In Reese v. United States, 16-516, the Second Circuit (Pooler, Wesley, Carney) vacated by summary order the order of the U.S. District Court for the Southern District of New York (Marrero, J.) denying Reese’s petition to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255. Reese claimed that his counsel had provided ineffective assistance, an argument the district court rejected on the grounds that Reese could not establish prejudice because the evidence of guilt presented at trial was “overwhelming.” Although the Second Circuit agreed, it concluded that the district court had committed error by failing to consider the significant disparity between the plea offer made to Reese (57-71 months) and the sentence after conviction (108 months). The Second Circuit remanded to the district court to develop a fuller record on the question of what Reese’s attorney communicated to him with respect to the government’s plea offer.

In general, the absence of prejudice can be demonstrated by reference to the strength of the government’s case. That is not the case, however, when the defendant can show a reasonable probability that he would have accepted a plea offer had he been properly advised. On remand, the district court will need to test Reese’s claims and seek testimony from Reese’s counsel in order to determine whether to grant the writ.