Is a trial lawyer constitutionally ineffective when he embraces a legal argument directly contrary to existing circuit law?

QUESTIONS PRESENTED In mail and wire fraud cases, the government does not have to prove a victim actually lost money or property, but it does have to prove a scheme designed to “obtain money or property.” The Second and Third Circuits, however, only require prosecutors to prove a victim has been deprived of a property right: a single strand in the bundle of property rights called the “right to control” property. A person is deprived of his right to control when he is deprived of information that may help him make an informed economic decision. Michael Binday was convicted under this lighter version of fraud. As broker for life insurance purchasers, he deprived insurance companies of just one piece of information that they thought was important: whether his clients intended to re-sell the policies to investors. Binday suffered two constitutional injuries at trial. First, he was prosecuted under the right to control theory of property, which is unconstitutionally vague. Second, his lawyer was ineffective because he argued facts and law contrary to established Second Circuit right to control precedents. His wrongheaded arguments led directly to Binday’s conviction. The questions presented are as follows: 1. Is a trial lawyer constitutionally ineffective when he embraces a legal argument directly contrary to existing circuit law? li QUESTIONS PRESENTED—Continued 2. Is the strand of property rights known as the “right to control property” sufficiently “property” within the meaning of the fraud statutes given that this Court rejected the suggestion in Cleveland, Skilling and Sekhar? * * * This Court recently granted certiorari in Kelly v. United States, No. 18-1059, which raises the legality of the right to control theory. Binday challenged the government’s ability to invoke the right to control theory shortly before his trial, and he challenged the theory in his petition for en banc review by the Second Circuit and in his petition for certiorari, which was denied. Binday v. United States, No. 15-1140. Pet.App.24-25. Kelly will address the legitimacy of the right to control theory. Binday may thus raise the issue in this petition because it will be “squarely presented and fully briefed. It is an important, recurring issue and is properly raised in another petition for certiorari... .” See Carlson v. Green, 446 U.S. 14, 17 n.2 (1980). A GVR is appropriate here because Binday’s conviction was premised solely on the right to control theory. The Court’s modification or rejection of that theory in Kelly will undoubtedly lead the lower courts to redetermine the viability of Binday’s conviction. Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163, 167 (1996) (GVR appropriate where intervening developments would lead lower courts to reject prior decision and resolve the litigation).