A brief I wrote for a mock Supreme Court oral argument in Constitutional Law class.

1. 1
No. __________
IN THE
Supreme Court of the
United States
VONLEE TITLOW,
Petitioner,
v.
SHERRY L BURT,
Respondent
STATEMENT OF THE FACTS
Vonlee Titlow‟s conviction stems from participating with his aunt, Billie Rogers, to
murder his wealthy uncle, Donald Rogers in order to inherit his large estate. Titlow v. Burt, 680
F.3d 577, 583 (6th Cir. 2012). Titlow, a transgender male, planned to use some of the money he
earned from the murder to pay for a sex-change operation. Id. at 581, 584. After the murder,
Billie Rogers purchased new cars for herself and the Petitioner. Id. The Petitioner also received a
check for over $70,000 to keep quiet about the murder plus additional money for gambling, a
favorite past-time of the Petitioner and Billie Rogers. Id. at 583.
No autopsy was ever performed on the deceased who was later cremated. Id. Photographs
of the corpse showed small scrapes around Mr. Roger‟s nose consistent with impressions made
by a decorative woven pillow. Id. at 582-583. The only true incriminating evidence was the
recorded testimony that the Petitioner told to his lover, Danny Chahine, when the Petitioner
revealed the details surrounding his uncle‟s death. Id. at 583.
Both the Petitioner and Billie Rogers were arrested on first-degree murder charges in
January 2001 and tried separately. Id. Attorney Richard Lustig originally represented the
Petitioner and negotiated a plea agreement with the State with the conditions that Titlow would
BRIEF IN OPPOSITION OF
MOTION FOR FEDERAL
HABEAS RELIEF

2. 2
plead guilty, submit to a lie-detector test, testify against Billie Rogers at her trial, and not
challenge the prosecutor‟s recommended sentencing range on appeal. Id.
After taking the lie-detector test, the Petitioner spoke to sheriff‟s deputy Eric Ott who
advised the Petitioner not to plead guilty if he believed that he was innocent. Id. Deputy Ott
referred the Petitioner to attorney Frederick Toca who made a motion to withdraw the plea
agreement on November 29, 2001 because the Petitioner would not testify against Billie Rogers
unless the offered sentencing range of 7 – to – 15 years was reduced to 3 – to – 15 years because
the offered sentencing range was double the recommended sentence for manslaughter. Id. at 583-
584. The court ultimately allowed the Petitioner to withdraw his plea because he refused to
testify at Billie Rogers‟s trial which began on November 29, 2001. Id. at 582-583.
Between January and February 2002, attorney Toca moved to withdraw as counsel citing
a breakdown in communications and a lack of funds to proceed with the defense. Id. at 584.
Attorney William Cataldo was appointed as the Petitioner‟s counsel and represented the
Petitioner at trial in March 2002. Id. On the stand, the Petitioner admitted to his part in the
murder and a jury convicted him of second-degree murder and he was sentenced to 20- to- 40
years in prison. Id. At his sentencing hearing, the Petitioner stated that he would have testified
against his aunt, Billie Rogers, had he known how much time he would have to serve for the
second-degree murder conviction. Id.
After the Michigan appeal process ran its course, the Petitioner filed for a writ of habeas
corpus under 28 U.S.C. § 2254 in August 2007. Id. at 585.The petition was denied in October
2010 and the 6th Circuit court reversed. Id.

3. 3
ISSUE
Whether the Sixth Circuit failed to give appropriate deference to the Michigan state court
under AEDPA in holding that the Petitioner‟s counsel was constitutionally ineffective for
allowing the Petitioner to maintain his claim of innocence.
BRIEF ANSWER
Yes. The Sixth Circuit failed to give deference to the Michigan state court under AEDPA
when the Petitioner failed to establish the two tests under Strickland to prove ineffective
assistance of counsel and the three tests under Lafler to prove prejudice.
ANALYSIS
The Petitioner „s application for a writ of habeas corpus relief pursuant to the judgment of
a State court shall not be granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim (1) resulted in a decision that was
contrary to or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States, or (2) resulted in a decision that was
based on an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding. Id. at 585. The Petitioner is unable to establish the “unreasonable
determination” or show that the resulting state court decision was based on “that unreasonable
determination.” Id. Even if the Petitioner could establish both, not every constitutional error in a
state-court proceeding merits the issuance of a writ of habeas corpus, as is evidenced in this case.
Id. at 586.
The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right
to the assistance of counsel during their criminal proceedings, and this right extends to the
effective assistance of counsel during the plea bargaining process. Id. In Strickland v.

4. 4
Washington, the two part test for determining the Petitioner‟s violation of his right to effective
assistance of counsel are (1) the Petitioner must show that the counsel‟s performance was
deficient by showing that counsel made errors so serious that counsel was not functioning as the
counsel guaranteed to the Petitioner by the Sixth Amendment, and (2) the Petitioner must show
that the deficient performance prejudiced the defense. Id. at 586-587.
When evaluating deficient performance under the first test of Strickland, the court is
required to apply a strong presumption that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable judgment. Id. at 587. The court should not
indulge in hindsight, but rather, evaluate the reasonableness of counsel‟s performance in the
context of the circumstances at the time of the alleged errors. Id.
The primary error lies in the assumption that the Petitioner chose to withdraw his plea
because of Mr. Toca‟s advice. Id. at 598. Mr. Toca‟s advice was set in motion by the Petitioner‟s
earlier assertions of innocence. Id. at 593.When a defendant proclaims his innocence it is not
objectively unreasonable to recommend that the defendant refrain from pleading guilty no matter
how good the deal may appear. Id. at 589. The deal did not seem to be too good because the
Petitioner refused to testify against his aunt unless the offered sentencing range was reduced to
3 – to – 15 years. Id. at 583-584.
The Petitioner also contends that Mr. Toca‟s failure to obtain his case file from Attorney
Lustig was totally inconsistent with a reasonable investigation. Id. at 590. The court material was
available to Mr. Toca by reviewing public court files or by asking the prosecutor to provide
additional copies of discovery material – a common practice among state prosecutors and
criminal defense attorneys in Michigan. Burt v. Titlow, No. 12-414, 2012 WL 4750282, at 14.
Mr. Toca did have court material available to him because he stated in court that he “had a lot of

5. 5
material here” to review prior to the trial. Id. at 584. Nothing in the case file would have
undermined the reasonableness of the plea withdraw and the Petitioner failed to present any
evidence that Mr. Toca failed to provide him with professional guidance regarding his sentencing
exposure prior to the plea withdraw. Id. at 594-595.
In the context of a rejected plea deal, Strickland’s prejudice component requires the
Petitioner to show that deficient counsel deprived him of the opportunity to accept the plea deal.
Id. at 588. Lafler articulated a three-part test for this proof: (1) the defendant would have
accepted the plea and the prosecution would not have withdrawn the plea in light of intervening
circumstances, (2) the court would have accepted the terms of the plea, and (3) the conviction or
sentence, or both, under the plea terms would have been less severe than the punishment
ultimately given. Lafler v. Cooper, 132 S.Ct. 1376, 1385, 182 L.Ed. 2d 398 (2012).
Under the Lafer test, the Petitioner refused to accept two of the essential conditions of the
plea deals, i.e., to testify against his aunt, and to accept the offered sentencing range of 7 – to –
15 years. Titlow at 583-584. The primary reason for the plea was for the Petitioner to testify
against his aunt, Billie Rogers. Id. at 592. Once her trial began the essential conditions of the
plea deal expired. Id.
CONCLUSION
For the foregoing reasons, the Petitioner cannot be granted habeas relief because there is
no evidence that Mr. Toca failed to provide effective assistance of counsel during the plea deal
under the Strickland test, and the three-part test under Lafler to prove prejudice fails because the
Petitioner refused to satisfy all the conditions of the plea deal.