In SURUR v. U. S., decided on November 3, 2016, the Court of Appeals reversed A conviction for attempted possession of drug paraphernalia with intent to sell due to ineffective assistance of counsel and mistaken identity.

It was alleged that Ms. Surur was the gas station clerk who sold paraphernalia to an undercover officer.

In order to succeed on the ineffective assistance of counsel claim; the defendant must show that counsel’s performance was constitutionally deficient and that this deficient performance prejudiced the defendant.

The Court concluded that absent defense counsel’s constitutionally deficient performance by failing to investigate a mistaken-identification defense – there is factual and reasonable probability that a reasonable fact finder would have had a reasonable doubt as to whether the defendant had the necessary intent or was even the clerk who in fact offered paraphernalia to the undercover officer.

A petition for coram nobis is the proper vehicle to advance an ineffectiveness assistance claim on appeal and must show that:

1. The trial court [was] unaware of the facts giving rise to the petition;
2. The omitted information [is] such that it would have prevented the sentence or judgment;
3. Petitioner [is] able to justify the failure to provide the information;
4. The error [is] extrinsic to the record; and
5. The error [is] of the most fundamental character.

Here the trial court was unaware that the trial counsel performed ineffectively as the mistaken identify defense was never raised at the trial level even after the defendant testified under oath that she did not work on the day in question or has never met the uncover officer.

Specifically, the defendant alleged that she was not the clerk on duty on the evening of June 28.   She also denied under oath that she had ever seen Officer Garcia and testified that she did not remember ever selling an ink pen and copper scrubber to a customer.

Even given these revelations during the trial, the counsel failed raise the mistaken identify defense, further investigate his client’s claim or put on additional evidence.

Moreover, the evidence established that the height and weight of defendant’s relative coworker was a closer fit to Officer Garcia’s physical description than were the defendant’s height and weight.

Ms. Surur testified she never wore black pants to work and that she did not own a blue and white headscarf, which is how Officer Garcia described the store clerk’s clothing.

The relative coworker did at times wear black pants and a blue and white headscarf to work. As both the defendant and the coworker relative had the same complexion – it was both reasonable and plausible that not the defendant but the relative was the person who attempted to sell the drug paraphernalia.

The defense counsel lack of raising, investigating or pursuing the mistaken identify defense — given the evidence presented at trial — was constitutionally deficient, material and warranted the reversal.

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