In Dasher v. Witt, No. 08-10363 (11th Cir. July 13, 2009), the Court granted habeas relief based on ineffective assistance of counsel
Dasher decided to reject a plea offer to be sentenced to 13 months, and opted to plead guilty to cocaine trafficking charges "straight up," that is, without any agreement, based on his attorney’s advice that he doubted the sentence would exceed 13 months, and might be less. Once the judge learned of Dasher’s criminal history, he imposed a 10-year sentence.
The Court held that counsel was not ineffective in failing to investigate Dasher’s criminal history. The record supported an implicit finding that counsel asked Dasher about his prior criminal record. Moreover, failure to undertake an independent investigation was not constitutionally ineffective when counsel relied on information apparently in the hands of the prosecutor.
However, it was "a piece of foolishness" to advise Dasher that if he pled "straight up" he would receive little more than 12 months. Counsel was aware of other felonies to which Dasher was pleading guilty to, around the same time. Nor was the bad advice cured by the judge’s advice to Dasher that he had "total discretion" to sentence him up to 30 years, because Dasher would not have been worried this possibility, given counsel’s advice. "Whether or not he had a lengthy prior criminal record, Dasher was clearly risking a sentence of substantially more than thirteen months, and there was certainly no reason to believe he would do better.
Because Dasher had already served all but five months of his sentence, the court modified the State sentence to time-served. "Our discretion to formulate such a remedy, without disturbing the judgment of conviction, derives from 28 U.S.C. § 2243, which authorizes federal habeas courts to ‘dispose of the matter as law and justice requires.’"
