United States v. Olson, No. 19-16591 (9th Cir. 2021)
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The Ninth Circuit affirmed the district court's denial of defendant's 28 U.S.C. 2255 motion to vacate his sentence based on the ineffective assistance of counsel during plea negotiations that took place before defendant was formally accused of any crime. Traditionally, the panel explained that the Sixth Amendment has been interpreted to mean that the right to counsel attaches when a criminal defendant is formally charged. Defendant asked the panel to reexamine the traditional approach to attachment of the Sixth Amendment right to counsel in order to recognize that the right to counsel may attach before there has been a formal charge.
The panel concluded that it is not in a position to do so, however, because it cannot overrule binding circuit precedent. The panel also concluded that this is not an appropriate case to ask for an en banc court to consider overruling United States v. Hayes, 231 F.3d 663, 669–70 (9th Cir. 2000) (en banc), since this defendant was appointed counsel, and the record indicates that defendant's counsel was not ineffective.
Court Description: 28 U.S.C. § 2255. The panel affirmed the district court’s judgment denying Gregory Olson’s 28 U.S.C. § 2255 motion seeking to vacate his sentence on the basis of a claim of ineffective assistance of counsel during plea negotiations that took place before Olson was formally accused of any crime. Traditionally, the Sixth Amendment has been interpreted to mean that the right to counsel attaches when a criminal defendant is formally charged. See Kirby v. Illinois, 406 U.S. 682, 688–89 (1972); United States v. Hayes, 231 F.3d 663, 669–70 (9th Cir. 2000) (en banc). Olson asked the court to reexamine this traditional approach to attachment of the Sixth Amendment right to counsel in order to recognize that the right to counsel may attach before there has been a formal charge. The panel wrote that it is not in a position to do so because it cannot overrule binding circuit precedent. The panel further concluded that this is not an appropriate case to ask for an en banc court to consider overruling Hayes, because the record does not support Olson’s claim that his counsel was ineffective, and an en banc ruling would therefore not affect the result. Concurring in the judgment, Chief Judge Thomas wrote separately to express his opinion that (1) there is a pre- indictment Sixth Amendment right to counsel when a UNITED STATES V. OLSON 3 functional equivalent of an indictment exists, and (2) Hayes does not foreclose such a result. Concurring in part, Judge Berzon agreed that Olson’s lawyer was not ineffective during the plea negotiations, that Hayes is conclusive on the question whether the right to counsel can ever attach before formal judicial proceedings of some kind have begun, and that the panel is bound by Hayes. She wrote, however, that Hayes imposes a more stringent and bright line test regarding when the Sixth Amendment right to counsel begins than the Supreme Court’s case law requires or the underlying Sixth Amendment precepts justify; and that Hayes should be reconsidered en banc at the first opportunity.
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