Also check out  complaints against Rhode Island Boards and Commissions and Rhode Island Judges and Rhode Island Lawyers.

Caught also provides the following cases where ineffective assistance and related issues are discussed: We start with Strickland v Washington and follow with SANTOS v. GREINER and then list cases that were successful in proving ineffective assistance.

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

Strickland pled guilty to three counts of murder and several other charges. He was sentenced to death after a hearing before a judge. He then challenged the sentence on the ground that his attorney provided constitutionally inadequate representation at the sentencing proceeding. In the course of rejecting his claim, the Court set out standards for adjudicating ineffective assistance of counsel claims.]

II

In a long line of cases that includes Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963), this Court has recognized that the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial. The Constitution guarantees a fair trial through the Due Process Clauses, but it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment, including the Counsel Clause:

"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

Thus, a fair trial is one in which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding. The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the "ample opportunity to meet the case of the prosecution" to which they are entitled.

Because of the vital importance of counsel's assistance, this Court has held that, with certain exceptions, a person accused of a federal or state crime has the right to have counsel appointed if retained counsel cannot be obtained. That a person who happens to be a lawyer is present at trial alongside the accused, however, is not enough to satisfy the constitutional command. The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

For that reason, the Court has recognized that "the right to counsel is the right to the effective assistance of counsel." Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. See, e.g., Geders v. United States, 425 U.S. 80 (1976) (bar on attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U.S. 605 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U.S. 570 (1961) (bar on direct examination of defendant). Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render "adequate legal assistance," Cuyler v. Sullivan, 446 U.S., at 344 (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective).

The Court has not elaborated on the meaning of the constitutional requirement of effective assistance in the latter class of cases--that is, those presenting claims of "actual ineffectiveness." In giving meaning to the requirement, however, we must take its purpose--to ensure a fair trial--as the guide. The 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.

The same principle applies to a capital sentencing proceeding such as that provided by Florida law. We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance. A capital sentencing proceeding like the one involved in this case, however, is sufficiently like a trial in its adversarial format and in the existence of standards for decision, see Barclay v. Florida, 463 U.S. 939, 952-954 (1983); Bullington v. Missouri, 451 U.S. 430 (1981), that counsel's role in the proceeding is comparable to counsel's role at trial--to ensure that the adversarial testing process works to produce a just result under the standards governing decision. For purposes of describing counsel's duties, therefore, Florida's capital sentencing proceeding need not be distinguished from an ordinary trial.

III

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

A

As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. The Court indirectly recognized as much when it stated in McMann v. Richardson, 397 U.S., at 770, 771, that a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not "a reasonably competent attorney" and the advice was not "within the range of competence demanded of attorneys in criminal cases." When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

More specific guidelines are not appropriate. The Sixth Amendment refers simply to "counsel," not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

Representation of a criminal defendant entails certain basic duties. Counsel's function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. From counsel's function as assistant to the defendant derive the overarching duty to advocate the defendant's cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4- 1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining what is reasonable, but they are only guides. No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant. Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions. Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause. Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system. The purpose is simply to ensure that criminal defendants receive a fair trial.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. 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." There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

The availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges. Criminal trials resolved unfavorably to the defendant would increasingly come to be followed by a second trial, this one of counsel's unsuccessful defense. Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case. As the Court of Appeals concluded, strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions. Counsel's actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable. In short, 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.

B

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

In certain Sixth Amendment contexts, prejudice is presumed. Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice. So are various kinds of state interference with counsel's assistance. Prejudice in these circumstances is so likely that case-by-case inquiry into prejudice is not worth the cost. Moreover, such circumstances involve impairments of the Sixth Amendment right that are easy to identify and, for that reason and because the prosecution is directly responsible, easy for the government to prevent.

One type of actual ineffectiveness claim warrants a similar, though more limited, presumption of prejudice. In Cuyler v. Sullivan, the Court held that prejudice is presumed when counsel is burdened by an actual conflict of interest. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel's duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests. Given the obligation of counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, see, e.g., Fed.Rule Crim.Proc. 44(c), it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so, the rule is not quite the per se rule of prejudice that exists for the Sixth Amendment claims mentioned above. Prejudice is presumed only if the defendant demonstrates that counsel "actively represented conflicting interests" and that "an actual conflict of interest adversely affected his lawyer's performance."

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence. Attorney errors come in an infinite variety and are as likely to be utterly harmless in a particular case as they are to be prejudicial. They cannot be classified according to likelihood of causing prejudice. Nor can they be defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid. Representation is an art, and an act or omission that is unprofessional in one case may be sound or even brilliant in another. Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Respondent suggests requiring a showing that the errors "impaired the presentation of the defense." That standard, however, provides no workable principle. Since any error, if it is indeed an error, "impairs" the presentation of the defense, the proposed standard is inadequate because it provides no way of deciding what impairments are sufficiently serious to warrant setting aside the outcome of the proceeding.

On the other hand, we believe that a defendant need not show that counsel's deficient conduct more likely than not altered the outcome in the case. This outcome-determinative standard has several strengths. It defines the relevant inquiry in a way familiar to courts, though the inquiry, as is inevitable, is anything but precise. The standard also reflects the profound importance of finality in criminal proceedings. Moreover, it comports with the widely used standard for assessing motions for new trial based on newly discovered evidence. Nevertheless, the standard is not quite appropriate.

Even when the specified attorney error results in the omission of certain evidence, the newly discovered evidence standard is not an apt source from which to draw a prejudice standard for ineffectiveness claims. The high standard for newly discovered evidence claims presupposes that all the essential elements of a presumptively accurate and fair proceeding were present in the proceeding whose result is challenged. An ineffective assistance claim asserts the absence of one of the crucial assurances that the result of the proceeding is reliable, so finality concerns are somewhat weaker and the appropriate standard of prejudice should be somewhat lower. The result of a proceeding can be rendered unreliable, and 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.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness. The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

In making the determination whether the specified errors resulted in the required prejudice, a court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency, that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, "nullification," and the like. A defendant has no entitlement to the luck of a lawless decisionmaker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. It should not depend on the idiosyncracies of the particular decisionmaker, such as unusual propensities toward harshness or leniency. Although these factors may actually have entered into counsel's selection of strategies and, to that limited extent, may thus affect the performance inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence about the actual process of decision, if not part of the record of the proceeding under review, and evidence about, for example, a particular judge's sentencing practices, should not be considered in the prejudice determination.

The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. 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.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, 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. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

IV

A number of practical considerations are important for the application of the standards we have outlined. Most important, in adjudicating a claim of actual ineffectiveness of counsel, a court should keep in mind that the principles we have stated do not establish mechanical rules. Although those principles should guide the process of decision, the 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 that our system counts on to produce just results. . . .

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.

* * *

Justice MARSHALL, dissenting.

* * *

The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple "standard of reasonableness." Second, the majority holds that only an error of counsel that has sufficient impact on a trial to "undermine confidence in the outcome" is grounds for overturning a conviction. I disagree with both of these rulings.

A

My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave "reasonably" and must act like "a reasonably competent attorney," is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes "professional" representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the Court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs.

The debilitating ambiguity of an "objective standard of reasonableness" in this context is illustrated by the majority's failure to address important issues concerning the quality of representation mandated by the Constitution. It is an unfortunate but undeniable fact that a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case. Is a "reasonably competent attorney" a reasonably competent adequately paid retained lawyer or a reasonably competent appointed attorney? It is also a fact that the quality of representation available to ordinary defendants in different parts of the country varies significantly. Should the standard of performance mandated by the Sixth Amendment vary by locale The majority offers no clues as to the proper responses to these questions.

The majority defends its refusal to adopt more specific standards primarily on the ground that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." I agree that counsel must be afforded "wide latitude" when making "tactical decisions" regarding trial strategy, but many aspects of the job of a criminal defense attorney are more amenable to judicial oversight. For example, much of the work involved in preparing for a trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards.

The opinion of the Court of Appeals in this case represents one sound attempt to develop particularized standards designed to ensure that all defendants receive effective legal assistance. . . . By refusing to address the merits of these proposals, and indeed suggesting that no such effort is worthwhile, the opinion of the Court, I fear, will stunt the development of constitutional doctrine in this area.

B

I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government's evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.

Second and more fundamentally, the assumption on which the Court's holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.

In Chapman v. California, 386 U.S. 18 (1967), we acknowledged that certain constitutional rights are "so basic to a fair trial that their infraction can never be treated as harmless error." Among these rights is the right to the assistance of counsel at trial. In my view, the right to effective assistance of counsel is entailed by the right to counsel, and abridgment of the former is equivalent to abridgment of the latter. I would thus hold that a showing that the performance of a defendant's lawyer departed from constitutionally prescribed standards requires a new trial regardless of whether the defendant suffered demonstrable prejudice thereby.

II

Even if I were inclined to join the majority's two central holdings, I could not abide the manner in which the majority elaborates upon its rulings. Particularly regrettable are the majority's discussion of the "presumption" of reasonableness to be accorded lawyers' decisions and its attempt to prejudge the merits of claims previously rejected by lower courts using different legal standards.

A

In defining the standard of attorney performance required by the Constitution, the majority appropriately notes that many problems confronting criminal defense attorneys admit of "a range of legitimate" responses. And the majority properly cautions courts, when reviewing a lawyer's selection amongst a set of options, to avoid the hubris of hindsight. The majority goes on, however, to suggest that reviewing courts should "indulge a strong presumption that counsel's conduct" was constitutionally acceptable, and should "appl[y] a heavy measure of deference to counsel's judgments,"

I am not sure what these phrases mean, and I doubt that they will be self-explanatory to lower courts. If they denote nothing more than that a defendant claiming he was denied effective assistance of counsel has the burden of proof, I would agree. But the adjectives "strong" and "heavy" might be read as imposing upon defendants an unusually weighty burden of persuasion. If that is the majority's intent, I must respectfully dissent. The range of acceptable behavior defined by "prevailing professional norms," seems to me sufficiently broad to allow defense counsel the flexibility they need in responding to novel problems of trial strategy. To afford attorneys more latitude, by "strongly presuming" that their behavior will fall within the zone of reasonableness, is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel.

The only justification the majority itself provides for its proposed presumption is that undue receptivity to claims of ineffective assistance of counsel would encourage too many defendants to raise such claims and thereby would clog the courts with frivolous suits and "dampen the ardor" of defense counsel. I have more confidence than the majority in the ability of state and federal courts expeditiously to dispose of meritless arguments and to ensure that responsible, innovative lawyering is not inhibited. In my view, little will be gained and much may be lost by instructing the lower courts to proceed on the assumption that a defendant's challenge to his lawyer's performance will be insubstantial.

---

SANTOS v. GREINER

New York Law Journal
September 30, 1999

SOUTHERN DISTRICT

---

Judge Peck

SANTOS v. GREINER QDS:02761643 Petitioner Jose Santos was convicted of rape, sodomy, sexual abuse and assault of his wife, Betzabet Gonzalez, on May 9, 1995. Santos, represented by counsel, seeks a writ of habeas corpus, alleging that (1) his due process right under Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), was violated because the prosecutor failed to disclose evidence that Gonzalez recanted her grand jury testimony before trial and urged the prosecutor to drop the charges (Pet. ¶¶18-22); (2) he was denied effective assistance of counsel at trial (Pet. ¶23); and (3) the trial court's admission of Gonzalez's out-of-court statements under the "prompt outcry" hearsay exception violated his Sixth Amendment confrontation rights (Pet. ¶23).

The parties consented to disposition of this matter by a Magistrate Judge pursuant to 28 U.S.C. §636(c). (Dkt. No. 10.)

For the reasons set forth below, the petition is denied as without merit.

Facts

Jose Santos married Betzabet Gonzalez in March 1994 when both were in their mid-30s. (Tr. 130, 132, 287.) Gonzalez, a Venezuela-born immigrant, worked as a home attendant. (Tr. 130, 132.) Santos took classes at Bronx Community College and gave guitar lessons. (Tr. 288.) Their marriage, however, was stormy, with many arguments after which Santos would move out to stay with his mother. (Tr. 187, 190-92, 240, 289-91, 308-09.) Both Santos and Gonzalez testified that until the May 9, 1995 incident that resulted in Santos's conviction, he had never struck Gonzalez. (Tr. 143, 291.)

According to Gonzalez: on the evening of Friday, May 5, 1995, she declined to have sex with Santos because her two young sons were in the room. (Tr. 133-34, 193-94.) The next day, Santos told Gonzalez that he no longer wanted to live with her, that she "was not the type of woman who would satisfy him in any sense," and that he wanted a divorce. (Tr. 134-35, 226.) Santos gave Gonzalez his keys to the apartment and moved his things out. (Tr. 135-36, 194.) Santos, however, called Gonzalez repeatedly over the next two days. (Tr. 136-37.) Gonzalez unplugged the telephone on the evening of Monday, May 8, 1995. (Tr. 137.) That night she also realized that Santos had left behind an identification card and a document from the college he was attending. (Tr. 138, 195.)

Santos testified to a different reason for his leaving Gonzalez: Santos testified that on Saturday, May 6, 1995, Gonzalez "tricked me into taking her to the airport to" pick up her friend Beverly Carabaio and "hide her out in a hotel in New Jersey." (Tr. 293.) Santos did not approve of Carabaio because he suspected she was involved in criminal activity. (Tr. 293.) Santos also testified that he had consensual sex with Gonzalez on Sunday, May 7, 1995. (Tr. 294.) Santos became angry when Gonzalez came home late that night, packed his things, gave her his keys and vowed to seek a divorce. (Tr. 294, 312.)

The May 9, 1995 Attack

Gonzalez's Version

On Tuesday morning, May 9, 1995, Gonzalez's children left for school at "about 7:35 or 7:40." (Tr. 139.) Ten minutes later, Santos rang the doorbell and Gonzalez let him in "[b]ecause [she] thought he was coming to pick up the papers that he had left behind." (Tr. 140- 41.) Gonzalez testified that Santos "looked strange, like as if he had not slept all night." (Tr. 141.) Santos asked Gonzalez where she was Monday night; when she said she was home but had not returned his calls because she did not want to talk to him, he became violent, pushing her from behind. (Tr. 141-42.)

According to Gonzalez: "He grabbed me by the neck and began saying to me that I would have to learn how to respect him, because he was my husband and that I had to do whatever he said, that this thing of mine of doing whatever I wanted was going to come to an end, and he continued to squeeze my neck." (Tr 142.) Gonzalez smelled alcohol on Santos's breath. (Tr. 144.) As Gonzalez attempted to fight Santos off, he pushed her to the floor, "[a]nd when I fell, my leg bent backwards and when I fell to the floor, I felt a horrible pain and I began to cry. ... I felt a terrible pain at the bone on my ankle." (Tr. 143, 145.) Santos threw himself on top of Jose Santos Gonzalez on the floor but she pushed him and "he got up and went to the kitchen." (Tr. 145-46.) Santos returned from the kitchen with a large knife and said he was going to kill Gonzalez. (Tr. 147-49.) As Gonzalez was crying, Santos — knife in hand — continued to talk about killing her and killing himself, and Santos went to the living room and started drinking rum from the bottle. (Tr. 149-51.) "He walked like a madman, back and forth, back and forth," still holding the knife. (Tr. 151-52.) Finally, Gonzalez managed to raise herself up from the floor onto the edge of the bed. (Tr. 152-53.)

Santos pushed Gonzalez back onto the bed, forced her clothes off "very violently," and then took his own clothes off. (Tr. 153-55, 206-08.) Santos put his mouth on Gonzalez's breasts, performed oral sex on her and then raped her. (Tr. 155-59, 199.) After the rape concluded, Santos said he was going to kill Gonzalez and plunged the knife into the bed as Gonzalez moved out of the way. (Tr. 159-60, 203, 212-13.)

Gonzalez told Santos that if he took her to the hospital, she would not "tell them" what he had done to her. (Tr. 162-63.) Eventually, Santos called an ambulance, which took Gonzalez to the hospital to treat her injured leg. (Tr. 168-70, 213.) Because Santos was with her, Gonzalez told the ambulance crew that she fell down the stairs. (Tr. 169.)

Santos's Version

Santos disputed Gonzalez's account. Santos testified that on the morning of May 9, 1995, Gonzalez asked him to come in when he arrived to pick up his papers. (Tr. 295.) Gonzalez came at him with a knife from the kitchen, but she "stepped over a shoe at the entrance of the room and she slipped towards me. ... I grabbed her by the hand and I threw her over the bed. When I threw her on the bed, the knife buried itself in the mattress, and then I took the opportunity to take it away." (Tr. 296; see also Tr. 325-27, 331.) Because Santos saw that her foot was swollen, he called an ambulance to take her to the hospital. (Tr. 296-300, 322-24, 331.)

Gonzalez's Statements at the Hospital

When the couple arrived at Columbia Presbyterian Hospital, Gonzalez called a friend, America Martinez, who was not home, so she asked Martinez's daughter to call Martinez at work to ask her to come to the hospital. (Tr. 171-72, 219-20.) Martinez arrived, asked what happened, and Gonzalez said she would tell her later, because Santos was there. (Tr. 172-73, 222-24.) Gonzalez testified about her statement to a social worker and to Martinez:

Q. ... Did you speak to the social worker who came down?

A. Yes.

Q. Was anybody with you when you spoke to the social worker?

A. No.

. . .

Q. Did you tell the social worker that the defendant had pushed you onto the floor?

MR. PAISLEY [defense counsel]: Objection.

THE COURT: Overruled.

A. Yes.

Q. And that he raped you?

A. Yes.

MR. PAISLEY: Hearsay, Judge. Objection.

THE COURT: Overruled.

Q. And after you saw the social worker, did you tell Ms. Martinez also what had happened?

A. Yes.

Q. And did you tell Ms. Martinez that the defendant had raped you?

A. Yes.

(Tr. 174-75.) Defense counsel did not object when the prosecutor asked Gonzalez whether she had told Martinez that Santos had raped her. (Tr. 175.)

Outside the jury's presence, the trial judge explained that the defense's "objections were overruled on the grounds they are prompt outcries, which are exceptions to the hearsay rule." (Tr. 180.)

Later in the trial, Martinez testified, corroborating Gonzalez's testimony: "[Gonzalez] told me that [Santos] had hit her and had raped her and pushed her on the floor." (Tr. 237.) Defense counsel did not object to this testimony. (Tr. 237.)

Gonzalez's Testimony About Her Call to Santos's Defense Counsel

On cross-examination, defense counsel brought out that Gonzalez had called him and indicated that she did not want to send Santos to jail:

Q. Do you still love [Santos]?

A. Yes.

Q. Didn't you call me once?

A. Yes.

Q. And tell me that you didn't want to see him go to jail?

A. Yes.

Q. Have you made an attempt to drop the charges, yes or no?

A. No.

(Tr. 227.) Defense counsel did not follow up further on this topic. (Tr. 227-28.)

On re-direct, the State had Gonzalez explain her phone call to defense counsel:

Q. Did you call [defense counsel] Mr. Paisley on the telephone once?

A. Yes.

Q. Would you tell us why?

A. Because Jose's mother would call me a lot and she went to my house and she told me, crying, to please drop the charges against Jose, to do it for her, that he had — he was very remorseful, that he was changing and that he would never do that to me again. And so I told her that I would speak to the District Attorney to see what we can do about it. She told me, "This is Jose's attorney's phone number. Call him and see what he can tell you about dropping the charges against Jose."

(Tr. 230.) Defense counsel did not pursue the matter further. (Tr. 230.)

The Verdict and Sentencing

The jury found Santos guilty of first degree rape, sodomy and sexual abuse and second degree assault. (Tr. 420-24.) On December 20, 1995, the trial court sentenced Santos to ten to twenty years imprisonment on the rape charge and lesser concurrent sentences on the other charges. (12/20/95 Sentence Tr. at 12-13.)

Santos's Direct Appeal

Santos appealed to the First Department, arguing that the trial court erroneously admitted Gonzalez's hearsay testimony (Aff. of ADA Tiffany Foo, Ex. 6: Santos 1st Dep't Br. at 20-28), and that his sentence should be reduced in the interest of justice (id. at 29-34).

The First Department held that the trial court had not abused its sentencing discretion and that Gonzalez's statements were properly admitted under the prompt outcry hearsay exception "since they were made at the first suitable opportunity and because only the fact of a complaint was elicited. ... Moreover, the seriatim outcries to two different listeners were admissible since they were both prompt under the circumstances." People v. Santos, 243 A.D.2d 276, 276, 662 N.Y.S.2d 318, 318 (1st Dep't 1997).

Santos applied for leave to appeal to the New York Court of Appeals, asserting "one narrow issue," whether "the hearsay testimony of the complaining witness ... [was] correctly admitted as 'prompt outcry' testimony." (Foo Aff. Ex. 8: 11/21/97 Leave to Appeal Letter.) The New York Court of Appeals denied leave to appeal on December 1, 1997. People v. Santos, 91 N.Y.2d 880, 668 N.Y.S.2d 578 (1997).

Santos's First CPL §440.10 Motion

On May 30, 1996, Santos moved to vacate the judgment pursuant to CPL §440.10, arguing that: the prosecutor withheld evidence that Gonzalez had recanted her grand jury testimony; Santos had received ineffective assistance of trial counsel for counsel's failure to advise the court that Gonzalez had recanted; and prosecutorial misconduct causing Gonzalez to commit perjury and not recant. (Pet. Ex. C: Santos's 5/30/96 CPL §440.10 Motion, Santos Aff. ¶¶1, 4-5.) Santos attached to his motion a May 28, 1996 affidavit from Gonzalez stating that Santos had not raped her:

1. That on May 9, 1995, I consented to have sexual intercourse with my husband.

2. That on May 9, 1995, there was not penetration oral or anal or intent to do so.

3. That on May 9, 1995, there was not physical abuse.

4. That the fracture I suffered in my ankle on May 9, 1995, was accidental.

5. That I contacted defense counsel before trial, and I informed him that I wanted to withdraw the charges against my husband. Defense counsel informed me that in order to withdraw the charges it has to be done through the prosecutrix.

6. I contacted the prosecutrix to withdraw the charges. The prosecutrix informed me that it was too late to withdraw the charges and that this case have [sic] to be prosecuted. I agree [sic] to testify at trial, because I never thought the sentence would be too harsh.

(Pet. Exs. C & K: Gonzalez 5/28/96 Aff.)

On August 5, 1996, the trial court denied the motion, finding that: Gonzalez's affidavit was unreliable; its content was inconsistent with Santos's trial testimony that he did not have sex with Gonzalez at all on May 9, 1995; the prosecutorial misconduct and ineffective assistance of counsel claims were without merit; and "nowhere in her affidavit does [Gonzalez] state that she told either lawyer that the charges against the defendant were untrue." (Pet. Ex. I: 8/5/96 Opinion at 1-2.) Santos did not appeal this decision to the First Department. (See Foo Aff. Ex. 5: 7/10/97 DA Letter to 1st Dep't at 2.)

Santos's Second CPL §440.10 Motion

Santos filed his second CPL §440.10 motion on December 17, 1996, reiterating his prosecutorial misconduct and ineffective assistance claims. (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Motion Papers at 4.) Santos based his renewal of the motion on Gonzalez's poor command of English and his own legal inability. (Id. at 4, 9-10.) The second Gonzalez affidavit, dated December 12, 1996, claimed that she started the physical altercation on May 9, 1995, but stopped short of stating that the sex was voluntary, saying Santos "had sex with me and though I was telling him to stop I have never denied sex to my husband." (Pet. Ex. L: 12/12/96 Gonzalez Aff. ¶¶3-4.)1/ Gonzalez also stated that that she told the prosecutor that her "complaint wasn't really true," but that the prosecutor forced her to testify:

[The prosecutor] told me I could go to jail for filing a false report. I repeated that Jose, my husband, didn't really rape me, and she became upset and told me that if I didn't stick to the original story I would be put in prison and my children would be taken away. I began to cry and she told me to be strong. That everything would be okay, and my husband would be home within six months anyway. She said that the six months would do him some good and teach him to respect a good woman like myself. (Pet. Ex. L: 12/12/96 Gonzalez Aff. ¶7.)

On June 3, 1997, the trial court denied Santos's second CPL §440.10 motion, pursuant to CPL §440.10(3)(c), because Santos's prior motion raised the same ground. (Pet. Ex. I: 6/3/97 Opinion at 2-3.) The trial court also found the motion to be without merit, because Gonzalez's affidavit showed that Santos had sex with her over her objection, and because "the recantation of a victim of domestic violence is particularly unreliable." (Id. at 3.)

Santos sought leave to appeal to the First Department. (Foo Aff. Ex. 5: 7/10/97 DA Letter to 1st Dep't at 2-3.) The First Department denied leave to appeal in July 1997. (Pet. Ex. J: 7/97 1st Dep't Certificate Denying Leave to Appeal.)

Santos's Federal Habeas Corpus Petition

Santos's present federal habeas corpus petition, in which he is represented by counsel, raises three grounds: (1) his due process rights under Brady v. Maryland were infringed because the prosecutor failed to disclose evidence that Gonzalez recanted her grand jury testimony before trial (Pet. ¶¶18-22); (2) he was denied effective assistance of trial counsel by his lawyer's failure to investigate and bring to the trial judge's notice Gonzalez's recantation, and by counsel's failure to request a jury charge regarding intoxication (Pet. ¶23); and (3) the trial court's admission of Gonzalez's statements at the hospital under the prompt outcry hearsay exception violated his Sixth Amendment confrontation rights (Pet. ¶23).

ANALYSIS

I. THE STATE DID NOT VIOLATE ITS BRADY OBLIGATIONS SINCE SANTOS'S ATTORNEY WAS AWARE OF GONZALEZ'S ALLEGED RECANTATION BEFORE TRIAL

Under Brady v. Maryland and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material to guilt or to punishment. See, e.g., Strickler v. Greene, 119 S. Ct. 1936, 1948 (1999); United States v. Bagley, 473 U.S. 667, 676, 682, 105 S. Ct. 3375, 3380, 3383-84 (1985); United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399 (1976); Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97 (1963); Franza v. Stinson, 98 Civ. 5484, 1999 WL 495902 at *28 & n.9 (S.D.N.Y. June 30, 1999) (Kaplan, D.J. & Peck, M.J.). In order to demonstrate a Brady violation, a defendant must make a three-part showing. As the Supreme Court recently stated: "There are three essential components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 119 S. Ct. at 1948; see also, e.g., Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568 (1972); United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995), cert. denied, 516 U.S. 1165, 116 S. Ct. 1056 (1996); Orena v. United States, 956 F. Supp. 1071, 1090-92 (E.D.N.Y. 1997) (Weinstein, D.J.); Franza v. Stinson, 1999 WL 495902 at *28-29 & n.9.

Santos's Brady claim fails because he has failed to show that the prosecution suppressed, either willfully or inadvertently, evidence of Gonzalez's alleged recantation of her rape claim. Both Gonzalez affidavits presented on Santos's CPL §440.10 motions unambiguously state that Gonzalez notified Santos's lawyer before trial that she wanted to withdraw the charges against Santos and that her complaint was untrue. (Pet. Ex. K: 5/28/96 Gonzalez Aff. ¶5; Pet. Ex. L: 12/17/96 Gonzalez Aff. ¶7.) Indeed, defense counsel cross-examined Gonzalez at trial regarding her telephone call to him in which she stated that she did not want to see Santos go to jail. (Tr. 227, quoted at page 7 above.) The record is clear, therefore, that the defense knew of Gonzalez's supposed desire to recant.

When a defendant is actually aware of the existence of exculpatory evidence, or should be aware of such evidence, the prosecution does not violate due process by not disclosing the evidence to the defendant. "Evidence, even if material and exculpatory, is not 'suppressed,' and thus no Brady violation '"occurs if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence."'" Montemarano v. United States, No. 95-2314, 89 F.3d 826 (table), 1995 WL 722208 at *2 (2d Cir. Dec. 1, 1995); see also, e.g., United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993); United States v. Diaz, 922 F.2d 998,1007 (2d Cir. 1990) ("[T]here is no improper suppression within the meaning of Brady where the facts are already known by the defendant."), cert. denied, 500 U.S. 925, 111 S. Ct. 2035 (1991); United States v. Grossman, 843 F.2d 78, 85 (2d Cir. 1988), cert. denied, 488 U.S. 1040, 109 S. Ct. 864 (1989); United States v. Gaggi, 811 F.2d 47, 59 (2d Cir.), cert. denied, 482 U.S. 929, 107 S. Ct. 3214 (1987); United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982), cert. denied, 459 U.S. 1174, 103 S. Ct. 823 (1983); United States v. Robinson, 560 F.2d 507, 518 (2d Cir. 1977) (en banc), cert. denied, 435 U.S. 905, 98 S. Ct. 1451 (1978); United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975); Harris v. United States, 9 F. Supp. 2d 246, 275-76 (S.D.N.Y. 1998); United States v. Germosa, 95 CR. 486, 1998 WL 152571 at *9-10 (S.D.N.Y. April 2, 1998); Nieves v. Kelly, 990 F. Supp 255, 266 (S.D.N.Y. 1997) (Cote, D.J. & Peck, M.J.); Anderson v. Kelly, No. CV 91-1354, 1992 WL 175665 at *3 (E.D.N.Y. July 14, 1992); United States v. McGuinness, 764 F. Supp. 888, 896 (S.D.N.Y. 1991).

Since Santos's defense counsel was fully aware of Gonzalez's supposed desire to recant, there is no Brady violation. Santos's Brady claim is denied.

II. SANTOS'S TRIAL COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND v. WASHINGTON TEST

A. The Strickland v. Washington Standard

The Supreme Court has announced a two-part test to determine if counsel's assistance was ineffective. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S. Ct. at 2064.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [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. at 689, 104 S. Ct. at 2065; accord, e.g., Franza v. Stinson, 98 Civ. 5484, 1999 WL 495902 at *7 (S.D.N.Y. June 30, 1999) (Kaplan, D.J. & Peck, M.J.); Torres v. Irvin, 33 F. Supp. 2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. & Peck, M.J.).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068.

In making this determination, a court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, 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. Taking the unaffected findings as a given, and taking due account of the effect of the errors on the remaining findings, a court making the prejudice inquiry must ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.

Id. at 695-96, 104 S. Ct. at 2069; see also, e.g., DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996); Franza v. Stinson, 1999 WL 495902 at *8; Torres v. Irvin, 33 F. Supp. 2d at 277.

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." Id. at 697, 104 S. Ct. at 2069; accord, e.g., Franza v. Stinson, 1999 WL 495902 at *8; Torres v. Irvin, 33 F. Supp. 2d at 277.

In addition, the Supreme Court also has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066; accord, e.g., Franza v. Stinson, 1999 WL 495902 at *8; see also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir.1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices."), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).

B. Application of the Strickland Standard to Santos's Claims

Santos alleges that three decisions by his trial lawyer constituted ineffective assistance of counsel. (Santos Br. at 6). Two of Santos's claims are interconnected and appear contradictory: Santos argues that his attorney fell short both by (1) failing to investigate properly "his case, including the fact that the complaining witness advised him she wished to withdraw her complaint" and (2) by failing to bring Gonzalez's "recantation" to the court's attention. (Santos Br. at 6; Pet. ¶23(a) on p. 4.)

Strickland requires an attorney "to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland v. Washington, 466 U.S. 668, 691, 104 S. Ct. 2052, 2066 (1984); see also, e.g., Nell v. James, 811 F.2d 100, 106 (2d Cir. 1987). "[A] particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 691, 104 S. Ct. at 2066; see also, e.g., Nieves v. Kelly, 990 F. Supp. 255, 263 (S.D.N.Y. 1997) (Cote, D.J. & Peck, M.J.); Tapia-Garcia v. United States, 53 F. Supp. 2d 370, 1999 WL 333401 at *10 (S.D.N.Y.) (Baer, D.J. & Peck, M.J.). However, Santos provides no indication of how or where his attorney's investigation fell short. Defense counsel was aware that Gonzalez had expressed interest in recanting, and he cross-examined her at trial on her telephone call to him, her desire not to see Santos go to jail and on the subject of recantation, thus bringing her reservations to the jury's attention. (Tr. 227.) Nothing further would have been gained by, as Santos now urges, "inquiring of the prosecutor as to whether the complainant witness wanted to drop charges." (Santos Br. at 6.) See, e.g., Mullins v. Ramirez, No. C 96-1055, 1996 WL 506927 at *5 (N.D. Cal. Sept. 3, 1996) (no ineffective assistance of counsel where counsel failed to interview a witness whose testimony "'is otherwise fairly known to defense counsel'"), aff'd 127 F.3d 1105 (9th Cir. 1997). While there is no need for this Court to pass on the credibility of Gonzalez's repudiation, the inherent unreliability of recantation testimony (especially by a reconciliated spouse) may have played a role in trial counsel's strategic decision not to focus on the recantation. See, e.g., Hernandez v. Senkowski, No. 93 CV 5763, 1996 WL 285426 at *1 (E.D.N.Y. May 17, 1996) ("it is generally understood that recantations are unreliable and lack trustworthiness"); People v. Shilitano, 218 N.Y. 161, 170, 112 N.E. 733, 736 (1916) ("There is no form of proof as unreliable as recanting testimony").

Defense counsel's cross-examination of Gonzalez at trial about her alleged desire to recant, while perhaps not optimal in hindsight, fell within the range of acceptable conduct of attorneys in New York courts. "[T]he conduct of examination and cross-examination is entrusted to the judgment of the lawyer, and an appellate court on a cold record should not second-guess such decisions unless there is no strategic or tactical justification for the course taken." United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 119 S. Ct. 2059 (1999); see also, e.g., United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (reasonable trial tactic to forego further cross-examination because decisions on cross-examination are "strategic in nature"), cert. denied, 507 U.S. 1029, 113 S. Ct. 1840 (1993). Cross-examination of rape victims is a particularly delicate matter of trial strategy. See, e.g., Brewer v. State, No. 96-2988, 121 F.3d 712 (table), 1997 WL 464858 at *1 (8th Cir. 1997) (denying ineffectiveness claim based on limited cross-examination of a rape victim and noting that "[t]he extent to which an alleged rape victim 2/ The State claims that Santos's ineffective assistance of counsel claim based on failure to request the intoxication jury charge was not exhausted in state court. (See State Br. at 13-15.) However, in his second CPL §440.10 application, Santos claimed that trial counsel was ineffective for not raising an intoxication defense. (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Motion Papers at 24.) Arguably, since the prior argument involved intoxication evidence while the present claim concerns an intoxication jury charge should be subjected to cross-examination is inherently a matter of strategy, as a withering and relentless cross-examination can easily backfire"); Williams-Bey v. Trickey, 894 F.2d 314, 316 (8th Cir.) (strategic decision not to cross-examine rape victim about certain information not ineffective assistance where defense attorney feared detailed cross-examination might elicit sympathy for the victim), cert. denied, 495 U.S. 936, 110 S. Ct. 2183 (1990). In this case, any number of strategic considerations might have explained why Santos's counsel did not more vigorously pursue the issue of Gonzalez's alleged recantation during cross-examination, including the possibility that counsel believed Gonzalez had been pressured by Santos or his family, as indeed Gonzalez testified on redirect. (Tr. 230.) See, e.g., United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) (no ineffectiveness where cross-examination "might have been counterproductive" since "[d]ecisions whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature"), cert. denied, 484 U.S. 958, 108 S. Ct. 357 (1987); Mullins v. Ramirez, 1996 WL 506927 at *5 (counsel not ineffective for failing to pursue examination of witness where "testimony would have been, at best, unpredictable, and may have even been detrimental" to the defendant).

Santos's third ineffectiveness allegation is that counsel failed to request a jury instruction on intoxication, despite evidence that Santos was drinking during the attack.² (Santos (compare Pet. Ex. D at 24 with Santos Br. at 6.) Again, Santos fails to overcome the presumption that his trial attorney based his action on strategic considerations. The core trial defense, afterall, rested on Santos's credibility and his testimony that he did not engage in sexual intercourse with Gonzalez at all onMay 9, 1995. A defense that Santos had forcible seix with Gonzalez because he was intoxicated woujld ahve been inconsistent with his claim that it never happened. Failure to raise an intoxication defense that is inconsistent with other defenses that is inconsistent with other defneses not sufficient to support an ineffectiveness claim. See, e.g., White v. Singletary, 972 F.2d 1218, 1221 & n.3 (11th Cir. 1992) (no ineffectiveness for for failure to raise intoxication defense that would have been inconsistent with other defenses), cert. denied, 514 U.S. 1131,115 S.Ct. 2008 (1995); Harich v. Dugger, 844 F.2d 1464, 1470-71 (11th Cir. 1988) (en banc) (no ineffectiveness for failure to raise intoxication defense where defendant was only "mildly drunk" and testified as to his factual innocence), cert. denied, 489 U.S. 1071, 109 S. Ct. 1355 (1989); Keys v. Duckworth, 761 F.2d 390, 392-94 (7th Cir. 1985) (no ineffective assistance of counsel for failing to investigate intoxication defense where facts were insufficient to show intoxication); Underwood v. Artuz, 95 Civ. 7866, 1996 WL 734898 at *4 (S.D.N.Y. Dec. 24, 1996) (no ineffectiveness in decision not to call defendant to testify as to his own intoxication, where testifying might have subjected him to damaging cross-examination); Williams 3/ See also, e.g., Panuccio v. Kelly, 927 F.2d 106, 109-10 (2d Cir. 1991) (no ineffectiveness where defense counsel failed to advise defendant of the possibility of an intoxication defense prior to defendant's acceptance of a guilty plea, where the intoxication defense was unlikely to succeed); Kohler v. Kelly, 890 F. Supp. 207, 211-12 (W.D.N.Y. 1994) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (no ineffectiveness where defense attorney was not informed by client of client's intoxication at time of incident, and thus had no reason to investigate an intoxication defense). v. Walker, 92 Civ. 1905, 1993 WL 22128 at *6 (S.D.N.Y. Jan. 26, 1993); Shaird v. Scully, 610 F. Supp. 442, 447-48 (S.D.N.Y. 1985).3/ Therefore, defense counsel's decision not to request an intoxication jury instruction or present an intoxication defense that might have undermined Santos's credibility and claim of innocence was a reasonable strategic decision.

Santos's ineffective assistance of trial counsel claims are denied.

III. SANTOS WAS AFFORDED ADEQUATE OPPORTUNITY TO CONFRONT HIS ACCUSER AT TRIAL THROUGH CROSS EXAMINATION

Santos maintains that he was denied the right to confront witnesses against him, in violation of his Confrontation Clause rights under the Sixth and Fourteenth Amendments, by the admission of Gonzalez's two out-of-court statements at the hospital shortly after the attack. Santos contends that the trial court's "mechanical" application of the New York hearsay rule permitting "prompt outcries" that corroborate a sexual assault charge "resulted in denying [Santos] his right of confrontation." (Santos Br. at 8.)

The Confrontation Clause of the Sixth Amendment affords the accused the right "to be confronted with the witnesses against him." U.S. Const. amend. VI. The Sixth Amendment's Confrontation Clause is applicable in state criminal trials via the Fourteenth Amendment. E.g., Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Pointer v. Texas, 380 U.S. 400, 404, 85 S. Ct. 1065, 1068 (1965); Avincola v. Stinson, 97 Civ. 1132, 1999 WL 557965 at *17, *19 (S.D.N.Y. July 9, 1999) (Scheindlin, D.J. & Peck, M.J.). The right to confront witnesses has been interpreted as "securing an adequate opportunity to cross-examine adverse witnesses." United States v. Owens, 484 U.S. 554, 557, 10 S. Ct. 838, 841 (1988); see also, e.g., Pennsylvania v. Ritchie, 480 U.S. 39, 53, 107 S. Ct. 989, 999; Davis v. Alaska, 415 U.S. 308, 315-16, 94 S. Ct. 1105, 1110 (1974); Douglas v. Alabama, 380 U.S. 415, 418, 85 S. Ct. 1074, 1076 (1965); Bagby v. Kuhlmann, 932 F.2d 131, 135 (2d Cir.), cert. denied, 502 U.S. 926, 112 S. Ct. 341 (1991); Dunbar v. Harris, 612 F.2d 690, 692 (2d Cir. 1979); United States v. Cardillo, 316 F.2d 606, 610-11 (2d Cir.), cert. denied, 375 U.S. 822, 84 S. Ct. 60 (1963); Avincola v. Stinson, 1999 WL 557965 at *19; Mercado v. Stinson, 98 Civ. 0551, 1999 WL 129570 at *8 (S.D.N.Y. Feb. 10, 1999) (Baer, D.J. & Peck, M.J.). The primary purpose of the confrontation clause is to prevent out-of-court statements from being used against a criminal defendant in lieu of in-court testimony subject to the scrutiny of cross-examination. See, e.g., Douglas v. Alabama, 380 U.S. at 418-19, 85 S. Ct. at 1076-77; Mitchell v. Hoke, 930 F.2d 1, 2 (2d Cir.1991); Avincola v. Stinson, 1999 WL 557965 at *17.

The Supreme Court has consistently held that when a defendant has an opportunity to cross-examine the witness who made the out-of-court statement, the Confrontation Clause is satisfied; while an out-of-court statement by a witness may be excluded as hearsay under state evidence rules or laws, there is no Confrontation Clause violation in admitting such a statement when the witness who made the statement can be fully and fairly cross-examined at trial. See, e.g., California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970) ("Viewed historically, then, there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination."); United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983); see also, e.g., Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 295 (1985) (the "Confrontation Clause is generally satisfied" when cross-examination affords an opportunity to expose infirmities in witness testimony); Rado v. Connecticut, 607 F.2d 572, 578-80 (2d Cir. 1979), cert. denied, 447 U.S. 920, 100 S. Ct. 3009 (1980). As the Supreme Court explained in United States v. Owens, 484 U.S. 554, 108 S. Ct. 838 (1988), when the defendant is afforded an opportunity at trial to cross-examine the declarant who made an out-of-court statement, there is no need to inquire into the nature of the hearsay statement:

This Court has recognized a partial (and somewhat indeterminate) overlap between the requirements of the traditional hearsay rule and the Confrontation Clause. The dangers associated with hearsay inspired the Court of Appeals in the present case to believe that the Constitution required the testimony to be examined for "indicia of reliability," or "particularized guarantees of trustworthiness." We do not think such an inquiry is called for when a hearsay declarant is present at trial and subject to unrestricted cross-examination. In that situation, as the Court recognized in Green, the traditional protections of the oath, cross-examination, and opportunity for the jury to observe the witness' demeanor satisfy the constitutional requirements.

United States v. Owens 484 U.S. at 560, 108 S. Ct. at 843 (citations omitted).

Application of these principles to the present case is straightforward. Santos objects to the introduction of two out-of-court statements by Gonzalez in the hospital shortly after the rape. Evidence of these statements was adduced by in-court testimony by Gonzalez herself. Defense counsel was given ample opportunity to cross-examine Gonzalez about her statements and, in fact, did so. Therefore, the Confrontation Clause has been satisfied and Santos' claim is denied.

CONCLUSION

For the reasons set forth above, Santos's petition for a writ of habeas corpus is denied. Since Santos has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. §2253.

So Ordered.

---

NOTES:


(1) Gonzalez's statement is consistent with Santo's "machismo" claim that he was unaware it was "a crime to have sex with his wife whether the wife wanted to or not." (Pet. Ex. D: Santos 12/17/96 CPL §440.10 Moton Papers at 23.)

(2) The State claims that Santo's ineffective assistance of counsel claim based on failure to request the intoxication jury charge was not exhausted in state court. (See State Br. at 13-15.) However, in his second CPL §440.10 Motion Papers at 24.) Arguably, since the prior argument involved intoxication evidence while the present claim concerns an intoxication jury charge (compare Pet. Ex. D at 24 with Santos Br. at 6), the present claim is not exhausted. However, as here, "where the issue of whether the claim is exhausted is somewhat questionable, but the lack of merit of the claim is easily shown, it may be more appropriate for the Court to reach the merits." Morris v. Reynolds, 48 F. Supp. 2d 379, 385 n.8 (S.D.N.Y. 1999) (Baer, D.J. & Peck, M.J.); see also, e.g., Cowans v. Artuz, 14 F. Supp. 2d 503, 507 n.5 (Preska, D.J. & Peck, M.J.); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 265245 at *4 n.5 (S.D.N.Y. May 19, 1998) (Cote, D.J. & Peck, M.J.). The Court therefore denies the claim on the merits for the reasons discussed in text.

(3) See also, e.g., Panuccio v. Kelly,m 927 F.2d 106, 109-19 (2d Cir. 1991) (no ineffectiveness where defense counsel failed to advise defendant of the possibility of an intoxication defense prior to defendant's acceptance of a guilty plea, where the intoxication defense was unlikely to succeed); Kohler v. Kelly, 890 F. Supp. 207, 211-12 (W.D.N.Y. 1994) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (same); Waters v. Hoke, No. 85 CV 2655, 1986 WL 14616 at *2 (E.D.N.Y. Nov. 18, 1986) (no ineffectiveness where defense attorney was not informed by client of client's intoxication at time of incident, and thus had no reason to investigate an intoxication defense).

---

SUMMARIES OF ALL PUBLISHED SUCCESSFUL INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS SINCE STRICKLAND V. WASHINGTON

Note: * signifies a capital case

Updated April, 2006

This section originally found on here

TERESA L. NORRIS
CENTER FOR CAPITAL LITIGATION
P.O. BOX 11311
COLUMBIA, SC 29211
(803) 765-0650
norristl@bellsouth.net

UNITED STATES SUPREME COURT CASES


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 defendan