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As noted Monday, this is a light week for criminal law at the US Supreme Court.  Doug Berman has a guest post at SCOTUSblog recapping the oral argument of the only criminal case on the docket, Pepper v. United States.  No argued cases were decided this week.  The Arizona immigration preemption case was argued today. Mark Sherman of AP reports the state will likely prevail, but Robert Barnes of the WaPo reports the Court is "conflicted."  The transcript is here.

Friday is a conference day.  SCOTUSblog's petitions to watch list is here.  There are two cases on ineffective assistance and plea bargaining: Missouri v. Frye, 10-444, and Lafler v. Cooper, 10-209.  There is Swarthout v. Cooke, 10-333, on the Ninth Circuit second-guessing parole decisions.  Allen v. Lawhorn is relisted for its ninth conference.  Anybody know the Court record for relistings?


IIRC, Knowles v. Mirzayance had a bunch of relists.

Lafler v. Cooper involves a claim of IAC where the defendant rejected a plea offer (due to flawed advice of counsel) and went to trial and was found guilty. The defendant (or more accurately, the habeas petitioner) claims that he would have pled guilty but for the flawed advice of counsel and therefore, notwithstanding the fair trial he received, should get the benefit of the plea deal that wasn't consummated.

Since the right to counsel is there to preserve an accused's right to a fair trial, it's difficult to see how a criminal gets to complain when he gets a fair trial.

And then there's this language in Cronic:

"Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt."

The Sixth Circuit's holding in that case shows just how far Strickland has metastasized.

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