US v. Palacios: Palacios was charged with, among other things, use of a firearm in connection with a crime of violence and murder resulting from the use of a firearm in a crime of violence. Prior to trial, Palacios moved to dismiss one of the two counts, arguing that they were multiplicitous in violation of the Double Jeopardy Clause. The district court denied the motion, “correctly explaining” that the Government, at that point, was not required to choose between the two counts. Palacios was convicted of both, but never renewed his motion and was sentenced to life on the murder count and a consecutive 10-year term on the firearm count. Palacios later filed a 2255 motion arguing his trial counsel had been ineffective for failing to raise the Double Jeopardy challenge again after his convictions. The district court denied the motion, finding that it was not unreasonable for counsel not to raise that argument.
On appeal, the Fourth Circuit affirmed, although it provided some helpful language on the intersection of these two offenses. The court noted that that everyone agreed that the firearm offense is a lesser included offense of the murder offense as well as that there was no evidence that Congress intended to “authorize cumulative punishments for convictions under these two statutes.” That said, the court found no ineffective assistance of counsel here because at the time of Palacios’ trial the law on the issue was, at best, unsettled, with the first clear case holding in his favor being decided several years later. Although cases at the time recognized the lesser included nature of the firearm offense, none went further into the Double Jeopardy issue. Therefore, the court could not conclude that the claim Palacios raised now “was sufficiently foreshadowed at the time of trial to render his counsel’s failure to raise it constitutionally deficient.”
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