas petition.  The judge denied it, on the grounds that the lawyer had no obligation to tell him about that, because post-conviction relief is a proceeding "for which there is no right to an attorney under the Constitution."

The panel rejects that, relying heavily on the law of contracts and agency:  an agent may have the obligation to advise his principal of information, even if the agent doesn't have the obligation to pursue action on the basis of that information.  But there are some larger issues in play.  After all, post-conviction relief isn't an ordinary collateral proceeding:  it's the only way to address an ineffective  assistance of counsel claim which depends on evidence outside the record.  In fact, the opinion suggests that a defendant may be entitled to counsel in a post-conviction relief proceeding; indeed, under RC 120.16, the county public defender is supposed to provide representation for cases of "arguable merit."

That gets a bit farther down the road.  For now, the takeaway from Gunner is that, if you're handling an appeal, talk to your client about whether he has a viable ineffective assistance claim that would require evidence outside the record.  If you think he does, contact the county public defender or the Ohio Public Defender's office.  At a minimum, you should advise him of the possibility of post-conviction relief and the deadline for filing it, and tell him about the option with the public defender.

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