Federal Judiciary

United States v. Pitcher, Docket No. 05-3182-cr (2d Cir. March 11, 2009) (found here)

Pitcher was convicted at trial for conspiracy to import and distribute heroin, and was sentenced to 121 months imprisonment.  On appeal, he contended that he'd received ineffective assistance of counsel because his trial counsel "convinced him to spurn the government's efforts to sign him up as a cooperator," and that he "would have pursued a cooperation agreement with the government but for the ineffectiveness of his counsel."  The Second Circuit rejected his argument. 

Pitcher then filed his 2255 petition in the district court, seeking to vacate his sentence on the ground that he would have received a significantly shorter sentence had his trial counsel not misinformed him about the benefits of cooperation and the risks he faced by proceeding to trial.  The district court held an evidentiary hearing, and ultimately granted Pitcher's motion, vacated his 121 month sentence, and re-sentenced him to time served.

The Government appealed, and won.  Specifically, the Second Circuit found that Pitcher's claim of ineffective assistance of counsel was barred by its prior ruling on direct appeal that trial counsel was no ineffective.  Simply put, the Second Circuit confirmed that a 2255 petition may not be used to re-litigate questions that were raised and considered on direct appeal.