United States v. Cain

I respectfully dissent from the majority’s creation of a per se rule of ineffectiveness that is contrary to Supreme Court precedent. Mickens v. Taylor, 535 U.S. 162, 172-73, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002) (noting that because there is no rule of per se ineffectiveness, an appellant must demonstrate that “conflict significantly affected counsel’s performance”). But cf. Nixon v. Florida, 857 So.2d 172 (Fla.2003)(defendant’s acquiescence in defense counsel’s strategy which was the functional equivalent of a guilty plea, regardless of its wisdom, was held to be per se ineffectiveness),…