Ineffective Assistance of Counsel

Paralegal Mark Anthony Given compiles Federal Winning Ineffective Assistance of Counsel, Habeas Corpus, Bureau of Prisons, Winning Social Security Disability and Interesting Criminal cases and is available for legal research and writing at

Tuesday, July 17, 2007

Death Penalty Ineffective at sentencing

Haliym v. Mitchell, No. 04-3207
Denial of a petition for writ of habeas corpus challenging convictions for, inter alia, aggravated murder and his sentence of death is affirmed in part as to the denial of relief on the convictions, but reversed in part as to the sentence as petitioner was denied the effective assistance of counsel during the mitigation phase of his sentencing

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Failed to challenge defective indictment

US v. Weathers, No. 06-3022
Conviction and sentence for rape and attempted murder, denial of ineffective assistance of counsel claim are reversed where trial counsel provided constitutionally inadequate assistance by failing to challenge two counts of the indictment related to defendant's threats to injure the prosecutor as multiplicitous and in violation of the Double Jeopardy Clause. Read more

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Thursday, June 21, 2007

Failure to investigate

Ramonez v. Berghuis, No. 06-1852, the 6th Circuit reversed the district court's denial of habeas relief, holding that trial counsel's failure to investigate and call three witnesses to the crime constituted ineffective assistance of counsel under Strickland.

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state court's application of the Strickland standard for a defense counsel's duty

Ramonez v. Berghuis, No. 06-1852
Denial of a petition for a writ of habeas corpus challenging a conviction for home invasion, assault with intent to do great bodily harm, and aggravated stalking is reversed where a state court's application of the Strickland standard for a defense counsel's duty to investigate was unreasonable in regard to his failure to investigate and call three witnesses to the alleged crime

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Tuesday, June 05, 2007

All Supreme Court Cases to date


Cuyler v. Sullivan,
446 U.S. 335 (1980)

The Sixth Amendment right to the effective assistance of counsel applies equally to retained and appointed counsel.

Jones v. Barnes
463 U.S. 745, 751-52 (1983)

Appellate counsel does not have a constitutional duty to raise every nonfrivolous issue requested by defendant.

United States v. Cronic
466 U.S. 648 (1984)

The court held that:

The right to the effective assistance of counsel is . . . the right of the accused to require the prosecution’s case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted – even if defense counsel may have made demonstrable errors – the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated. As Judge Wyzanski has written: "While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators." United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (CA7), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975).

Id . at 657-58 (footnotes omitted). Some circumstances warrant a presumption of prejudice. These circumstances include the complete denial of counsel at a critical stage of trial. Id. at 659. "Similarly, if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." Id. The fact that counsel was given only 25 days to prepare for trial, that counsel was young and inexperienced in criminal matters, that charges were complex, that charges were grave, and that some witnesses were not easily accessible did not provide basis for finding ineffective assistance of counsel, however, in the absence of a showing of deficient conduct and prejudice.

*Strickland v. Washington,
466 U.S. 668 (1984)

In order to establish ineffective assistance of counsel, the defendant must show that counsel's performance was deficient, i.e. "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687. The defendant must also show that the deficient performance prejudiced the defense, i.e., "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. With respect to counsel's conduct, the Court held that "the defendant must show that counsel's representation fell below an objective standard of reasonableness," which must be judged under "prevailing professional norms." Id. at 688. The Court also held that "[j]udicial scrutiny of counsel's performance must be highly deferential," and must be evaluated "from counsel's perspective at the time." Id. at 689. "Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (citation omitted). With respect to the duty to investigate, the Court held that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. "The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions." Id. Thus, "inquiry into counsel's conversations with the defendant may be critical to a proper assessment of counsel's investigation decisions, just as it may be critical to a proper assessment of counsel's other litigation decisions." Id. With respect to prejudice, "a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693. "The result of a proceeding can be rendered unreliable, and the hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Id. at 694. Thus, the appropriate test is that for materiality of exculpatory evidence not disclosed to the defense by the prosecution. "The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. In determining prejudice, the court should presume "that the judge or jury acted according to law." Id. "When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer-including an appellate court, to the extent it independently reweighs the evidence-would have concluded that the balance of aggravating and mitigating circumstances did not warrant death." Id. at 695. "In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury," id., because "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," id. at 696. In applying these standards, "[t]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether, despite the strong presumption of reliability, the result of the particular proceeding is unreliable because of a breakdown in the adversarial process." Id. at 696. No different or special standards apply in federal habeas. A state court findings of fact made in the course of deciding an ineffectiveness claim are subject to the deference requirement in federal habeas, but a state court conclusion that counsel rendered effective assistance of counsel is not a finding of fact binding on the federal court. "[B]oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact." Id. at 698. Counsel in Strickland provided effective assistance even though defendant plead guilty and counsel did not prepare and present character or psychiatric evidence or request presentence report. Counsel's strategy was based on his knowledge of the judge, who favored acceptance of responsibility, and counsel wanted to rely on the plea colloquy and prohibit cross-examination of the defendant and other defense witnesses. Counsel did not want a presentence report because it would have reflected numerous priors.

Evitts v. Lucey,
469 U.S. 387 (1985)

"To prosecute the appeal, a criminal appellate must face an adversary proceeding that-like a trial-is governed by intricate rules that to a layperson would be hopelessly forbidding." Id. at 396. Thus, counsel is necessary, but "a party whose counsel is unable to provide effective representation is in no better position than one who has no counsel at all. A first appeal as of right therefore is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of counsel." Id. Retained counsel, who filed a timely notice of appeal but failed to perfect the appeal, provided ineffective assistance of counsel.

Hill v. Lockhart
474 U.S. 52 (1985)

Strickland standard applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the Strickland "prejudice" standard, the defendant must show that there was a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Kimmelman v. Morrison,
477 U.S. 365 (1986)

The restrictions on federal habeas review of Fourth Amendment claims do not apply to Sixth Amendment claims of ineffective assistance of counsel even though the principal allegation of inadequate representation relates to counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. In order to succeed on the merits of the claim, however, the defendant must establish that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. The Court relied, in part, on the reasoning that "[a] layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case." Id. at 378 (citation omitted). Likewise, the Court reasoned that "[t]he constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt." Id. at 380. Counsel in this case failed to file the motion to suppress because he was unaware of the search or the evidence. The Court held that counsel's failure to conduct any discovery because of a belief the state was obliged to provide inculpatory information was unreasonable and "betray a startling ignorance of the law-or a weak attempt to shift blame for inadequate preparation." Id. at 385. In other words, counsel failed to investigate or make a reasonable decision not to investigate through discovery. "Such a complete lack of pretrial preparation puts at risk both the defendant's right to an 'ample opportunity to meet the case of the prosecution,' and the reliability of the adversarial testing process." Id. (citations omitted). In addition, the state's argument that counsel's failure to investigate was reasonable because of the relative importance or unimportance of the evidence involved is "flawed." Id. "At the time Morrison's lawyer decided not to request any discovery, he did not-and, because he did not ask, could not-know what the State's case would be. While the relative importance of [the evidence] . . . is pertinent to the determination whether [the defendant] was prejudiced by his attorney's incompetence, it sheds no light on the reasonableness of counsel's decision not to request any discovery."

Murray v. Carrier
477 U.S. 478 (1986)

Court in federal habeas case held that ineffective assistance of counsel is cause for procedural default, but the exhaustion doctrine generally requires that such claim be presented to state courts as independent claim before it may be used to establish cause for procedural default. Attorney error short of ineffective assistance of counsel does not, however, constitute cause for procedural default even when that default is on appeal rather than at trial. In discussing safeguards from a miscarriage of justice, the court observed that "the right to effective assistance of counsel . . . may in a particular case be violated by even an isolated error of counsel if that error is sufficiently egregious and prejudicial." Id. at 496.

*Smith v. Murray
477 U.S. 527 (1986)

Court declined in federal habeas to review issue that had been preserved by counsel at trial but deliberately abandoned during the direct appeal to the Virginia Supreme Court because counsel did not believe that state law "support[ed] our position at that particular time." Id. at 531. The court stated, "This process of ‘winnowing out weaker arguments on appeal and focusing on’ those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Id. at 536 (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).

Pennsylvania v. Finley,
481 U.S. 551 (1987)

The Constitution does not require States to provide counsel in non-capital post-conviction proceedings.

*Burger v. Kemp
483 U.S. 776 (1987)

Counsel was not ineffective in failing to offer mitigating evidence in capital sentencing. The evidence that could have been presented disclosed "an exceptionally unhappy and unstable childhood," id. at 789, that included one incident of arrest as a juvenile that resulted in probation. Counsel was aware of some of the family history but "made the reasonable decision that his client’s interest would not be served by presenting this type of evidence." Id. at 791. As the record stood, there was no evidence that petitioner had any prior criminal record. Presentation of the family history could have been counterproductive by revealing the juvenile probation, involvement in drugs at an early age, and "violent tendencies that are at odds with the defense’s strategy of portraying petitioner’s actions on the night of the murder as the result of [the codefendant’s] strong influence upon his will." Id. at 793. While counsel "could well have made a more thorough investigation than he did," id. at 794, "counsel’s decision not to mount an all-out investigation into petitioner’s background in search of mitigating circumstances was supported by reasonable professional judgment," id.

*Murray v. Giarratano,
492 U.S. 1 (1989)

The Constitution does not require States to provide counsel in capital post-conviction proceedings.

*Coleman v. Thompson,
501 U.S. 722 (1991)

There is no constitutional right to an attorney in state post-conviction proceedings; "[c]onsequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings." Id. at 752. Thus, the risk of attorney error in state post-conviction proceedings is borne by the defendant and counsel's filing of the notice of appeal one day late in state post-conviction, which prompted the state court to dismiss the petition, procedurally defaulted the issues for federal habeas proceedings.

*Lockhart v. Fretwell,
506 U.S. 364 (1993)

Court holds that the prejudice test of Strickland "focuses on the question whether counsel's deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair," id. at 372, and is not limited to a contemporary assessment of the law. The aggravating factor used to sentence Fretwell die was duplicative of an element of the underlying felony used to convict him of felony murder. Trial counsel did not object to this duplication despite an Eighth Circuit opinion finding the duplication to be unconstitutional. The Arkansas Supreme Court refused to review the issue on direct appeal because of the lack of objection. In state habeas, the Arkansas Supreme Court denied the ineffective assistance claim because, at the time of trial, the Arkansas Courts had not adopted the Eighth Circuit's position. In federal habeas, the District Court granted relief due to ineffective assistance of counsel for failure to make the appropriate objection. The Eighth Circuit affirmed on appeal, despite the fact that it had reversed the controlling case due to the Supreme Court's intervening opinion in Lowenfield v. Phelps, 484 U.S. 231 (1988). The Supreme Court granted cert and reversed declaring that "[t]o set aside a conviction or sentence solely because the outcome would have been different but for counsel's error may grant the defendant a windfall to which the law does not entitle him." Id. at 369- 70. While recognizing that Strickland required that counsel's conduct be viewed under the law at that time ("contemporary assessment"), the Court declared that there was no such restriction on the prejudice requirement. Id. at 372. The Court rejected the argument that Teague v. Lane, 489 U.S. 288 (1989) prohibited this retroactivity by declaring that Teague was motivated to protect State interests in finality. A federal habeas petitioner has no interest in finality and thus could not benefit from Teague despite the fact that States can. Id. at 372-73. Justice O'Connor in her concurrence noted that this decision "will, in the vast majority of cases, have no effect on the prejudice inquiry" under Strickland. Id. at 373. In her view, this case determined only that "the court making the prejudice determination may not consider the effect of an objection it knows to be wholly meritless under current governing law, even if the objection might have been considered meritorious at the time of its omission." Id. at 374.

Kyles v. Whitley,
514 U.S. 419 (1995)

(1) The "touchstone" of the prejudice test in ineffective assistance of counsel claims is "a 'reasonable probability' of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict . . . , but whether . . . he received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. at 434. Likewise, the prejudice test of Strickland "is not a sufficiency of evidence test." Id. Furthermore, the resulting prejudice from counsels' errors must be "considered collectively, not item-by-item." Id. at 436.

Smith v. Robbins,
528 U.S. 259 (2000)

The Court held that California's no-merit brief procedure, in which appellate counsel who has found no non-frivolous issues remains available to brief any issues appellate court might identify, does not violate the Sixth Amendment right to effective assistance of counsel on appeal. Court also held that the Ninth Circuit erred when it ruled that asserted Anders violation required new appeal, without testing claimed Sixth Amendment error under Strickland v. Washington. The proper review under Strickland requires an analysis of prejudice unless there is a complete denial of counsel on appeal, state interference with counsel's assistance, or counsel has an actual conflict of interest.

Roe v. Flores-Ortega,
528 U.S. 470 (2000)

Counsel's failure to file notice of appeal without defendant's consent must be reviewed under the Strickland analysis rather than a per se rule. While the better practice is to consult with defendant regarding the possibility of appeal in all cases, and the state's are free to impose this rule, the constitution does not require such a per se rule. "[C]ounsel has a constitutionally-imposed duty to consult with the defendant about an appeal when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal) or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing." Id. at 1036. In proving prejudice, "a defendant must demonstrate a reasonable probability that, but for counsel's deficient failure to consult with him about an appeal, he would have timely appealed." Id. at 1038. This prejudice analysis doe not require a showing that the appeal would have had merit.

*Williams v. Taylor,
529 U.S. 362, 120 S. Ct. 1495 (2000)

The decision in Lockhart v. Fretwell did not modify or supplant the rule of Strickland, which does not include a separate inquiry into fundamental fairness even after the defendant shows that his lawyer was ineffective and that his ineffectiveness probably affected the outcome of the proceeding. The Strickland holding is clearly established law irrespective of the fact that the test requires a case-by-case examination of the facts. The state court's decision denying relief was an "unreasonable application" of this clearly established law because the state court's decision "turned on its erroneous view that a 'mere' difference in outcome is not sufficient to establish constitutionally ineffective assistance of counsel." Id. at 1515. In addition, the state court's decision was an unreasonable application of Strickland because the state court failed to evaluate the totality of the available mitigation evidence adduced at trial and in the habeas proceedings and affirmed simply because it did not find that the unpresented mitigation evidence would undermine the prosecution's death-eligibility case or the finding of future dangerousness. "Mitigating evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death-eligibility case." Id. at 1516. The Court found ineffective assistance in sentencing and reversed. The facts are discussed below in the capital sentencing section.

Edwards v. Carpenter,
529 U.S. 446 (2000) (reversing Carpenter v. Mohr, 163 F.3d 938 (6th Cir. 1998))

Ineffective assistance of counsel claim asserted as cause for procedural default of another claim may itself be procedurally defaulted. The defendant plead guilty under Alford, while maintaining his innocence, solely to avoid the death penalty. Under Ohio law, however, in aggravated murder cases, a three-judge panel must then conduct a culpability hearing to determine that the defendant is in fact guilty. In this case, the prosecutor recited the facts to the panel, but no evidence was presented. The Ohio Supreme Court held subsequently that a recitation of the facts is not evidence and this alone will not support the culpability finding. Trial counsel served as direct appeal counsel and raised only one weak issue. Subsequently, represented by different counsel, Carpenter filed an application to reopen the direct appeal because appellate counsel was ineffective for failing to raise the sufficiency of the evidence issue. [Under state law, this was the appropriate vehicle for raising the appellate IAC issue.] The Court of Appeals dismissed the application as untimely under state law. The Ohio Supreme Court affirmed. In habeas, Carpenter argued IAC for failing to challenge the sufficiency of the evidence and IAC for failing to raise the issue on appeal. The Sixth Circuit held that, while the ineffective assistance of appellate counsel issue was procedurally barred because the state relied on a procedural bar in that filing was out of time, the ineffective assistance of appellate counsel claim was exhausted and could, therefore, serve as cause for the state court procedural default of his sufficiency of the evidence claim. The Supreme Court reversed finding that the ineffective assistance of appellate counsel claim was also procedurally defaulted because it was dismissed as untimely under state law. Thus, this claim can excuse the procedural default on the sufficiency of the evidence challenge only if petitioner can show cause and prejudice for failing to timely file the application to reopen the direct appeal.

Glover v. United States,
531 U.S. 198, 121 S. Ct. 696 (2001)

Assuming, but not deciding, that counsel was deficient in failing to object to increase of offense level under sentencing guidelines despite available argument that all the offenses (labor racketeering, money laundering, and tax evasion) should be grouped together because they all involved substantially the same harm, Petitioner proved prejudice. If the sentence increase was erroneous, the petitioner's 84 month sentence was increased by 6 - 21 months. The government conceded that Seventh Circuit finding that this was insufficient for prejudice was drawn from Lockhart, which was error because "Lockhart does not supplant the Strickland analysis." Id. at 700. "Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance." Id.

In Kyles, the Court reviewed a petitioner's claim that the state did not disclose evidence favorable to the defense in violation of the rule established in Brady v. Maryland, 373 U.S. 83 (1963), and refined in United States v. Bagley, 473 U.S. 667 (1985). In Brady, the Court held that the government must disclose evidence that is both favorable to the defense and "material." 373 U.S. at 87. In Bagley, the Court held that the "materiality" test under Brady was the same as the prejudice test espoused in Strickland for determining ineffective assistance of counsel claims. Bagley, 473 U.S. at 682, (Blackmun, J., with O'Connor, J., concurring) and 473 U.S. at 685 (White, J., with Burger, C.J., and Rehnquist, J., concurring in part and concurring in the judgment). Thus, the Court's discussion of the "materiality" test in Kyles is equally applicable to the analysis of prejudice in resolving claims of actual ineffectiveness of counsel under Strickland.

*Bell v. Cone,
535 U.S. 685, 122 S. Ct. 1843 (2002)

The presumption of prejudice under Cronic does not apply unless the attorney’s failure to contest the government’s case is "complete." Id. at 1851. "The aspects of counsel’s performance challenged by respondent – the failure to adduce mitigating evidence and the waiver of closing argument – are plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components." Id. at 1851-52. "For respondent to succeed [in federal habeas], however, he must do more than show that he would have satisfied Strickland’s test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. Rather, he must show the . . . [state court] applied Strickland to the facts of his case in an objectively unreasonable manner. This, we conclude, he cannot do." Id. at 1852.

*Woodford v. Visciotti
537 U.S. 19, 123 S. Ct. 357 (2002).

Court held that the Ninth Circuit had improperly granted habeas relief. The Ninth Circuit had found that the California Supreme Court’s decision was "contrary to" and an "unreasonable application" of federal law under 28 U.S.C. § 2254(d)(1). With respect to the "contrary to" clause, the Ninth Circuit read the state Supreme Court decision as requiring the defendant to prove by a preponderance of the evidence that he had been prejudiced. The Court held that this was a mischaracterization of the state court opinion, which had expressed and applied the proper standard for evaluating prejudice. Although there were instances of the state court using the term "probable" instead of including the modifier "reasonably," the court held:

"This readiness to attribute error is inconsistent with the presumption that state courts now and follow with the law. It is also incompatible with § 2254(d)’s "highly deferential standard for evaluating state-court rulings." Lindh v. Murphy, 521 U.S. 320, 333, n.7,117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), which demands that state court decisions be given the benefit of the doubt."

Id. at 360. The Ninth Circuit also held that the state court had unreasonably applied established Supreme Court precedent, but the Ninth Circuit apparently substituted its own judgment for that of the state court. While the state court decision may have been incorrect there was no showing that it was objectively unreasonable.

The federal habeas scheme leaves primary reasonably with the state court’s for these judgments, and authorizes federal-court intervention only when a state-court decision is objectively unreasonable. It is not that here. Whether or not we would reach the same conclusion as the California Supreme Court, "we think at the very least that the state court’s contrary assessment was not "unreasonable."

Id. at 361.

Massaro v. United States
538 U.S. 500, 123 S. Ct. 1690 (2003)

Court held that an ineffective assistance of counsel claim may be brought in a collateral proceeding under 28 U.S.C. § 2255, "whether or not the petitioner could have raised the claim on direct appeal." The Court did not hold that ineffective assistance claims "must be reserved for collateral review" because counsel’s ineffectiveness may be so apparent from the record that appellate counsel or the court sua sponte will consider it advisable to address the issue on direct appeal.

*Wiggins v. Smith
539 U.S. 510, 123 S.Ct. 2527 (2003).

Counsel ineffective in capital habeas case, decided under the AEDPA, for failing to adequately prepare and present mitigation. Counsel relied on arguments that the defendant was not directly responsible for the murder and did not present any social history or other mitigation, despite knowledge of at least some of the defendant’s background information. The issue before the Court was "whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable." Id. at 2536 (emphasis in original). "

In assessing counsel’s investigation, we must conduct an objective review of their performance, measured for ‘reasonableness under prevailing professional norms,’ which includes a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’" Id. (quoting Strickland, 466 U.S. at 688). In this case, where counsel had only limited records available and did not investigate further, counsel’s conduct "fell short of the professional standards that prevailed in Maryland in 1989," because no "social history report" was prepared even though counsel had funds available to retain a "forensic social worker." Id. at 2536.

Counsel’s conduct similarly fell short of the standards for capital defense work articulated by the American Bar Association (ABA) – standards to which we have referred as "guides to determining what is reasonable." Strickland, supra, at 688; Williams v. Taylor, supra, at 396. The ABA Guidelines provide that investigations into mitigating evidence "should comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.I(C), p. 93 (1989) (emphasis added).

Id. "Despite these well-defined norms, . . . , counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources." Id. at 2537 (citing the ABA standards again). The Court found that "[t]he scope of their investigation was also unreasonable in light of what counsel actually discovered" in the records available to them, "particularly given the apparent absence of any aggravating factors in petitioner’s background." Id. at 2537 (citation omitted).

In assessing the reasonableness of an attorney’s investigation, . . . , a court must consider not only the quantum of evidence already known to counsel, but also whether the known evidence would lead a reasonable attorney to investigate further. Even assuming [counsel] limited the scope of their investigation for strategic reasons, Strickland does not establish that a cursory investigation automatically justifies a tactical decision with respect to sentencing strategy. Rather, a reviewing court must consider the reasonableness of the investigation said to support the strategy.

Id. at 2538. In this case, "counsel were not in a position to make a reasonable strategic choice . . . because the investigation supporting their choice was unreasonable." Id. at 2543. "In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigation evidence." Id. at 2542. "[W]e evaluate the totality of the evidence – ‘both that adduced at trial, and the evidence adduced in the habeas proceeding[s].’" Id. at 2542 (quoting Williams v. Taylor, 529 U.S. at 397-98). Prejudice was found here because counsel did not discover "powerful" evidence of "physical torment, sexual molestation, and repeated rape," as well as, alcoholic parents, foster homes, homelessness, and "diminished mental capacities." Id. at 2542. "Had the jury been able to place petitioner’s excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a difference balance." Id. at 2543. While Williams v. Taylor had not been decided at the time of the state court decision, the Court held that it "made no new law" in Williams v. Taylor and had just applied Strickland to conclude that "counsel’s failure to uncover and present voluminous mitigating evidence at sentencing could not be justified as a tactical decision . . . , because counsel had not ‘fulfill[ed] their obligation to conduct a thorough investigation of the defendant’s background." Id. at 2535 (quoting Williams, 529 U.S. at 396). Like in Williams, the state court decision here was "objectively unreasonable," id. at 2538, and an unreasonable application of Strickland (under the AEDPA standards) because the state court did not

conduct an assessment of whether the decision to cease all investigation . . . actually demonstrated reasonable professional judgment. The state court merely assumed that the investigation was adequate. In light of what the . . . [available] records actually revealed, however, counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible."

Id. The state court decision was also an unreasonable application of the facts to the law because the state court erroneously concluded that the [available] . . . records reflected sexual abuse, when the records did not mention it at all, "much less . . . the repeated molestations and rapes of petitioner. . . ." Id. at 2539. The state court conclusion was proven to be incorrect by clear and convincing evidence as required by 28 U.S.C. 2254(e)(1). The facts are discussed in more detail below in the capital sentencing section.

Yarborough v. Gentry
540 U.S. ___, 124 S. Ct. 1 (2003) (per curiam).

The Court reversed the Ninth Circuit’s grant of relief because the state court determination that counsel was not ineffective was not objectively unreasonable under the AEDPA. The defendant had been convicted of assault with a deadly weapon for stabbing his girlfriend. On appeal, he argued that his trial counsel’s closing argument deprived him of his right to effective assistance of counsel. The state court denied relief, as did the federal district court, but the Ninth Circuit reversed. The court held that the right to effective assistance extends to closing arguments. Nonetheless, counsel has wide latitude in deciding how best to represent a client, and deference to counsel’s tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage. Closing arguments should "sharpen and clarify the issues for resolution by the trier of fact," but which issues to sharpen and how best to clarify them are questions with many reasonable answers. Indeed, it might sometimes make sense to forgo closing arguments altogether. Judicial review of a defense attorney’s summation is therefore highly deferential – and doubly deferential when it is conducted through the lens of federal habeas. The Court found that the Ninth Circuit erred in finding the state court decision to be objectively unreasonable. While the Ninth Circuit found and relied on the fact that counsel did not highlight a number of potential exculpatory pieces of evidence, the Court found "these other potential arguments do not establish that the state court’s decision was unreasonable." Relying on a number of law review articles and treatises, the court found that "focusing on a small number of key points may be more persuasive than a shotgun approach." "In short, judicious selection of arguments for summation is a core exercise of defense counsel’s discretion." "When counsel focuses on some issues to the exclusion of others, there is a strong presumption that he did so for tactical reasons rather than through sheer neglect." That presumption has particular force where a petitioner bases his ineffective assistance claim solely on the trial record, creating a situation in which a court "may have no way of knowing whether a seemingly unusual or misguided action had a sound strategic motive." Here, "counsel plainly put to the jury the centerpiece of his case." The court also found that counsel’s argument was not deficient in reminding the jury of evidence of the defendant’s bad character but also stating that evidence was legally irrelevant. "This is precisely the sort of calculated risk that lies at the heart of an advocate’s discretion. By candidly acknowledging his client’s shortcomings, counsel might have built credibility with the jury and persuaded it to focus on the relevant issues in the case." The Court also found that counsel’s conduct in making only a passive request that the jury reach some verdict was not unreasonable. "Given a patronizing and overconfident summation by a prosecutor, a low-key strategy that stresses the jury’s autonomy is not unreasonable." The Court also rejected the Ninth Circuit’s finding that counsel was ineffective for failing to argue explicitly that the government had failed to prove its case. The court held "[c]ounsel’s entire presentation, however made just that point." Finally, the Court rejected the Ninth Circuit’s finding of ineffectiveness because counsel admitted that he did not know the truth which implied that he did not even believe his client’s testimony. The Court held, however, "there is nothing wrong with a rhetorical device that personalizes the doubt anyone but an eyewitness must necessarily have. Winning over an audience by empathy is a technique that dates back to Aristotle." In sum, the Court found that the Ninth Circuit’s decision "gives too little deference to the state courts that have primary responsibility for supervising defense counsel in state criminal trials."

Holland v. Jackson
124 S. Ct. 2736 (2004)

The Sixth Circuit Court of Appeals erred in finding that the state court decision denying relief on the basis of an ineffective assistance of counsel claim was an "unreasonable application" or "contrary to" Strickland. The petitioner in a murder case sought state post-conviction relief on the basis of counsel’s failure to adequately investigate. The court denied relief. Afterwards, the petitioner filed a motion to reopen on the basis of "newly discovered evidence" and attaching an affidavit that would have contradicted the testimony of the state’s primary witness. On appeal, the state court held that the affidavit was not properly before the court. Alternatively, the court stated it would deny relief on the merits. "[W]hether a state court’s decision was unreasonable must be assessed in light of the record the court had before it." Here, the District Court and the Court of Appeals made no findings warranting the admission of new evidence buttressing a previously rejected claim. Instead, the Court of Appeals "simply ignored entirely the state court’s independent ground for its decision, that [the] statement was not properly before it." Thus, the court erred in finding that the state court’s decision was an unreasonable application of Strickland. The court also erred in finding that the state court’s decision was "contrary to" Strickland (in three instances) due to imposition of a different burden of proof on prejudice than "reasonable probability." The important holding here is that "the unadorned word ‘probably’ is permissible shorthand when the complete Strickland standard is elsewhere recited."

Florida v. Nixon
125 S. Ct. 511 ( 2004)

Trial counsel’s "failure to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial" is not automatically deficient performance and must be evaluated under the Strickland test rather than under the Cronic test. The Court recognized that some decisions concerning "basic trial rights" must be made by the defendant and require that "an attorney must both consult with the defendant and obtain consent to the recommended course of action." These basic trial rights include the determination of "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)). For other matters, "[a]n attorney undoubtedly has a duty to consult with the client regarding ‘important decisions,’ including questions of overarching defense strategy," (citing Strickland, 466 U.S. at 688), but this "obligation . . . does not require counsel to obtain the defendant’s consent to ‘every tactical decision,’" (citing Taylor v. Illinois, 484 U.S. 400, 417-418 (1988) (an attorney has authority to manage most aspects of the defense without obtaining his client's approval)). With respect to capital cases, the court recognized that

the gravity of the potential sentence in a capital trial and the proceeding’s two-phase structure vitally affect counsel’s strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant’s guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. In such cases, "avoiding execution [may be] the best and only realistic result possible." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases § 10.9.1, Commentary (rev. ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1040 (2003).

In circumstances where guilt is clear, counsel must "strive at the guilt phase to avoid a counterproductive course," such as presenting logically inconsistent strategies in the trial and sentencing. (Citing, inter alia, Lyon, Defending the Death Penalty Case: What Makes Death Different?, 42 Mercer L.Rev. 695, 708 (1991) ("It is not good to put on a ‘he didn't do it’ defense and a ‘he is sorry he did it’ mitigation. This just does not work. The jury will give the death penalty to the client and, in essence, the attorney.")). Thus, "[c]ounsel . . . may reasonably decide to focus on the trial’s penalty phase," and "counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in ‘a useless charade.’"

To summarize, in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant's explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant's guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.

*Rompilla v. Beard
125 S. Ct. 2456 (2005).

Counsel ineffective in capital sentencing for failing “to make reasonable efforts to obtain and review material that counsel [knew] the prosecution [would] probably rely on as evidence of aggravation at the sentencing phase of the trial,” which would have led to significant mitigation Counsel interviewed the defendant, who provided minimal assistance in mitigation and “was actively obstructive by sending counsel off on false leads,” and a few of the defendant’s family members, and reviewed the reports of court-appointed examiners, who assessed only competence and capacity at the time of the offenses. Finding nothing “particularly helpful” in these sources, counsel did not conduct additional investigation for information “that might have cast light on [the defendant’s] mental condition.” Counsel also did not obtain the file of a prior conviction for rape and assault, even though counsel knew the state intended to rely on the aggravating circumstance of a significant history of felony convictions indicating the use or threat of violence and knew that the state specifically intended to read the testimony of the prior rape victim into evidence in sentencing. In mitigation, the defense presented brief testimony from the defendant’s family members, who “argued in effect for residual doubt, and beseeched the jury for mercy.” In addressing the ineffective assistance claim, the Court noted that, in a capital sentencing, “defense counsel’s job is to counter the State’s evidence of aggravated culpability with evidence in mitigation.” While “reasonably diligent counsel may draw a line when they have good reason to think further investigation would be a waste,” counsel’s conduct in this case was “deficient in failing to examine the court file” on the prior conviction because counsel knew the state intended to rely on it and “the prior conviction file was a public document, readily available for the asking at the very courthouse where [the defendant] was to be tried.” While counsel opposed admission of the evidence, this was insufficient because “[c]ounsel’s obligation to rebut aggravating evidence extended beyond arguing it ought to be kept out.” Here, despite knowing of the state’s intent to rely on the evidence, counsel did not look at any part of the file, until the day before the sentencing phase began and then looked only at the transcript of the victim’s testimony. The obligation to review the remainder of the file

was particularly pressing here owing to the similarity of the violent prior offense to the crime charged and [the defendant’s] sentencing strategy stressing residual doubt. Without making efforts to learn the details and rebut the relevance of the earlier crime, a convincing argument for residual doubt was certainly beyond any hope.

In reaching this conclusion, the Court emphasized “[t]he ease with which counsel could examine the entire file. . . . Suffice it to say that when the State has warehouses of records available in a particular case, review of counsel’s performance will call for greater subtlety.” The Court also noted that “[t]he notion that defense counsel must obtain information that the State has and will use against the defendant is not simply a matter of common sense.” It is described “in terms no one could misunderstand” in the ABA Standards for Criminal Justice “in circulation” at the time of trial and the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases promulgated in 1989, “shortly after” this trial, and made “even more explicit” in the 2003 revisions. “[I]n any case, [we] cannot think of any situation in which defense counsel should not make some effort to learn the information in the possession of the prosecution and law enforcement authorities.” The state court’s application of Strickland was objectively unreasonable because the court reasoned that “defense counsel’s efforts to find mitigating evidence by other means excused them from looking at the prior conviction file.” The Court rejected this reasoning because “[n]o reasonable lawyer would forgo examination of the file thinking he could do as well by asking the defendant or family relations whether they recalled anything helpful or damaging in the prior victim’s testimony.” Counsel is not required to look

for a needle in a haystack, when a lawyer truly has reason to doubt there is any needle there. But looking at a file the prosecution says it will use is a sure bet: whatever may be in that file is going to tell the defense counsel something about what the prosecution can produce.

The Court cautioned, however, that, although counsel’s conduct was unreasonable in the circumstances of this case, a different result might be obtained in other situations “where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way.” Because the state court never reached question of prejudice, the Court examined this issue “de novo.” Prejudice was uncontested by the Commonwealth and the Court found prejudice. If counsel had looked in the file, counsel would have discovered “mitigation leads that no other source had opened up,” including information that the defendant grew up in a “slum environment” and had numerous prior incarcerations for offenses “often of assaultive nature and commonly related to over-indulgence in alcoholic beverages.” The file also contained information “pointing to schizophrenia and other disorders, and test scores showing a third grade level of cognition after nine years of schooling.” “The jury never heard even of this and neither did the mental health experts who examined [the defendant] before trial.” If the experts had reviewed these records, they (like “their post-conviction counterparts”) would have “found plenty of ‘red flags’ pointing up to a need to test further.” This testing would have established that (1) the defendant “suffers from organic brain damage, an extreme mental disturbance significantly impairing several of his cognitive functions”; (2) the impairments probably resulted from “fetal alcohol syndrome” and, thus, existed since childhood; and (3) the defendant’s capacity to appreciate the criminality of his conduct or to conform his conduct to the law was substantially impaired at the time of the offenses. “These finds in turn would probably have prompted a look at school and juvenile records, all of them easy to get,” which showed that (1) the defendant’s mother was often missing from the home for a week or more at a time when the defendant was 16; (2) the defendant’s mother was frequently drunk and “the children have always been poorly kept and on the filthy side which was also the condition of the home at all times”); and (3) the defendant’s “IQ was in the mentally retarded range.” “This evidence adds up to a mitigation case that bears no relation to the few naked pleas for mercy actually put before the jury” and “‘might well have influenced the jury’s apprisal’ of . . . culpability.” (quoting Wiggins v. Smith, 539 U.S. 510, 538 (2003) and Williams v. Taylor, 529 U.S. 362, 398 (2000)).

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Thursday, March 15, 2007

counsel did not adequately consult with defendant on his right to appeal and defendant was prejudiced from such failure.

Thompson v. US, No. 05-16970 (11th Cir. March 14, 2007)
After guilty plea to conspiracy to possess with intent to distribute 500 grams or more of cocaine in connection with a drug-smuggling scheme involving crew members on Celebrity Cruise Lines, denial of motion to vacate sentence under 28 U.S.C. section 2255 is reversed as counsel did not adequately consult with defendant on his right to appeal and defendant was prejudiced from such failure.


Thursday, March 08, 2007

Lockhart v. Fretwell (91-1393), 506 U.S. 364 (1993).

Justice Stevens, with whom Justice Blackmun joins, dissenting.

Concerned that respondent Fretwell would otherwise receive the "windfall" of life imprisonment, see ante, at 1, 5, the Court today reaches the astonishing conclusion that deficient performance by counsel does not prejudice a defendant even when it results in the erroneous imposition of a death sentence. The Court's aversion to windfalls seems to disappear, however, when the State is the favored recipient. For the end result in this case is that the State, through the coincidence of inadequate representation and fortuitous timing, may carry out a death sentence that was invalid when imposed.


A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary syst


A rule that allows the State to foist a murder victim’s lawyer onto his accused is not only capricious; it poisons the integrity of our adversary system of justice.

I respectfully dissent.

The Sixth Amendment provides: “In all criminal prosecutions, the accused shall enjoy the right … to have the Assistance of Counsel for his defence.” This protection is applicable to State, as well as federal, criminal proceedings. Gideon v. Wainwright, 372 U.S. 335 (1963). We have long recognized the paramount importance of the right to effective assistance of counsel. United States v. Cronic, 466 U.S. 648, 653—654 (1984) (“ ‘Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive for it affects his ability to assert any other rights he may have’ ”) (citation omitted)).


Tuesday, March 06, 2007

deficient performance by counsel does not prejudice a defendant even when it results in the erroneous imposition of a death sentence.


No. 91-1393


on writ of certiorari to the united states court of appeals for the eighth circuit

[January 25, 1993]

Justice Stevens, with whom Justice Blackmun joins, dissenting.

Concerned that respondent Fretwell would otherwise receive the "windfall" of life imprisonment, see ante, at 1, 5, the Court today reaches the astonishing conclusion that deficient performance by counsel does not prejudice a defendant even when it results in the erroneous imposition of a death sentence. The Court's aversion to windfalls seems to disappear, however, when the State is the favored recipient. For the end result in this case is that the State, through the coincidence of inadequate representation and fortuitous timing, may carry out a death sentence that was invalid when imposed.


Thursday, November 02, 2006

unreasonable application of the standard because the cumulative effect

Goodman v. Bertrand, No. 04-3946 (7th Cir. October 31, 2006)
Denial of petition for writ of habeas corpus is reversed where the state court decision in defendant's appeal was contrary to the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and an unreasonable application of the standard because the cumulative effect of the defense counsel's errors constituted ineffective assistance of counsel.