April 30th, 2016 Ineffective Assistance of Council

§12 Claim for Ineffective Assistance of CounselCRIMINAL DEFENDANT’S HANDBOOK –Claims of ineffective assistance of counsel are raised initially by motion in district court. In most cases, it’s inappropriate to raise the issue on direct appeal. Ineffective assistance claims must be sufficiently substantiated in the trial court and an appropriate record made. Pre-trial claims of ineffective assistance of counsel are reviewed on a different standard than post-trial claims.
If a defendant claims before trial that counsel was ineffective in investigation, preparation, or for some other substantial reason, the trial court has a constitutional duty to conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations. The court must make on-the-record findings sufficient to permit meaningful review on the issue of the ability and preparedness of counsel to render effective assistance under the prevailing circumstances.
“The right to counsel is the right -to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). “When a jurisdiction provides an appeal of right, due process also guarantees the assistance of counsel on appeal.” Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985). This right does not extend to “discretionary appeals,” Wainright v. Torna, 455 U.S. 586, 71 L.Ed.2d 475, 102 S.Ct. 1300 (1982), “petitions for certiorari,” Ross v. Moffitt, 417 U.S. 600, 41 L.Ed.2d 341, 94 S.Ct. 2437 (1974), or “post-conviction proceedings,” Coleman v. Thompson, 501 U.S. 722, 115 L.Ed.2d 640, 111 S.Ct. 2546 (1991); Pennsylvannia v. Finley, 481 U.S. 551, 95 L.Ed.2d 539, 107 Sect. 1990 (1987).
The defendant has a right to expect that his attorney will use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778, 779 (9th Cir. 1994); U.S.C.A. Const. Amend 6. Counsel owes defendant duty of loyalty, unhindered by state or by counsel’s constitutionally deficient performance.
Claims of ineffective assistance of counsel should be initially raised before trial or sentencing. If the court fails to make adequate findings, the conviction must be reversed or remanded. Once jeopardy attaches, any claim of ineffective assistance is governed by the Strickland standard and should be addressed in a pre-trial or post-trial motion.
On post-trial claims of ineffectiveness, any question as to whether a hearing is needed should be resolved in favor of conducting a hearing. A hearing must be held unless the claims are vague, wholly incredible, or even if true, would merit no relief. Claims can be made in a section 2255 motion or motion for new trial.
“First, the defendant must show that counsel’s performance was deficient…Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, at 687.
As for the prejudice requirement ”[t]he benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, at 686.
The “defendant need not show that counsel’s deficient conduct more likely than not altered the outcome of the case,” Strickland, at 693, but rather “must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceedings would have been different.” Strickland, at 695-96.
Prejudice requirement does not require petitioner to prove that he would not have been found guilty. Prejudice in pro se motions is not strictly construed. In cases which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” ineffectiveness will be presumed under United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d.657, 140 S.Ct. 2039 (1984).
Ineffectiveness is presumed when an actual conflict of interest is shown or an irreconcilable conflict between counsel and the defendant.
Examples of grounds for claim of ineffective assistance of counsel are as follows:

• Counsel was ineffective in investigation, preparation or for another substantial reason
• Counsel’s performance was deficient and prejudiced defendant
• Counsel’s serious errors deprived defendant of fair trial
• Counsel provided bad advice
• Counsel had conflict of interest
• Counsel and defendant had irreconcilable differences
• Counsel was not prepared within requisite range of competence
• Counsel’s performance fell below an objective standard of reasonableness
• Counsel’s failure to investigate mitigating evidence
• Counsel’s failure to investigate mitigating circumstances for sentencing
• Counsel’s failure to object to factual errors in PSR and adequately prepare defendant for sentencing
• Counsel’s failure to subject prosecution’s case to meaningful adversarial testing
• Counsel’s failure to file timely motions
• Counsel’s failure to advocate the defendant’s theory of the case
• Counsel’s failure to negotiate results favorable to the defendant in plea negotiations
• Counsel’s failure to be competent, prompt and diligent
• Counsel’s failure to maintain adequate communications with defendant
• Counsel’s absence through critical stages of the prosecution
• Court’s failure to provide substitute counsel
• Court’s failure to hold inquiry into claim of ineffective assistance of counsel
• Representation so inadequate and deficient that it denies Sixth Amendment right
• Representation fails to move to suppress evidence, conduct an adequate investigation, raise legal issues at trial, negotiate a plea agreement, introduce exculpatory evidence or file timely notice of appeal

1. Counsel was ineffective in investigation, preparation or for another substantial reason

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