CRIMINAL DEFENDANT’S HANDBOOK – Order Now!
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
In any case presenting a claim counsel’s assistance was constitutionally ineffective, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances and prevailing norms of practice as reflected in American Bar Association standards. Strickland, at 677.
A. Pre-Trial Ineffective Assistance of Counsel Claims
If the defendant claims before trial that counsel is rendering ineffective assistance of counsel, the trial court must, before trial, conduct an inquiry sufficient to determine the truth and scope of the defendant’s allegations. On post-conviction review, if no pretrial findings were made, the government must prove by clear and convincing evidence that the defendant was accorded representation at trial by counsel who was prepared within the requisite range of competence.
Under Strickland, a defendant claiming ineffective assistance of counsel must demonstrate both that his attorney’s performance fell below an objective standard of reasonable professional conduct and that the deficient performance resulted in prejudice to the defendant.
In cases where the trial judge erred by denying a request for substitute counsel, the Ninth Circuit has reported that the federal courts are nearly unanimous in their holding that an irreconcilable conflict between a defendant and his attorney that leads to a breakdown in communications can prevent an attorney from serving as the type of advocate guaranteed by the Sixth Amendment, as interpreted in such cases as Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396 (1967), and United States v. Cronic, 466 U.S. 648, 80 L.Ed.2d 657, 140 S.Ct. 2039 (1984). See, Plumlee v. Del Papa, 426. F.3d 1095, 1103 (9th Cir. 2005).
In cases which “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” ineffectiveness will be presumed under Cronic.
Counsel’s failure to file a motion to suppress evidence can provide the basis for a claim of ineffectiveness, but in order to show prejudice the defendant must show that he would have prevailed on the suppression motion, and that there is a reasonable probability that the successful motion would have affected the outcome. Van Iran v. Lindsey, 212 F.3d 1143, 1145 (9th Cir. 2000).
If the defendant claims that counsel is rendering ineffective counsel before or during trial, then a motion to dismiss or motion for mistrial should be filed. Counsel failures result in waivers of issues for appeal and may prejudice the defendant.
Examples of these are as follows:
- Timely motion to amend a complaint
- Timely motion to dismiss an indictment
- Timely motion to dismiss based on violation of Speedy Trial Act
- Timely demand for jury trial
- Failure to make possible legal arguments in district court
- Failure to make argument concerning sufficiency of evidence in Rule 50 motion
- Failure to make timely motion for mistrial
- Failure to make timely motion for new trial
- Failure to make timely motion for judgment of acquittal
- Failure to make timely notice of appeal
If a party fails to raise an objection to an issue before judgment, it waives the right to challenge an issue on appeal. Doi v. Halekulani Corp., 276 F.3d 1131, 1140 (9th Cir. 2002). Plain error standard applies to issues not raised before district court. United States v. Garcia-Sanchez, 189 F.3d 1143, 1147 (9th Cir. 1999). While the “clear error” doctrine has most often been applied to factual determinations, it is applicable to habeas corpus review of legal determinations as well. Van Trans, at 1145.
If the defendant claims that counsel is rendering ineffective counsel before or during trial, then timely objections must be made on the record to preserve the issues for direct appeal or a section 2255 motion.
B. Counsel Has Constitutional Duty to Investigate
“Counsel has a constitutional duty to make reasonable investigations or to make reasonable decisions that make particular investigation unnecessary .” Strickland v. Washington, 466 U.S. 688, 691, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). The Sixth Amendment requires investigation and preparation, not only to exonerate, but also to secure and protect the rights of the accused. such constitutional rights are granted to the innocent and guilty alike, and failure to investigate and file appropriate motions is ineffectiveness. Kimmelman v. Morrison, 477 U.S. 365, 91 L.Ed.2d 305, 106 S.Ct. 2574 (1986).
The Ninth Circuit has reversed convictions due to ineffective pretrial consultation, investigation and preparation. The Ninth Circuit “affords strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance, adversarial process will not function normally unless defense team has done proper investigation, and counsel thus has duty to make reasonable investigations or to make reasonable decision that makes particular investigations unnecessary.” Siripongs v. Calderon, 133 F.3d 732 (9th Cir. 1998). “A lawyer’s duty to investigate is virtually absolute, regardless of a client’s expressed wishes.” Silva v. Woodford, 279 F.3d 825 (9th Cir. 2002).
Counsel has the constitutional and professional obligation to conduct an investigation into potential mitigating evidence. If counsel conducts an inadequate investigation “that fact would have no effect on the deficient conduct prong of Strickland because counsel had already demonstrated ineffectiveness by failing to thoroughly investigate the existence of mitigating factors.” Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005).
The Supreme Court has made clear the American Bar Association’s standards of practice in determining the professional norms of defense preparation for purposes of Strickland analysis.
In Summerlin the Ninth Circuit pointed out that ABA Standard for Criminal Justice 4-4.1 states in part that counsel has a duty “to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction.”
C. Developing Ineffective Assistance of Counsel Claim
Ordinarily, a defendant who claims ineffective assistance of counsel bears a substantial burden of proving that his counsel’s representation fell below an objective standard of reasonableness and that, but for counsel’s unprofessional errors, the result of the proceedings would have been different. Bellamy v. Cogdell, 974 F.2d 302 (2nd Cir. 1992).
To succeed on a claim of ineffective assistance, the defendant must show both incompetence and prejudice. The standard for defense counsel’s performance is reasonableness under prevailing professional norms. In determining a claim of ineffective assistance, the issue is not what is possible or what is prudent or appropriate, but only what is constitutionally compelled. The burden of persuasion is on the defendant to prove by a preponderance of competent evidence, that counsel’s performance was unreasonable, and that the particular and identified acts of omissions of counsel were outside the wide range of professionally competent assistance.
Judicial scrutiny of counsel’s performance must be highly deferential. Chandler v. United States, 218 F.3d 1305 (11th Cir. 2000), cert.denied, 531 U.S. 1204, 149 L.Ed.2d 129, 121 S.Ct. 1217 (2001).
Evidence of the defendant’s statements and acts in dealing with defense counsel is a highly important factor to be considered in determining an ineffective assistance claim.
The defendant must show prejudice to prove ineffectiveness when the totality of circumstances are taken into consideration resulting in an unreliable trial result and an unfair trial. The defendant must show that the ineffectiveness of counsel undermined the proper functioning of the adversarial process.
D. Post-Conviction Ineffective Assistance of Counsel Claims
The customary procedure for challenging effectiveness of counsel under the Sixth Amendment is a post-conviction 28 U.S.C. §2255 motion. United States v. Houtchens, 926 F.2d 824, 828 (9th Cir. 1991). Prejudice is not strictly construed because strict definition “would impose a heavy burden on defendant’s who are often proceeding pro se in an initial 28 U.S.C. §2255 motion.” Peguero v. United States, 526 U.S. 23, 24, 143 L.Ed.2d 18, 119 S.Ct. 961 (1999)(0’Connor, J. concurring).
Claims should be raised for the first time in section 2255 proceedings and not on direct appeal for ineffective assistance. Chappell v. United States, 494 U.S. 1075, 108 L.Ed.2d 931, 110 S.Ct. 1800 (1990). The Ninth Circuit declined to address ineffective assistance claims on direct appeal because a “more appropriate way to pursue this…claim is by way of a …proceeding” in which “a record may be developed to show what counsel did and resulting prejudice.” United States v. Simas, 937 F.2d 459, 463 (9th Cir. 1991); United States v, Hanoum, 33 F.3d 1128 (9th Cir. 1994).
During the pendency of a direct appeal, court of appeals generally “will stay the entire appeal to permit the district court to develop a record for appeal.” United States v. Cyrus, 890 F.2d 1245, 1247 (D.C. Cir. 1989). The Ninth Circuit will remand Sixth Amendment claims, but hear all other bases for direct appeal. United States v, Taylor, 648 F.2d 565, 572 (9th Cir. 1991).
“The rule barring federal habeas corpus review of a Fourth Amendment claim, where the state involved has provided an opportunity for full and fair litigation of that claim, does not apply to Sixth Amendment claims of ineffective assistance of counsel which are founded primarily on incompetent representation with respect to a Fourth Amendment issue.” Kimmelman v. Morrison, 477 U.S. 365, 91 L.Ed.2d 305, 308 106 S.Ct. 2574 (1986).
A claim of ineffective assistance of counsel is generally appropriate only in a collateral attack. United States v. Gerace, 997 F.2d 1293 (9th Cir. 1993). Default of an ineffective assistance of counsel claim is excused when the defendant’s trial lawyer also prosecuted the appeal. Lambright v. Stewart, 220 F.3d 1022, 1028 n.6 (9th Cir. 2000).
It is obvious that ineffective assistance of counsel is not likely to be raised at trial or to appear among assignments of constitutional error where trial and appellate counsel are same. Lambright, at 1028.
A district court order preventing a warden from contacting petitioner’s prior counsel during the pendency of a petition when the petitioner was seeking relief on a theory of ineffective assistance of counsel is appealable as a collateral order. Wharton v. Calderon, 127 F.3d 1201, 1203-04 (9th Cir. 1997).
Issues that rely on evidence outside the record cannot be raised on direct appeal. United States v. Quintero-Barraza, 78 F.3d 1344, 1347 (9th Cir. 1995). Claims of ineffective assistance of counsel usually cannot be raised on direct appeal, because such claims require evidence not already in the record. Hanoum, at 1347.
An attorney who fails to file an appeal after being instructed by his client to do so is per se ineffective. The Sixth Amendment requires counsel to consult with the defendant concerning whether to appeal when counsel has reason to believe either: (1) that a rational defendant would want to appeal, for example, because there are non-frivolous grounds for appeal; or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing. If the defendant expressed his intention to appeal, and counsel decided not to file an appeal without having discussed the matter further with the defendant after he was sentenced, counsel’s performance would be constitutionally deficient. United States v. Witherspoon, 231 F.3d 923 (4th Cir. 2000).
However, such claims may be reviewed on direct appeal either when the record on appeal is sufficiently developed, United States v. Anderson, 850 F.2d 563 (9th Cir. 1988), or when the legal representation was so inadequate it obviously denied the defendant’s Sixth Amendment right to counsel. United States v. Robinson, 967 F.2d 287 (9th Cir. 1992). The district court should not generally entertain a habeas corpus petition in a case while there is a direct appeal pending in the Ninth Circuit or the Supreme Court. Schlup v. Delo, 513 U.S. 298, 130 L.Ed.2d 808, 115 S.Ct. 851 (1995).
E. American Bar Association Complaints, Disciplinary Action and Malpractice Suits
There are five types of claims which can be made against your attorney:
- breach of contract
- conflict of interest
- ineffective assistance of counsel
- financial misconduct
Malpractice is where your attorney negligently handled your case. Breach of contract is where your attorney did not follow the terms of your agreement for services. Conflict of interest in where your case was harmed by your attorney having personal interests that conflicted with your interests. Ineffective assistance of counsel is where your attorney did not effectively represent you in a criminal matter. Financial misconduct is where your attorney mishandled funds that you entrusted to him or her.
Negligence is defined as a failure to use a reasonable or ordinary amount of care in a situation that causes harm to someone. An attorney is “negligent” if he or she had a duty to do something and was either careless or completely failed to do what was required. For an attorney to be negligent, he or she must “breach,” or violate certain standards of conduct and this violation must be shown to have caused you harm. The defendant or client must prove the following elements to be successful in a lawsuit for legal malpractice: (1) attorney-client relationship; (2) breach of duty to client; and (3) breach must be the immediate cause of the injury to the client.
An attorney-client relationship must exist. A breach must be shown by the attorney to the client. The attorney must have been negligent. You must be able to prove that the harm you suffered was caused by the attorney’s conduct or misconduct. There are standards to which all attorneys must adhere including rules and regulations set by the bar associations of each state or other regulatory authority. Failure to adhere to these standards opens the door to legal malpractice suits or other disciplinary action or complaints.
Attorney negligence can be based on numerous grounds including impairment by drugs or alcohol abuse which accounts for 50% of attorney discipline cases. Violation of ethical rules and regulations are being used more and more by clients with greater acceptance by the courts. If an attorney is labeled “unethical” because of a violation, it may be a stigma a jury cannot ignore. This makes using ethical rules a powerful tool as part of a malpractice suit.
Grounds for legal malpractice in criminal law are as follows:
- Did not seek reduction of an excessive sentence
- Did not appeal a conviction when one is warranted
- Did not protect the defendant’s rights during sentencing or any other phase of the proceeding
- Did not insure the case could be properly appealed by establishing a record
- Did not take a key witness deposition or investigate properly
- Did not avoid conflicts of interest
- Did not call necessary and key witnesses at trial
- Did not advise defendant how to plead
American Bar Association complaints, grievances and disciplinary action is usually handled by the state bar association. Contact the appropriate office and request a complaint form. A committee will determine if the complaint has merit and a hearing may be held. If the committee finds a violation a sanction will be imposed. An attorney could be disbarred, suspended, reprimanded, admonished, placed on probation or sent to ethics school in some states.
The Model Code of Professional Responsibility adopted in 1969 were revised into the Model Rules of Professional Conduct in 1983 and adopted by most states. Under these Rules an attorney can be held accountable for many behaviors not considered legal malpractice.
Ethical violations include:
- Having sex with a client (Rule 1.8)
- Mishandling client funds (Rule 1.5)
- Incompetence (Rule 1.1)
- Candor to a court or making false statements (Rule 3.3)
- Supervision of non-lawyer assistants (Rule 5.3 and 1.5)
- Substance abuse and suspension (Rule 1.1)
For attorneys practicing in federal court the Circuit Court of Appeals handles complaints, grievances and disciplinary action for ethical violations as well.