by Attys. Kent Russell and Tara Hoveland
This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on state habeas corpus and on “AEDPA” – the federal habeas corpus law that governs habeas corpus practice in courts throughout the United States.
INEFFECTIVE ASSISTANCE OF COUNSEL (“IAC”)
#3. Evaluating and Initiating IAC Claims.
One of the major advantages of ineffective assistance of counsel (IAC) claims on habeas corpus is that they are usually the most reliable way to bring new evidence before the court that wasn’t considered when the defendant lost on trial and on direct appeal. Therefore, and because the most successful habeas corpus claims are ones which bring “something new to the table”, when I’m evaluating a potential habeas case I always consider potential IAC.
Here, in our third in a series of columns on IAC, are some “Habeas Hints” to help you decide whether your case contains the key elements necessary to support an IAC claim: “deficient performance (serious attorney error)” and “prejudice” (so what?).
1. Make up a “Working List” of trial counsel’s most important errors, rather than a laundry list of every complaint you can think of.
It’s natural after you’ve lost at trial and on appeal to look back with a critical eye on your lawyer’s performance, and to think of all the things that trial counsel could have done or not done to achieve a better result. However, making a “laundry list” of all conceivable errors your lawyer may have made is not very useful, because in doing that you are likely to lose sight of the forest for the trees.
Anytime a trial defense is unsuccessful, there are going to be things that went wrong, but they are not of equal importance. For example, the failure to call a witness whose testimony was crucial to establishing an alibi is a much bigger error than failing to call a witness whose testimony merely corroborated the testimony of other witnesses. I could give other examples, but the point it this: For an IAC claim to be viable, the trial lawyer’s errors and omissions have to have had a critical impact on the outcome of the case.
To determine what’s critical and what’s not, it’s not necessary to re-read every word in the transcript, but it is necessary to review the whole record sufficiently to get a handle on the “big picture”. The goal is to use that review to make a “Working List” of the most important ways in which counsel may have been ineffective and to then narrow that down to a final “Hit List” the most potentially viable IAC claims. Here are some suggestions for how to make up your Working List.
· Ask yourself what are the one or two major errors you believe your trial attorney made in defending you. Start your working list with those.
· Review the transcript of the final arguments. Identify the principal arguments the prosecution made to convince the jury to vote “guilty”, and then look at the comeback to those arguments by the defense. To the extent that your lawyer’s rebuttal to a key prosecution argument was non-existent or especially weak, that item goes on your Working List.
· Review the Opinion of the Court of Appeal denying relief on direct appeal and note the most important items of evidence that the court is relying on to establish your guilt. It’s easy to do this where the court recounts the evidence that the court found “substantial” enough to support the jury’s verdict. Alternatively, look to any findings by the appellate court made to support a determination that, although error may have occurred, it was “not prejudicial” because of other, stronger evidence that supports the conviction. If your lawyer did not make a reasonable attempt to deal with that “bad” evidence, that failure goes on your working list.
· If there was a motion for new trial made, review that motion and see if it contains any criticisms of the trial lawyer’s performance. If so, put those critiques on your Working List.
2. Narrow down your Working List to a “Hit List” by eliminating anything trial counsel did or didn’t do because of trial strategy.
The IAC cases uniformly hold that, when a lawyer makes a reasonable “strategic” or “tactical” decision that goes wrong, that does not constitute the deficient performance necessary to support an IAC claim. For example, where the trial lawyer decides not to call a potentially helpful expert witness because of a specific concern that the expert could be impeached on cross-examination, that decision cannot be found to be deficient performance even if, in hindsight, it would have been better to call the expert and run the risk. Therefore, for every potential error on your Working List, do the following to determine whether there was any reasonable trial strategy that led to the error; if so, remove it from your Working List.
· If the record doesn’t suggest a tactical basis for any errors on your working list, and you don’t recall the lawyer providing any to you, write a letter to trial counsel and ask him or her to tell you whether there was a strategy involved, and if so what it was. If he provides one, take that error off your Working List.
· Focus on the initial investigation rather than what the lawyer decided to do at trial, after it was too late to do any more investigation. Every lawyer is required to do a competent pre-trial investigation to determine what strategy to use at trial. Only when that process is completed is it reasonable for the lawyer to develop a strategic plan for the trial. Therefore, if the lawyer comes up with a strategic rationale that was formulated in the wake of an inadequate investigation, the error which resulted should remain on your list.
3. Only leave on your Hit List claims that will be able to overcome the “presumption” that your lawyer was not ineffective.
If you’ve done all of the above, you will have a “Hit List” of IAC claims that have some real potential. That’s a good start, but now the real heavy lifting begins.
Surmounting Strickland's high bar is never an easy task. Even under state court review, the standard for judging counsel's representation is very demanding. When you present an IAC claim on state habeas corpus, the court will “deferentially” examine the two prongs of Strickland. We call this “Strickland deference”, and it means that you have to overcome some challenging presumptions.
First, the court will presume that your attorney’s conduct falls within the wide range of reasonable professional assistance and that his/her actions can be explained as a matter of sound trial strategy. The question is whether an attorney's representation amounted to incompetence under “prevailing professional norms,” not merely whether it deviated from best practices or most common custom.
Second, the court will presume that the alleged deficient performance did not make a difference in the outcome. It is not enough to show that the errors had some “conceivable” effect on the outcome of the proceeding. Counsel's errors must be “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.”
The burden is on you to overcome these presumptions by demonstrating that it is more likely than not that no reasonable lawyer would have failed to do the things your counsel failed to do; and that it is “reasonably probable” that at least one juror would have not found you guilty had your attorney not made the error. See our earlier columns in this IAC series for hints on how to best deconstruct Strickland’s requirements of deficient performance and prejudice and try to satisfy them despite the deference that the court will extend to what trial counsel did and didn’t do. Once again, our major recommendation is to focus on trial counsel’s duty to adequately investigate the case and/or theories of defense before deciding on strategy. Some specific examples are where: (1) counsel fails to locate and interview percipient witnesses to the crime or alibi; (2) counsel fails to obtain copies of the victim’s medical examination records and/or retain an independent medical expert; or (3) counsel fails to investigate potentially exculpatory evidence.
The reason IAC claims like these can be successful is that they hit both prongs of Strickland. First, defense attorneys generally have a duty to perform these tasks in order to provide effective representation under prevailing professional standards. Except in rare cases, there generally is no conceivable tactical reason not to do the tasks outlined above. Consequently, the failure to fulfill these basic duties can constitute deficient performance. Second, where you can show that had these tasks been done, specific favorable evidence would have been uncovered, it is not a great leap to show that had the jury been aware of the favorable evidence, at least one juror would have not voted for guilt.
4. Give 100% effort to presenting your IAC claims on state habeas, because it gets even tougher to win IAC claims in federal court.
Strickland deference + AEDPA deference = Double Trouble.
Difficult as it is to win an IAC claim on state habeas, establishing that a state court's denial of a Strickland claim was unreasonable in federal court under AEDPA is even more challenging. The standards created by Strickland and § 2254(d) of AEDPA are each “highly deferential”, and a federal habeas court applies both Strickland deference + “AEDPA deference” -- meaning that federal review is “doubly deferential” under 28 U.S.C. § 2254(d). In other words, to win on an IAC claim in federal court, you must not only demonstrate an especially strong case under Strickland, but you must also show that the state court’s denial of relief under the Strickland standard was so unreasonable that “there is no possibility fair-minded jurists could disagree” with that denial.
Admittedly, this IAC showing that you need to make in federal court is extremely daunting, and success is very rare. But it can be done. Below are two cases illustrating how the “doubly deferential” standard in federal court was applied to an IAC claim for failure to adequately investigate. The first case was lost under the doubly deferential standard, but the second case was won.
In the first case, the United States Supreme Court reversed a lower court ruling that the trial attorney rendered constitutionally deficient performance because he did not consult blood evidence experts in developing the basic strategy for the defense. The Supreme Court held that, because Strickland permits counsel to “make a reasonable decision that makes particular investigations unnecessary,” it was well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts. As to prejudice, SCOTUS held that, because the favorable expert testimony the defense could have introduced would have established nothing more than a “theoretical” possibility of a different result, it would not have been unreasonable to deny the claim on that basis.
In the second case, Browning v. Baker, 875 F.3d 444, 471-72 (9th Cir. 2017), the Ninth Circuit held that trial counsel’s failure to investigate the source of bloody footprints because he was unnecessarily afraid the results would undermine his defense. That, plus counsel’s failure to have his investigator interview significant witnesses, constituted deficient performance under Strickland, and the state court’s “deference” to the trial attorney’s reasons for these failures was unreasonable under the AEDPA. As to prejudice, the Court held that, had the attorney obtained and offered the evidence, there was a strong possibility that at least one juror would have harbored reasonable doubt (overcoming Strickland deference). Therefore, and because the defendant would have substantially benefitted from that evidence, it was objectively unreasonable for the state court to have denied the IAC claim, notwithstanding the “double deference” requirement in federal court.
Use these “Habeas Hints” to evaluate your case for potential IAC; and, where it exists, to make up a Hit List that will contain IAC claims that have some real potential for success on habeas corpus. If your family can afford to hire private counsel specializing in habeas corpus, presenting your Hit List to the lawyer is a good way to persuade him or her to take your case. Alternatively, if you can’t afford a lawyer, use your Hit List as the blueprint for alleging IAC in your own habeas corpus petition. No matter what, start your IAC evaluation early enough in the process to allow you ample time to conscientiously present a solid IAC claim on state habeas, where it stands a better chance for success than in federal court.
Law partners Kent A. Russell and Tara K. Hoveland specialize in habeas corpus. Kent has practiced criminal law for over 45 years, has consistently received Martindale-Hubbell’s highest rating for excellence and legal ethics, and is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus, parole, and other post-conviction remedies. Tara, who has 25+ years of criminal law experience and is a certified specialist in appellate law, is a contributing editor for the Handbook and is admitted both in CA and AZ. To buy the California Habeas Handbook, you can either order it on-line at www.habeashandbook.com, or you can take advantage of the mail order discount by sending a $79 check directly to Kent Russell, “CHH”, 3169 Washington Street, San Francisco, CA 94115.