United States v. Lionel Ortiz (1996)

After the court affirmed his convictions on direct appeal, see United States v. Ortiz, 82 F.3d 1066, 1068 (D.C.Cir.1996), and after AEDPA took effect, he filed a motion for authorization to file a second § 2255 motion in order to pursue his claim that he was denied his right to the effective assistance of former appellate counsel in his direct appeal.

United States v. Ortiz, 82 F.3d 1066, 1073 (D.C.

The courts of appeals have alluded to such “exceptional circumstances” where the trial court knows that the defendant has not exercised his right to decide whether to testify “knowingly and intelligently.” See, e.g., Van De Walker, 141 F.3d at 1452 n. 2; United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996); Pennycooke, 65 F.3d at 12 .

See United States v. Stover, 474 F.3d 904, 908 (6th Cir. 2007); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

But an attempt to “alert” the court need not, as the majority intimates, involve a dramatic outburst like, “I am being denied my right to testify!” See United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996) (observing “the impracticability of placing a burden on a defendant to assert a right of which he might not be aware or to do so in contravention of the court’s instructions that the defendant speak to the court through counsel”).

See, e.g., Van De Walker, 141 F.3d at 1452 ; Brown, 124 F.3d at 79 ; Liegakos v. Cooke, 106 F.3d 1381, 1386 (7th Cir.1997); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991) (per curiam); United States v. Edwards, 897 F.2d 445, 446-47 (9th Cir.1990); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987); United States v. Bernloehr, 833 F.2d 749, 752 (8th Cir.1987); United States v. Janoe, 720 F.2d 1156, 1161 (10…

See Carson v. United States, 88 F.4th 633, 646 (6th Cir. 2023); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

See United States v. Randle, 304 F.3d 373 , 378–79 & n.4 (5th Cir. 2002). 6 Case: 17-40165 Document: 00514468715 Page: 7 Date Filed: 05/11/2018 No. 17-40165 States v. Pennycooke, 65 F.3d 9, 12 (3d Cir. 1995); see id. at 13 (when defendant’s counsel “is frustrating his or her desire to testify”); see also United States v. Ly, 646 F.3d 1307, 1317 (11th Cir. 2011) (when the defendant is pro se and it is clear to the court that he misunderstands the right); United States v. Star…

A defendant may act as his own advocate, but when he chooses to have a lawyer conduct the defense, the lawyer gets to conduct the defense and not just whisper advice in the defendant’s ear each time a decision must be made.” (citation omitted)); United States v. Ortiz, 82 F.3d 1066, 1071-1072 (D.C.

A defendant may act as his own advocate, but when he chooses to have a lawyer conduct the defense, the lawyer gets to conduct the defense and not just whisper advice in the defendant’s ear each time a decision must be made.” (citation omitted)); United States v. Ortiz, 82 F.3d 1066, 1071-72 (D.C.Cir.1996) (holding on direct appeal that the “district court properly relied on counsel’s assertion that [defendant] had acquiesced in her advice not to testify and made no inquiry o…

United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); see also United States v. Richardson, 195 F.3d 192, 197-98 (4th Cir.1999); United States v. Ortiz, 82 F.3d 1066, 1070-71 (D.C.Cir.1996); United States v. Pennycooke, 65 F.3d 9, 11-12 (3d Cir.1995) (holding that a “direct colloquy” may be required in “exceptional, narrowly defined circumstances”); United States v. Brimberry, 961 F.2d 1286, 1289-90 (7th Cir.1992); Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987). *74…

But an attempt to “alert” the court need not, as the majority intimates, involve a dramatic outburst like, “I am being denied my right to testify!” See United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

See United States v. Glenn, 389 F.3d 283, 287 (1st Cir.2004); Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997); United States v. Leggett, 162 F.3d 237, 246 (3d Cir.1998); United States v. Richardson, 195 F.3d 192, 197-98 (4th Cir.1999); United States v. Brown, 217 F.3d 247, 258 (5th Cir.2000); United States v. Stover, 474 F.3d 904, 908 (6th Cir.2007); United States v. Manjarrez, 258 F.3d 618, 623 (7th Cir.2001); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); United S…

See United States v. Glenn, 389 F.3d 283, 287 (1st Cir. 2004); Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997); United States v. Leggett, 162 F.3d 237, 246 (3d Cir. 1998); United States v. Richardson, 195 F.3d 192, 197-98 (4th Cir. 1999); United States v. Brown, 217 F.3d 247, 258 (5th Cir. 2000); United States v. Stover, 474 F.3d 904, 908 (6th Cir. 2007); United States v. Manjarrez, 258 F.3d -2- 618, 623 (7th Cir. 2001); United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 199…

App’x 425, 427 (4th Cir. 2003); United States v. Ortiz, 82 F.3d 1066, 1073 (D.C.

Cf. United States v. Lee, 60 Fed.Appx. 425, 427 (4th Cir.2003); United States v. Ortiz, 82 F.3d 1066, 1073 (D.C.Cir.1996) (“We find no plain error as a result of the district court’s failure to inquire sua sponte whether the witness was entitled to assert a blanket privilege.”).

United States v. Ortiz, 82 F.3d 1066, 1073 (D.C.Cir.1996).

Ortiz, 82 F.3d 1066, 1071 (D.C.

Ortiz, 82 F.3d 1066, 1071 (D.C.

See Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir. 1997), cert. denied, 118 S. Ct. 1077 (1998); United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.

See Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1077 , 140 L.Ed.2d 135 (1998); United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.Cir.1996); United States v. Pennycooke, 65 F.3d 9, 10-13 (3d Cir.1995); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.1994), vacated on other grounds, 53 F.3d 94 (5th Cir.1995) (en banc); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.1992) (en ba…

See, e.g., Van De Walker, 141 F.3d at 1452 ; Brown, 124 F.3d at 79 ; Liegakos v. Cooke, 106 F.3d 1381, 1386 (7th Cir. 1997); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

See Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1077 , 140 L.Ed.2d 135 (1998); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996); United States v. Pennycooke, 65 F.3d 9,11 (3rd Cir.1995); United States v. Brimberry, 961 F.2d 1286, 1289-90 (7th Cir. 1992); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); United States v. Edwards, 897 F.2d 445, 446-47 (9th Cir. 1990); Siciliano v. Fose, 834 F.2d 29, 30 (1st Cir.1987); Uni…

See Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997), cert. denied, 118 S.Ct. 1077 (1998); United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

Therefore, defendant's allegations that defense counsel failed to inform him that he alone controlled the decision to testify and that defense counsel failed to let him testify despite his expressed desire to do so, if proved, would be sufficient to meet the first requirement of the Strickland test. 5 Id. at * 3 (internal citations omitted); see also Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997) ("Although counsel should always advise the defendant about the benefits and haz…

See, e.g., United States v. Pennycooke, 65 F.3d 9, 10-11 (3d Cir.1995); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.1994), vacated without consideration of this point, 53 F.3d 94 (5th Cir.1995) (in banc); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); Teague, 953 F.2d at 1532 (11th Cir.); U…

Id. 7 For federal cases holding that the right to testify is a fundamental constitutional right see, e.g., United States v. Ortiz, 82 F.3d 1066, 1069 (D.C.

The 440.10 Court held that because Petitioner did not object when his counsel waived his right to testify, that waiver is binding and valid, (id. at 8), and required that, “A defendant who is disagreement with his attorney about whether to testify has an obligation to affirmatively state such when counsel rests without the defendant’s testimony.” (Id.) (citing United States v. Martinez, 833 F.2d 750 (9th Cir. 1989), vacated on other grounds, 928 F.2d 1470 (9th Cir. 1991); Pe…

NOTES [1] Majority Opinion, 107 S.W.3d 197, 199 (2003). [2] United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996), citing United States v. Pennycooke, 65 F.3d 9, 12-13 (3rd Cir.1995). [3] I observe that Appellant's First-Degree Robbery conviction was enhanced as a result of his First-Degree Persistent Felony Offender (PFO) status, so one (1) possible opportunity cost of taking the stand and testifying would be the probability of impeachment as a convicted felon.

See, e.g., United States v. Boyd, 86 F.3d 719, 723 (7th Cir.1996) (characterizing the right as a "fundamental choice”); United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.Cir.1996) ("We, like our sister circuits and the state courts, have no doubt that a criminal defendant has a fundamental constitutional right to testify that is personal to the defendant and cannot be waived by counsel or the court.”); United States v. Pennycooke, 65 F.3d 9, 10 (3d Cir.1995) ("This right is pe…

See United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.1994), vacated without consideration of this point, 53 F.3d 94 (5th Cir.1995) (in banc); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990), cert. denied, 498 U.S. 831 , 111 S.Ct. 93 , 112 L.Ed.2d 65 (1990); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); Teague, 953 F.2d at 1532 (11th Cir.); Un…

McCann, 317 U.S. 269, 278 , 63 S.Ct. 236 , 87 L.Ed. 268 (1942); United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.Cir.1996).

As noted above, Rudasill testified at the § 23-110 hearing that he told Truesdale that he was potentially liable for felony murder “because the underlying purpose of the behavior that he admitted to constituted a felony purchase of narcotics marijuana.” He later repeated that Truesdale “was legally culpable” for his role “in a felony narcotics purchase.” But the alleged felony underlying Truesdale’s felony murder Arthur v. United States, 986 A.2d 398, 406 (D.C. 2009) (conclu…

Vol. 3 at 482.) The court asked Phillips if he understood he was “up there for 5 Generally, “defense counsel, not the court, has the primary responsibility for advising the defendant of his right to testify and for explaining the tactical implications for doing so or not.” United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.Cir. 1996).

However, “in unusual cases a district judge may sustain a blanket assertion of the Fifth Amendment privilege after determining that there is a reasonable basis for believing a danger to the witness might exist in answering any relevant question.” United States v. Ortiz, 82 F.3d 1066, 1073 (D.C.

“However, ‘in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected’ ” (People v Robles, 115 AD3d at 34 , quoting United States v Pennycooke, 65 F3d at 12 ; see United States v Hung Thien Ly, 646 F3d 1307, 1317 [11th Cir 2011]; United States v Leggett, 162 F3d 237, 247 [3d Cir 1998], cert denied 528 US 868 [1999]; United States v Ortiz, 82 F3…

“However, ‘in exceptional, narrowly defined circumstances, judicial interjection through a direct colloquy with the defendant may be required to ensure that the defendant’s right to testify is protected’ ” (People v Robles, 115 AD3d at 34 , quoting United States v Pennycooke, 65 F3d at 12 ; see United States v Hung Thien Ly, 646 F3d 1307, 1317 [11th Cir 2011]; United States v Leggett, 162 F3d 237, 247 [3d Cir 1998], cert denied 528 US 868 [1999]; United States v Ortiz, 82 F3…

See Webber, 208 F.3d at 551-52 ; United States v. Ortiz, 82 F.3d 1066, 1069-70 (D.C.

Ed. 2d 274, 279 , 89 S. Ct. 1709, 1711-12 (1969); People v. Ortiz, 82 F.3d 1066, 1070 (D.C.

D.C. 262, 266, 82 F.3d 1066, 1070 (1996). 13 *407 Here, appellant initially asserted his right to testify through counsel, and then, after consulting again with his lawyer, confirmed his decision in a colloquy with the trial judge.

The federal circuits are nearly unanimous in this regard: Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir.1987); Brown v. Artuz, 124 F.3d 73, 79 (2nd Cir. 1997), cert. denied, 522 U.S. 1128 , 118 S.Ct. 1077 , 140 L.Ed.2d 135 (1998); United States v. Leggett, 162 F.3d 237, 246-248 (3rd Cir. 1998), cert. denied, 528 U.S. 868 , 120 S.Ct. 167 , 145 L.Ed.2d 141 (1999); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); United States v. Brown, 217 F.3d 247, 258 (5th Cir.), ce…

Brown v. Artuz, 124 F.3d 73, 77-78 (2d Cir.1997); United States v. Pennycooke, 65 F.3d 9, 10-13 (3d Cir.1995); Sexton v. French, 163 F.3d 874, 881 (4th Cir.1998); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.1994), vacated on other grounds, 53 F.3d 94 (5th Cir.1995) (en banc); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990) cert. denied, 498 U.S. 831 , 111 S.Ct. 93 , 112 L.Ed.2d 65 (1990); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir.1987); United States v. Jo…

See, e.g., Brown v. Artuz, 124 F.3d 73, 77 (2d Cir.1997); United States v. Pennycooke, 65 F.3d 9, 10-11 (3d Cir.1995); United States v. McMeans, 927 F.2d 162, 163 (4th Cir.1991); Jordan v. Hargett, 34 F.3d 310, 312 (5th Cir.1994), vacated on other grounds, 53 F.3d 94 (5th Cir.1995) (en banc); Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir.1990); United States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987); United States v. Joelson, 7 F.3d 174, 177 (9th Cir.1993); United Sta…

“Every criminal defendant is privileged to testify in his own defense, or refuse to do so. . . . ‘[The Fifth Amendment’s privilege against self-incrimination] is fulfilled only when an accused is guaranteed the rig ht to re ma in silen t unle ss h e cho ose s to s pea k in th e unf etter ed ex ercis e of h is ow n will . . . .” Id. at 53 , 107 S. Ct. at 2710 (citations omitted) (alteration in original). 10 See, e.g., Unite d Sta tes v. Boyd , 86 F.3d 719, 723 (7th Cir. 1996)…

For instance, where the trial judge has reason to believe that defense counsel is frustrating the defendant’s desire to testify, id. at 13 , where the defendant has expressed his desire to testify to the court, see Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir.1988), or where "there appears to be no rational explanation for the decision” not to testify; United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996), some courts have concluded that the trial judge should inquire d…

This court does not now believe that a defendant must explicitly state to the court his disagreement with counsel’s actions or be foreclosed from raising the claim that he was denied the right to testify (United States v Ortiz, 82 F3d 1066, 1071 [DC Cir 1996]).

We disagree that the trial court had an obligation to advise Mr. Nguyen of his right to maintain silence. “[Djefense counsel, not the court, has the primary *893 responsibility for advising the defendant of his right to testify and for explaining the tactical implications of doing so or not.” United States v. Ortiz, 82 F.3d 1066, 1070 (D.C.Cir.1996); accord Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997); United States v. Pennycooke, 65 F.3d 9, 11 (3d Cir.1995).

See United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.Cir.1996) (noting “the impracticability of placing a burden on the defendant to assert a right of which he might not be aware or to do so in contravention of the court’s instructions that the defendant speak to the court through counsel” and holding that indications of ineffective assistance of counsel might require court inquiry about the defendant’s decision not to testify); United States v. Teague, 908 F.2d 752, 759-60 (…

See United States v. Ortiz, 82 F.3d 1066, 1071 (D.C.

See United States v. Ortiz, 82 F.3d 1066 , 1069 n.8 (D.C.