APPEAL
U.S. Court of Appeals Cases
2006: *Franklin v. Anderson
434 F.3d 412 (6th Cir. 2006).
Under pre-AEDPA standards, appellate counsel was ineffective in capital appeal for failing to appeal the issue of impartiality of a juror. During voir dire, a juror indicated that she was biased because she could not understand the law. She stated five times during voir dire that she could not faithfully apply the law concerning the burden of proof because she failed to understand it. Even after she was corrected three times by the judge, she still insisted with her last statement that the defendant had to be proven innocent. Trial counsel could have no valid strategy to seat a biased juror because “[t]o permit this would be to allow trial counsel to waive the defendant’s right to an impartial jury.” Appellate counsel was ineffective in failing to assert his issue on appeal. Thus cause and prejudice was established for the procedural default in not asserting this issue in state court and relief granted on the merits. Appellate counsel’s conduct was otherwise horrible. Counsel ignored the defendant’s suggestions, failed to inform him that he could file a pro se supplemental brief, never met with him or spoke to him by phone, failed to provide him with a copy of the transcript until four months after his request, and did not send him a copy of the brief until a month after it was filed. “At no point, therefore, did Franklin’s counsel meet the ABA guidelines [Standards for Criminal Justice] of keeping Franklin ‘informed of the developments in the case’ or of developing a relationship of trust with him.” Counsel also failed to adequately represent the defendant during the oral arguments in doing such things as refusing to address issues that co-counsel had briefed, “wholly inappropriate laughing,” “lack of solemnity,” and “a lack of familiarity with the facts relevant to the arguments.”
2005: Cirilo-Munoz
v. United States
404 F.3d 527 (1st Cir. 2005).
Appellate counsel ineffective for failing to assert sentencing error on charge of aiding and abetting the murder of an on-duty policeman. The trial court found that the murder was motivated by the officer’s status, which elevated the defendant’s sentence range from 27-34 years to life. Trial counsel objected because there was no evidence the defendant knew the victim was a police officer. Appellate counsel was ineffective because the jury had made no determination on this issue and the trial court’s finding was not supported by the evidence. The court rejected the government’s argument of strategy because this issue would have “built upon” the issues raised challenging the conviction and because “[o]ne would need a potent reason for omitting the enhancement argument” when the difference in potential sentences was so great.
Assuming that the omission of the argument was deliberate, the best one can say for counsel is this: that in some situations lawyers think–usually in error–that by omitting a good argument, they can thereby increase the chance of prevailing on a more doubtful argument directed to a more far-reaching result. However, in this instance, such a calculation would have been manifestly unreasonable. . . .
Prejudice found because reversal would have been required if the issue had been raised on direct appeal. Remanded for new sentencing.
Ballard v. United States
400 F.3d 404 (6th Cir. 2005).
Appellate counsel ineffective in conspiracy to distribute drugs case for failing to challenge the defendant’s sentence. The evidence established that the defendant had been a “mule” involved in transporting cocaine and marijuana. The jury returned only a general verdict of guilt, which did not specify what substances the defendant had transported. The court found that the evidence established only that she had transported cocaine and sentenced her accordingly. While her case was pending on appeal, the Sixth Circuit held in another case that a when a general verdict was returned in a conspiracy involving multiple drugs, the defendant should be sentenced only as if he had distributed only the drug carrying the lower penalty. After the Supreme Court’s decision in Apprendi, the Circuit also held that failure to instruct the jury to determine both the type of drug and the drug quantity involved amounts to plain error. Counsel’s conduct was deficient in not raising this issue. “[W]hile we do not require attorneys to foresee changes in the law, once a change–particularly an important and relevant change–does come about, we do expect counsel to be aware [of] it.” Id. at 408. Counsel’s conduct was also deficient because counsel was aware that one of the co-defendant’s won on appeal on these same issues. “There is simply no rational basis for completely foregoing an argument that was not only potentially, but actually, successful.” Id. at 409. The court found Strickland prejudice by applying a plain error standard to determine whether the trial court improperly determined the sentence.
*Richey v. Mitchell
395 F.3d 660 (6th Cir. 2005).
Trial and appellate counsel were ineffective in capital case. The defendant was convicted of setting fire to the victim’s apartment allegedly for the purpose of killing his ex-girlfriend and her new boyfriend who lived downstairs from the victim. The state failed to establish the elements of capital murder because, under state law, capital murder requires a finding that the defendant must have killed the person that he actually intended to kill. The state did not make this argument or present any evidence on this issue. This issue was procedurally defaulted because not raised by trial or appellate counsel. The defendant had also failed to timely assert ineffectiveness of counsel in state court. While the state court found that the defendant’s motion to reopen the appeal was untimely, the state court did not apply this rule “with the regularity necessary to constitute an adequate and independent state procedural rule.” Even if the state court rule was firmly established, the court found that counsel’s ineffectiveness established cause and prejudice for the procedural default. Counsel’s conduct was deficient because “[t]he failure to understand the elements of the charged offenses and hold the State to proving those elements is among the most basic responsibilities of competent counsel.” Prejudice was also found because the failure to challenge the sufficiency of the evidence, “allowed the State to convict [the defendant] and sentence him to death for a crime in which it had failed to satisfy one of the elements.” The procedural default was thus excused by the ineffectiveness of trial and appellate counsel.
Sanders v. Cotton
398 F.3d 572 (7th Cir. 2005).
Appellate counsel ineffective in murder case for failing to challenge on appeal the trial court’s failure to properly instruct the jury on the elements of murder, which required that the state prove the absence of sudden heat. The trial court’s instructions on murder did not mention sudden heat. The instructions on voluntary manslaughter allowed conviction if the state proved the defendant was acting under sudden heat. Trial counsel proposed an instruction that would have properly required the State to prove the absence of sudden heat for murder. On appeal, trial counsel did not raise this issue, but counsel did not state a strategy. Instead, counsel could not remember why he did not raise the issue. In addressing the substantive due process claim, the court held that the issue was not procedurally defaulted in state court and even if it was the default was overcome because appellate counsel’s ineffectiveness established cause and prejudice for the default. Under the AEDPA, the court found that the state court’s finding that the instructions were adequate was unreasonable because the jury instructions not only failed to properly state the burden of proof, but affirmatively misstated it when the manslaughter instructions included the element of proving the existence of sudden heat rather than proving the absence of it for murder. Counsel’s conduct was deficient because counsel raised three issues concerning instructions on transferred intent, admission of prior bad acts, and abuse of discretion in ordering consecutive prison terms. The sentencing issue was clearly weaker because the trial court was given “wide discretion.” The two other issues were also weaker because “neither argument relied on controlling Indiana precedent that would have warranted a new trial.” This issue was “an obvious and stronger argument than the arguments” made by appellate counsel. With respect to prejudice, the court held that the state court’s finding that trial counsel’s proposed instruction was a misstatement of the law was also an unreasonable determination of the facts, thus requiring no deference. The state court also unreasonably applied the law because “Indiana law requires reversal and a new trial” under the facts of this case. If the issue had been raised, the state court “would have been bound by law” to grant a new trial.
2004:*Mapes
v. Tate
388 F.3d 187 (6th Cir. 2004).
Appellate counsel was ineffective in capital case for failing to assert on
appeal that the trial court erred in instructing the jury in sentencing that
it was not permitted to consider mitigating evidence related to a prior murder
conviction used in aggravation. Trial counsel objected to this instruction,
but appellate counsel asserted only trial phase issues and one unrelated sentencing
issue on appeal. In determining whether an attorney on direct appeal performed
in a competent fashion, the court listed eleven factors to be considered.
In applying the factors to this case, the court held that the issue not raised
was “significant and obvious” because the jury was not allowed to consider
mitigation in violation of the holding of Eddings v. Oklahoma, 455 U.S. 104
(1982), which had been decided a year before this trial. The omitted issue
was also much stronger than any of the issues raised, which mostly challenged
the trial phase despite evidence of overwhelming guilt and in some instances
“were asserted in the face of established law to the contrary.” The court
also discussed other factors before concluding that “[n]o competent attorney,
in the circumstances of this case, would have failed to raise this issue.”
The court also found a reasonable probability that the defendant would have
prevailed on appeal and conditioned the writ on the state courts allowing
a new direct appeal.
United States v. Reinhart
357 F.3d 521 (5th Cir. 2004).
Appellate counsel was ineffective in conspiracy to
commit sexual exploitation of children case for failing to assert the
trial court’s sentencing error on appeal. The district court held the
defendant accountable in sentencing for two minor males depicted in a
pornographic videotape created by the defendant’s co-conspirator prior
to the formation of the conspiracy. Counsel objected during sentencing
to the court’s consideration of these two minors, but did not challenge
the district court’s action on appeal. The court held that consideration
of these two minors was inappropriate under the sentencing guidelines,
because the defendant played no part in the creation of the videotape,
which was created well before the conspiracy began. Counsel was
deficient for failing to assert this meritorious issue on appeal.
Prejudice found because the appropriate sentencing guideline range would
have resulted in a sentence shorter by five years than the sentence
imposed on the defendant, which is sufficient to establish prejudice
under Glover v. United States.
2003: Caver v. Straub
349 F.3d 340 (6th Cir. 2003).
Appellate counsel was ineffective in assault with intent
to commit armed robbery case for failing to assert trial counsel’s
ineffective assistance. On appeal, counsel asserted a claim of
instructional error and insufficiency of the evidence. Following
affirmance, the petitioner filed a pro-se application to the state
Supreme Court asserting generally that appellate counsel was ineffective
for failing to assert the claim of ineffective assistance of trial
counsel. In state post-conviction, the petitioner asserted appellate
ineffectiveness for failing to raise trial counsel ineffectiveness
because trial counsel was not present during a jury question and
re-instruction of the jury. The state court held that the petitioner had
not demonstrated good cause to excuse the failure to present the issue
in his direct appeal. The state court also found that appellate counsel
was not ineffective. On appeal, the petitioner asserted appellate
counsel ineffectiveness for failing to assert trial counsel’s
ineffectiveness for different specific reasons. The Sixth Circuit first
held that the claim of appellate ineffectiveness was not procedurally
defaulted due to failure to fairly present the claim in state court
because the state did not raise the issue of default before the district
court and instead argued only the merits. The petitioner also did not
procedurally default his claim of ineffective assistance of trial
counsel because, while it was not raised in his direct appeal, he did
raise it in his pro se appeal to the state Supreme Court in a
general fashion. Because it was a pro se application and less
stringent standards apply the court found that the issue was fairly
presented to the state court. Deficient conduct found because the issue
of trial counsel’s absence during the jury re-instruction was a much
stronger issue than the two plain error issues asserted by appellate
counsel. Prejudice was found because, if the issue had been raised on
appeal, there is a reasonable probability that the result of the state
appeal would have been different. In finding prejudice, the court noted
that the Supreme Court has not expressly considered whether jury
instruction is a critical stage that requires the presence of counsel.
The Sixth Circuit held, however, that it is a critical stage. Therefore,
trial counsel’s absence required a presumption of prejudice. In
analyzing the case under the AEDPA, the court found that the state
court’s decision was an unreasonable application of clearly established
federal law in Strickland. In essence, the court characterized
the finding of appellate counsel’s ineffectiveness as both cause and
prejudice for failure to assert trial counsel’s ineffectiveness on
appeal and as a free standing constitutional error.
Joshua v. Dewitt
341 F.3d 430 (6th Cir. 2003).
Trial and appellate
counsel were ineffective in drug case for failing to move to suppress
evidence. The defendant was stopped by a highway patrolman for speeding.
The highway patrolman did a license check on the defendant and learned
that there was an entry in the station’s "read and sign" book, which
contained police intelligence information. The entry in the book
reported that the defendant was a known drug courier who transported
illegal narcotics between several cities. Based on this information, the
defendant was detained for approximately forty-two minutes in order to
allow time for a drug dog to come to the scene. When the dog arrived, it
alerted, and a large quantity of cocaine was found. The defendant’s
girlfriend then told the police that the drugs belonged to the
defendant. Prior to trial, counsel moved to suppress the evidence solely
on the basis that the length of the traffic stop alone required
suppression. The trial court denied the motion, and the defendant
entered a no contest plea. The court found that counsel’s conduct was
deficient in failing to move for suppression under United States v.
Hensley, 469 U.S. 221 (1985), which held that reliance on a flyer or
bulletin can justify a brief detention but can do so only if the officer
who issued the flyer or bulletin had articulable facts supporting
reasonable suspicion that the person wanted had committed an offense.
The court found a reasonable trial attorney would have raised the
Hensley issue at trial. Prejudice was found because the state
failed to offer any evidence from the officer who provided the
information from the "read and sign" book and because the state had
never contended that there was a justifiable basis for the entry. The
court likewise found appellate counsel ineffective for failing to raise
the issue on appeal under the state plain error rule. Prejudice was
found because Hensley bars the admissibility of the evidence
seized at the scene of the defendant’s arrest, including both the drugs
and his girlfriend’s statement. Without this evidence, there was a
substantial probability that the defendant would not have been
convicted. Analyzing the case under the AEDPA, the court found that the
state court decision was contrary to clearly established Supreme Court
precedent in Hensley.
United States v. Skurdal
341 F.3d 921
(9th Cir. 2003)
Appellate counsel was ineffective in drug case for failing to
file a proper Anders brief in support of his motion to be
relieved as counsel. In the § 2255 proceeding, the district court found
that all issues raised were procedurally barred because the defendant
had failed to raise them on direct appeal. The ineffectiveness of
appellate counsel was found to excuse the procedural default and the
district court was ordered to address the issues.
2002: United States v. Bass
310 F.3d 321 (5th Cir.
2002)
Appellate counsel ineffective in
drug and conspiracy case for failing to challenge the sufficiency of the
evidence to support the continuing criminal enterprise conviction, which
requires proof that the defendant organized, supervised, or managed at
least five persons. Here, the government alleged that the defendant
organized six people, but the defendant had only buyer-seller
relationship with several of these people. While the Fifth Circuit had
not addressed the issue before, the court joined a number of other
circuits in finding that a buyer-seller relationship by itself was not
sufficient. Counsel’s conduct was deficient. Prejudice found "albeit
minimally." Setting aside the CCE conviction did not affect prison time
because sentence was concurrent with other charges, but $50 assessment
for CCE conviction was set aside.
2001: Eagle v. Linahan
279 F.3d 926
(11th Cir.
2001)
Appellate counsel in pre-AEDPA murder case
ineffective for failing to assert Batson issue when the trial
judge, in rejecting the defendant’s Batson challenge, stated
that he believed that both sides were using their strikes in a
discriminatory manner but failed to require the prosecution to produce a
race neutral explanation for challenging black venirepersons. The
government used nine of its ten peremptory challenges to remove blacks
from the venire and the fact that the ultimate racial composition of the
jury closely approximated that of the venire or even that the defense
counsel may have also used strikes in a discriminatory manner did not
negate the issue. Prejudice found since the trial judge already stated
that the prosecution’s strikes were racially motivated and the state
court, in all probability, would have granted a new trial if the issue
had been raised on appeal.
2000: United States v. Mannino,
212 F.3d 835 (3rd Cir. 2000)
Counsel ineffective for failing to
assert on appeal that the sentencing court in drug conspiracy case erred
in attributing to the defendants the amount of heroin distributed
throughout the life of the conspiracy without specific, individualized
inquiry to determine whether, given defendants' individual roles, they
could reasonably foresee that the conspiracy would distribute the
quantity of heroin attributed to them at sentencing and whether the
quantity allocated to them was part of their undertaking. New sentencing
required despite trial court's assertion that he would have imposed the
same sentence regardless because this would amount to sentencing outside
the defendant's presence and the government must be required to present
sufficient evidence to support the sentence.
Harris v. Day,
226 F.3d 361 (5th Cir. 2000)
Constructive denial of appellate
counsel in robbery case for filing only an "errors patent" brief and
withdrawing with Anders brief that failed to even mention any arguable
issues of appeal. Anders requires the attorney seeking withdrawal on
appeal to at least file a brief referring to anything in the record that
might arguably support an issue, even if attorney believes appeal is
frivolous.
White v. Schotten,
201 F.3d 743 (6th Cir. 2000), cert. denied , 531 U.S.
940 (2000)
Where the Ohio rule imposed a 90 day
time limit to file application to reopen the direct appeal to assert
ineffective assistance of appellate counsel claims, appellate counsel's
failure to timely file the motion to reopen was cause excusing
procedural default but the court remanded for a determination of
prejudice. Court found that there was a constitutional right to
effective assistance in this instance because the motion to reopen is
part of the direct appeal proceedings.
Delgado v. Lewis,
223 F.3d 976 (9th Cir. 2000)
Appellate counsel ineffective in drug
case where counsel did not pursue issues certified by state court as providing probable
cause for appeal and simply filed Wende brief (Anders-type) despite trial counsel's
constructive withdrawal and the significant issues in these proceedings, including
representation by only a conflicted co-defendant's counsel at sentencing. In assessing
whether state court decision was "objectively unreasonable," under 28 U.S.C. § 2254(d),
the court determines whether the state court clearly erred, in other words, whether the court
is left "with a definite and firm conviction that an error has been committed." Here, where
state court did not discuss rationale for decision, federal habeas review is not de novo, but an independent review of
the record is required to determine whether the state court's decision
was objectively reasonable. In this case, it clearly
was.
1999: Brown v. United States,
167 F.3d 109 (2nd
Cir. 1999)
Appellate counsel ineffective in
narcotics and firearms case for failing to raise an issue on appeal
concerning an obviously deficient instruction on reasonable doubt. The
instruction equated reasonable doubt with a "substantial doubt" and
advised the jury that it "need not find every fact beyond a reasonable
doubt." New trial granted.
Lucas v. O'Dea,
179 F.3d 412 (6th Cir. 1999)
Murder case in which the defendant was
indicted for intentional murder which requires that the defendant killed
the victim. At trial, the defense was that a codefendant actually shot
the victim. The jury was charged, however, that the defendant could be
convicted so long as the jury found that the victim was killed in the
course of robbery and the defendant engaged in wanton conduct creating a
grave risk of death. The jury was specifically instructed that it could
convict of murder regardless of whether the defendant or the codefendant
shot the victim. The jury convicted the defendant of wanton murder. The
fatal variance between the indictment and the conviction was not raised
on direct appeal. In post-conviction, the state courts found that the
issue was defaulted because it could have been raised on direct appeal.
The Sixth Circuit held that counsel's failure to raise the issue on
direct appeal constituted a procedural default. Nonetheless, petitioner
established cause and prejudice because appellate counsel's failure to
raise the issue concerning the jury instructions rendered his
defense-that he did not shoot the victim-meaningless. Likewise, the
court found prejudice because the instruction had the effect of
directing a verdict of "guilty" on the murder charge. Thus, the default
was excused and a new trial granted.
1998: Jackson v. Leonardo,
162 F.3d 81 (2nd Cir. 1998)
Appellate counsel ineffective for
failing to challenge armed robbery and criminal use of firearm
conviction based on the same facts as double jeopardy. Counsel's failure
could not be based on any kind of strategy because she failed to raise
this sure winner in favor of raising two highly dubious claims in a
cursory appellate brief. Despite the fact that the defendant received no
additional jail time for the second conviction (sentences were
concurrent), the Court found prejudice because if the defendant were to
commit additional criminal offenses in the future, the number of
convictions could be considered in some sentencing schemes and
guidelines. Thus, the Court ordered that the firearms conviction be
removed from the defendant's record.
Roe v. Delo,
160 F.3d 416 (8th Cir. 1998)
Appellate counsel ineffective for
failing to request plain error review of erroneous first degree murder
instruction. The trial court instructed the jury that the defendant
could be convicted of first degree murder if there was an intent to
cause serious physical injury, but first degree murder in Missouri
requires proof of intent to cause death. Intent to cause serious
physical injury is the mental state required for second degree murder
which was instructed in this case. Thus, the instructional error blurred
the distinction between the two murder offenses. Trial counsel failed to
preserve the error. Nonetheless, the court found appellate counsel was
ineffective in failing to raise the issue and the defendant was
prejudiced because Missouri courts often reviewed instructional errors
on the elements of offenses under plain error review. Because the facts
at trial could support a finding that Roe deliberately shot the victim
only with the intent to seriously injure him, there is a reasonable
probability that Missouri courts may also grant relief. Writ granted
unless Roe afforded a new appeal or granted a new
trial.
1995: *Banks v. Reynolds,
54 F.3d 1508
(10th Cir. 1995)
Appellate counsel ineffective for
failing to raise Brady claim or, in the alternative, IAC claim when
trial counsel had failed to challenge the prosecution's failure to
disclose exculpatory material.
United States v. Cook,
45 F.3d 388 (10th Cir. 1995)
Ineffectiveness of appellate counsel,
who also served as trial counsel, for failing to raise obvious conflict
of interest issue caused by the trial court established cause and
prejudice for failing to raise the issue on direct appeal. In essence,
the trial record reflected that three defendants in a drug trial
retained the same counsel. Prior to trial, the government entered into a
plea agreement with one of the defendants in exchange for her testifying
against her co-defendants. The court then appointed new counsel for the
witness because of the conflict of interest. During trial, the witness
refused to testify and the court ordered the defendant's counsel to
advise his former client of the consequences of failure to comply with
plea agreement which required her to testify in government's
case-in-chief against defendant in exchange for the government's
recommendation of leniency at sentencing. Counsel objected and pointed
out the conflict but the court ordered him to advise his former client
to testify against his present client creating a clear, actual conflict
of interest which required reversal. Nonetheless, counsel failed to
raise the issue on direct appeal despite the fact that reversal was
required based on the conflict.
1994: Mayo v. Henderson,
13 F.3d 528 (2nd Cir. 1994)
Appellate counsel ineffective for
failing to raise a claim on direct appeal when the New York Court of
Appeals had previously held that it would apply a per se reversal rule
on this issue and claim was preserved at trial.
1992: Claudio v. Scully,
982 F.2d 798 (2nd Cir. 1992), cert. denied, 508 U.S. 912
(1993)
During homicide investigation, attorney
convinced client to surrender to police and give confession. Without the
confession police had no case against the client. On appeal a pre-trial
order to suppress the statement was overturned because the sixth
amendment right to counsel had not yet attached. The state
constitutional right to counsel had attached but the court held that it
did not include a right to effective assistance in pretrial matters.
Appellate counsel raised the 6th A. issue in the state's highest court,
yet failed to raise the state claim. Court found that the state claim
was a "probable winner" and failure to raise it was
IAC.
1991: Freeman v. Lane,
962 F.2d 1252 (7th Cir. 1991)
Appellate defense counsel's
performance in failing to raise on direct appeal issue of whether prosecutor improperly
commented on defendant's failure to testify during closing argument was objectively
unreasonable and deficient. Thus, defendant's failure to raise issue on direct appeal was
excusable under Wainwright v. Sykes "cause and prejudice test."
1990: Lofton v. Whitley,
905 F.2d 885 (5th Cir. 1990)
Appellate counsel ineffective for
filing a two page brief (when nonfrivolous issue could have been raised)
requesting that the court of review simply check the record for errors
patent without identifying any specific grounds for
appeal.
1989: Orazio v. Dugger,
876 F.2d 1508 (11th Cir. 1989)
Appellate counsel rendered IAC by
failing to raise on appeal a Faretta claim, the right to voluntarily
elect self-representation. Because counsel did not fully review trial
court file or talk with defendant or defendant's trial counsel,
appellate counsel did not know of the state trial court's denial of
defendant's request to proceed pro se.
Lombard v. Lynaugh,
868 F.2d 1475 (5th Cir. 1989)
Appellate counsel ineffective for
filing of conclusory "no merit" brief (when nonfrivolous issues existed)
which pointed to nothing in record constituted a constructive denial of
any assistance of appellate counsel for which no showing of prejudice is
required.
Evans v. Clarke,
868 F.2d 267 (8th Cir. 1989)
Appellate counsel ineffective for
arguing against client in Anders brief. Prejudice
presumed.
1988: Thomas v. O'Leary,
856 F.2d 1011 (7th Cir. 1988)
Counsel ineffective for failing to file
appellate brief during state's appeal of trial court's suppression order
in homicide case; appeal of the motion was a critical stage of the
defendant's criminal proceedings as admission of his statement would
increase the likelihood of his conviction while suppression might cause
him never to be tried. As this was a case of complete denial of counsel,
prejudice was presumed.
Freels v. Hills,
843 F.2d 958 (6th Cir.), cert. denied, 488 U.S. 997
(1988)
Failure of defendant's appellate
counsel to provide defendant with copy of his brief, which claimed no
trial error below, to address questions raised by defendant in his own
pro se brief, and failure of appellate court to address defendant's
points on appeal, raised presumption that counsel's assistance was
ineffective and prejudicial, even if absence of trial error appeared in
record.
1987: Jenkins v. Coombe,
821 F.2d 158 (2nd Cir. 1987), cert. denied, 484 U.S. 1008
(1988)
Defendant was completely denied assistance of appellant counsel where counsel filed a
clearly deficient five page brief containing only one point. The court found Strickland
inapplicable & decided the case on 14th amend. due process grounds,
holding that defendant had a right to an attorney until a proper
appellate brief had been filed. As his attorney was dismissed, appellant
was left without counsel. Although appellant was still able, by copying
co-defendant's brief, to arguably submit all claims, the complete
absence of counsel which is guaranteed as of right made this arguable
lack of prejudice moot.
Robinson v. Black,
812 F.2d 1084 (8th Cir. 1987), cert. denied, 488 U.S. 985
(1988)
IAC where attorney filed Anders brief
resolving issues in favor of government & concluding claims were
meritless rather than acting as an advocate on behalf of petitioner
& briefing all issues that might arguably support an appeal, thus
forcing defendant to proceed pro se.
Matire v. Wainwright,
811 F.2d 1430 (11th Cir. 1987)
Appellate counsel ineffective for
failing to raise on appeal issue of error in admitting evidence of
defendant's post-arrest silence--where comment violated defendant's 5th
Amend. right & was not harmless.
1986: Peoples v. Bowen,
791 F.2d 861 (11th Cir.), cert. denied 479 U.S. 994
(1986)
In view of prior state court decision
that habitual felony offender statute was mandatory, appellate counsel
who took "no merit" appeal & failed to inform defendant that case
might be remanded for resentencing was ineffective for exposing his
client to the risks of further litigation where Court of Appeals, of its
own motion, took note of failure of trial court to follow statute &
vacated 20 year sentence & remanded for resentencing, at which time
defendant was sentenced to life.
U.S. District Court Cases
2007: Richardson v. United States,
477 F. Supp. 2d 392 (D. Mass. 2007).
Appellate counsel ineffective in perjury case for failing to file supplemental briefs on
appeal concerning the sudden change in law caused by the Supreme Court’s decision in
United States v. Booker, 543 U.S. 220 (2005), in which the mandatory nature of
the Sentencing Guidelines was found to be unconstitutional and the Guidelines were made
advisory. Counsel’s conduct was deficient because, under Circuit law, the issue had been
preserved at trial due to Apprendi arguments. Counsel’s conduct was also unreasonable
given the “sea change” in the law caused by Booker, which could not be explained by a
tactical decision. Prejudice found. Even though the 2255 judge was the trial judge, the
court declined comment on whether he would give the same sentence after Booker
and noted that it was his practice, because of a prior “professional rebuke” discussed in detail
in the opinion, to reassign cases to a different court when remanded to him for
resentencing. While he found it difficult to determine a reasonable probability of a
different sentence “from publically available materials” of a different District Court judge
in Boston, he found, based on confidential data that he was “privy to,” “a slightly less
than even chance of obtaining a reduced sentence” from another judge and, therefore,
vacated the sentence and ordered the case be reassigned to another judge.
Hays v. Farwell,
482 F. Supp. 2d 1180 (D. Nev. 2007).
Under AEDPA review, trial/appellate counsel was ineffective for numerous reasons in
case where the petitioner was convicted of four counts of sexual assault on a minor
and four counts of lewdness with a minor for alleging sexually abusing his oldest daughter,
who was then eight years old. While many of the petitioner’s claims had not been
presented in state court and there was no showing of cause and prejudice, “the default
was forgiven based on his preliminary evidence demonstrating to this court that he is
actually innocent of the charges against him.” Most of the claims were reviewed de novo
because they had not been raised in state court or had been procedurally barred in state
court. The charges arose because the petitioner’s wife, who “was an abusive and
neglectful mother” of their five children, “wanted desperately to be released from the
responsibility of her five young children and from her marriage.” In order to achieve her
goals, she “schooled and coached eight-year old Jennifer about adult sexual behavior and
then threatened and coerced her into making accusations of sexual abuse against her
father,” who was not himself abusive to the children but “was unable, or unwilling to stop
his wife’s actions” in general. Before reaching the issues related to counsel, the court
granted relief on the bases of: (1) insufficient evidence to support the convictions; (2)
improper denial of a new trial when the daughter, who was no longer in her mother’s
custody, immediately confessed after the trial that her testimony was false and had been
coerced; (3) double jeopardy; and (4) prosecutorial misconduct. Counsel was also held to
be ineffective during trial for: (1) failing to request an evidentiary hearing on the motion
for new trial in order to present the daughter’s testimony concerning the recantation; (2)
failing to seek an independent medical expert to challenge the testimony of the examining
nurse, which would have resulted in testimony (supported even by the state’s expert in
habeas) that the photographs taken of the girls genitalia revealed no evidence of abuse or
anything abnormal; (3) conceding guilt in closing argument; (4) failing to challenge the
veracity or expertise of the social worker and the examining nurse called as state’s
witnesses and “merely enhancing the State’s evidence by reinforcement”; (5) failing to
object to the prosecutor’s improper argument denigrating the presumption of innocence;
and (6) failing to argue on the defendant’s behalf at sentencing. The same counsel was
also ineffective on direct appeal because counsel challenged only the sufficiency of the
evidence and the denial of the motion for new trial. While the defendant personally filed
a supplemental brief asserting additional errors, including the prosecutorial misconduct
and double jeopardy, “[t]hose claims received little consideration by the state high court.”
Because those claims were also meritorious, as reflected in the district court’s holdings,
counsel was ineffective on appeal.
2006: Mullins v. Bennett
408 F. Supp.
2d 160 (W.D.N.Y. 2006).
Appellate counsel ineffective in assault case for failing to raise Batson claim on appeal.
Counsel's conduct was deficient because the prosecutor struck the one black juror in the
venire allegedly based on her place of employment, but he failed to meet the requirement
of New York law to relate concerns about the employment to the factual circumstances of
the case and her qualifications to serve on the jury. The state court's ruling was an
"unreasonable application" of Strickland because the appellate counsel overlooked
petitioner's strongest argument in favor of barely colorable claims and there was a
reasonable probability the claim would have succeeded on appeal.
2004: Casey
v. Frank
346 F. Supp.
2d 1000 (E.D. Wis. 2004).
Trial and appellate counsel were ineffective in sexual assault case for failing
to obtain the case file from the defendant’s previous attorney, which contained
numerous witness statements undermining the credibility of the alleged victims
and an alleged corroborating eyewitness. The defendant was initially charged
in 1993 for sexually assaulting a girl in the neighborhood. He was represented
by a public defender, who assigned an investigator to interview potential witnesses.
The investigator took a number of statements that raised questions about the
credibility of the alleged victim and the prosecutor ultimately dismissed the
charge without prejudice. A year later, the defendant’s step-daughter alleged
that the defendant sexually assaulted her, but the prosecutor brought no charges.
In 1997, the stepdaughter alleged that the defendant had assaulted her in 1992
and that she witnessed the defendant assaulting the neighbor girl in the same
time period. The defendant was charged with both assaults and retained counsel.
Counsel requested two specific documents from the defendant’s prior counsel,
but did not request the entire file, which contained numerous witness statements
challenging the credibility of both alleged victims and an alleged corroborating
eyewitness. He also failed to independently discover the witnesses that previously
gave exculpatory statements. As discussed in the section on numerous deficiencies
by trial counsel, the court found that trial counsel was ineffective. New appellate
counsel was also ineffective in failing to obtain the file and to assert trial
counsel’s ineffectiveness in a post-conviction motion. Unconstrained by the
AEDPA because the state court did not address the issue raised before it, the
court held that counsel knew the prior attorney’s file contained witness statements
but chose to proceed without obtaining them. This conduct was unreasonable
because “[a] lawyer may not make a strategic decision of such significance
without conducting an investigation.” While counsel faced a filing deadline,
counsel did not request an extension to obtain the file, when such requests
were routinely granted, or discuss the matter with the defendant. Although
the state court did not specifically address the prejudice analysis under Strickland
and it was “debatable whether AEDPA applies to the court’s determination on
this point,” id., the court applied the AEDPA standard. The state court’s determination
was unreasonable because the court “turned a blind eye to the potential impact
of the witnesses who gave statements” to prior counsel. Indeed, the state court
failed even to mention most of the statements, much less analyze their potential
significance. The critical issue in the case was credibility, and a number
of the statements severely undercut the credibility of the state’s principal
witnesses. . . .
Moreover, many of the statements would have been admissible and none were
cumulative. Thus, there was “more than a negligible chance that the statements
counsel failed to obtain would have affected the outcome of the trial.” Id.
Banyard
v. Duncan
342 F. Supp.
2d 865 (C.D. Cal. 2004).
Trial counsel
was ineffective in failing to investigate and object to the use of a prior
assault conviction as a “serious felony” in sentencing the defendant to 25
years to life under the “Three Strikes Law” following a conviction for possession
of a controlled substance. Appellate counsel was also ineffective for failing
to assert trial counsel’s ineffectiveness. Counsel’s conduct was deficient
because counsel advised the defendant to admit to two prior serious felony
convictions even though the defendant’s second strike was not a “serious
felony,” as required by state law. The second strike was for an assault conviction,
“which arose from a domestic dispute and is the only arguably violent behavior
in [the defendant’s] record.” The court found that the record on this offense
revealed that, although the defendant was initially charged with a serious
felony, he ultimately plead no contest only to assault, which was not a serious
felony, and was sentenced to time served and probation. The court found that
the state court erred in its judgment in finding that the defendant entered
a no contest plea to a serious felony when the plea transcript revealed otherwise.
Even if the alleged victim of the assault was believed, the “minor nature”
of the defendant’s “assault conviction show that it was outside the heartland
of what would normally constitute assault.” In addition, the “sentence of
probation is not consistent with a desire to punish [the] crime as a serious
felony.” Without any real analysis, the court held, under the AEDPA, that
the state court’s decision was an unreasonable application of clearly established
federal law.”
Wilson
v. Vaughn
304 F. Supp.
2d 652 (E.D. Pa. 2004).
Appellate counsel ineffective
in murder and corrupt organizations act case for failing to raise a recent
state court opinion that required reversal of the corrupt organizations conviction.
Petitioner and his co-defendant were members of a criminal gang, who killed
three people whom they had lured to a meeting on the premise of a phony gun
sale. During trial, based on the corrupt organizations charge, the state
presented substantial evidence of illegal gun dealing that occurred approximately
eight months after the murders. While the petitioner’s case was pending on
appeal, the state supreme court held (in Besch) that a corrupt organization
act conviction required proof that the defendant was a member of a "legitimate" enterprise,
as opposed to a gang or a wholly illegitimate organization. (Although the
state legislature apparently has subsequently amended the statute to include
illegal organizations, this amendment has been held by the state courts to
be prospective only.) Despite this ruling, appellate counsel failed to assert
this issue in the appeal before the Superior Court. The Superior Court denied
relief without mention of the Besch opinion. The state Supreme Court
declined review. State habeas was denied and the Superior Court affirmed.
The petitioner did not petition to the state Supreme Court for review and
instead filed this habeas action. The court found an exception to the requirement
of exhaustion based on a "fundamental miscarriage of justice" if the claim
was not reviewed, due to the petitioner’s "actual innocence." Although the
facts had not changed, the state court ruling on the required elements of
the corrupt organizations offense revealed that the state had not proven
a required element of the offense. The court also held that the claim was
not procedurally defaulted due to the petitioner’s failure to assert in discretionary
review to the state Supreme Court because of the "fundamental miscarriage
of justice," due to "actual innocence." Likewise, the court held that the "fundamental
miscarriage of justice" exception excused the failure to assert the claim
before the state Supreme Court because a state court order and two of three
federal district court’s, including the Eastern District, had held that a
petition to the state Supreme Court was not required in order to pursue the
issue in federal court.
Thus, every relevant legal source on record at the time would have
led Petitioner to believe that the applicable law permitted him to file
his federal claim without appealing his PCRA petition to the state
Supreme Court. Under these circumstances, it would constitute the most
manifest miscarriage of justice to refuse to consider Petitioner’s
claims on the merits, for to do so would penalize him for his completely
reasonable, rational, and informed reliance upon the law of both the
state in which he litigated his collateral appeal and the federal
district in which he brought his habeas corpus petition.
Addressing the merits under the AEDPA, the court held that the state
court’s rejection of relief was an unreasonable application of
Strickland. The state court held that appellate counsel was not
ineffective because the issue was not preserved for appeal because it
had not been raised in post-trial motions. Likewise, counsel was found
not to be ineffective for not raising the issue in post-trial motions
because Besch was not decided until several months later and
counsel was not responsible for predicting a change in the law. The
state court’s ruling was unreasonable because "[t]hese holdings are
internally inconsistent" and because appellate counsel could have raised
the issue on appeal since the state court has since held that the Besch issue could be raised and relief granted in a direct appeal
pending at the time of the Besch decision. The court held that
either appellate counsel did not know of the Besch decision or
knew about it and did not assert the claim.
If [counsel] did not conduct sufficient research . . . to determine
that Petitioner had an indisputable legal defense to the charge . . .,
[counsel] did not function at the minimum standards required by the
Sixth Amendment. In other words, if appellate counsel was unaware of a
clear and indisputable legal defense to one of the charges Petitioner
faced, counsel did not perform the service required of him by the
adversarial process.
(Citations omitted). Likewise, the court rejected the state’s
argument that counsel knew of Besch but chose not to raise it
because of some strategy not to challenge the corrupt organizations
conviction because it did not affect the life sentence because counsel
raised numerous other challenges to the corrupt organizations
conviction. "[T]hus there is no rational basis upon which he might have
chosen to omit Besch, which was a stronger argument leading to
his desired result, namely exclusion of the [corrupt
organizations]-related evidence." Counsel’s conduct was, therefore,
deficient. Prejudice was found because, aside from setting aside the
corrupt organizations conviction, the evidence supporting this charge
likely influenced "the jury regarding the murder charges, especially
given that both the charges and the prejudicial evidence involved
allegations of Petitioner engaging in illegal gun sales." Petitioner’s
co-defendant, who had been sentenced to death, had already been granted
post-conviction relief on this precise basis. Given these circumstances,
the court found a reasonable probability that the murder convictions
would have also been set aside if appellate counsel had raised the Besch issue on appeal.
2001: *United States ex rel. Erickson v. Schomig
162
F. Supp. 2d 1020 (N.D. Ill. 2001)
Appellate
counsel ineffective, under AEDPA, in failing to assert ineffective
assistance of
trial counsel in sentencing for failing to verify the background of
witness presented as a defense mental health expert or to interview him
to determine the content of his testimony. The "expert" was retained by
the defendant’s family and had provided a report prior to trial that
described the defendant as "manipulative" and "narcissistic" with a
"grandiose sense of self- importance," "feelings of entitlement," "lack
of empathy for the pain of others," and a preoccupation with sexual
fantasies of women. Nonetheless, counsel did not interview the witness
to determine whether or not to present his testimony and did not check
his credentials. During the sentencing hearing, the "expert" claimed
that, among other degrees, he held a masters degree in psychology from
Harvard University and a doctorate in psychology from the University of
Chicago. During cross, he admitted, however, that the masters was in
theology from the Harvard Divinity School and that his doctorate was a
ministry degree in pastoral counseling and psychology from the Chicago
Theological Seminary, an entity associated with the University of
Chicago. He also admitted that he had previously testified only as a
pastoral counselor. The trial judge refused to qualify him as an expert,
but did permit him to offer lay testimony. The court denied a
continuance in order for counsel to get a "real" expert. Counsel’s
conduct was deficient even though the defendant’s family had retained
this "expert." Counsel’s conduct was also deficient despite the findings
of the state’s psychiatrist after one brief interview that the defendant
was fit for trial, sane at the time of the offense, and not suffering
from a mental defect or disease. This evaluation was expressly limited
to the defendant’s fitness for trial and sanity at the time of the
murder, and did not address the statutory mitigating factors of extreme
mental or emotional distress. No strategic decision explains counsel’s
conduct because "a strategic decision necessarily rests on knowledge
about what a witness will say and the pros and cons of presenting that
testimony." Id. at 1044. Counsel’s conduct was also prejudicial
because the "expert" testimony that the defendant was "raised in a
supportive home and had a personality disorder which allowed him to
function normally, albeit with a grandiose sense of self-importance and
a need for attention, is not mitigating." Id. at 1048. If counsel
had investigated and retained qualified experts, however, mitigating
evidence was available. The defendant had a number of head traumas that
resulted in blurred vision, spells of unconsciousness, and concussions
from at least eight separate falls. He also had headaches, vomiting,
and
nerve injuries related to the head trauma. His mother was schizophrenic
and he was sexually abused by a priest as a child. In response to the
traumas, he began to abuse drugs and alcohol at an early age. He also
turned to psychotropic drugs known to alter brain functioning and to
cause brain damage. When he was thirteen years old, he was admitted to
the emergency room due to severe alcohol intoxication and he also
unsuccessfully attempted to commit suicide by taking a drug overdose.
Neuropsychological tests showed that he had brain damage in the dominant
cerebral hemisphere which caused him to have difficulty understanding
what was expected of him, processing information, dealing with quickly
evolving situations, and learning from his own or other’s behavior and
mistakes. The state court’s finding of no prejudice was unreasonable
because the state court examined whether it was "unlikely" that the
trial court would have drawn a different conclusion if the "expert" witness
had not testified, imposing a higher standard than Strickland’s "reasonable probability" test. The
state court also did not consider the defendant’s new psychological
evidence presented on collateral attack in determining prejudice.
Finally, the Illinois Supreme Court’ s finding that the sentencing court
did not rely on the "expert" prejudicial testimony is contradicted by
the record, which shows that the sentencing court expressly considered
this testimony. Thus, the state court decision was also an unreasonable
determination of the facts in light of the evidence presented at
sentencing. The issue of trial counsel’s ineffectiveness was
procedurally barred because not raised by appellate counsel, but
appellate counsel was clearly ineffective for not raising the issue
since even trial counsel had acknowledged a mistake at the time of trial
and sought a continuance to retain a qualified
expert.
1999: Walker v. McCaughtry,
72 F. Supp. 2d 1025 (E.D. Wis. 1999)
Complete denial of
appointed appellate counsel where counsel failed to move to withdraw or file Anders
brief. Prejudice presumed.
1997: Green v. United States,
972 F. Supp. 917 (E.D. Pa. 1997)
Appellate counsel ineffective for
failing to raise as issue the fact that a juror, who both parties agreed
should be stricken for cause due to bias and the judge initially said
juror would be stricken but then did not strike, had to be removed by a
defense peremptory which resulted in the defense exhausting all
peremptory challenges and being denied a peremptory
challenge.
1996: Grady v. Artuz,
931 F. Supp. 1048 (S.D.N.Y. 1996)
Appellate counsel ineffective for
failing to challenge the duplicitous nature of the indictment which
alleged rape, sodomy, and sexual abuse crimes as continuous offenses
over a one to two month when state law prohibited multi-count
indictments and prohibited charging rape, sodomy, or sexual abuse as a
continuing offense.
Evans v. Clarke,
680 F. Supp. 1351 (D. Neb. 1988), modified, 868 F.2d 267 (8th Cir.
1989)
Appellate counsel ineffective for filing a brief which affirmatively argued against the
client's case on the petition to withdraw under Anders. Prejudice presumed.
State Cases
2007: Mintun v. State,
___ P.3d ___, 2007 WL 1975624 (Idaho App. July 10, 2007).
Appellate counsel ineffective in sexual abuse of a minor case for failing to challenge one of
the convictions, which required a solicitation “to participate in a sexual act.” On this charge,
the defendant had asked a 10 year old boy to watch him and to take pictures of him
masturbating, which “although repugnant, is not prohibited by the statute in question.”
*State v. Loftin,
922 A.2d 1210 (N.J. 2007).
Trial and appellate counsel were ineffective in failing to adequately address the presence of
a possibly racially biased juror, who had predetermined guilt before hearing all the evidence,
in the jury panel during the trial although he ultimately served as an alternate and did not
deliberate on findings and a separate jury was empaneled under state law for sentencing. The
juror, who was white and worked at the post office, admitted making comments early in the
trial to other postal workers that he was “going to buy a rope to hang” the defendant, a black
man charged with killing a white man. He denied, however, that the comments were
intended to be racist or that he had already formed an opinion of guilt. Trial counsel sought
to remove the juror, which was denied, but failed to request that the remainder of the jury be
questioned to determine whether this juror had made similar comments to other jurors. The
trial court ultimately ordered that the juror would serve only as an alternate. Appellate
counsel failed to assert error in the trial court’s failure to remove the juror and to assert as
plain error the court’s failure to question the remaining jurors. Under state law, the court
found “a decided racial undertone [in the juror’s comments] that evokes an era of vigilante
and mindless mob justice that reigned during a dark period in American history.” Id. at
1219. Likewise, even without racial bias, the juror violated the court’s instructions not to
discuss the case with others and not to determine guilt prior to deliberations. The court held
that prejudice would be presumed and that “even allowing a non-deliberating juror suspected
of racial bias to sit on a panel will lead to a presumption that other members of the panel may
have been tainted.” Id. at 1222. Thus, the court presumed that the biased juror shared his
views with fellow jurors and, thus, it did not matter that he did not deliberate. Although trial
and appellate counsel’s ineffectiveness was asserted under both the state and federal
constitutions, the court addressed the merits under only the state constitution but still
applying the Strickland standard. Deficient conduct found because the need for the removal
of the predisposed juror and a voir dire of the remaining jurors should have been self-
evident.” Counsel’s conduct was not excused by strategy. Appellate counsel was also
ineffective because failure to assert these issues on appeal deprived the court of the
opportunity to address the issue, which would have required reversal on direct appeal.
Harris v. State,
861 N.E.2d 1182 (Ind. 2007).
Appellate counsel ineffective for failing to provide the appellate court with an adequate
record to support a valid claim raised on appeal but unsupported by the record provided.
Here, following the testimony of both victim’s and his own testimony, the defendant
changed his plea and entered pleas of guilty to two counts of sexual misconduct with
minors. He was sentenced to twenty years on each count to be served consecutively for a
total of 40 years. At the time of trial, state law limited the aggregate for crimes “arising
out of an episode of criminal conduct.” In this case, the limit was 30 years if found and
appellate counsel asserted that the crimes were in a “single episode” of criminal conduct
but did not include in the appellate record the trial testimony prior to the guilty plea.
Based just on the record before it, the court rejected the argument. Counsel’s conduct
was deficient in failing to include the necessary record and was not based on any strategy.
Counsel had simply not read the trial testimony because he believed it unnecessary given
the guilty plea. This was deficient because the issue on appeal required a factual record
and the necessary facts were in the portion counsel did not read or provide to the court.
Prejudice found because the testimony of the two victims provided the necessary facts to
support a “single episode” where the crimes occurred 5 minutes apart in the same bed and
both victims were induced by the same need for a place to stay. The court revised the
aggregate sentence to 30 years.
2006: Burnside v. State,
858 N.E.2d 232 (Ind. App. 2006).
Appellate counsel was ineffective in murder case for failing to assert as error the trial court’s instructions on self-defense and the lesser-included offense of
reckless homicide. Trial counsel requested jury instructions on both self defense and reckless homicide and the trial court instructed the jury regarding both theories. The
State objected to the instruction because it intermingled the self defense and reckless homicide theories but trial counsel did not object. Appellate counsel’s conduct was
deficient because the instructions improperly required a finding of self-defense as a precondition to a reckless homicide verdict, which deprived the defendant of his right to have
the jury consider his guilt on reckless homicide as a lesser-included offense. This issue was significant and obvious from the face of the record and was clearly stronger than the
ssues raised in the direct appeal. Prejudice found.
Reed v. State,
856 N.E.2d 1189 (Ind. 2006).
Appellate counsel ineffective in attempted murder case for failing to assert that the imposition of consecutive sentences for convictions arising out of a single “episode of criminal conduct,” contravened
the state sentencing statute. The defendant was convicted of two counts of attempted murder for firing a weapon at police officers during a car chase. Although the issue was a novel one under a
ew sentencing statute, a plain reading of the statute revealed that the issue was a clear winner and was a much stronger issue than those raised on appeal. Prejudice found, because based upon the
state of the law at the time of the direct appeal, this claim would more than likely have resulted in reversal.
Henley v. State,
855 N.E.2d 1018 (Ind. App. 2006).
Appellate counsel in attempted murder and other charges case was ineffective for failing to assert as error the trial court’s summary denial of the defendant’s request that standby counsel deliver closing
arguments. In light of the precedent available to counsel at the time of the appeal, this issue was significant, obvious, and stronger than the other issues raised on appeal, and appellate counsel did not have
a reasonable strategic explanation for failing to raise the issue. Thus, appellate counsel's performance was deficient. Prejudice also found because the erroneous denial of counsel is a structural error, making
a harmless error review inappropriate.
Ex parte Owens,
206 S.W.3d 670 (Tex. Crim. App. 2006).
Appellate counsel was ineffective in aggravated sexual assault of a child case for failing
to inform the defendant that he had a right to file a pro se petition to the Court of
Criminal Appeals after counsel had filed an Anders brief in the court of appeals.
Prejudice found because the petitioner had filed a pro se brief in the court of appeals. It
was, therefore, likely that he would have filed the petition for discretionary review.
Leave granted for an out-of-time petition.
*Commonwealth v. Gorby,
900 A.2d 346 (Pa. 2006).
Trial counsel ineffective in capital sentencing for failing to adequately investigate and present
mitigation evidence. Appellate counsel was also ineffective in failing to assert the issue of trial
counsel's ineffectiveness during direct appeal. In sentencing, counsel called only the step-father to
testify that the defendant sometimes assisted him in work around the home. Appellate counsel was
also ineffective in failing to assert this issue on appeal because the "claim merited exploration based
on the apparent weakness of trial counsel's penalty-phase presentation alone, as reflected on the face
of the trial record." Prejudice found. (Facts discussed in the summary of trial counsel's
ineffectiveness, supra).
Grinstead v. State,
845 N.E.2d 1047 (Ind. 2006)
Appellate counsel ineffective in murder, theft, and conspiracy case for failing to make a double jeopardy objection under the state constitution. The state law had been interpreted to prohibit conviction and punishment for the crime of conspiracy where the overt act that constitutes an element of the conspiracy charge is the same act as another crime for which the defendant has been convicted and punished. Under this standard, the convictions for conspiracy to commit theft and theft in this case violated double jeopardy. The theft conviction was vacated.
Taylor v. State,
840 N.E.2d 324 (Ind. 2006)
Appellate counsel ineffective in murder case for failing to challenge the imposition of an enhanced sentence of 60 years. At the time of trial, the presumptive sentence for murder under state law was 40 years. Counsel’s conduct was deficient and prejudicial because the trial court improperly considered a number of aggravating circumstances contrary to state law and contrary to the presentence report, which recommended the presumptive sentence.
2005: Shepard v. Crosby,
916 So. 2d 861 (Fla. App. 2005)
Appellate counsel was ineffective in murder case and aggravated battery case for failing to assert on appeal the issue of the trial court’s erroneous self-defense instruction, given over objection by trial counsel, which “was circular in nature and, thus, vitiated his defense.” The trial court instructed the jury that the defendant’s use of force against the victim was not justifiable if the jury found that the defendant was attempting to commit, committing or escaping after the commission of a murder or aggravated battery with a firearm. This instruction is not to be given “in cases where the defendant is charged with an offense as to which the defendant relies on self-defense.” Prejudice found.
Laymon v. State,
122 P.3d 326 (Kan. 2005)
Appellate counsel ineffective in conspiracy to manufacture methamphetamine case where the defendant pled guilty and was sentenced based on “a drug severity level 1 felony.” Two lines of argument were being pursued under state law at the time challenging sentence for this offense. One asserted that sentencing should occur under a misdemeanor provision and the other asserted that sentencing should occur under the drug severity 3 statutes. Appellate counsel raised only the first of these arguments, which was ultimately rejected by the state courts. The other argument, not raised by counsel, was ultimately accepted by the state courts. Counsel’s conduct was deficient in failing to assert this issue “despite the icy reception that had been given both lines of argument by the Court of Appeals” because the Supreme Court “had not finally rejected either.” Id. at 328. Counsel’s conduct could not be explained by any plausible strategy or “avoidance of a ‘shotgun’ approach” because counsel’s entire appellate brief was only five pages long. Moreover, counsel was in the same state office with the lawyer who initially asserted the ultimately successful argument. Thus, “we should charge his direct appeal counsel with knowledge that the McAdam issue was worthy of preservation and pursuit. Although McAdam was not yet the law of Kansas, the line of argument was in no worse position than the misdemeanor/felony line argument . . . counsel did pursue.” Id. at 334.
People v. Turner
___ N.E.2d ___, 2005 WL 3091447 (N.Y. Ct. App. Nov. 17, 2005)
Trial and appellate counsel ineffective in manslaughter case for failing to assert a statute of limitations defense. The defendant was arrested 16 years after the crime and charged with second degree murder, which has no statute of limitations. During trial, the prosecutor requested an instruction on the lesser included offense of manslaughter. Counsel objected only on the basis of not offering the jury a compromise. The jury convicted only on manslaughter, which had a five year limitations period. Although the statute allows some tolling, the maximum period for tolling is an additional five years. Trial and appellate counsel’s conduct was deficient because there was case law from 1914 supporting the argument, which was old but still valid. In addition, while there was some contrary precedent and the law may not have been definitively settled at the time of trial, “[a] reasonable defense lawyer at the time of defendant’s trial might have doubted that the statute of limitations argument was a clear winner–but no reasonable defense lawyer could have found it so weak as to be not worth raising.” Trial counsel should have asserted the issue. Appellate counsel should have asserted the ineffectiveness of trial counsel on this point.
2004: Davis v. State
886 So. 2d 332 (Fla. Dist. Ct. App. 2004)
Appellate counsel was ineffective in aggravated battery
of elderly person over age 25 case for failing to assert as error the
trial court’s improper instruction on the use of force, which effectively
negated the defense of self-defense. Although the defense of self-defense
was prohibited only if the person claiming self-defense was engaged
in the commission of another independent forcible felony, the trial
court informed the jury, over trial counsel’s objection, that a finding
of the very act of aggravated battery the defendant sought to excuse
on the basis of self-defense precluded a finding of justification.
Appellate counsel’s conduct was deficient because this instruction
was circular and improper and the issue was preserved for appeal. Although
no case had clearly held that this instruction was error under the
circumstances at the time of the defendant’s appeal, this holding was
“clearly foreshadowed” by earlier case law and had been addressed previously
in a “compelling dissent.” “Where a preserved issue such as this appears
in the appellate record, has facial merit, has some support in the
case law, and is not foreclosed by controlling case law, it should
be raised.” The court, thus, granted a belated appeal on this issue.
*Commonwealth
v. Moore
860 A.2d 88 (Pa. 2004)
Appellate counsel
was ineffective in failing to assert trial counsel’s ineffectiveness for
failure to prepare and present mitigation evidence. Counsel presented no
mitigation evidence. He asserted that the defendant declined to testify
and he had no other mitigating evidence. Thus, counsel presented no opening
and no evidence and only referred generically to possible mitigating circumstances
in closing. The jury found two aggravating circumstances and no mitigating
circumstances. On appeal, counsel alleged trial counsel’s ineffectiveness
but failed to specify what mitigating evidence had been available. Thus,
the issue of trial counsel’s ineffectiveness was denied on appeal. Appellate
counsel was ineffective for failing to adequately present the available
mitigating evidence, which included testimony from the defendant’s mother,
sister, and wife of the defendant’s traumatic and abusive childhood, including
witnessing his father slash his mother’s throat. The mother and sister
had not been subpoenaed and had not been advised of the need for their
testimony in sentencing. Although the ex-wife did not appear under subpoena
to testify at trial concerning an alibi, she would have testified in sentencing
if counsel had explained the nature of the proceeding to her. While these
witnesses were “obviously more cooperative in 2000 than in 1983,” id. at
99, and the defendant was an “uncooperative client,” id. at 100, counsel’s
conduct was deficient because counsel was not “relieved of the duty to
investigate potential mitigating evidence, particularly where counsel had
no other penalty phase strategy,” id. at 100. Counsel’s conduct was not
excused by any strategic reason. Prejudice was found because without any
mitigating evidence, the defendant’s only chance for a life sentence would
have been if the jury did not find either of the aggravating circumstances,
which was unlikely based on the evidence presented by the state. New sentencing
granted.
*In re
Orange
100 P.3d 291 (Wash. 2004)
Appellate counsel
was ineffective in failing to assert as error the trial court’s closure
of the courtroom during more than half of the voir dire, which violated
the defendant’s constitutional right to a public trial. Counsel’s conduct
was deficient because there was no compelling reason to close the proceedings.
Even assuming that a compelling reason existed, the trial court did not
narrowly tailor its order or consider alternatives to full closure. The
trial court’s actions thus violated the state constitution. In addition
to denying the public’s right to presence, the court denied the defendant’s
family the opportunity “to contribute their knowledge or insight to the
jury selection” and denied the jury the opportunity “to see the interested
individuals.” What the jury saw instead was the “conspicuous” absence of
the defendant’s family. Because of the denial of the right to a public
trial, prejudice would have been presumed had the issue been raised on
appeal. Thus, prejudice was found and a new trial ordered.
In re
Dalluge
100 P.3d 279 (Wash. 2004)
Appellate counsel
was ineffective in rape case for failing to assert that the adult court
had no jurisdiction to try and convict the defendant, who was seventeen
years old at the time. The state initially charged the defendant with first
degree rape, which automatically gave the adult court exclusive jurisdiction.
The state later reduced the charges to second degree rape and a charge
of third degree rape by complicity. Although these charges no longer resulted
in automatic adult court jurisdiction and rested jurisdiction solely in
the juvenile court unless the juvenile court declined jurisdiction “in
the best interest of the juvenile or the public,” the trial court did not
remand to the juvenile court and the defendant was tried and convicted
in adult court. Counsel’s conduct was deficient and prejudicial in failing
to raise this “meritorious issue.” Because the defendant had since turned
18, the appropriate remedy was remand to the adult court for a hearing
on whether declination by the juvenile court would have been appropriate.
If so, the conviction would stand. If not, a new trial would be granted.
Bruce v.
State
879 So.2d 686 (Fla. Dist. Ct. App. 2004)
Appellate counsel was ineffective
for failing to assert as fundamental error the trial court’s erroneous
charge on burglary that failed to include the necessary of element of an
intent to commit a crime within the structure or conveyance.
Crawford v. Thompson,
603 S.E.2d 259 (Ga. 2004)
Appellate counsel ineffective in armed robbery case for failing to
assert that trial counsel was ineffective in failing to adequately
assert a speedy trial motion. Counsel raised the speedy trial issue, but
the appellate court found that it was procedurally defaulted because not
addressed fully at trial under the applicable statute. Prejudice found
because reversal would have been required if the issue had been asserted
as an ineffectiveness of trial counsel claim.
Haggard v. State
810 N.E.2d 751 (Ind. Ct. App. 2004).
Appellate counsel ineffective in multiple charge case starting with
attempted suicide by use of cocaine, which precipitated violent
resistance to officers upon their arrival. Counsel’s conduct was
deficient in failing to assert that the trial court erred in determining
that the sentence for one of the five resulting charges (unlawful use of
body armor) should be served consecutively. Because the time, place, and
circumstances of the criminal acts were causally related and the
evidence overlapped, state law prohibited consecutive sentences.
Prejudice found even though the direct appeal opinion implied that the
sentence was appropriate. The court held that it was "a gratuitous
comment upon an issue not before the court. As such, it is not res
judicata and does not control this decision."
*Browning v. State
91 P.3d 39 (Nev. 2004).
Appellate counsel was ineffective in failing to challenge the court’s
instruction on the "depravity of mind" aggravating circumstance, which
did not include any reference to torture or mutilation. Although the
Nevada court had rejected two challenges to instructions on "depravity"
previously, counsel’s conduct was deficient in failing to assert the
issue in this case based upon Godfrey v. Georgia, 446 U.S. 420
(1980), because the other rejected state cases both included references
to torture in the instruction and one of them also referenced
mutilation. In both cases, there was also evidence of torture and
mutilation, which was also lacking in this case. Prejudice found even
though four other aggravating factors were present because the state’s
closing argument focused primarily on the "depravity of mind"
aggravator.
Hickson v. State
873 So. 2d 474 (Fla. Dist. Ct. App. 2004).
Appellate counsel ineffective in aggravated battery of police officer
case for failing to assert fundamental error with respect to the trial
court’s instruction on forcible felony, which essentially negated his
only defense (self-defense). Belated appeal allowed.
Smith v. Crosby
872
So. 2d 279 (Fla. Dist. Ct. App. 2004)
Appellate counsel ineffective in attempted murder, attempted
burglary, and attempted robbery case for failing to challenge the
attempted burglary conviction. Appellant counsel asserted only that the
trial court erred in denying Petitioner's motion to suppress his
statements. At the time of the appeal the Florida Supreme Court required
reversal of the attempted burglary conviction because a conviction could
not be sustained on a "remaining in" theory where the defendant
initially entered the premises lawfully and then later formed a criminal
intent to commit a crime therein. (Although the legislature subsequently
nullified the Supreme Court=s
ruling, the legislation does not apply to the defendant in this case).
Appellate counsel=s conduct
was deficient in failing to challenge the validity of the attempted
burglary conviction because the evidence presented at trial showed that
the defendant entered the premises with the victim's consent and
remained there openly. Since any alleged intent to rob or assault was
formed subsequent to his consensual entry, the defendant could not be
convicted of burglary or attempted burglary. Although trial counsel did
not preserve the issue, a fundamental error occurs when the evidence is
insufficient to show that a crime was committed at all and the appellate
court will review the legal sufficiency of the conviction on appeal. A
belated appeal allowed only on this issue.
State v. Madan
840 A.2d 874 (N.J. Super. Ct. App. Div. 2004).
Appellate counsel was ineffective in murder case
for failing to assert on appeal that the trial court abused its
discretion in rejecting the defendant’s plea agreement. The defendant
was charged with murder and entered an agreement with the state to plead
guilty to aggravated manslaughter in exchange for a state recommendation
for a 20 year sentence with 7 years of parole ineligibility. A
pre-sentence report recommended that the plea agreement be accepted. The
defendant admitted stabbing the victim, but disputed some of the
surrounding circumstances, which revealed that the victim may have well
been the initial aggressor. At the hearing, the trial court discussed
the issue with the victim’s father and learned that the victim’s family
was opposed to the plea agreement. The court rejected the pre-trial
agreement. Following trial, the defendant was convicted of murder and
sentenced to life imprisonment with 30 years of parole ineligibility.
The trial court abused its discretion in rejecting the plea because this
case is a classic case for an aggravated manslaughter plea. The reasons
listed by the trial court for rejecting the plea were inadequate and
based upon incorrect statements concerning the potential length of
sentences. The exercise of discretion to reject the plea was erroneous
under these circumstances. Although the views of the victim’s family may
be taken into consideration, the victim’s family’s dissatisfaction with
the plea cannot be controlling.
A defendant my not be entitled to an offer of a
plea bargain from the prosecutor, but when such an offer is made,
accepted, and entered on the record, a defendant is entitled to a
judicial assessment of that agreement grounded in a correct
understanding of the law and the proper exercise of that
discretion.
The court reinstated the defendant’s plea agreement.
2003:
Estevez v.
Crosby
858 So. 2d 376 (Fla. Dist. Ct. App. 2003).
Appellate counsel was ineffective in aggravated
battery case for failing to assert on appeal the issue of the trial
court’s erroneous self-defense instruction. The trial court instructed
the jury that the defendant’s use of force against the victim was
not
justifiable if the jury found that the defendant was attempting to
commit, committing or escaping after the commission of an aggravated
battery. This instruction is only to be given when the accused is
charged with at least two offenses, the one for which the accused
claimed self-defense as well a separate forcible felony. Although trial
counsel did not object to this instruction, appellate counsel’s conduct
was deficient because counsel should have raised this issue as a
fundamental error on direct appeal. Appellate counsel’s failure to raise
the issue in direct appeal prejudiced the defendant. As a result,
the
court reinstated the defendant direct appeal.
Milliken v. Stewart
583
S.E.2d 30 (Ga. 2003).
Appellate counsel was ineffective in kidnaping case for
failing to assert on appeal that the trial court had improperly
intimated his opinion on the evidence and guilt of the accused. Because
the trial court’s actions were not harmless, the appropriate remedy
was
a new trial rather than a new appeal.
Minor v. State
792 N.E.2d 59 (Ind. Ct. App. 2003).
Appellate counsel ineffective for failing to cite recent
case establishing defendant’s entitlement to 12-person jury (rather than
6) on felony count of carrying a handgun without a license. While
appellate counsel had already completed briefing, the controlling case
was decided two months before the appeal was decided. Counsel’s conduct
was deficient in failing to read the Advance Sheets and bring the case
to the court’s attention. Prejudice established because reversal was
required.
Nelson v. Hall
573 S.E.2d 42 (Ga. 2002 )
Appellate Counsel ineffective in aggravated assault and
kidnaping with bodily injury case for failing to challenge a jury
instruction that had omitted the essential element of bodily injury from
the kidnaping offense. Counsel’s conduct was deficient and prejudicial.
The state argued that in analyzing prejudice the court should look not
to the outcome on appeal, but to the ultimate resolution on remand or
retrial since the defendant would be subject to the same punishment for
both kidnaping with bodily injury and simple kidnaping. The court
rejected this analysis and held that "the inquiry does not focus on the
projected result on remand or retrial, but whether there is a reasonable
probability that the result of the appeal would have been different."
*Commonwealth v. Ford
809 A.2d 325
(Pa. 2002)
Counsel ineffective in capital case for failing to adequately
investigate and present mitigation evidence in sentencing. Appellate
counsel was also ineffective for failing to assert trial counsel’s
ineffectiveness. In sentencing, trial counsel presented the defendant’s
sister to testify but not prepare her testimony, which amounted to only
a plea of mercy. Counsel also presented evidence of the defendant’s low
IQ and that his educational achievement was at the 2nd or
3rd
grade level. The jury found two aggravating circumstances and no
mitigating circumstances. Trial counsel was aware of a competency
evaluation that revealed that the defendant had a troubled childhood and
learning problems. Counsel did not investigate to obtain prior
hospitalizations, mental health records, or school records. He also did
not obtain additional information form the defendant’s family or have a
mental health professional evaluate the defendant with respect to
mitigation. Counsel’s conduct was deficient because there was no
reasonable basis for failing to investigate and present this mitigating
evidence. Although counsel did state that he did not present psychiatric
records because the prosecution informed him that they contained reports
that the defendant was "explosive," this decision was based on very
little information and without actually reviewing the supporting
documents. If counsel had adequately investigated, the evidence would
have revealed schizophrenia, brain impairments including mental
retardation, learning disabilities, and post traumatic stress. The
defendant showed signed of dementia early in life and had a long history
of psychiatric treatment for impaired reality, including hearing voices,
and alcohol dependance. The defendant also had an extensive history of
abuse and family dysfunction. The available evidence would have
supported three statutory mitigating circumstances. The Commonwealth
presented rebuttal evidence in post-conviction showing that the
defendant had previously been convicted of sexual assault of a 12 year
old boy, had been a gang member in his youth, and had threatened to kill
his grandparents. The Commonwealth also presented psychiatric evidence
of antisocial personality disorder and a clinical psychologist that
would have testified that the defendant does not suffer from organic
brain damage or learning disabilities. The court still found prejudice
because the jury was given no meaningful evidence of mitigation to
consider in their weighing process. Moreover, even without any
mitigation evidence, the jury was still deadlocked at one point during
the penalty phase deliberations.
Patrick v. State
349 S.C. 203, 562
S.E.2d 609 (2002)
Appellate counsel ineffective in
burglary, armed robbery assault and battery with intent to kill, and
unauthorized use of motor vehicle case for failing to adequately assert
claim of prosecutorial retaliation. Applicant was initially indicted in
1975. All of the charges except burglary were nol prossed prior to trial
and applicant was tried and convicted of burglary. Following reversal in
1992 in post-conviction proceedings, the state reindicted, tried, and
convicted on all charges. Trial counsel adequately preserved the issue
of vindictive prosecution. The same counsel on appeal, however, "devoted
three short paragraphs to the issue, did not give any useful analysis,
and only cited one case." The appellate court did not address this issue
and instead simply held that the nol prossed charges could be brought
since they were nol prossed before the jury was impaneled. Counsel did
not address the retaliation argument in his petition for rehearing and
then when directed by the court to address the issue in a supplemental
petition for rehearing, counsel’s "argument was conclusory at best. He
did not even mention the seminal case" that he had cited earlier in his
brief. Prejudice found because this issue was a winner on appeal when
analyzed under Supreme Court precedent (oddly enough the one case that
was cited by appellate counsel).
Hudson v. Warden, Nevada State Prison,
22 P.3d 1154 (Nev. 2001) (en banc)
Appellate counsel ineffective for
failing to assert that the trial court erred in relying on a presentence
report to prove prior convictions for enhancement of sentence in DUI
causing substantial bodily harm case. The issue was properly preserved
at trial and the appellate court held that this was insufficient proof
of the prior convictions. Remand allowed state to offer proper proof
though.
Ezell v. State
548
S.E.2d 852 (S.C. 2001)
Appellate counsel provided ineffective
assistance for failing to adequately complete record in order to
challenge admission of hearsay taped statements wherein non-testifying
confidential informant identified applicant as the person who sold crack
cocaine to the informant. Appellate counsel, who was also the trial
counsel, preserved the issue at trial and raised it on appeal, but
failed to include the audio tape in the Record on Appeal. The
post-conviction court found ineffective assistance and granted a new
direct appeal. The Supreme Court found, however, that if the appellate
court had been provided with the tapes during the appeal the court would
have granted a new trial because the evidence of guilt was not
overwhelming and admission of the tapes was not harmless error. Thus,
the appropriate remedy for the ineffective assistance of appellate
counsel was a new trial.
State v. Wicker,
20 P.3d 1007 (Wash. Ct. App. 2001)
Trial counsel ineffective for failing
to timely file motion for revision in Superior Court following
conviction of assault before Commissioner. Per se prejudicial even
though appeal allowed because the Superior Court has broader review
powers that appellate court and reviews claims de
novo.
2000: Smith v. State,
762 So. 2d 969 (Fla. Dist. Ct. App. 2000)
Appellate counsel ineffective in
failing to argue the correct standard of harmless error analysis and that the burden could
not be placed on the defendant. During the direct appeal, the court of appeals found that
the court erred in admitting inadmissible hearsay from the alleged sexual assault victim's
friend bolstering the victim's credibility but found the error harmless relying on a case
holding that a state statute placed the burden of proving harm on the defendant. Appellate
counsel's conduct was deficient in not arguing to the court that the case they relied on had
been reversed by the Florida Supreme Court based on finding that, under Chapman v.
California, the burden could not be shifted to the defendant. "[T]he failure of a criminal
appellate counsel to argue the applicable harmless error standard is so basic as to be well
below the standard of professional practice for such counsel." Id.at ___.
Prejudice found because this was a sexual battery case that, without the
improper bolstering by inadmissible hearsay, amounted to only a
credibility contest between the defendant and the alleged
victim.
State v. Barnard,
14 S.W.3d 264 (Mo. Ct. App. 2000)
Appellate counsel ineffective in sodomy
case for failing to inform Court of Appeals of statute allowing for
lesser sentence. Defendant charged with sodomy in 1994, but was not
tried until 1995, after the relevant statutes were amended effective
after crime but before trial. State law provided, however, that the
defendant was entitled to amended statute provisions that provided for
lesser sentences effective prior to the trial date.
1999: Guerra-Villafane v. Singletary,
729 So. 2d 972 (Fla. Dist. Ct. App.), review denied, 744
So. 2d 456 (Fla. 1999)
Appellate counsel ineffective in drug
case. Entrapment defense raised at trial and counsel objected to the
standard charge. Appellate counsel failed to raise the issue even though
the charge given was on an objective standard applied in Florida prior
to a statutory change in 1987 to a subjective
standard.
Sloan v. Sanders,
519 S.E.2d 219 (Ga. 1999)
Appellate counsel ineffective for
failing to raise issue of trial counsel's ineffectiveness for failing to
move to dismiss pursuant to a statutory speedy trial demand, which was a
strong issue. Appellate counsel conceded that he was not aware of the
issue, even though the initial demand for speedy trial was in the
record, and had raised only two weak issues on appeal.
*People v. West,
719 N.E.2d 664 (Ill. 1999)
Appellate counsel ineffective in
capital murder appeal for failing to challenge the sufficiency of the
evidence proving the only statutory aggravating circumstance that made
the defendant death eligible. The only aggravating circumstance
submitted and found by the jury was that the defendant had a prior
murder conviction, i.e. two murders in "separate premeditated acts." The
court construed the statute to allow proof of premeditation either by
proof of an intent to kill or proof of knowledge that the defendant's
acts would cause death or great bodily harm. During sentencing, the
state proved only that the defendant had previously plead guilty to
murder in 1978. At the time of that conviction, however, the defendant
could have been convicted on one of three theories, two that required
the requisite mens rea, but the third, felony murder, that required no
specific intent. The state did not present any evidence establishing
that the defendant had the requisite mens rea with respect to the 1978
murder. Appellate counsel was ineffective for raising this issue on
appeal and the defendant was prejudiced because the issue was
meritorious and precludes death eligibility. Court precludes imposition
of the death penalty on retrial based on double
jeopardy.
*Southerland v. State,
337 S.C. 610, 524 S.E.2d 833 (1999)
Appellate counsel
provided ineffective assistance of counsel that required a new sentencing trial. Trial
counsel requested an instruction on life without parole, but the trial court refused. Trial
counsel then requested a charge that life is to be understood in its "ordinary and plain
meaning," pursuant to State v. Norris, 285 S.C. 86, 328 S.E.2d 339 (1985) (requiring
instruction when the issue of parole was raised), and the trial court also denied that
request. Appellate counsel raised only the life without parole issue, but the court affirmed
because the state had not argued future dangerousness and this instruction was not
required under Simmons v. South Carolina, 512 U.S. 154 (1994). If appellate counsel had
asserted the Norris claim, reversal would have been required because the portion of the
subsequent opinion in State v. Atkins, 293 S.C. 294, 360 S.E.2d 302 (1987), requiring that the
court give the charge upon request by the defense was applicable.
Prejudice found because failure to give the ordinary and plain meaning
charge upon request requires automatic reversal under state
law.
1997: Matter of Maxfield,
945 P.2d 196 (Wash. 1997) (en banc)
Counsel ineffective for failing to
raise on appeal the state constitutional issue of privacy with respect
to electricity consumption records where records had been voluntarily
provided by commissioner to drug task force.
1996: State v. Reed,
660 N.E.2d 456 (Ohio 1996)
Appellate counsel ineffective for
failing to raise issue concerning the trial court's denial of
appellant's request to represent himself in his drug abuse
trial.
1995: People v. Mack,
658 N.E.2d 437 (Ill. 1995)
Appellate counsel ineffective for
failing to raise as issue the fact that the jury verdict form finding an
aggravating circumstance (commission during robbery with intent or
knowledge of strong probability of death or great bodily harm) and
finding death eligibility omitted an essential element of the factor
(intent or knowledge). Retrial on sentence.
1994: People v. Salazar,
643 N.E.2d 698 (Ill. 1994), cert. denied, 515 U.S. 1116
(1995)
Appellate counsel ineffective for
failing to raise during direct appeal issue of whether voluntary
manslaughter instructions erroneously gave the prosecution the burden of
proving mental status which reduced murder to manslaughter. This
instruction in effect required the jury to convict defendant of murder
rather than manslaughter.
1993: Clark v. State,
851 P.2d 426 (Nev. 1993)
Appellate Counsel ineffective for
failing to raise abuse of discretion in adjudicating defendant a
habitual criminal where he was not actually adjudicated as such and
trial court may have mistakenly believed that his authority to punish
the defendant was limited to deciding what sentence to impose once the
requisite number of felony convictions had been
established.
Ex parte Daigle,
848 S.W.2d 691 (Tex. Crim. App. 1993)
Appellate counsel ineffective for
failing to raise as issue trial court's denial of defendant's timely
motion for jury shuffle which was a reversible error.
1992: *Watkins v. State,
632 So. 2d 555 (Ala. Crim. App. 1992), cert. denied, 511 U.S. 1137
(1994)
Appellate counsel ineffective for failing to supplement record to establish Batson
claim. Trial was held four years prior to Batson, but Alabama courts applied Batson
retroactively under plain error rule to cases still on direct appeal when Batson was
decided. Appellate counsel, who was also trial counsel, raised Batson on direct appeal
but the record did not reflect race of jurors. If counsel had properly supplemented the
record would have shown that the state used 12 of its 13 peremptory challenges to remove
12 of 13 blacks from the jury. If this evidence had been presented on direct appeal, the
court would have granted a Batson hearing.
Meyer v. Singletary,
610 So. 2d 1329 (Fla. Dist. Ct. App. 1992)
Appellate counsel ineffective for
failing to raise per se reversible error that judge failed to provide
notice to prosecution and defense before responding to deliberating
jury's request to review evidence.
Williams v. State,
844 S.W.2d 562 (Mo. Ct. App. 1992)
Appellate counsel ineffective for
failing to argue that a newly amended drug sentencing provision should
be applied to reduce the defendant's sentence.
1991: Griffin v. United States,
598 A.2d 1174 (D.C. 1991)
Appellate counsel IAC for failure to
raise double jeopardy issue on appeal where obstruction of justice
conviction was based on same conduct that formed basis for prior
contempt conviction.
People v. Logan,
586 N.E.2d 679 (Ill. App. Ct. 1991)
Appellate counsel ineffective in murder
case for failing to argue issue pertaining to admission of victim impact
evidence in guilt phase where state referred to families during opening
and closing, widow testified about children, and a picture of the
victim's family was put in evidence.
State v. Sumlin,
820 S.W.2d 487 (Mo. 1991)
Appellate counsel ineffective for
failing to argue that a newly amended drug sentencing provision should
be applied to reduce the defendant's sentence.
Simpkins v. State,
303 S.C. 364, 401 S.E.2d 142 (1991)
Appellate counsel ineffective for
failing to raise an obvious reversible error on direct appeal, i.e., the
guardian ad litem of the child criminal sexual assault victim was the
only person to testify regarding the identity of the perpetrator and the
details of the incident.
1990: People v. Ferro,
551 N.E.2d 1378 (Ill. App. Ct.), appeal denied, 561 N.E.2d 698 (Ill.
1990)
Appellate counsel ineffective for
failing to raise issue concerning trial court's comments which forced
jury to reach a verdict by threatening that they would stay at hotel
until they did.
Ex parte Dietzman,
790 S.W.2d 305 (Tex. Crim. App. 1990)
Appellate counsel ineffective where out
of 27 grounds raised the court was unable to review 23 of them because
counsel did not properly present the issue or failed to conform to
appellate rules. Counsel did not designate for inclusion in the record
testimony related to motion to suppress statements which was necessary
for review of 16 of the grounds of error raised; did not show what
witness would have stated to support an error raised concerning denial
of continuance to obtain witness; and raised issues in a manner
different than they were raised at trial so they were not
preserved.
Dunn v. Cook,
791 P.2d 873 (Utah 1990)
Direct appeal counsel ineffective for
filing a brief that merely recited the prosecution and defense evidence,
stated only four issues in single short sentences, presented no
argument, listed cases but did not state case facts, did not even cite
record in 2 of the 4 issues, and failed to raise a number of substantive
issues later identified by habeas counsel. Because of IAC, prior appeal
was not a bar to raising issues in habeas.
1989: Sutherland v. State,
771 S.W.2d 264 (Ark. 1989)
Appellate counsel in burglary case
ineffective for failing to abstract confession so court was unable to review issue of whether
it was error to use the defendant's confession to burglary at trial, where the confession was
made after the defendant had been appointed counsel on unrelated drug charges so that
his subsequent waiver of right to counsel after the police initiated the interrogation with
respect to the burglary was invalid. [Note: confession issue would probably not be decided
the same in light of McNeil v. Wisconsin, 501 U.S. 171 (1991).]
Ragan v. Dugger,
544 So. 2d 1052 (Fla. Dist. Ct. App. 1989)
Appellate counsel ineffective for
failing to allege as error trial court's failure to state with
particularity its justification for retention of jurisdiction (based on
state law requirement).
People v. Reyes,
542 N.Y.S.2d 178 (N.Y. App. Div. 1989)
Appellate counsel ineffective
for failing to raise Batson when the prosecution removed all
Hispanics from the jury.
*Matter of Frampton,
726 P.2d 486 (Wash. Ct. App. 1986)
Presumption of prejudice in capital
case where appellate counsel failed to submit a brief on any guilt phase
issues even though the defendant plead not guilty, desired to appeal
guilt phase issues, and there were nonfrivolous guilt phase issues that
could have been raised.
Whitt v. Holland,
342 S.E.2d 292 (W. Va. 1986)
Appellate counsel ineffective for
failing to communicate with his client, failing to raise several
important issues, including ineffective assistance during the trial, and
exhibiting "a lack of conscientious attentiveness to the
record."
1985: *Wilson v. Wainwright,
474 So. 2d 1162 (Fla. 1985)
Appellate counsel ineffective for
failing to brief issues of sufficiency of evidence of premeditation and
propriety of death sentence and failing to adequately prepare and
present oral
argument.