Skip to main content

What 2255 claims can be made where defendant was charged for conduct performed as a government informant?

Philadelphia, PA |

This is an actual case that went to trial! Defendant was caught w/drugs and agreed to assist the government. At the gov's request, def. set up a drug deal with his supplier. When the indictment came down, def. was charged with the actions he performed at the gov's request, without which his charges could not amount to the 5 kilos of cocaine necessary to support the mandatory minimum. Trial counsel never argued the theory of withdrawal from conspiracy. Furthermore, def't's confession to law enforcement (admitted into evid.) was only rendered after signing a standard DEA contract agreeing all of his conduct at the gov's request would not be charged. Def. claims he would never have embarked on cooperation had he known he'd be charged with gov-orchestrated conduct. Have all documents!

Attorney Answers 4

Posted

While your question is certainly in the area of criminal defense, I think the better practice area is "Federal Crime" as there are marked differences between state (county) and federal prosecutions and your specific query about §2255 is most definitely a question that pertains to the special rules and procedure in Federal Court. What you describe seems very out of line, but much greater detail would be needed about the Defendant's case. I'm going to go ahead and edit the practice area accordingly. The bottom line is that there needs to be a private consultation with qualified criminal defense counsel with federal expertise. Good luck.

Mark as helpful

4 lawyers agree

1 comment

Asker

Posted

Good luck finding a "qualified criminal defense attorney" was right on. Couldn't find one who could comprehend the case. Fortunately, the defendant proceeded pro se and was able to overturn his conviction through a pro se 2255 motion. He may be facing a retrial now though --I'll update when I hear more.

Posted

Collateral appeals of federal convictions under 2255 are extremely complex and fact-intensive appeals. The right to bring such a claim arises only upon disposition of the defendant's direct appeals. This is most definitely NOT something that is appropriate over the internet. The time period for bringing a collateral appeal is strictly limited. If this happened to someone you know, the best thing that you can do is retain an experienced FEDERAL appeals attorney for your friend/family member ASAP. The defendant should NOT attempt this pro se.

Mark as helpful

5 lawyers agree

4 comments

Joshua Sachs

Joshua Sachs

Posted

Nothing more to say really. Mr. Myshin nailed it.

Daniel M. Myshin

Daniel M. Myshin

Posted

Thank you.

Asker

Posted

The defendant did proceed pro se and won his 2255 overturning his conviction!! Thanks for the advice.

Joshua Sachs

Joshua Sachs

Posted

Nice work. Those are tough. Congratulations!

Posted

An attorney would have to sit down with this defendant and review exactly what happened and possibly review the trial transcripts and appellate briefs to determine whether there is a viable or arguable claim under 28 U.S.C. § 2255. Either the sentence would have to be statutorily illegal or in violation of the constitution or otherwise subject to collateral attack. Your post doesn't provide enough information to determine if the sentence qualifies. The essence of your claim as I read you post is that because they charged defendant with a crime resulting from defendant's conduct as an informant which weren't crimes because defendant was acting as their agent, and apparently defendant was convicted of those crimes, defendant was subject to a mandatory sentence which he otherwise would not have been subjected to had they not charged defendant with that conduct. The problem with that proposition is that if the defendant was found guilty of the charges resulting from that conduct, that finding constitutes a rejection of the fact that the conduct was at the behest of the police. The jury's findings relating to facts in the case cannot be challenged under § 2255 at least as I read that section. You should take the documents that you have to a seasoned criminal lawyer to see whether there is a potential Federal Habeas Corpus claim that has a chance of success.

Mark as helpful

4 lawyers agree

1 comment

Asker

Posted

How could the jury have rejected a the fact the conduct was at the behest of the police when they were never instructed whether said fact amounted to innocent conduct? You think it right as an attorney to presume the jury would know the difference between legal and illegal conduct without a proper jury instruction? I did mention the trial attorney failed to argue the defendant had withdrew from the conspiracy.

Posted

You can always start with ineffective assistance of counsel, but not arguing a theory is not IAC. You really need the evidence you have reviewed. Please consider getting one of the attorneys at the find a lawyer section.

Mark as helpful

3 lawyers agree

1 comment

Asker

Posted

You wrote "not arguing a theory is not IAC." Is it common for you not to argue a theory of the case to the jury or judge? What is your success rate on that line?

Federal crime topics

Top tips from attorneys

What others are asking

Can't find what you're looking for?

Post a free question on our public forum.

Ask a Question

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics