Summaries Of Published Successful Ineffective Assistance Of Counsel .

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Table of Contents UNITED STATES SUPREME COURT CASES . 1 I. TRIAL PHASE . 36 A. NUMEROUS DEFICIENCIES AND INADEQUATE DEFENSE . 36 1. U.S. Court of Appeals Cases . 36 2. U.S. District Court Cases. 77 3. Military Cases. 114 4. State Cases . 115 B. ONE DEFICIENCY . 215 1. JURY SELECTION . 215 a. U.S. Court of Appeals Cases . 215 b. U.S. District Court Cases. 216 c. State Cases . 217 2. INDICTMENT . 223 a. U.S. Court of Appeals Cases . 223 b. State Cases . 224 3. MOTIONS AND NOTICE . 226 a. U.S. Court of Appeals Cases . 226 b. U.S. District Court Cases. 233 c. State Cases . 239 4. PROSECUTION EVIDENCE OR ARGUMENT . 279 a. U.S. Court of Appeals Cases . 279 b. U.S. District Court Cases. 283 c. State Cases . 289 5. IMPEACHING WITNESS . 330 a. U.S. Court of Appeals Cases . 330 b. U.S. District Court Cases. 333 c. State Cases . 335 6. 7. ELICITING DAMAGING EVIDENCE AND MAKING DAMAGING ARGUMENT 340 a. U.S. District Court Cases. 340 b. State Cases . 341 CONCEDING GUILT/CONTRADICTING CLIENT . 347 i

8. INSTRUCTIONS . 351 a. U.S. Court of Appeals Cases . 351 b. U.S. District Court Case . 356 c. State Cases . 361 9. FAILURE TO CHALLENGE COMPETENCE. 396 a. U.S. Court of Appeals Cases . 396 b. U.S. District Court Cases. 398 c. State Cases . 399 10. FAILURE TO PRESERVE THE RECORD FOR APPEAL . 402 a. U.S. Court of Appeals Cases . 402 b. U.S. District Court Cases. 402 c. State Cases . 405 11. MISCELLANEOUS . 408 a. U.S. Court of Appeals Cases . 408 b. Military Cases. 411 c. State Cases . 411 II. CAPITAL SENTENCING PHASE ERRORS . 421 A. NUMEROUS DEFICIENCIES AND INADEQUATE MITIGATION . 421 1. U.S. Supreme Court Cases . 421 2. U.S. Court of Appeals Cases . 424 3. U.S. District Court Cases . 499 4. Military Cases. 521 5. State Cases . 523 B. ONE DEFICIENCY . 564 1. STATE AGGRAVATION EVIDENCE OR ARGUMENT . 564 a. U.S. District Court Cases. 564 b. State Cases . 565 2. INSTRUCTIONS . 570 a. U.S. Court of Appeals Cases . 570 b. U.S. District Court Cases. 570 c. State Cases . 570 3. MISCELLANEOUS . 573 a. U.S. Court of Appeals Cases . 573 ii

III. b. U.S. District Court Cases. 575 c. State Cases . 577 NON-CAPITAL SENTENCING ERRORS . 581 IV. A. U.S. Court of Appeals Cases . 581 B. U.S. District Court Cases . 590 C. Military Cases . 605 D. State Cases . 606 ADVISING CLIENT . 630 A. B. C. D. E. GUILTY PLEA AFTER INADEQUATE INVESTIGATION OR RESEARCH . 630 1. U.S. Court of Appeals Cases . 630 2. U.S. District Court Cases . 633 3. State Cases . 637 ERRONEOUS ADVICE (OR FAILURE TO ADVISE) ON SENTENCING OR COLLATERAL CONSEQUENCES THAT LEADS TO PLEA . 650 1. U.S. Court of Appeals Cases . 650 2. U.S. District Court Cases . 656 3. Military Cases. 661 4. State Cases . 661 FAILURE TO INFORM DEFENDANT OR STATE OF PLEA OFFER . 684 1. U.S. Court of Appeals Cases . 684 2. U.S. District Court Cases . 685 3. State Cases . 688 BAD ADVICE LEADING TO REJECTION OF PLEA OFFER . 693 1. U.S. Supreme Court Cases . 693 2. U.S. Court of Appeals Cases . 694 3. U.S. District Court Cases . 699 4. State Cases . 707 ERRONEOUS ADVICE ON RIGHT TO SILENCE OR TO TESTIFY, LEADING TO DETRIMENTAL OUTCOME . 715 1. U.S. Court of Appeals Cases . 715 2. U.S. District Court Cases . 715 3. State Cases . 716 F. ERRONEOUS ADVICE ON RIGHT TO JURY OR BENCH TRIAL. 719 G. INADEQUATE ADVICE ON RIGHT TO APPEAL . 720 iii

1. U.S. Court of Appeals Cases . 720 2. U.S. District Court Cases . 723 3. State Cases . 724 V. FAILURE TO COMPEL COMPLIANCE WITH PLEA AGREEMENT . 728 VI. PERFECTING APPEAL . 731 VII. VIII. A. U.S. Court of Appeals Cases . 731 B. U.S. District Court Cases . 733 C. State Cases . 741 APPEAL . 744 A. U.S. Court of Appeals Cases . 744 B. U.S. District Court Cases . 752 C. State Cases . 761 POST-CONVICTION . 792 A. U.S. Court of Appeals Cases . 792 B. U.S. District Court Cases. 795 C. State Court Cases . 808 IX. PROBATION REVOCATION . 815 X. JUVENILE HEARINGS . 817 XI. INVOLUNTARY COMMITMENT PROCEEDINGS . 820 XII. SEXUAL PREDATOR COMMITMENT PROCEEDINGS . 821 XIII. POST-TRIAL CLEMENCY (MILITARY) OR SENTENCE REVIEW (MONTANA) . 823 XIV. XV. DENIAL OF RIGHT TO COUNSEL ISSUES . 824 A. U.S. Court of Appeals Cases . 824 B. State Cases . 825 RELATED ISSUES . 830 A. U.S. Court of Appeals Cases . 830 B. U.S. District Court Cases . 832 C. State Cases . 834 iv

*Capital Cases UNITED STATES SUPREME COURT CASES Garza v. Idaho, 586 U.S. , 139 S.Ct. 738 (2019). Trial counsel performed deficiently in failing to file a notice of appeal as requested by his client even though defendant’s plea agreement contained an appeal waiver. The presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applied despite the waiver of appeal. Sexton v. Beaudreaux, 585 U.S. , 138 S.Ct. 2555 (2018) (per curiam). In murder and attempted robbery case, grant of habeas relief by Ninth Circuit Court of Appeals on claim of ineffective assistance of counsel is reversed. The petitioner had alleged that trial counsel was ineffective in failing to seek suppression of certain eyewitness identification testimony. The state habeas court had summarily denied the claim. Looking to the state court record, there was “at least one theory that could have led a fairminded jurist to conclude that the suppression motion would have failed.” It would have been reasonable to conclude that the petitioner failed to prove that the identification was not reliable under the totality of the circumstances. In analyzing the claim, the Ninth Circuit erred by essentially inverting the Richter rule. Instead of asking whether there were arguments or theories that could have supported the state court’s ruling the Ninth Circuit considered arguments against the state court’s decision that had not even been raised in the state habeas petition. Further, the Ninth Circuit failed to apply appropriate deference to the state court decision. “The Ninth Circuit essentially evaluated the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court's decision was unreasonable.” Yet this was an instance where deference to the state court should have been “near its apex” given that general rules were at issue as to both the propriety of the identification and the effectiveness of trial counsel. *McCoy v. Louisiana, 584 U.S. , 138 S. Ct. 1500 (2018). Although this is a case under the Sixth Amendment, it is not about counsel’s effectiveness, but rather about a defendant’s “[a]utonomy to decide that the objective of the defense is to assert innocence,” regardless of how reasonable an alternative strategy determined by counsel may be. 138 S. Ct. at 1508. Petitioner was arrested, tried, and convicted of the murders of his estranged wife’s mother, stepfather, and son. Throughout the proceedings, he “insistently maintained” that he was out of state at the time of the killings and that corrupt police killed the victims during a botched drug deal. Nevertheless, at trial, his attorney concluded that the evidence against petitioner was overwhelming and, over petitioner’s strong objections (he “opposed [counsel’s] assertion of his guilt at every opportunity, before and during trial, both in conference with his lawyer and in open court,” 138 S. Ct. at 1509), conceded during his opening statement at the guilt phase that petitioner had committed all three killings. His attorney believed that this concession was necessary in order to secure a sentence less than death at the penalty phase of the trial. At the penalty phase, counsel urged mercy on the basis of petitioner’s mental and emotional issues, but the jury returned three death verdicts. (Before and during trial, petitioner sought to have counsel removed, but his requests were denied. The trial court also determined that petitioner was competent to stand trial.) Post-trial, new counsel representing petitioner moved for a new trial, arguing that the trial court violated petitioner’s constitutional rights by allowing his counsel to concede guilt over petitioner’s objection. The Louisiana Supreme Court affirmed the ruling of the trial court that counsel’s concession was permissible because counsel reasonably believed that admitting guilt afforded petitioner the best U.S. SUPREME COURT CASES 1

*Capital Cases opportunity to avoid a death sentence. SCOTUS held that, under the Sixth Amendment, a defendant may insist on maintaining innocence at the guilt phase of a capital trial (just as the defendant may insist on refusing to plead guilty or on representing herself, despite overwhelming evidence of guilt or lack of legal experience). “These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.” 138 S. Ct. at 1508. Even if counsel reasonably concludes that concession of guilt is most likely to avoid the death penalty, the defendant may not share that objective, and that is the defendant’s decision to make. SCOTUS noted that the trial court had found petitioner competent to stand trial, even though counsel believed that petitioner was not competent. SCOTUS concluded that counsel had options short of conceding guilt: “If, after consultations with [counsel] concerning the management of the defense, McCoy disagreed with [counsel’s] proposal to concede McCoy committed three murders, it was not open to [counsel] to override McCoy’s objection. [Counsel] could not interfere with McCoy’s telling the jury ‘I was not the murderer,’ although counsel could, if consistent with providing effective assistance, focus his own collaboration on urging that McCoy’s mental state weighed against conviction.” 138 S. Ct. at 1509. SCOTUS also noted that counsel did not concede guilt because he believed petitioner to be perjuring himself by declaring innocence; counsel thought petitioner believed what he was saying but counsel disbelieved it, and counsel’s approach was not designed to avoid suborning perjury but rather to avoid a death sentence. SCOTUS did not apply Strickland here “[b]ecause a client’s autonomy, not counsel’s competence, is in issue.” 138 S. Ct. at 1510-11. Petitioner’s Sixth Amendment right was violated when the trial “court allowed counsel to usurp control of an issue within McCoy’s sole prerogative,” and the error was thus structural and no prejudice analysis was required. SCOTUS remanded for a new trial. *Ayestas v. Davis, 584 U.S. , 138 S.Ct. 1080 (2018). Although this is a funding case under 18 U.S.C. § 3599(f), the ineffective assistance of counsel (IAC) discussions are significant, especially with regard to the procedural default argument and Sotomayor’s concurrence. Petitioner, a Texas death row inmate in federal habeas corpus proceedings, moved for funding under 18 U.S.C. § 3599(f), which makes funds available if they are “reasonably necessary,” and the motion was denied by the district court. The United States Supreme Court held that the district and Fifth Circuit Court of Appeals applied the wrong legal standard in denying the motion for funding. Petitioner was represented by four sets of lawyers, one at trial, one on direct appeal in state court, one on state habeas, and another in federal habeas. Although some claims of IAC were raised in the state habeas petition, others, including failure to investigate petitioner’s mental illness and substance abuse, were not. (As Sotomayor’s concurrence notes, although petitioner was not diagnosed with schizophrenia until he was in prison and while his state post-conviction application was pending, trial counsel had information that petitioner had a history of head trauma as well as substance abuse, but failed to follow up on this information, as did state post-conviction counsel.) Federal habeas counsel (fourth set of lawyers) raised these latter claims in federal court; the district court denied them as barred by procedural default because they had not been raised in state court. After SCOTUS remanded for reconsideration under Martinez v. Ryan, 566 U.S. 1 (2012) and Trevino v. Thaler, 569 U.S. 413 (2013), petitioner’s counsel filed an ex parte motion in district court pursuant to 18 U.S.C. § 3599(f) for funding to investigate and develop evidence in support of his ineffective assistance of trial and state habeas counsel claims. The district court denied the motion for funding and the habeas corpus petition. With regard to funding, the district court held that, under Fifth Circuit precedent, habeas counsel was required to demonstrate “substantial need” U.S. SUPREME COURT CASES 2

*Capital Cases for investigative services, and had not done so. (The district court also ruled that the IAC claim was procedurally barred, so funding was not available to develop it.) Both the district court and the reviewing Fifth Circuit Court of Appeals refused to issue a COA on the IAC claims. SCOTUS granted review to decide if the lower courts applied the correct legal standard in denying the funding request. It first determined that it had jurisdiction to review and rule upon this issue, because, contrary to Texas’ argument, the district court’s denial of petitioner’s funding motion was a judicial rather than an administrative decision. SCOTUS then determined that the Fifth Circuit’s standard that funds are only available under § 3599(f) if the petitioner can show a “substantial need” for services is different from, and more burdensome than, the requirement set forth in §3599(f) that funds are available if the services are “reasonably necessary.” Section 3599(f) uses the term “necessary” to mean something less than essential; it calls for “a determination by the district court, in the exercise of its discretion, as to whether a reasonable attorney would regard the services as sufficiently important.” 138 S. Ct. at 1093. And after Trevino, “[i]n those cases in which funding stands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default, it may be error for a district court to refuse funding.” 138 S. Ct. at 1094. However, “[p]roper application of the ‘reasonably necessary’ standard thus requires courts to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.” Id. SCOTUS remanded the case, leaving open the question for the Fifth Circuit to consider whether funding can be reasonably necessary where a habeas petitioner seeks to present a procedurally defaulted IAC of trial counsel claim depending on facts outside the state court record. Davila v. Davis, 582 U.S. , 137 S.Ct. 2058 (2017). The ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of an ineffective assistance of appellate counsel claim. Jae Lee v. United States, 582 U.S. , 137 S.Ct. 1958 (2017). Petitioner, a lawful permanent resident who had spent 35 years in the United States after leaving South Korea with his parents when he was 13 and never returning to South Korea, established prejudice from his attorney's deficient performance in advising him to accept a guilty plea in a drug case after erroneously informing petitioner that he did not face mandatory deportation. That there was a likelihood of an increased sentence as well as deportation had petitioner gone to trial did not negate the showing of prejudice where the record established that deportation was the determinative issue in petitioner's acceptance of the plea; it would not be irrational for someone in petitioner’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation. Weaver v. Massachusetts, 582 U.S. , 137 S.Ct. 1899 (2017). A petitioner raising a claim of ineffective assistance of trial counsel for failing to object to closure of the courtroom to the public during jury selection is required to prove prejudice. For purposes of this case, the Court accepts the petitioner’s interpretation of Strickland prejudice as requiring a showing of either a reasonable probability of a different outcome in the petitioner’s case, or, that the particular public-trial violation was so serious as to render petitioner’s trial fundamentally unfair. The Court distinguishes a public-trial violation during jury selection from other errors that have been deemed structural “because they cause fundamental unfairness, either to the defendant in the specific case U.S. SUPREME COURT CASES 3

*Capital Cases or by pervasive undermining of the systemic requirements of a fair and open judicial process.” These errors include: (1) failure to give a reasonable-doubt instruction; (2) biased judge; and (3) exclusion of grand jurors based on race. Regarding claims involving allegations of race or gender discrimination in the selection of the petit jury, which have necessitated automatic reversal where preserved and raised on direct review, “this opinion does not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review.” Looking to prejudice here, the Court finds that petitioner failed to show either a reasonable probability of a more favorable result or that the trial was fundamentally unfair. *Buck v. Davis, 580 U.S. , 137 S.Ct. 759 (2017). In death penalty case out of Texas where petitioner sought to reopen federal habeas proceedings in light of Martinez and Trevino, the Fifth Circuit’s denial of a COA is reversed. First, the Fifth Circuit exceeded the limited scope of the COA analysis by essentially conducting merits review in determining that Buck was not entitled to a COA. Second, regarding petitioner’s procedurally defaulted ineffective assistance of trial counsel claim, petitioner established deficient performance by his trial attorney who introduced expert testimony at the sentencing phase that petitioner’s race predisposed him to violence. Petitioner was prejudiced by counsel’s action as there was a reasonable probability that at least one juror would have harbored a reasonable doubt about petitioner’s future dangerousness had the expert testimony not been presented. (A finding of future dangerousness by the jury was required before a sentence of death could be imposed.) Third, the district court abused its discretion in denying petitioner’s Rule 60(b) mo

innocence; counsel thought petitioner believed what he was saying but counsel disbelieved it, and counsel's approach was not designed to avoid suborning perjury but rather to avoid a death sentence. SCOTUS not apply did . Strickland. here "[b]ecause a client's autonomy, not counsel's competence, is in issue." 138 S. Ct. at 1510- 11.

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