Appeal from the United States District Court for the Eastern District of Michigan at Flint.
Nos. 4:19-cr-20029; 4:21-cv-10553—Matthew F. Leitman, District Judge.
Argued: March 9, 2023
Decided and Filed: April 7, 2023
Before: SUHRHEINRICH, COLE, and MURPHY, Circuit Judges.
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OPINION
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SUHRHEINRICH, Circuit Judge. Does trial counsel render ineffective assistance of
counsel if he gives incorrect advice while a defendant is considering a plea deal with the
government but then recognizes and rectifies his mistake prior to sentencing? The petitioner
here claims that trial counsel does so in this appeal from the denial of a 28 U.S.C. § 2255
petition. The petitioner also faults trial counsel for failing to object when the district court ran
his aggravated identity theft sentence consecutive rather than concurrent to his state parole
revocation sentence, and for not seeking a downward adjustment under USSG § 5G1.3. He
faults appellate counsel for failing to raise the consecutive-versus-concurrent and USSG § 5G1.3
issues on direct appeal.
Here, the question of whether trial counsel’s performance was “Strickland deficient” is
best answered by determining whether there was prejudice. Even if the petitioner could
demonstrate that trial counsel’s performance—initial error followed by correction—was
ultimately deficient performance, he failed to present evidence of prejudice. The district court
also correctly concluded that sentences imposed under the aggravated identity theft statute must
run consecutive to all other (including state) sentences and are not subject to USSG § 5G1.3
adjustments. Therefore, all the petitioner’s ineffective assistance and merits claims fail. |