We previously noted here the case of Arave v. Hoffman, in which the Supreme Court granted certiorari and added its own question, "What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?" My op-ed in the LA Daily Journal on the case is here.
The odd thing about the case was that Hoffman had already obtained relief from his penalty judgment in district court, and the state had abandoned its cross-appeal of that decision. The question was whether the state could retry the penalty phase if it chose to do so. After almost six years of litigating whether the district court erroneously denied him the remedy of precluding a retrial, Hoffman has now decided he doesn't want that remedy after all. Oh, never mind. He has asked the Supreme Court to vacate the decision of the Ninth Circuit as dismiss the case as moot. SCOTUSblog has the motion here. The Idaho AG naturally concurs, given that Hoffman is now asking for the same result they have been saying was correct the whole time.
The purported reason for Hoffman's change of heart is the prison conditions that he remains under until the district court's judgment becomes final. I don't buy it. I strongly suspect that counsel for Hoffman was under intense pressure from the defense bar, who saw a whopping defeat looming. The case would have required the Supreme Court to confront the "prejudice" element of Strickland v. Washington, 466 U.S. 668 (1984) in a context where an attorney error might have affected outcome but does not affect the reliability of the verdict. That is, is the failure of an attorney to obtain an undeserved windfall for the defendant a reason to set aside a reliable judgment?
In Kimmelman v. Morrison, 477 U.S. 365 (1986), Justice Powell strongly hinted that the answer was "no" in a context much more common than the quirky facts of Hoffman. That case involved a lawyer's failure to get evidence suppressed under the Fourth Amendment exclusionary rule. However, the question had not been squarely presented in Kimmelman, see id., at 397-398, so it was not resolved then and has not been resolved since.
The Court will probably dump Hoffman, as requested. However, the grant of certiorari in this case indicates that the Court is interested in the issue. If any AG or DA offices have an appropriate vehicle to raise the issue, bring it on.