Although Mahrt v. Beard, --- F.3d ---, Case No. 15-16404 (9th Cir. 2017) did not end well for the petitioner -- the 9th reverses the district court's habeas grant -- there is a good rule that comes out of the decision.
The Court held that an ineffective assistance
of counsel claim based on pre-guilty plea conduct of counsel -- in this case, failing to file suppression motion -- is not barred by Tollett v. Henderson, 411
U.S. 258 (1973). According to the Court, Tollet, properly understood, does not bar
federal habeas claims of pre-plea ineffective assistance of
counsel when the action, or inaction, of counsel prevents
petitioner from making an informed choice whether to plead.
In other words, because ineffective assistance of counsel in failing to bring a pre-trial motion could impact the decision to plead, that claim in cognizable on federal habeas.
