A remarkable 2255 reversal, plus a False Claims affirmance

Which is a better predictor of victory on appeal, a good issue or a good lawyer? Here’s my ludicrous proposal for an experiment to test that. Start with 100 lawyers and 100 cases. Have each of the 100 lawyers do all 100 appeals. Then you have data on which lawyers won more often (better lawyers) and on which cases won more often (stronger cases). Which would have better shot to win, the 50th-best lawyer with the 10th-strongest case, or the 10th-best lawyer with the 50th-strongest case? I bet most judges think the strength of the issue has more of an impact on who wins, but my own hunch is that the quality of the lawyer matters more.

Such navel-gazing is inspired by today’s fascinating reversal in US v. Dung Bui. Mr. Bui pled guilty to conspiracy to distribute drugs. Apparently the reason he chose to plead guilty was that his lawyer told him that a guilty plea would let him avoid a 10-year mandatory minimum prison sentence per the “safety valve.” But, in fact, he never was eligible for the safety valve, so he got the mandatory minimum. Bui filed a motion under 28 USC 2255 (the federal-conviction equivalent of habeas corpus) arguing that his lawyer provided ineffective assistance of counsel by incompetently advising him to plead guilty. He lost in district court, pro se like almost all 2255 litigants, and then appealed. CA3 granted a certificate of appealability (meaning they ruled that the issue was debatable among jurists of reason and therefore the appeal was allowed to proceed), and they appointed a lawyer to do the appeal. And that’s where it gets interesting.

The appointed lawyer (not an appellate specialist, judging from his website*) reviewed the case and decided that the issue was frivolous. So instead of filing a brief, he filed an Anders brief and asked the court to let him withdraw. The court granted his motion to withdraw, but then it did something remarkable: it appointed new counsel to replace him. Those new counsel were Brett Sweitzer and Maria Pulzetti, Assistant Federal Defenders in the E.D.Pa. Federal Community Defender’s appeals unit. They are two of the ablest appellate lawyers I know.

The upshot: far from agreeing that Bui’s issue was frivolous, today a unanimous panel granted relief on his plea-stage-IAC claim and reversed. The main legal issue was whether the district court was right that the plea colloquy cured counsel’s mistaken advice — it did not here, as it would in “the majority of guilty plea cases,” because the judge never said Bui would be ineligible for the safety valve and some of his statements about sentencing discretion were confusing given the mandatory minimum.

(And, to add another wrinkle to the do-lawyers-matter question, Bui had a co-defendant who lost on “the same issues” in an unpublished opinion by a different — and more conservative — panel 3 weeks ago, here. That panel denied on prejudice grounds, relying on the plea and colloquy.*)

The case is US v. Bui. Opinion by Greenaway, joined by McKee and Fuentes. The case was decided without oral argument.

In today’s other published opinion, the court upheld the dismissal of a qui tam suit under the False Claims Act on the ground that the claimant lacked the direct and independent knowledge required to establish subject-matter jurisdiction.

The case is US ex rel. Schumann v. Astrazeneca Pharm. Opinion by Roth, joined by Greenaway and Vanaskie. Arguing counsel were Paul Honigsberg for the claimant and Mark Haddad and Catherine Stetson for the appellees.

* To be clear, I’m not familiar with either Bui’s original appeal lawyer or Pham’s lawyer, and apart from reading the Anders brief and skimming Pham’s opening brief, I know nothing about the quality of their work. Nothing here is intended as a comment on either’s ability or performance in this case.