Sixth Amendment does not require that counsel be clairvoyant to be effective.

In Kimbrough v. United v. States, --- F.4th --- (6th Cir. 2023), the defendant was charged with numerous offenses including attempted Hobbs Act robbery (18 U.S.C. § 1951(a)), two counts of murder with a firearm during a crime of violence (18 U.S.C. § 924(j)), and murder of a federal witness (§ 1512(a)(1)(C)). The latter charge carried a mandatory life sentence.

Under the terms of a plea agreement, Mr. Kimbrough agreed to a stipulation admitting the crimes and he would plead guilty to multiple charges including two counts of murder with a firearm during a crime of violence. The government would dismiss the remaining charges and agree to a binding sentencing range of 480 to 520 months. The district court imposed concurrent 504-month sentences on the two § 924(j) convictions and concurrent statutory maximum sentences on the other counts.

Mr. Kimbrough subsequently filed a motion under 28 U.S.C. § 2255 to vacate his sentence. He claimed that his attorneys were ineffective because they advised him to plead guilty to the § 924(j) charge that did not involve the federal witness. Mr. Kimbrough argued that counsel was ineffective because attempted Hobbs Act robbery was not a crime of violence under the “elements clause” of § 924(c)(3)(A). Although the district court agreed with Mr. Kimbrough, it rejected his claim because in the absence of evidence that he would have rejected the plea, he could not demonstrate prejudice.

After Mr. Kimbrough file notice of appeal, the Supreme Court held in Taylor v. United States, 142 S.Ct. 2015 (2022) that attempted Hobbs Act robbery does not qualify as a crime of violence. The Sixth Circuit issued a certificate of appealability on the ineffective assistance claim. In his reply brief, Mr. Kimbrough requested that a certificate of appealability to challenge his § 924(j) convictions. The request was denied because Mr. Kimbrough procedurally defaulted the Taylor argument by failing to raise it in district court and on direct appeal in his opening brief.

The Sixth Circuit affirmed the denial of Mr. Kimbrough’s § 2255 motion. In its analysis of the deficiency prong of the test in Strickland v. Washington, 466 U.S. 668 (1984), the Sixth Circuit found that “existing precedent did not ‘clearly foreshadow’” Taylor. Slip Opin. at 4. As the court put it, “the Sixth Amendment guarantees a competent attorney, not a clairvoyant one.” Slip Opin. at 5. Moreover, foregoing a potentially meritorious argument to obtain a favorable plea agreement does not render counsel’s performance deficient. The Sixth Circuit noted that Mr. Kimbrough “did not have a strong hand to play in plea negotiations.” Slip Opin. at. 6. He did not deny the charges and did not offer a viable defense to them. Moreover, he was looking at a mandatory life sentence on one charge. Even if the Taylor argument was viable, “counsel must only consider ‘clearly foreshadowed’ arguments, not every ‘viable’ one.” Slip Opin. at 6 (citation omitted).

Mr. Kimbrough also failed to show prejudice under the Strickland test. The Sixth Circuit reiterated that he did not claim to be innocent or offer a viable defense. He also did not contend that he would have rejected the plea deal and gone to trial. In addition, he did not show that he had a legal argument that “materially mitigates the risk of a mandatory life sentence or a factual argument that materially improves the odds of an acquittal.” Slip Opin. at 7.



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