Second Circuit – Ineffective assistance of counsel: United States v. Barrett

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United States Court of Appeals for the Second Circuit

Ineffective assistance of counsel

Appellate counsel

United States v. Barrett

21-1379

Judges Raggi, Lohier, and Carney

Background: The defendant was found guilty on multiple counts of conspiratorial and substantive Hobbs Act robbery, the use of firearms during such robberies, and murder of one robbery victim. He argues on appeal that his appellate counsel was constitutionally ineffective in failing to mount a sufficiency challenge to one count of substantive Hobbs Act robbery and related firearms and murder counts on the grounds that the evidence demonstrated only attempted robbery.

Ruling: The Second Circuit affirmed. The court noted that appellate counsel for a prior appeal pursued strong arguments that were a benefit to the defendant. Thus, the defendant cannot show that his prior appellate counsel pursued clearly weak arguments on appeal. Moreover, the insufficiency argument is not strong as a reasonable jury would conclude that the defendant did, in fact, take possession of the money at issue. There is also no evidence that the defendant was prejudiced by appellate counsel’s failure to argue insufficiency.

Matthew B. Larsen, of the Federal Defenders of New York, for the defendant-appellant; Michael D. Maimin, assistant United States attorney, for the appellee.

Oral argument audio