Prejudicial IAC Where Defendant Who Entered Open Plea Wanted Appeal

US v. Akande: Akande was charged with “counts arising from a bank fraud conspiracy” and filed a motion to suppress some of the evidence against him. The motion was denied and he then entered a guilty plea without a plea agreement. He then sought to withdraw the guilty plea, arguing that his counsel had misinformed him that he could pursue an appeal of the suppression issue after entering a non-conditional guilty plea. Before ruling on the motion to withdraw the plea, Akande go new counsel who withdrew the motion to withdraw and proceeded to sentencing. Akande’s 199-month sentence was affirmed on appeal.

Akande filed a 2255 motion arguing that both of his counsel had been ineffective. Particularly, his first counsel’s incorrect advice that he could pursue an appeal of the suppression issue after entering an open guilty plea had prejudiced him. The district court denied the motion, concluding that Akande couldn’t show prejudice.

The Fourth Circuit reversed. Noting that everyone agreed that Akande’s first counsel provided incorrect advice (the court didn’t reach the IAC allegations against his second attorney), the court then rejected the Government’s argument that the district court’s colloquy with Akande at the plea hearing cured that incorrect advice. Because the advice was particular to appealing the suppression issue, the district court’s more general information about what Akande was waiving by pleading guilty could not cure there error. Furthermore, Akande showed he was prejudiced because there was sufficient evidence in the record to show that preserving his right to appeal the suppression issue was a prime concern and that, had he known he had to go to trial to preserve it, he would have.