Third Circuit Grants Ineffective Assistance of Counsel Claim

On October 20, 2014, the Third Circuit granted Dung Bui’s habeas petition in U.S. v. Bui, 2014 WL 5315061 (3d Cir, Oct. 20, 2014). Since Congress’ passing of the Antiterrorism and Effective Death Penalty Act in 1996, successful habeas petitions are rare—and even rarer when the petitioner has signed an appellate waiver, as was the case here. Bui was indicted on four drug-related charges. His lawyer advised him to plead guilty so that he could avail of the “safety valve” in 18 U.S.C. § 3553 and avoid the mandatory minimum sentence provided for in 21 U.S.C. § 860. Bui entered into a plea agreement and pleaded guilty; his lawyer sought a reduced sentence under § 3553. But Bui’s lawyer was unaware of clear Third Circuit precedent rendering § 860 ineligible for safety valving. Bui collaterally attacked his sentence, alleging ineffective assistance of counsel. The District Court denied Bui’s claim, holding that the appellate waiver he signed as part of his plea agreement barred the claim. The Third Circuit disagreed. In applying the well-established Strickland test, the Court ruled that his attorney’s “lack of familiarity of eighteen-year-old case precedent and his erroneous advice based on that lack of familiarity” essentially deprived Bui of his 6^th Amendment right to counsel. Moreover, this erroneous advice was clearly prejudicial because Bui—facing a mandatory minimum—would not have pleaded guilty had he received accurate advice. Finally, because Bui’s claims related to the process by which he entered into the plea agreement, his claims could not be barred by the appellate waiver. The Court vacated Bui’s conviction and remanded the case to the District Court.