Summaries Of Published Successful Ineffective Assistance Of Counsel .

*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.