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Mary Beth Usher (’13) argues in U.S. Court of Appeals

Mary Beth Usher (’13) recently argued in the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., as part of the Appellate Advocacy Clinic.

The Fourth Circuit is the federal appeals court for five states:  Maryland, North Carolina, South Carolina, Virginia, and West Virginia.  Usher was the second Appellate Advocacy Clinic member to argue in the Fourth Circuit this semester, and the 12th to argue there in the past five years.

Usher argued on behalf of Timothy Andrew Fugit, in the case of United States v. Fugit.  Also representing Mr. Fugit are Melissa Evett (’13) and Professor John Korzen, the director of the Appellate Advocacy Clinic.

The issue on appeal is whether Fugit’s trial counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel.  His trial counsel advised him that he had to plead guilty to both counts of an indictment and could not plead not guilty to only one of them.  Fugit followed that advice, though he had doubts about his guilt on the second charge.  At sentencing, his trial counsel raised an argument that supported his innocence on the second charge, but only in connection with Fugit’s sentence, and the argument was rejected due to Fugit’s guilty plea.  Fugit received a 70-month sentence on that charge.

Fugit later filed a pro se petition for habeas corpus and contended that his trial attorney had been ineffective for not realizing that there was a defense to the second charge and advising him that he had to plead guilty to it.  The Fourth Circuit appointed the Appellate Clinic as Fugit’s counsel and certified two issues for appeal:  whether the stipulated conduct constituted a violation of the second statute he was charged under, and whether his trial counsel had been ineffective.

Usher, Evett, and Professor Korzen prepared a Brief of Appellant and Reply Brief of Appellant over the summer.  Evett and the other Clinic students helped Usher prepare for oral argument.

Usher argued to a Fourth Circuit panel on Oct. 25.  The panel included Chief Judge William Traxler of South Carolina, Judge J. Harvie Wilkinson of Virginia, and Judge Steven Agee of Virginia.

“It was an incredible opportunity to argue in front of the Fourth Circuit and put to use the skills I have learned during my time at Wake Forest,”  Usher said. “While the argument itself was challenging, it was also quite rewarding to argue the law on behalf of our client.”

“Mary Beth did a great job at oral argument,” Korzen said.  “She handled numerous questions very effectively and kept trying to keep the focus on the issues the court had certified for review.”

In addition to addressing numerous questions, Usher also faced some long ones.  In fact, the longest question was more than four minutes long!

Before the oral argument began, Chief Judge Traxler praised the work of the Appellate Advocacy Clinic.  After oral argument, in a tradition unique to the Fourth Circuit, the judges came down from the bench to greet the advocates.  Judge Wilkinson asked Evett if she had worked on the brief and then said, “It was excellent!”

The Appellate Advocacy Clinic is a two-semester course for 3Ls.  This year the Clinic has ten students working on six appeals in four different jurisdictions.  For more information about the Clinic, contact Professor Korzen.