Francisco Herrera-Genao v. United States
641 F. App'x 190 (2016)
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Rule of Law:
To establish prejudice for an ineffective assistance of counsel claim regarding plea negotiations, a defendant must demonstrate the existence of a formal plea offer and a reasonable probability they would have accepted it.
Facts:
- In 2007, Francisco Herrera-Genao and three coconspirators committed four armed bank robberies in New Jersey.
- During these robberies, Herrera-Genao typically jumped over the counter, pointed a handgun at bank employees, and in three instances fired his handgun, once injuring a teller.
- Herrera-Genao and his coconspirators planned a fifth robbery, but the FBI, conducting surveillance, moved in to arrest them.
- During the arrest, an FBI special agent was shot and killed by friendly fire; Herrera-Genao escaped but was apprehended the following morning.
- Herrera-Genao faced a mandatory sentence of at least 110 years’ imprisonment if convicted on all counts.
- Forensic psychologists and psychiatrists diagnosed Herrera-Genao with several mental disorders and a low IQ, but opined that his issues did not meet federal standards for incompetence or insanity.
- Herrera-Genao’s trial counsel, Martin Matlaga, discussed a potential plea agreement for 45 years’ imprisonment with the lead prosecutor, but this was contingent on all three defendants pleading guilty and approvals from the United States Attorney, the FBI, and the deceased agent’s family.
- Herrera-Genao rejected the proposed 45-year terms of the potential plea deal.
Procedural Posture:
- Herrera-Genao was charged in the United States District Court for the District of New Jersey with one count of conspiracy to commit bank robbery, four counts of armed bank robbery, one count of attempted bank robbery, and five counts of possession of a firearm in furtherance of a crime of violence.
- Herrera-Genao’s trial counsel discussed a potential 45-year plea deal with the government, but Herrera-Genao rejected the proposed terms, which were contingent on multiple approvals.
- The case proceeded to trial, and a jury in the District Court convicted Herrera-Genao of all 11 counts.
- The District Court sentenced Herrera-Genao to 1,407 months’ imprisonment.
- Herrera-Genao appealed his convictions and sentence to the United States Court of Appeals for the Third Circuit, which affirmed the District Court's judgment on direct appeal (Herrera-Genao v. United States, 419 F. App’x 288 (3d Cir. 2011)).
- Herrera-Genao subsequently filed a motion to vacate his sentence under 28 U.S.C. § 2255 in the District Court, arguing ineffective assistance of counsel during plea negotiations.
- The District Court held two evidentiary hearings and issued an opinion denying Herrera-Genao's § 2255 motion.
- The District Court granted a certificate of appealability regarding Herrera-Genao’s ineffective assistance claim.
- Herrera-Genao, as appellant, filed a timely appeal to the United States Court of Appeals for the Third Circuit from the denial of his § 2255 motion.
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Issue:
Does a defendant establish prejudice for an ineffective assistance of counsel claim during plea negotiations if there was no formal plea offer and the defendant was unwilling to accept the proposed terms?
Opinions:
Majority - FISHER, Circuit Judge
No, a defendant does not establish prejudice for an ineffective assistance of counsel claim during plea negotiations if there was no formal plea offer and the defendant was unwilling to accept the proposed terms. The Third Circuit affirmed the district court’s denial of Herrera-Genao’s motion to vacate his sentence, focusing on the "prejudice" prong of the Strickland v. Washington test for ineffective assistance of counsel. To establish prejudice in the context of plea negotiations, a defendant must demonstrate a reasonable probability that they would have accepted the plea agreement, that the government would not have withdrawn it, and that the court would have approved its terms. However, if no formal plea offer was ever made, the issue of prejudice "simply does not arise." The court found that the district court's factual finding that there was no formal plea offer was not clearly erroneous, accepting the prosecutor's credible testimony that discussions were only preliminary and contingent, never a definite offer. Furthermore, the district court did not clearly err in finding that Herrera-Genao was unwilling to accept the 45-year deal even if formally offered, based on conflicting testimony from Herrera-Genao (who stated he would accept "worst to worst" 45 years, but desired 20) and his counsel (who testified Herrera-Genao was never willing to accept the 45-year deal). Since Herrera-Genao failed to demonstrate either a definite plea offer or a reasonable probability he would have accepted it, he could not show prejudice from his counsel's allegedly unreasonable performance, thereby failing the Strickland test.
Analysis:
This case clarifies the stringent requirements for proving prejudice in ineffective assistance of counsel claims during plea negotiations, particularly emphasizing the necessity of a formal plea offer. It reinforces that a defendant cannot claim prejudice from a lost plea opportunity if the government never made a concrete offer or if the defendant would not have accepted the proposed terms. The ruling highlights the judiciary’s deference to a lower court’s factual findings, especially concerning witness credibility, and limits the scope of ineffective assistance claims to concrete, rather than hypothetical, scenarios. This case serves as a crucial reminder for both defense counsel and prosecutors to clearly document plea offers and negotiations to avoid future disputes regarding their existence or terms.
