PTA or not--IAC in the pretrial stage

Prof. Berman at Sentencing Law & Policy notes a cert denial in Davis v. United States, No. 22–5364, that prompted this short dissent authored by Justice Jackson and joined by Justice Sotomayor. 

Our criminal justice system today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper, 566 U.S. 156, 170 (2012). Against this backdrop, this Court has recognized that the loss of an opportunity for a favorable plea offer due to an attorney’s deficient performance can violate the Sixth Amendment right to effective counsel. Id., at 169–170; see also Missouri v. Frye, 566 U.S. 134 (2012). Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government. The question presented, then, is how can a defendant like Davis show “prejudice” as a result of this failure?...
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The District Court concluded that Davis’s allegations in his 28 U. S. C. §2255 motion were insufficient, even if true, because he had not alleged “that a plea offer was made but not communicated to [him].”... Moreover, under the circumstances presented here, it was exceedingly likely that Davis would have prevailed with respect to the prejudice prong if the Eleventh Circuit had not applied that threshold requirement.  Davis’s allegations established that a favorable plea agreement was a strong possibility, even though no offer actually materialized, because each of Davis’s five codefendants had lawyers who negotiated favorable plea agreements with respect to the same series of armed robberies.  And while Davis (who was 18 or 19 years old at the time the crimes were committed) received a sentence of approximately 160 years of imprisonment after his attorney took him to trial, all of Davis’s codefendants received sentences of less than 40 years of imprisonment due to plea agreements that enabled the District Court to impose a sentence below the mandatory minimum. T he District Court’s statements at sentencing were also noteworthy: The judge specifically asserted that, while he thought the appropriate sentence for Davis was 40 years, he was bound by the consecutive mandatory minimums.
The Eleventh Circuit gave short shrift to these alleged facts, and others, which suggest that Davis was harmed by his counsel’s failure to initiate plea negotiations because it applied a bright-line rule that prejudice cannot be shown in the absence of a plea offer.  This petition presents the Court with a clear opportunity to resolve a Circuit split regarding whether having an actual plea offer is an indispensable prerequisite to making the necessary showing of prejudice.  I would grant certiorari to resolve that issue.