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Habeas Waiver in Plea Doesn't Bar Ineffective Counsel Claim

By Gabriella Khorasanee, JD | Last updated on

Thomas Hurlow pleaded guilty to charges of drug and gun possession, and waived his right to habeas corpus review. Ignoring the waiver, Hurlow petitioned for § 2255 review alleging ineffective assistance of counsel in the negotiation of the plea agreement. Giving a strict reading to his plea deal, the district court stated that he'd waived his § 2255 right to review.

The Seventh Circuit, however, disagreed.

Factual Background

Thomas Hurlow lived with his fiancée Tina Funk and her children. In 2008, two detectives and a case worker from the Indiana Department of Child Services visited Hurlow and Funk's home to conduct a child welfare check. Hurlow objected to allowing entrance to the detectives unless they had a valid search warrant, which they did not. Instead, the detectives told Funk that if she did not agree to a search, her children would be taken away. As a result, and over Hurlow's objections, Funk gave written consent to the search.

During the course of the search the detectives found drugs and a firearm, all of which Hurlow stated Funk did not know about. Hurlow was arrested and charged; his counsel "persuaded" and "cajoled" him into entering a guilty plea, despite Hurlow's statements that his rights had been violated. His lawyer failed to investigate these claims. As part of the plea agreement, Hurlow waived his § 2255 right to review.

Ineffective Assistance of Counsel and § 2255 Waivers

First, the court had to determine the effect of a § 2255 waiver on his plea agreement. The court cited a string of cases that buttressed its decision stating: "We have therefore repeatedly recognized that appellate and collateral review waivers cannot be invoked against claims that counsel was ineffective in the negotiation of the plea agreement." Though the government argued that Hurlow had to allege that counsel was ineffective as to the negotiation of the waiver provision specifically, the court was not convinced.

Next, the court had to determine whether Hurlow's claims reached the level of ineffective assistance to invalidate the § 2255 waiver in his plea agreement. The Seventh Circuit found that they did. Because Hurlow would not have entered a plea deal had his counsel informed him of a potentially successful Fourth Amendment claim, the court found that was enough to override the § 2255 waiver in his plea deal.

Moving Forward

Though most plea agreements contain § 2255 waivers, this case is significant because it still allows courts to review plea deals if the prisoner alleges ineffective assistance of counsel. Significantly, prisoners need not allege ineffective assistance to the waiver in the plea specifically. The court however, is not opening the floodgates because prisoner's must basically show that "but for" the ineffective assistance, they would not have entered the plea deal -- it's simply not enough to allege a violation of constitutional right.

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