Judges Merritt, Batchelder, and Rogers do NOT like Sixth Circuit precedent on an issue and, boy howdy, they tell counsel just what needs to be done to get the Supreme Court's attention. John Turner v. United States, No. 15-6060 concerns at what point the Sixth Amendment right to counsel (and thus effective assistance of counsel) begins. Sixth Circuit precedent says it does not attach until after formal charges are filed. As detailed in Turner, there is a Circuit split on the issue, and it is an important issue because of just how often defendants run up against this sort of state/federal prosecution.
Quick facts: Mr. Turner was charged with robbery in state court. Counsel was appointed to represent him in the state court prosecution. While the state charges were pending, the U.S. Attorney's office reached out to his attorney to discuss a plea in federal court to as-yet-unindicted charges arising from the same conduct. If Mr. Turner accepted the offer pre-indicment, he would get 15 years in prison. After indictment, he faced a mandatory minimum sentence of 82 years. Mr. Turner rejected that offer. He was charged federally. He accepted a less-favorable plea deal. He brings a 2255 based on ineffective assistance of counsel during the initial pre-charge negotiations. If Mr. Turner has the right to counsel pre-charge, he has the right to effective assistance of counsel. If he does not have the right to counsel pre-charge, the courts cannot even contemplate an IAC claim.
While the Supreme Court has recognized the right to effective assistance of counsel during plea negotiations, it has yet to consider the right to counsel in preindictment plea negotiations. The Sixth Circuit has strongly adhered to the notion that the right to counsel attaches once formal charges are filed. Turner notes that five other circuits have a similar bright-line test, while four "allow a rebuttable presumption to the argument that the right to counsel attaches only after formal charges are filed." Turner even gives links to articles on the subject.
It's an interesting opinion given its frankness about the federal process and the need to have effective counsel at every critical stage. Hopefully, Mr. Turner will take the Sixth up on their very thinly veiled suggestion for pursuing Supreme Court review.