Virginia Lawyers Weekly VA Lawyers Weekly
A Charlottesville U.S. District Court says a former practicing attorney who pled guilty to conspiracy to commit wire fraud in connection with a Ponzi scheme, who insisted on proceeding pro se prior to deciding to plead guilty, cannot overturn his conviction with a post-conviction motion that says his former trial counsel provided ineffective assistance and he was incompetent to enter a guilty plea.
Defendant asserts his counsel was aware he suffered from attention deficit disorder and she failed to fulfill her obligation to inform the court of his mental condition. The court credits the testimony of former trial counsel and concludes she had no reason to believe defendant was mentally incompetent to proceed with his own defense. The court found defendant to be lucid, rational and focused at the March 2011 evidentiary hearing in this matter. Trial counsel testified defendant did not tell her he suffered from ADD and nothing he did indicated he was any more distracted than the typical client. Trial counsel had no obligation to raise an issue of which she was unaware.
Defendant knowingly and voluntarily entered a guilty plea and gave the court no indication he was suffering from a mental deficiency rendering him incompetent or unstable.
The court grants defendant’s motion to voluntarily withdraw his motion under 28 U.S.C. § 2255.
Smyth v. U.S. (Urbanski) No. 3:07cr00010, Aug. 29, 2011; USDC at Charlottesville, Va. VLW 011-3-483, 14 pp.
