Brief for the United States — United States v. Cronic

SOM WME OF CRESIORAR! TO THE UNITED STARE

COURT OF APPEALS FOR THE TENTZ

—

BRIEF FOR THE UNITED STATES

QUESTION PRESENTED

Whether the court of appeals correctly reversed re-

spondent’s convictions on the ground that he did not re-

ceive effective assistance of counsel at trial, without iden-

tifying any error by counsel—much less a serious der-

eliction that fell outside the range of competence de-

manded of attorneys in criminal cases—and without find-

ing any prejudice to respondent.

(1)

TABLE OF CONTENTS

Summary of argument 3

Argument:

The court of appeals erred in vacating respondent's

convictions on the ground of ineffective assistance of

counsel, because the court did not find that counsel’s

actual performance was deficient in any respect

A. No claim of ineffective assistance of counsel

should be entertained unless serious derelictions

by counsel are shown that substantially prej-

r .

B. The origins and evolution of the right to “effec-

tive” assistance of counsel confirm the soundness

of requiring a showing of serious error and sub-

stantial prejudice or unfairness ......................

1. The explicit textual guarantee

2. Use of the term “effective” to connote an im-

plicit requirement that counsel be free from

8. Use of the term “effective” to refer to the

nature of counsel’s performance without re-

gard to external restraints

C. The circumstances relied upon by the court of

appeals do not support its finding of ineffective-

no %% — —

10

15

16

IV

Argument—Continued : Page

2. Counsel’s inexperience did not justify a find-

ing of ineffectiveness s 39

3. The finding of ineffectiveness was not justi-

fied by the compler ty of the cases 41

4. The gravity of the charges does not justify

the finding of in effectiveness 43

5. The location of witnesses has not been shown

to have impaired the effectiveness of re-

spondent’s trial counsel __..... „ 44

D. The court of appeals erred in believing it would

be inappropriate to require a showing of specific

,,, . ee see wee eS 44

Conclusion PPT 47

RSE RETNA RSE RRA SS erate eee ee la

r Are. cle (( 3a

/ e / . 7a

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 25 00. 26, 43

Avery v. Alabama, 308 U.S. 444 13, 28, 36, 37, 43

Brooks v. Tennessee, 406 U.S. 605 28-29

Chambers v. Maroney, 399 U.S. 42 13, 16, 28, 35, 36,

37-38, 40

Chandler v. Fretag, 348 U.S. _........... — 28

Cooper v. Fitzharris, 586 F. 2d 132 22

Cuyler v. Sullivan, 446 U.S. 388 24, 27, 30, 34

Daniels v. Maggio, 669 F.2d 1075, cert. denied, No.

81-6858 (Nov. 1, 1982) 39

Dyer v. Crisp, 618 F.2d 275, cert. denied, 445 US.

Engle v. ‘Ienae, 426 U.S. 107 — cee 18, 19, 21, 28

Estelle v. Williamea, 425 U.S. 501 18. 19, 23

FTC Vv. Grolier, Inc., No. 82-872 (June 6 1068) 19

Cases—Continued : Page

Faretta v. California, 422 U.S. 8066 22, 23, 25, 26

Ferguson v. Georgia, 365 U.S. 5710o 29

Geders v. United States, 425 U.S. 80 12, 28, 30

Gideon v. Wainwright, 372 U.S. 335 12, 26, 30

Glasser v. United States, 315 U.S. 00 12, 29, 34

Harris v. Housewright, 697 F.2d 202 39

Bewk, Bz parte, 321 U.S. 116 28

Henry v. Mississippi, 379 U.S. 44433 * 23

Herring v. New York, 422 U.S. 8883838383 28

Hickman v. Taylor, 329 U.S. 499 — 19

Holloway v. Arkansas, 435 U.S. 475 1 30

House v. Mayo, 324 U.S. 42 28

Johnson v. Zerbst, 304 U.S. 458 e 26

Jones v. Barnes, No. 81-1794 (July 8. 1983) — 18,2

Mancusi v. Stubbs, 408 U.S. 204 =o 36

Mathews v. Eldridge, 424 U.S. 319 a a a 23

Matthews v. United States, 518 F.2d 12435 11, 24

McMann v. Richardson, 397 U.S. 759. 12, 13. 16, 23, 25,

31, 32, 34, 35

Michel v. Louisiana, 350 U.S. 91 24, 32

Morris v. Slappy, No. 81-1095 (Apr. 20, 1983) 17, 28, 35,

36, 38, 45, 46

Oklahoma Bar Ass'n v. Denney, 617 P.2d 1351 b 20

Parker v. North Carolina, 397 U.S. 790 32

Pereira v. United States, 347 U.S. 0000. 42

Polk County v. Dodson, 454 F.2d 312 19, 28, 24, 27

Powell v. Alabama, 287 U.S. 45 11. 18, 15, 26, 28,

29, 30, 33, 46

Reece v. Georgia, 360 U.S. 86 2... eneeeenneeeee 28, 32

Romero v. United States, No. 81-6463 (Oct. 12,

1982) . He 7 33

Schweiker v. McClure, 456 US. 188 are 23.24

Scott v. Illinois, 440 U.S. 367 e 26

Smotherman v. Beto, 276 F. Supp. 579 | ae 39

State ex rel. Oklahoma Bar Ass'n v Bel’, 637 P.2d

ES i ES Eee ae appar A 20

State ex rel. Oklahoma Bar Ass'n v. Peveto, 620

. ˙ ee ae ee 20

State ex rel. Oklahoma Bar Ass'n . Raskin 642

4«ł? T 20

Tinlin v. Parratt, 680 F.2d — —— 24

Cases—Continued : Page

Tollett v. Henderson, 411 U.S. 258 32

Ungar v. Sarafite, 376 U.S. 5785 — = 20% 28

United States v. Agurs, 427 U.S. 977 18, 21, 22

United States v. Aulet, 318 F.2d 182 41

United States v. Aviles, 623 F.2d 1192 37

United States v. Badolato, 701 F.2d vis mali 39, 40

United States v. Badwan, 624 F.2d 1228, cert. de-

OE aS ae SES 38

United States v. Barham, 666 F.2d 521, cert. de-

ES ES RE Lr 40

United States v. Berkwitt, 619 F.2d 649 38

United States v. Black, 684 F.2d 481, cert. denied,

No. 82-5600 (Nov. 29, 1982))) 37

United States v. Brooks, 697 F.2d 517 37

United States v. Decoster, 624 F.2d 196, cert. de-

nied, 444 U.S. 944 19, 22, 27, 33, 34, 47

United States v. Easter, 539 F.2d 663, cert. denied,

A A ee a SERRE 39

United States v. Frady, 456 U.S. 152 21

United States v. Frankenberry, 696 F.2d 239, cert.

denied, No. 82-6256 (June 27, 1983) 40

United States v. Golub, 638 F.2d 185 9, 41, 42

United States v. Gonzales-Palma, 645 F.2d 844,

ren necccncncncncccecseccnnrceesses 38

United States v. Gray, 611 F.2d 194, cert. denied,

NE xxx 41

United States v. Green, 680 F. 2d 183, cert. denied,

No. 82-5552 (Feb. 22, 198)))))):e 22

United States v. Hastings, No. 81-1463 (May 23,

Re TET ee ore me 18, 20, 34

United States v. King, 664 F.2d 1171 8, 9, 41, 43, 44

United States v. Lurz, 666 F.2d 69, cert. =

r ere W 40

United States v. Maze, 414 U.S. 395 42

United States v. McDonald, 672 F.2d 864... 38

United States v. Mers, 701 F.2d 18112 87

United States v. Morgan, 318 U.S. 40ͥ0ÜĩʒB¹v 24

United States v. Morrison, 449 U.S. 361 10, 20, 26, 84

41

vil

Cases—Continued : ; Page

United States v. Phillips, 664 F.2d 971, cert. de-

, 4041

United States v. Rodriguez-Ramos, 704 F.2d 17,

petition for cert. pending, No. 82-1837 77 38

United States v. Schwanke, 598 F.2d 57ũ 8558 38

United States v. Strum, 671 F.2d 749, cert. denied,

No. 81-6689 (Oct. 4, 198257 3 40

United States v. Valenzuela-Bernal, No. 81-450

EE 22, 46

United States v. Wight, 176 F.2d 376, cert. denied,

EES EE TE es a ee 32

United States v. Wooten, 688 F. 2d 941 8 reer 37

United States v. Wuagneuz, 683 F. 2d 1343, petition

for cert. pending, No. 82-168ù m 38

United States ex rel. Williams v. Twomey, 510 F. 2d

634, cert. denied, 423 U.S. 8788888 39

Upjohn Co. v. United States, 449 U.S. 383 19

Von Moltke v. Gillies, 332 U.S. 7000 29

Wainwright v. Sykes, 433 U.S. 72 18, 19, 21, 23

Washington v. Strickland, 693 F.2d 1243, cert.

granted, No. 82-1554 (June 6, 1983) 22, 24, 33, 43, 47

Washington v. Watkins, 655 F.2d 1346, cert. de-

ES .... 43

. ee 28

Youngberg v. Romeo, 457 U.S. 37 24, 31

Constitution, statutes and rules:

Z . passim

Criminal Justice Act, 18 U.S.C. (& Supp. V)

30064 — · . ˙ 23

Speedy Trial Act Amendments of 1979, Pub. L. No.

96-43, 93 Stat. 327, 18 U.S.C. (Supp. V) 3161

et seq.:

Section 2, 93 Stat. 327 (18 U.S.C. (Supp. V)

r Mp eee 37

Section 5 (e), 93 Stat. 328 (18 U.S.C. (Supp.

V 3161 (h) (8) (B) (vv ůh 37

i ee 2

Zr 2, 43

r. 2

28 U.S.C. 2255 16, 40, 41

Vill

Constitution, statutes and rules—Continued : Page

Okla. Stat. Ann. tit. 5, ch. 1 App. 3 (West Cum.

TTT 24

Fed. R. Crim. P.:

r 7, 11, 21, 40

r / 11, 20

/ ene 20

Miscellaneous:

Bines, Remedying Ineffective Representation in

Criminal Cases: Departures From Habeas Cor-

pus, 59 Va. L. Rev. 927 (1973)))))))))jj iy

Burger, The Special Skills of Advocacy: Are Spe-

cialized Training and Certification of Advocates

Essential to Our System of Justice? 42 Fordham

F zu

S. Krantz, Right to Counsel in Criminal Cases

r 27

Model Code of Professional Responsibility (1978):

E — 24

EE TE RPS Ce ES 41

LS .. ˙ 24

8 J. Moore, W. Taggart & J. Wicker, Moore's Fed-

eral Practice 33.03 [1] (2d ed. 19827 21

Note, A Functional Analysis of the Effective As-

sistance of Counsel, 80 Colum. L. Rev. 1053

1 19

A. Partridge, Legislative History of Title I of the

Speedy Trial Act of 1974 (Fed. Judicial Center

„% 7 37

Project on Standards for Criminal Justice, Stand-

ards Relating to Providing Defense Services

(Approved Draft 1968):

ST —ꝛ— K | 39, 41

. 41

I on. cis hiccnincenicnnbitiiadiibaiianssspese 39

Schwarzer, Dealing With Incompetent Counsel—

The Tria) Judge's Role, 93 Harv. L. Rev. 633

(1980) 19

Webster's Third New International "Dictionary

(4th ed. 1976) 17, 28

In the Supreme Court of the United States

OcTOBER TERM, 1983

No. 82-660

UNITED STATES OF AMERICA, PETITIONER

*.

HARRISON P. CRONIC

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-7a

is reported at 675 F.2d 1126.

JURISDICTION

The judgment of the court of appeals (Pet. App. 8a)

was entered on April 19, 1982. A petition for rehearing

was denied on July 16, 1982 (Pet. App. 9a). On Septem-

ber 9, 1982, Justice White extended the time within which

to file a petition for a writ of certiorari to and including

October 14, 1982. The petition was filed on that date and

granted on February 22, 1983 (J.A. 123). The jurisdic-

tion of this Court rests upon 28 U.S.C. 1254(1).

(1)

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Constitu-

tion provides in pertinent part:

In all criminal prosecutions, the accused shall en-

joy the right * * * to have the Assistance of Counsel

for his defence.

STATEMENT

1. On February 5, 1980, respondent and co-defendants

Wylie Merritt and Carolyn Cummings were indicted in

the United States District Court for the Western District

of Oklahoma on 13 counts of mail fraud in violation of

18 U.S.C. 1341 and 2.“ The indictment charged that re-

spondent and the co-defendants had engaged in a check-

kiting scheme between banks in Tampa, Florida and Nor-

man, Oklahoma. The checks were drawn on the accounts

of Skyproof Manufacturing, Inc., a Florida corporation

that was held out as a manufacturer of roof trusses for

mobile homes Pet. App. la-2a; J. A. 10-23).

Respondent and Cummings initially were represented

by a single attorney, Arnold D. Levine of Tampa, Flor-

ida. Prior to trial, however, Levine moved to withdraw

as counsel for respondent on the ground that the interests

of Cummings and respondent were in conflict. Respondent

filed a pro se opposition to the motion to withdraw. After

the motion was filed, the court appointed another attor-

ney, Chris Colston, to represent respondent, subject to the

possibility of relieving Colston if the court declined to

grant Levine’s motion to withdraw (J.A. 24-27).

At a hearing on the motion to withdraw, held on June

19, 1980, respondent attempted to establish that Levine

actually sought to withdraw because of a dispute over

1 The court of appeals’ opinion erroneously states that respondent

was indicted for mail fraud and unlawful use of a fictitious name

in violation of 1341 and 1342 (Pet. App. la), apparently substi-

tuting 18 U.S.C. 1342 for 18 U.S.C. 2, the aiding and abetting

statute. We made the same error in the certiorari petition (Pet. 2).

fees (J. A. 27-31). After the hearing had progressed for

a short period, the court concluded that there was indeed

a conflict of interest and hostility between respondent on

the one hand and Levine and Cummings on the other, and

it therefore granted Levine’s motion to withdraw (J. A.

31-32).

The trial previously had been scheduled to bem” n

June 30, 1980, some 11 days after the hearing

32-33). At the hearing, however, respondent informed the

court of his view that he could not receive a fair defense

if Colston were given only “one or two weeks to prepare”

for trial (J. A. 33). Levine told the court that Colston

would need 30 days to prepare J. A. 35), and Colston

requested that a minimum of 30 days be allowed (J. A.

35). The court granted a continuance, but decided to

eut the continuance “a few days short” of the 30 days

requested by Colston so that the trial would commence

on the first day of the court’s July docket J. A. 35). The

record does not disclose that Colston or respondent there-

raised any further objection to the July 14 trial

which

b

f

i

i

4

in the district who were qualified and screened for this

purpose (J. A. 38).

2.a. When the trial commenced as scheduled on July

14, 1980, the court asked Colston whether respondent was

“ready,” and Colston said “yes” (Tr. 3). Another attor-

ney, Ryland Rivas, was present to assist Colston in his

representation of respondent at trial (Tr. 2).

The government introduced evidence establishing the

existence of the check-kiting scheme between Skyproof ac

counts in banks in Tampa and Norman, with the checks

cleared by the use of the mails through intermediate

banks J. A. 44-46, 48-52, 58-59, 62-64; Tr. 110-113, 114-

130, 134-148, 150-151, 152-160, 167-184, 227-255, 261-

283, 323-324). As a result of these transactions, the

Norman Bank of Commerce suffered a loss of approxi-

mately $484,000 (J. A. 51; Tr. 176, 300, 448). The checks

were signed by co-defendant Cummings, who was for-

mally the president of Skyproof, but the evidence showed

that respondent directed the affairs of Skyproof (J.A.

49-50, 68, 73; Tr. 169-172, 186, 223-224, 304-307, 318,

320, 340-343). Respondent had not been identified as an

officer or owner of the company because of prior difficul-

ties with the Internal Revenue Service and unfavorable

publicity about prior business dealings (Tr. 475). Cum-

mings testified that although she was president of Sky-

proof, respondent directed its affairs, conceived of the

check-kiting scheme, and instructed her to sign checks

(J. A. 83-84; Tr. 479-488, 491-492, 494-496, 505, 508, 510-

512). Co-defendant Wylie Merritt, an accountant resid-

ing in Norman who participated in some of the transac-

tions, also testified that respondent was the true head of

Skyproof and had directed its affairs (Tr. 365, 368, 370,

373, 382, 389, 392, 394-395) .*

b. Colston’s trial strategy, as the court of appeals ob-

served, consisted in large part of “putting the govern-

2 Cummings pleaded guilty to three counts of the indictment prior

to trial (J. A. 87), and the government agreed to dismiss the

indictment against Merritt if he testified truthfully at trial

(JA 77-78).

ment to its proofs, pointing an accusatory finger at one

of the allegedly defrauded banks, and arguing that the

bank’s toleration of overdrafts was an informa! extension

of credit to a legitimate business” (Pet. App. 2a). Col-

ston’s questions to employees of the Norman Bank of

Commerce suggested that, because the bank’s lending ca-

pability was based upon the total amount of deposits on

its books, the Bank had condoned the deposit of over-

drafts that it believed would be made good later (J.A.

66-67 ; Tr. 443).

In an effort to disassociate respondent from both the

check-kiting transactions and the business entity used in

perpetrating the fraud, Colston, during cross-examination,

elicited testimony that Cummings had executed the checks,

that the officials of the banks involved had never heard of

respondent, and that Cummings, not respondent, was the

president and sole stockholder of Skyproof J. A. 46-47,

53-56, 61-62, 65, 68, 73-74, 77, 80; Tr. 108, 204-206).

Colston also sought to establish that although the indict-

ment alleged that Skyproof was merely a sham, the cor-

poration in fact was a legitimate and growing business

concern and thus would have had a lawfu! reason to con-

duct a large volume of transactions by check (J.A. 70-71,

79, 87). In addition, although bank employees testified

on direct examination that in the normal course of busi-

ness checks were transmitted by express mail to clearing-

houses for collection, those employees admitted on cross-

examination by Colston that they had no personal know!l-

edye that the specific overdrafts at issue in this case ac-

tually were sent through the mails (J.A. 47-48; Tr. 149-

150, 151-152, 160-162). Finally, Colston’s questioning of

the government’s principal witnesses, co-defendants Mer-

ritt and Cummings, established that both would derive

that the government had failed to establish any case

against respondent. The district court denied the motion,

concluding that the evidence presented a question for the

jury (J.A. 94). The court previously had granted re-

spondent’s motion to subpoena seven witnesses, and the

record indicates that at least some of those witnesses

were present at the time of trial J. A. 97). Colston

informed the court, however, that the defense would not

call any witness J. A. 94). During this conference

with the judge, the following colloquy occurred regarding

Colston’s performance (J.A. 94-95) :

THE COURT: : * This young man, Colston,

I think, has done a tremendous job representing you.

[RESPONDENT]: I agree, certainly agree.

THE COURT: You acted at one time that you

weren't happy, but that was earlier when you hadn’t

seen him in action.

[RESPONDENT]: I am certainly glad you over-

ruled me.

THE COURT: He’s a very fine young lawyer

and this other young man over there too.

The court then explained to respondent that he had the

right to testify or not to testify, that if he did testify he

would be subject to cross-examination on the basis of a

prior conviction in Tampa for giving a false statement

to a bank, and that he was entitled to have the jury in-

structed that no adverse inference should be drawn from

his failure to testify J. A. 95-97). Respondent stated

that he would defer to counsel on whether the instruction

should be given (J. A. 95) and agreed that it should be.

After discussing the possible use of the prior conviction,

the court determined that respondent’s decision not to

take the stand was made intelligently, with knowledge of

all the options J. A. 96-97). immediately thereafter, a

further exchange occurred regarding the performance of

defense counsel (J. A. 97):

7

work they have done and he wanted to make it a

part of the record.

[RESPONDENT]: I would also like to state the

reason I went up to Mr. Colston's office yesterday

was so that Mr. Emery, his senior law partner,

would know that before I either won or lost.

After Colston expressed his satisfaction with the jury in-

structions, the court similarly stated to Colston and co-

counsel Rivas J. A. 104):

Well, boys, I want to tell you again I appreciate

you two, you know, this guy couldn’t have got a

better representation if he had hired someone in

Florida or Oklahoma City or anyplace else and I ap-

preciate it.

After deliberating for 244 hours, the jury returned a

verdict of guilty on 11 counts and not guilty on two

counts (Tr. 601).° On August 28, 1980, respondent was

sentenced to a total of 25 years’ imprisonment and a fine

of $11,000 Pet. App. 2a; J. A. 5).

3. The court of appeals reversed respondent’s convic-

tions on the ground that he was denied the effective as-

sistance of counsel! at trial (Pet. App. 2a). The court did

so even though the district court had not conducted an

evidentiary hearing or made factual findings concerning

the effectiveness of counsel.‘ Nor did the court of appeals

After the court accepted the verdict, it briefly discussed the

procedure regarding sentencing, observing that respondent could

address the court personally and that his “very able lawyers”

could speak for him as well (Tr. 603).

On March 11, 1981, while the appeal was pending and more

than six months after the judgment of conviction was entered,

8

find it significant that, as the government contended,

there had been no showing that respondent’s counsel had

failed to exercise “ ‘the skill, judgment and diligence of a

reasonably competent defense attorney — the standard

utilized by the Tenth Circuit for evaluating claims of in-

effective assistance of counsel] (id. at 3a, quoting Dyer v.

Crisp, 613 F.2d 275, 278 (en banc), cert. denied, 445 U.S.

945 (1980)). The court explained that under its prior

decisions, when circumstances hamper a given lawyer's

preparation of [the case], the defendant need not show

specified errors in the conduct of his defense in order to

show ineffective assistance of counsel” (Pet. App. 3a).

The court of appeals instead “inferred” that counsel's

representation was inadequate by relying on five “cir-

cumstances” (Pet. App. 4a) :

(1) the time afforded for investigation and prepara-

tion; (2) the experience of counsel; (3) the gravity

of the charge; (4) the complexity of possible de-

fenses; and (5) the accessibility of witnesses to

counsel.

The court of appeals did not independently assess the de-

gree to which these factors actually indicated that defense

counsel’s performance in this case was seriously deficient;

it simply compared the circumstances of this case with

those of United States v. King, 664 F.2d 1171 (10th Cir.

1981), in which it likewise had “inferred” that the de-

fendant had received ineffective assistance of counsel, and

concluded that the same result should obtain here.

The court observed, for example, that Colston had 25

days to prepare for trial of a case that the government

had developed over a 4½ - year period, as compared with

the 27 days available for preparation of a defense to the

tax fraud charge in King that the government developed

over a 3-year period. The court also noted that 1 spond-

but it did not rely on any of the allegations or materials in the mo-

tion in holding that respondent had received ineffective assistance

of counsel.

N

Pa

iv

9

ent faced a sentence of up to 65 years’ imprisonment and

actually was sentenced to 25 years, while in King the de-

fendant faced a maximum sentence of only five years.

The court of appeals further noted that while it had not

discussed in King the matter of the accessibility of wit-

nesses to counsel, here—although no defense witnesses

testified at trial—the government’s witnesses came from

four states (Pet. App. 4a-5a). In addition, the court

noted that respondent lived in Florida and Georgia and

his lawyer lived in Oklahoma (id. at 5a).

The court did perceive a material distinction between

this case and King in that the latter was more complex,

involving approximately 200 witnesses and 5000 exhibits,

as compared with 17 witnesses and 50 exhibits in this

case (Pet. App. 2a, 5a). Nevertheless, the court observed

that “[respondent’s} case was not an ideal one for an

aspiring criminal defense lawyer to cut his teeth on”

(ibid.) because, in the court’s view. mail fraud cases

tend to be factually and legally complex (ibid., quoting

United States v. Golub, 638 F.2d 185, 188 (10th Cir.

1980)). Finally, the court reasoned that if this case in-

deed was simpler than King, that advantage was offset

by Colston’s lack of experience in criminal trials (Pet.

App. 5a).

4. The government filed a petition for rehearing with

suggestion for rehearing en banc, noting that the claim

of ineffective assistance of counsel had been raised for the

first time on appeal and arguing, inter alia, that the

claim should not be upheld without an evidentiary hear-

ing. Pet. for Reh. 1-2. The government also pointed out

(id. at 7-8) that Colston was assisted in his representa-

tion of respondent by another attorney, Ryland Rivas. In

an affidavit appended to the government’s petition for

rehearing, Rivas stated that he had been admitted to

practice in 1974 and that prior to 1980, the date of re-

spondent’s trial, he had had “extensive experience in the

practice of criminal law and * * * had tried jury cases

ranging from escape from the penitentiary to murder in

10

the Ist degree” App. infra, la). Rivas also stated that

he “assisted Mr. Chris Colston in his preparation of de-

fense for [respondent] and was present during all stages

in the proceedings to assist Mr. Colston with the prepara-

tion and drafting of motions, examination of witnesses

and examination of all evidence available to Mr. Colston”

(ibid.

The government's petition for rehearing and suggestion

of rehearing en banc were denied Pet. App. 9a).

SUMMARY OF ARGUMENT

The court of appeals erred in reversing respondent’s

convictions on the ground that he received ineffective as-

sistance of counsel, without finding that counsel com-

mitted any errors whatever or that respondent was prej-

udiced in any way by his attorney’s representation.

A. A final judgment of conviction entered after a

criminal trial at which the resources of society were con-

centrated to decide the guilt or innocence of the accused

should not lightly be set aside on the basis of a subse-

quent trial of his lawyer’s performance. The focus of

the inquiry, rather, must be on whether the accused re-

ceived a fair trial in light of the assistance rendered by

counsel. Accordingly, where, as here, counsel was unfet-

tered by improper external restraints, a court may not

set aside a conviction on the basis of assertedly ineffec-

tive assistance of counsel unless it finds that counsel com-

mitted serious errors that substantially prejudiced the

accused or fundamentally undermined the fairness of the

proceedings. There are other measures available to legis-

latures, courts, law schools, and the organized bar to im-

prove the quality of performance by defense counsel.

That is not, however, the principal concern of a court

considering the validity of a final judgment of conviction.

Unless asserted defects in counsel’s performance actually

had an “impact on the criminal proceeding, * * * there is

no basis for imposing a remedy in that

United States v. Morrison, 449 U.S. 361, 365 (1981).

11

There are, moreover, a number of mechanisms other

than the Sixth Amendment for correcting serious errors

that were overlooked in 2 criminal trial. Under Fed. R.

Crim. P. 52(b), plain errors may be noticed on appeal

even if counsel overlooked them at trial, and a new trial

may be granted under Fed. R. Crim. P. 33 on the basis

of newly discovered evidence. The Court also has made

clear that victims of a fundamenta! miscarriage of jus-

tice ordinarily will be able to satisfy the “cause and

prejudice” standard for overcoming a procedural default.

In order to avoid circumvention of the standards govern-

ing the correction of error by these other mechanisms, a

convicted defendant seeking relief on the ground of in-

effective assistance of counsel must identify errors by

his attorney that were at least as grave as the substan-

tive errors that would warrant setting aside a conviction

under those standards.

This conclusion is supported by a proper respect for

the integrity of trial courts charged with the obligation

to assure the availability of adequate assistance of coun-

sel for defendants. In addition, the lawyer for the ac-

cused is an officer of the court who is ethically bound

competently and zealously to advance the interests of his

client, and a reviewing court must “start with a pre-

sumption that he was conscious of his duties to his

clients and that he sought conscientiously to discharge

those duties.” Matthews v. United States, 518 F.2d 1245,

1246 (7th Cir. 1975) (Stevens, J.)

B. The evolution of the right to “effective” assistance

of counsel confirms that a defendant must demonstrate

serious error and substantial prejudice or unfairness.

The concept of “effective” assistance finds it origins in

Powell v. Alabama, 287 U.S. 45 (1932), in which the

Court held that the duty to assign counsel was not dis-

charged by appointment of an attorney so late in the case

as to preclude the giving of effective aid in preparation

and at trial. The Court since has held that other exter-

12

nal restraints on the ability of counsel to perform in his

traditional role are invalid under the Sixth Amendment

because they prevent the attorney from rendering “effec-

tive assistance. See, e.g., Glasser v. United States, 315

U.S. 60 (1942) (conflict of interest); Geders v. United

States, 425 U.S. 80 (1976) (prohibition against consul-

tation with defendant during overnight recess). The

Court has treated these cases as involving the functional

equivalent of a total denial of the right to counsel, and

it accordingly has reversed the convictions without re-

quiring any specific showing of what the attorney would

have done if he had been free of the external restraint or

the degree to which the accused was prejudiced as a re-

sult, just as it did in the case of a total denial of counsel

in Gideon v. Wainwright, 372 U.S. 335 (1963). Where

the alleged “ineffectiveness” of counsel stems not from

external restraints, but from the inadequacy of counsel’s

own performance, the errors likewise must be equivalent

in their gravity to a denial of the “Assistance of Coun-

sel” to which the Sixth Amendment explicitly refers.

The Court’s decision i McMann v. Richardson, 397

U.S. 759 (1970), suppor s this conclusion. There the

Court indirectly addressed he question of the competence

of counsel in holding that a guilty plea could not be set

aside as unintelligently made unless the defendant re-

ceived advice that was not merely mistaken but outside

the range of competence demanded of attorneys in crim-

inal cases. By identifying the ultimate issue to be

whether the plea was intelligently made, McMann indi-

cates that the primary focus must be on the rights of the

accused, not the actions of his attorney. Advice so defi-

cient that it renders a guilty plea unintelligent clearly

can be said to have substantially prejudiced the accused

and led to a fundamentally unfair result; McMann

thereby supports the view that this should be the per-

spective of the courts in ineffectiveness cases generally.

13

At a minimum, McMann and the general thrust of the

subsequent decisions of the courts of appeals require that

the convicted defendant identify specific and serious

derelictions by counsel that fell below the minimum level

of performance of reasonably competent counsel and ma-

terially prejudiced the accused. The court of appeals

erred in reversing respondent’s convictions without mak-

ing such a finding here.

C. The circumstances relied upon by the court of ap-

peals were wholly insufficient to support what it termed

an “inference” that respondent received ineffective as-

sistance of counsel. Clearly it cannot be said that the 25

days counsel was allowed prior to trial precluded him

from consulting with respondent and preparing the de-

fense, so that a conclusive presumption of ineffective as-

sistance of counsel could be justified under the rationale

of Powell v. Alabama. This Court’s decisions in Avery v.

Alabama, 308 U.S. 444 (1940), and Chambers v. Ma-

roney, 399 U.S. 42, 53-54 (1970), foreclose such a con-

clusion. Furthermore, the district court in fact granted

respondent’s request for ~ continuance to allow him time

to prepare for trial, although it cut the continuance a few

days short to accommodate the trial date to the court’s

schedule. It was entirely reasonable for the court to take

this course, especially since counsel proclaimed at the

outset of trial that he was ready to proceed.

Nor did attorney Colston’s lack of prior experience in

criminal trials warrant reversal of the conviction with-

out a showing that this inexperience in turn led to spe-

cifie errors in conducting the defense. Indeed, the dis-

trict court and respondent expressed enthusiastic ap-

proval of Colston’s performance. The court of appeais

also overlooked the fact that Colston was assisted by an-

other attorney who apparently had extensive prior expe-

rience in criminai trials.

In addition, whatever the validity of the court of ap-

peals’ view that mail fraud cases generally “tend” to be

14

complex, the court pointed to nothing to suggest that this

case was too complex for Colston and his colleague to

grasp in the time allowed. The fact that respondent

faced up to 65 years’ imprisonment merely reflected that

he was indicted on 13 separate counts of mail fraud aris-

ing out of the same course of conduct, each of which car-

ried a maximum five-year term of imprisonment. And,

finally, there is no indication that the location of the gov-

ernment’s witnesses in several different states and re-

spondent’s residence in Florida and Georgia had any

effect on counsel’s ; reparation of the case.

D. The court of appeals erred in believing that because

circumstances “hampered” counsel’s preparation, re-

spondent should be excused from showing that counsel’s

performance was not within the range of competence de-

manded of defense counsel. The factual premise for the

court’s ruling is unsupported, because there was no find-

ing that counsel in fact were in any way “hampered” in

their preparation. But even if there were time or other

constraints on their performance, the same probably

could be said of the performance by defense counsel in

most criminal trials. If the asserted lack of preparation

or understanding of certain aspects of the case actually

affected the trial, respondent should be capable of iden-

tifying the acts or omissions that resulted. The court of

appeals failed to find any such errors, however, and its

judgment therefore must be reversed.

15

ARGUMENT

THE COURT OF APPEALS ERRED IN VACATING

RESPONDENT'S CONVICTIONS ON THE GROUND

OF INEFFECTIVE ASSISTANCE OF COUNSEL,

BECAUSE THE COURT DID NOT FIND THAT

COUNSEL’S ACTUAL PERFORMANCE WAS DE-

FICIENT IN ANY RESPECT

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right * * * to

have the Assistance of Counsel for his defence.” The ex-

plicit requirement of the Amendment of course was satis-

fied in this case, because respondent was represented by

counsel in his prosecution for mail fraud. Indeed, he

was assisted by two lawyers, one of whom—according to

an uncontradicted affidavit filed by the government in

the court of appeals App., infra, la)—had extensive

experience in criminal trials.

The court of appeals nevertheless held that respondent

was denied his Sixth Amendment right because, in the

court’s view, the assistance of counsel respondent con-

cededly received must be deemed to have been “inade-

quate” or “ineffective” (Pet. App. 4a-5a). Yet in vacat-

ing respondent’s convictions on this ground, the court did

not point to any error committed by ccwnsel, much less

conclude that any such error was of a k.ad or magnitude

that it caused counsel’s performance to fall below some

minimally acceptable level of competence for a lawyer in

a criminal case or deprived respondent of a fair trial.

Nor did the court find that any error by counsel—assum-

ing there was error—had a probable effect on the out-

come of the prosecution or substantially prejudiced the

defense.

Where, as here, the timing or other circumstances of

an ativrney’s appointment were not such as to require a

conclusive presumption by the reviewing court that an

attorney would be unable to prepare and conduct an ade-

quate defense ‘compare Powell v. Alabama, 287 U.S. 45,

16

71 (1932)), the court may set aside a conviction on the

ground of inadequate assistance of counsel only if it finds

specific “gross errors” or “serious derelictions” by coun-

sel in his actual handling of the case that caused his

representation to fall below the range of competence de-

manded of attorneys in criminal cases (McMann v. Rich-

ardson, 397 U.S. 759, 772, 774 (1970)) and further

finds that the defendant suffered substantial prejudice as

a result (see, ¢.g., Chambers v. Maroney, 399 U.S. 42,

53-54 (1970)). Because respondent has not established,

and the courts below did not find, that counsel committed

any such errors or that respondent was prejudiced by

counsel’s performance (the court of appeals reversed

respondent’s convictions without even providing for an

evidentiary hearing on these matters), the judgment of

the court of appeals should be reversed and respondent’s

convictions reinstated.“

A. No Claim Of Ineffective Assistance Of Counsel Should

Be Entertained Unless Serious Derelictions By Coun-

sel Are Shown That Substantially Prejudiced The

Defense

A number of considerations pertaining to the nature

and purposes of an inquiry into counsel’s performance at

trial strongly suggest that where counsel was unfettered

by external restraints on his ability to fulfill a lawyer’s

traditional role, a court may set aside a conviction on the

basis of assertedly ineffective assistance of counsel only

upon a showing of serious errors that substantially prej-

udiced the accused or fundamentally undermined the

fairness of the proceedings.

1. As relevant here, the Sixth Amendment provides

only that “the accused shall enjoy the right * * * to have

the Assistance of Counsel for his defence.” It does not

This disposition would not forcelose respondent from raising

more specific allegations of constitutionally inadequate assistance

of counsel in a collateral attack on his convictions under 28 U.S.C.

2255, if a concrete basis exists for such a claim.

17

state that whatever assistance of counsel the accused re-

ceives must Le “effective.” That word instead has been

used by the courts to describe certain features of the

right to counsel as that right has evolved judicially over

the years.

The word “effective” has a number of different mean-

ings in ordinary usage, and it has been employed to de-

scribe somewhat different concepts in Sixth Amendment

doctrine. Indeed, the nature of an inquiry into a law-

yer’s performance may vary considerably depending upon

the meaning given to the term. For example, if the word

“effective” were understood to mean “productive of re-

sults,” then an attorney’s performance might be deemed

ineffective whenever he failed to secure an acquittal

for his client. But of course it never has been suggested

that the Sixth Amendment guarantees that the defense

put forward by counsel will succeed.

Similarly, if the word were given certain other of its

meanings—-e.g., “impressive,” “cogent,” “pleas-

ing,” or “satisfying” — the concept of “effective” counsel

would suggest an attorney who is especially articulate

and forceful, has a commanding presence in court, and

possesses a personal demeanor that inspires the confi-

dence of his client and others. But although these char-

acteristics surely are conducive to success in the legal

profession, the Sixth Amendment just as surely was not

intended to constitutionalize such vague and elusive ele-

ments of a lawyer’s human nature and professional style,

any more than it was intended to guarantee the develop-

ment of a “meaningful relationship” between attorney

and client. See Morris v. Slappy, No. 81-1095 (Apr. 20,

1983), slip op. 11-12. Nor would it be practicable for a

court reliably to evaluate a lawyer’s performance against

such amorphous standards. Cf. id. at 12.

*See Webster's Third New International Dictionary 724 (4th

ed. 1976), definition la.

See Webster's Third New International Dictionary 724 (4th ed.

1976), definitions 2c and d.

18

Moreover, a view of “effective” assistance of counsel

for Sixth Amendment purposes that focused principally

on the attributes of counsel would improperly transform

the Sixth Amendment inquiry from an assessment of

whether the accused received a fair trial in light of the

assistance counsel rendered to a more detached assess-

ment of the skills and performance of the lawyer in their

own right—as if the purpose of the inquiry were to

grade the lawyer’s participation in an advocacy seminar

or to identify areas in which the lawyer might benefit

from persona! or professional improvement. Such an ap-

proach would not comport with the respect due the crim-

inal trial itself as the “decisive and portentous event”

(Wainwright v. Sykes, 433 U.S. 72, 90 (1977

The trial of a criminal case concentrates society’s re-

sources at one “time and place in order to decide, within

the limits of human fallibility, the question of guilt or

innocence.” Ibid. “Every trial presents a myriad of pos-

sible claims,” and—whether as a result of trial strategy,

ignorance, the pressures of trial, or other factors—it is

virtually inevitable that counsel in the normal course

will overlook or choose to omit certain claims while pur-

suing others. Engle v. Isaac, 456 U.S. 107, 128-129 &

n.34, 133-134 (1982). The Constitution therefore does

not, and realistically could not, require that defense

counsel recognize and raise every potentially meritorious

claim on behalf of the accused. Jd. at 134; Wainwright

v. Sykes, supra, 433 U.S. at 91; Estelle v. Williams, 425

U.S. 501, 512-513 (1976); id. at 514-515 (Powell, J.,

concurring) ; cf. Jones v. Barnes, No. 81-1794 (July 5,

1983); United States v. Agurs, 427 U.S. 97, 102 n.5

(1976). As the Court recently observed, “taking into

account the reality of the human fallibility of the partici-

pants, there can be no such thing as an error-free, per-

fect trial.” United States v. Hasting, No. 81-1463 (May

23, 1983), slip op. 9. Due regard for the finality of a

judgment of conviction in our imperfect adversary sys-

tem of criminal justice therefore “presupposes * * * that

19

the trial of a criminal defendant will not inevitably be

followed by a trial of his attorney’s performance.”

Wainwrig't v. Sykes, supra, 433 U.S. at 114 n.13 (Bren-

nan, J., dissenting). Such a practice would “detract[]

from the [criminal] trial's significance” (Engle v. Isaac,

supra, 456 U.S. at 128-129. An examination into the

performance of counsel therefore is appropriate only

upon allegations of specific, serious errors in counsel’s

performance that assertedly detracted from the trial’s

fairness.

2. There is, of course, a substantial public interest in

assuring that the attorneys who represent defendants in

criminal prosecutions are capable of providing adequate

assistance. Courts, legislatures, the organized bar, and

*Unduly intrusive scrutiny of defense strategy in the course

of considering a post-conviction claim of ineffective assistance of

counsel also could dampen the ardor of defense counsel and require

a potentially unseemly probing of the relationship and communica-

tions between attorney and client, thereby undermining the sense

of mutual trust in criminal cases generally. Cf. Polk County v.

Dodson, 454 F.2d 312, 324 & n.17 (1981) ; United States v. Decoster,

624 F.2d 196, 208-209 (D.C. Cir.) (en banc) (plurality opinion

cert. denied, 444 U.S. 944 (1979); id. at 228-229 (MacKinnon, J.

concurring). “The effect on the [defense bar] would be demor-

alizing. And the interests of the clients and the cause of justice

would be poorly served.” Upjohn Co. v. United States, 449 US.

383, 398 (1981), quoting Hickman v. Taylor, 329 U.S. 495, 510-511

(1947) ; see also FTC v. Grolier, Inc., No. 82-372 (June 6, 1983),

slip op. 4-5. Such inquiries also could undermine the constitu-

tionally required independence of defense counsel (see Polk County,

supra, 454 U.S. at 318-319, 321-322; Estelle v. Williams, supra, 425

U.S. at 512) by inducing courts and prosecutors to oversee and

second-guess judgments by defense counsel in order to protect the

conviction from later attack on the basis of ineffective assistance of

counsel. Decoster, supra, 624 F.2d at 208 (plurality opinion); id. at

228-229 (MacKinnon, J., concurring) ; Bines, Remedying Ineffective

Representation in Criminal Cases: Departures From Habeas Corpus,

59 Va. L. Rev. 927, 961 (1973). See also Schwarzer, Dealing With

Incompetent Counsel—The Trial Judge's Role, 93 Harv. L. Rev.

633, 650 (1980) but see id. at 651-665; Note, A Fuctional Analysis

of the Effective Assistance of Counsel, 80 Colum. L. Rev. 10653,

1069 (1980).

law schools have a variety of measures at their disposal

to address this issue—such as requiring special prepara-

tion or certification for members of the criminal defense

bar, mandatory participation in programs of continuing

legal education, formulation of professional standards to

guide defense counsel, and institution of disciplinary pro-

ceedings in situations in which an attorney has acted un-

professionally or incompetently.”

The concern of a court considering the validity of a

final judgment of conviction in a criminal prosecution,

however, is far narrower. Its function is not to improve

the level of performance of the defense bar generally or

even of the individual lawyer who appeared at trial in

the particular proceeding, but to determine whether the

substantial rights of the accused were violated. If as-

serted defects in defense counsel’s performance did not

have an “impact on the criminal proceeding, * * * there

is no basis for imposing a remedy in that proceeding.”

United States v. Morrison, 449 U.S. 361, 365 (1981).

Cf. United States v. Hasting, supra, (lip op. 6-8

& n.5.

3. It also must be stressed that there are a number of

available mechanisms other than the Sixth Amendment

to remedy alleged defects in a criminal trial. Under Fed.

R. Crim. P. 52(b), a court of appeals may correct

“(pjlain errors or defects affecting substantial rights”

even though they were not raised in the district court.

*See Burger, The Special Skills Of Advocacy: Are Specialized

Of Justice? 42 Fordham L. Rev. 227 (1973).

In Oklahoma, where respondent was tried, the State Supreme

637 P

Peveto, 620 P. 2d 392 (1980); Oklahoma Bar Ass'n v. Denney, 617

P.2d 1351 (1980); see also State ex rel. Oklahoma Bar Ass'n v.

Raskin, 642 P.2d 262 (1982). In addition, Rule 4(j), W.D. Okla.

(effective Aug. 1, 1982) establishes a procedure for disciplining

21

This rule “was intended to afford a means for the prompt

redress of miscarriages of justice.” United States v.

Frady, 456 U.S. 152, 163 (1982) (footnote omitted). It

permits a court of appeals to reverse a conviction when a

trial was “infected with error so ‘plain’ the trial judge

and prosecutor were derelict in countenancing it, even

absent the defendant’s timely assistance in detecting it.”

Ibid. Many truly serious errors committed by counsel at

trial that could result in a miscarriage of justice may be

corrected on appeal under this rule.

Moreover, if evidence was not introduced at trial, a

defendant may move for a new trial under Fed. R. Crim.

P. 33 on the basis of newly discovered evidence.“ And

a person convicted of a federal or state crime may pre-

sent on collateral attack a claim that was not raised at

trial or on appeal if he establishes “cause” for that de-

fault and substantial “prejudice” resulting from the er-

ror. Engle v. Isaac, supra; United States v. Frady,

supra. The Court in Engle v. Isaac stressed its confi-

dence that “victims of a fundamental miscarriage of

justice will meet the cause-and-prejudice standard” and

that “fundamentally unjust incarceration” will be reme-

died as a result. 456 U.S. at 134. See also Wainwright

v. Sykes, supra, 433 U.S. at 90-91.

In view of these established mechanisms for correcting

serious errors in criminal proceedings, it presumably

% Under established case law, in order to obtain a new trial

on the basis of newly discovered evidence, the defendant must show,

inter alia, that the evidence, if available at trial, probably would

have resulted in an acquittal (see United States v. Agurs, supra,

427 U.S. at 111 & n.19) and that the evidence could not have been

discovered in the exercise of due diligence. See generally 8 J.

Moore, W. Taggart & J. Wicker, Moore's Federal Practice 33.08(1)

(2d ed. 1982). Although ordinarily a defendant must be bound by

his attorney's actions, if the attorney's failure to discover certain

evidence was a gross dereliction under all — —

would not be necessary in many cases for a court to

entertain an independent claim of ineffective assistance

of counsel in order to remedy substantial unfairness in

the proceedings. But if these established mechanisms are

not available in a particular case perhaps because of a

procedural default), the defendant must, in order to ob-

tain relief under the Sixth Amendment on the ground

that counsel’s performance was inadequate, demonstrate

errors by counsel that are at least equally as grave as

the substantive errors that would warrant setting aside

a conviction under the “plain error“ rule on direct ap-

peal, granting a motion for a new trial because newly

discovered evidence probably would have resulted in an

acquittal, or finding “cause” and “prejudice” sufficient to

excuse a procedural default.“ Otherwise a convicted de-

fendant whose substantive claim would be barred be-

cause of a procedural default would be permitted—in-

deed encouraged—to raise that claim indirectly by recast-

ing it as an attack on his lawyer’s performance. See,

e. g., Cooper v. Fitzharris, 586 F.2d 1325, 1333 (9th Cir.

1978) (en banc).”

11 Because the errors complained of in this category of cases

result from the actions of independent counsel, not from govern-

mental actions of the court or prosecutor, there can be no claim

that a lesser showing would be appropriate because of a need to

deter unlawful governmental conduct or even because of govern-

mental participation in or responsibility for the conduct involved.

Compare United States v. Agurs, supra, 427 U.S. at 111; United

States v. Valenzuela-Bernal, No. 81-450 (July 2, 1982), slip op. 7,

10, 14-15; id. at 2, 5 (O’Counor, J., concurring in the judgment).

See United States v. Green, 680 F.2d 183, 188-189 (D.C. Cir. 1982),

cert. denied, No. 82-5552 (Feb. 22, 1983) ; Decoster, supra, 624 F.2d

at 214 (plurality opinion); Washington v. Strickland, 693 F.2d

1248, 1260 (5th Cir. 1982), cert. granted, No. 82-1554 (June 6,

1983).

This conclusion is consistent with the relationship between

attorney and client in a criminal case. The Sixth Amendment

“speaks of the ‘assistance’ of counsel, and an assistant, however

expert, is still an assistant.” Faretta v. California, 422 U.S. 806,

820 (1975). When a defendant chooses to have a lawyer manage

and present his case, law and tradition may allocate to the counsel

23

4. The soundness of this conclusion is reinforced by a

proper respect for the integrity of the criminal justice

system and the performance of defense counsel who par-

ticipate in that system. By admitting an attorney to the

practice of law before it, a court has determined that

the attorney possesses the necessary qualifications and

competence to perform his duties. And in providing for

the appointment of counsel to represent the accused—in

this case, pursuant to a plan adopted under the Crim-

inal Justice Act of 1964, 18 U.S.C. (& Supp. V) 3006A—

the court must be presumed to have conscientiously per-

formed its obligation to assure the availability of adequate

assistance of counsel for the defense. See Polk County

v. Dodson, 454 U.S. 312, 322 (1981); cf. Schweiker v.

McClure, 456 U.S. 188, 197 n.11, 200 (1982) ; Mathews v.

Eldridge, 424 U.S. 319, 349 (1976).

the power to make binding decisions on all but such fundamental

matters as whether to plead guilty, waive a jury, testify, or take

an . Id. at 860. See Jones v. Barnes, No. 81-1794 (July 5,

1983), op. 8. The lawyer makes those decisions, however, not

in his own right, but as the representative of the accused; the

defense the lawyer presents accordingly is, in contemplation of law,

that of the accused personally. Faretta, supra, 422 U.S. at 820-821.

The defendant therefore must be bound by his attorney’s conduct of

the trial “except where ‘the circumstances are exceptional“ (Wain-

wright v. Sykes, supra, 433 U.S. at 91 n.14, quoting Henry v.

Mississippi, 379 U.S. 443, 451 (1965); see also Jones v. Barnes,

supra, slip op. 5 (Brennan, J., dissenting) In the present setting,

the defendant must be bound unless the attorney’s actions so depart

from the range of competence and standards of fairness that define

the scope of the agency relationship established by law between

attorney and client in criminal cases that they cannot justly be

deemed the actions of the defendant. Compare McMann v. Richard-

son, supra (guilty plea may be set aside where attorney's advice

caused client’s guilty plea not to be intelligent), with Estelle v.

Williams, supra, 425 U.S. at 512-513 & n.9; id. at 514-515 & n.4

(Powell, J., concurring) (defendant bound by attorney’s failure

to object to his being tried in prison clothes, whether that failure

resulted from a tactical choice, indifference, or procedural default)

See also Engle v. Isaac, supra, 456 U.S. at 134.

24

In addition, the lawyer for the accused in a criminal

prosecution is an officer of the court and is bound by

ethical obligations of the profession to assume respon-

sibility only for cases that he is competent to handle, to

prepare adequately, and to represent his client zealously

and without neglect of the interests of his client. See

Model Code of Professional Responsibility DR 6-101(A),

7-101(A) (1978); * Polk County, supra, 454 U.S. at

318, 321, 323. Just as it must be presumed that a judge

will fulfill his obligation to be an impartial decision-

maker (cf. Youngberg v. Romeo, 457 U.S. 307, 323

(1982) ; Schweiker v. McClure, supra, 456 U.S. at 195;

United States v. Morgan, 313 U.S. 409, 421 (1941)), a

court that is asked to consider a claim that counsel has

failed to discharge his professional responsibilities must

“start with ? presumption that he was conscious of his

duties to his clients and that he sought conscientiously to

discharge those duties.” Matthews v. United States, 518

F.2d 1245, 1246 (7th Cir. 1975) (Stevens, J.). See

Michel v. Louisiana, 350 U.S. 91, 101 (1955); Cuyler v.

Sullivan, 446 U.S. 335, 346-347 (1980); Washington v.

Strickland, 693 F.2d 1243 (5th Cir. 1982) (en banc),

cert. granted, No. 82-1554 (June 6, 1983); Tinlin v.

Parratt, 680 F.2d 48, 50 (8th Cir. 1982). A strong show-

ing must be made to overcome these presumptions.

5. For all of the foregoing reasons, we submit that re-

versal of a criminal conviction because of asserted inade-

quacies in counsel’s representation is appropriate only if

specifically identifiable errors caused counsel’s perform-

ance to depart substantially from what reasonably may

be expected of an ordinary fallible lawyer, and if those

148 These Disciplinary Rules have been adopted by the Oklahoma

Supreme Court to govern the conduct of the members of the Bar of

that State (Okla. Stat. Ann. tit. 5, ch. 1 App. 3 (West Cum.

Supp. 1982), and they have been adopted and are enforceable as

standards of conduct for attorneys in the federal district court in

which respondent was convicted. See note v, supra.

errors were equivalent in their gravity to a denial of the

“Assistance of Counsel” to which the Sixth Amendment

explicitly refers. This requires a showing that counsel’s

errors resulted in substantial prejudice to the accused or

otherwise fundamentally undermined the fairness of the

proceedings against him. The Court’s decision in Me-

Mann v. Richardson, supra, supports this formulation.

See pages 31-32, 34, infra. Moreover, as we explain be-

low, the structure and purposes of the Sixth Amendment

and the origins and development of the judicially fash-

ioned concept of effective assistance of counsel confirm

that this is the appropriate nature of the inquiry into the

adequicy of the assistance rendered by counsel.

B. The Origins And Evolution Of The Right To “Effec-

tive” Assistance Of Counsel Confirm The Soundness

Of Requiring A Showing Of Serious Error And Sub-

stantial Prejudice Or Unfairness

I. The Explicit Textual Guarantee

The Sixth Amendment guarantees a variety of rights

to the accused in a criminal prosecution: to have a

“speedy and public trial” and an “impartial jury”; “to

be informed of the nature and cause of the accusation;

to be confronted with the witnesses against him; [and]

to have compulsory process for obtaining witnesses in his

favor * * *.” These rights are personal to the accused

and “guarantee that a criminal charge may be answered

in a manner now conside~ed fundamental to the fair ad-

ministration of American justice“; they constitution-

aliz [] the right in an adversary criminal trial to make

a defense as we know it.” Faretta v. California, 422

U.S. 806, 818 (1975). The Sixth Amendment right of.

the accused to “have the Assistance of Counsel for his

defence” supplements this design. It permits the accused

to receive advice concerning the nature of the

against him and the law and facts relevant to his case,

and it enables counsel, as the personal representative of

the accused, to present the accused’s defense to the

26

charges and to meet the case presented by the profes-

sional prosecutor. Id. at 820-821.

As this Court has observed, [t] here is considerable

doubt that the Sixth Amendment itself, as originally

drafted by the Framers of the Bill of Rights, contem-

plated any guarantee other than the right of an accused

in a criminal prosecution * * * to employ a lawyer to

assist in his defense. Scott v. Illinois, 440 U.S. 367, 370

(1979). Cf. Powell v. Alabama, supra, 287 U.S. at 68.

This narrow concept obviously did not require any par-

ticular level of competence of whatever lawyer the ac-

cused chose to hire. That was essentially a private mat-

ter between attorney and client.

Over time, of course, the availability of the assistance

of counsel came to be viewed as an essential attribute of

a fair trial, because the accused ordinarily lacks the pro-

fessional training and skill necessary to present a de-

fense. Accordingly, this Court has held that if an ac-

cused facing imprisonment upon conviction is financially

unable to retain counsel, the government must assure

that an attorney is appointed to assist him, unless he

knowingly and intelligently waives his right to counsel.

If counsel has not been furnished in these circumstances,

the conviction will be reversed without requiring the

convicted defendant to make a specific showing of what

an attorney would have done in the case or the prejudice

that resulted from counsel’s absence.“ The government’s

role in providing counsel is limited, however. Once ap-

pointed counsel has undertaken to represent the accused,

he assumes the role of a “personal counselor and advo-

4 See, e. g., Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938),

quoting Powell v. Alabama, supra, 287 U.S. at 68-69; Gideon v.

Wainwright, 372 U.S. 335, 343-345 (1963) ; Argersinger v. Hamlin,

407 U.S. 25, 31 (1972); Faretta v. California, supra, 422 U.S. at

832-833; United States v. Morrison, supra, 449 U.S. at 365.

1 Johnson v. Zerbst, supra; Gideon v. Wainwright, supra; see

also Faretta v. California, supra, 422 U.S. at 832-835; Argersinger

v. Hamlin, supra; Scott v. Illinois, supra.

27

cate.” Polk County, supra, 454 U.S. at 318. This is “es-

sentially a private function, traditionally filled by re-

tained counsel” (id. at 319). See also id. at 327 (Burger,

C.J., concurring).

2. Use Of The Term “Effective” To Connote An Im-

plicit Requirement That Counsel Be Free From

External Restraints

This Court has made clear, of course, that the mandate

of the Sixth Amendment that the accused have the assist-

ance of counsel is not automatically satisfied by the mere

formal appointment of counsel. See Cuyler v. Sullivan,

supra, 446 U.S. at 334. In Powell v. Alabama, supra,

the Court held that the duty to assign counsel is not dis-

charged by an assignment at such time or under such

circumstances as to preclude the giving of effective aid in

the preparation and trial of the case.” 287 U.S. at 71

(emphasis added). The Court there held that the defend-

ants were not accorded the right to counsel in any “sub-

stantial” or real“ sense because the trial court initially

had appointed all of the members of the loca! bar—and

therefore effectively no lawyer at all—to assist the de-

fendants in advance of trial, and no individual lawyer

had assumed responsibility for the case until a few mo-

ments prior to trial, when there remained no opportunity

for consultation or investigation. Id. at 57-58, 71. Al-

though counsel thus was formally designated for the de-

fendants, the Court held that this was not the “effective

appointment of counsel” required by the Constitution (id.

at 57, 58), and it accordingly reversed the convictions

without an inquiry into the specific actions counsel might

have taken if given an opportunity to consult and prepare

or whether the defendants were prejudiced by the con-

structive denial of the assistance of counsel.

The use of the term “effective” in connection with the

right to counsel finds its roots in these passages in Powell.

16 See S. Krantz, Right to Counsel in Criminal Cases 166 (1976) ;

Decoster, supra, 624 F.2d at 201 n.13 (plurality opinion).

28

It is evident, however, that the Court used the word “ef-

fective” to mean “actual” or “capable of having its nor-

mal effect” —i.e., to stress that the trial court must

make an appointment of counsel under circumstances that

permit counsel to render actual assistance that is capable

of having its normal effect in aiding the accused, as dis-

tinguished from the sham or merely forma! appointment

in Powell itself, which did not provide any realistic op-

portunity for the defendants to benefit from an attorney’s

presence. The focus of the Court’s concern thus was on

removing an externally imposed restraint, virtually total

in its effect, on counsel’s ability to perform in his tradi-

tional role. The Court did not use the word “effective”

to suggest a judicially fashioned standard of performance

for an attorney who was free of such state-imposed re-

straints. Similarly, in Avery v. Alabama, 308 U.S. 444

(1940), the Court, citing Powell, observed that “the de-

nial of opportunity for appointed counsel to confer, to

consult with the accused and to prepare his defense could

convert the appointment of counsel into a sham and noth-

ing more than a formal compliance with the Constitu-

tion’s requirement that an accused be given the assistance

of counsel” (id. at 446) (emphasis added.

The Court also has found a Sixth Amendment violation

resulting from other governmentally imposed restrictions

on the ability of counsel to function in his traditional

role or to make reasonable tactical judgments at trial.

See Geders v. United States, 425 U.S. 80 (1976) (pro-

hibition against consultation with defendant during over-

night recess) ; Herring v. New York, 422 U.S. 853 (1975)

(denial of right of summation in nonjury trial); Brooks

* See Webster's Third New International Dictionary 724 (4th ed.

1976), definitions 1b and 4.

18 See also Reece v. Georgia, 350 U.S. 85, 90 (1955); House v.

Mayo, 324 U.S. 42, 46 (1945); White v. Ragen, 324 U.S. 760, 764

(1945) ; Ez parte Hawk, 321 U.S. 114, 115-116 (1944) ; cf. Chandler

v. Fretag, 348 U.S. 3, 9-10 (1954). Compare Morris v. Slappy,

supra, slip op. 9-10; Chambers v. Maroney, supra, 399 U.S. at 53.

v. Tennessee, 406 U.S. 605, 612-613 (1972) (requirement

that defendant be first defense witness); Ferguson v.

Georgia, 365 U.S. 570, 593-596 (1961) (prohibition

against direct examination of defendant). Because the de-

fendants in these cases were in effect entirely deprived of

the assistance of counsel at a critical point in the prosecu-

tion, the Court, as in Powell, set aside the conviction with-

out requiring any specific showing of how the accused was

injured as a result.

A final category of cases in which the Court has found

a denial of the right to “effective” assistance of counsel

consists of those in which counsel had a conflict of inter-

est that impaired his duty of undivided loyalty to the

accused. In Glasser v. United States, 315 U.S. 60 (1942),

the Court held that the defendant was denied his Sixth

Amendment “right to have the effective assistance of

counsel” (id. at 76) when the trial court required his at-

torney simultaneously to represent a co-defendant having

conflicting interests, an arrangement that adversely af-

fected the attorney’s representation of the defendant (see

id. at 72-75). The Court explained that just as the failure

of the trial court in Powell to make “effective appoint-

ment of counsel” for the defendants so offended concepts

of a fair hearing as to constitute a denial of due process,

the assistance of counsel required by the Sixth Amend-

ment “contemplates that such assistance be untrammeled

and unimpaired by a court order requiring that [a] law-

yer shall simultaneously represent conflicting interests.”

315 U.S. at 70. Thus, in Glasser, as in Powell, the con-

cept of “effective” assistance meant only freedom from

externally imposed restraints on counsel’s ability to per-

form in his traditional role. By equating the defect in

Glasser with the failure in Powell to make an “effective

appointment of counsel” (see 315 U.S. at 70), the Court

viewed representation by a lawyer who has a conflict of

interest as essentially the equivalent of no “Assistance of

Counsel” at all within the contemplation of the Sixth

Amendment. See also Von Moltke v. Gillies, 332 U.S. 708,

725-726 (1948) (opinion of Black, J. In view of this

fundamental defect, the Glasser Court set aside the con-

viction without inquiry into the degree to which the de-

fendant had been prejudiced as a result, just as it had in

Powell. See 315 U.S. at 75-76. Accord Holloway v.

Arkansas, 435 U.S. 475, 481-483, 489 (1978); Cuyler

v. Sullivan, supra, at 348-350.“

Powell, Geders, Glasser, and the related cases discussed

above establish that the “Assistance of Counsel” guaran-

teed by the Sixth Amendment is assistance unfettered by

externa! restraints that might materially impair the abil-

ity of counsel to carry out his traditional role in the ad-

versary system. The Court has treated these cases as the

functional equivalent of a total denial of the right to

counsel, and it accordingly has reversed convictions where

there have been improper external restraints on counsel’s

performance without requiring any specific showing of

resulting prejudice, just as it did in the case of the com-

plete denial of counsel in Gideon.“ Such cases are, how-

ever, materially different from those in which it is alleged

simply that counsel blundered.

3. Use Of The Term “Effective” To Refer To The

Nature Of Counsel's Performance Without Regard

To External Restraints

In recent years, the term “effective” has been employed

by the lower courts to refer not simply to assistance of

1 In Cuyler v. Sullivan, the Court rejected the contention that

there was no state action involved in the asserted conflict of interest

because the defendants had chosen to be represented by the same

retained counsel, concluding that “the failure of retained counsel

to provide adequate representation can render a trial so funda-

mentally unfair as to violate the Fourteenth Amendment.” 446

U.S. at 343; see also id. at 348.

The court of appeals apparently believed that the instant case

falls in the same category as Powell, Geders, and Glasser, for it did

not require any showing that respondent’s attorneys committed

any specific errors or was prejudiced as a result. As we show be-

low (see pages 35-47, infra), this conclusion was wholly unwar-

ranted.

31

counsel that is free from improper external restraints,

but rather to suggest a certain level of competence or per-

formance of defense counsel. This Court has not directly

addressed the circumstances under which the effectiveness

of counsel’s performance in this sense might furnish an

independent basis under the Consitution for setting aside

a conviction. However, in McMann v. Richardson, 397

U.S. 759 (1970), the Court did consider the quality of

counsel’s performance indirectly, insofar as it bore on

the ultimate issue in the case: whether a guilty plea could

be collaterally attacked on the ground that it allegedly

was motivated by a prior coerced confession that the de-

fendant feared might be used against him if he elected

to go to trial. See 397 U.S. at 760, 769. The Court held

that the only way in which the defen ant could attack

the validity of the guilty plea in such circumstances

would be to show that it was not knowingly and intelli-

gently made, and it stated that the plea would be regarded

as not intelligently made only if the defendant could show

that he “was incompetently advised by his attorney.” 397

U.S. at 772. The Court observed in this regard that

pleading guilty entails the inherent risk that the assess-

ment of the facts and law by a reasonably competent at-

torney with respect to the admissibility of the confession

might turn out to be mistaken. Id. at 770, 771. It there-

fore stressed that whether a plea was intelligently made

depends not on whether a court would retrospectively con-

sider counsel's advice to be right or wrong, “but on

whether that advice was within the range of competence

demanded of attorneys in criminal cases.” Id. at 770.

The McMann Court declined to furnish a more precise

description of the acceptable range of competence of de-

21 Compare Youngberg v. Romeo, supra, 457 U.S. at 323 (footnotes

omitted): “the decision, if made by a professional, is presumptively

valid; liability may be imposed only when the decision br. the pro-

fessional is such a substantial departure from accepted profes-

sional judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on such a

judgment.”

fense counsel for purposes of assessing the validity of a

guilty plea, concluding that “the matter, for the most part,

should be left to the good sense and discretion of the trial

courts” (id. at 771). But the Court emphasized that in

order to have his conviction set aside, the defendant must

“demonstrate gross error” (id. at 772) or “serious der-

elictions on the part of counsel” (id. at 774). The Court

has reiterated the approach in McMann in other guilty

plea cases. See Parker v. North Carolina, 397 U.S. 790,

797 (1970); Tollett v. Henderson, 411 U.S. 258, 264, 266-

268 (1973).

Because the ultimate issue in McMann was whether

the guilty plea was intelligently made, not the adequacy

of counsel’s performance as such,” it is unclear to what

extent McMann may be relied upon in formulating stand-

ards for setting aside a conviction on the basis of as-

serted inadequacies in counsel’s performance standing

alone. However, the courts of appeals, in attempting over

the last decade to define the concept of ineffective assist-

ance of counsel insofar as it refers to the level of coun-

sel’s competence, have for the most part sought guidance

from the decision in McMann.

With the exception of the Second Circuit, the courts of

appeals have ceased to articulate the test of ineffective-

ness in terms of whether counsel’s assistance rendered the

trial a “farce and mockery of justice,” and they instead

have adopted formulations that echo the “reasonable com-

petence” or “range of competence” language in McMann.

2 Similarly, in Michel v. Louisiana, 350 U.S. 91, 100-101 (1955),

the question whether the defendant received effective assistance

of counsel was relevant to the extent it bore on the ultimate ques-

tion whether the defendant had an adequate opportunity to object

to the composition of the grand jury. See also Reece v. Georgia,

350 U.S. 85, 90 (1955).

„A lack of effective assistance of cocnsel must be of such a

kind as to shock the conscience of the Court and make the pro-

ceedings a farce and mockery of justice.” United States v. Wight,

176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950 (1950).

See Romero v. United States, No. 81-6463 (Oct. 12, 1982)

(White, J., dissenting from denial of certiorari). But,

again echoing McMann, the decisions of the courts of ap-

peals 7 | stress that the defendant must show

“gross” or “flagrant” error, “serious derelictions,” or

some 4 degree of mistake.“ The courts of ap-

peals also generally require a showing of prejudice, al-

though there is some disagreement about the formulation

of the prejudice element; that is the principal issue be-

fore the Court in Strickland v. Washington, cert. granted,

No. 82-1554 (June 6, 1983) .*

Because under the reasonable competence formulation

the defendant still must show “serious derelictions” and

resulting prejudice, it is not clear that the movement

away from the “farce and mockery” language actually

has changed the outcome in any significant number of

cases, as the en banc Ninth and Tenth Circuits realized

when they adopted a new formulation. See Dyer v. Crisp,

613 F.2d 275, 278, cert. denied, 445 U.S. 945 (1980);

Cooper v. Fitzharris, supra, 586 F.2d 1329. Rather, as

Judge Leventhal! noted in his plurality opinion in Decoster,

the differing language in the opinions may be little more

than a “semantic merry-go-round.” 624 F.2d at 206.

In any event, faithfulness to the text of the Sixth

Amendment requires that before a conviction may be set

aside because of asserted inadequacies in counsel’s per-

formance, the errors must be equivalent in their level of

seriousness to an actual denial of the “Assistance of

Counsel,” to which the Amendment explicitly refers. As

we have explained above, this has been the Court’s ap-

proach in the other areas in which it has considered

whether counsel’s assistance was effective.“ In Powell

v. Alabama, for example, the Court concluded that al-

* We have collected these cases from the federal courts of appeals

in Appendix B, infra, 3a-6a.

The federal appellate cases concerning the prejudice issue

are collected in Appendix C, infra, Ta-10a.

34

though counsel had been formally assigned to represent

the accused, there was in substance no “Assistance of

Counsel” rendered because of the timing and circum-

stances of the appointment. There was, in other words,

a constructive denial! of the right to counsel. See Decoster,

supra, 624 F.2d at 222 (MacKinnon, J., concurring). The

defect in the conflict of interest cases, such as Glasser V.

United States and Cuyler v. Sullivan, was analytically

the same.

So too, in McMann, advice of counsel that is so deficient

that it causes the client’s guilty plea not even to be an

intelligent act can be viewed as equivalent in its gravity

to an outright denial of the “Assistance of Counsel.”

Moreover, because the ultimate question in McMann was

whether counsel’s advice rendered the defendant’s guilty

plea unintelligent, McMann supports the proposition that

the primary focus of the inquiry must be on the sub-

stantial rights of the accused, rather than on the abilities

and performance of the attorney in their own right.

The decision in McMann also is consistent with a re-

quirement that the defendant show that any errors com-

mitted by counsel had a likely effect on the outcome of

the prosecution or otherwise substantially prejudiced him

and that the ultimate concern should be with the fairness

of the proceedings. A defendant whose conviction has

been shown to rest on a plea of guilty that was not in-

telligently made has sufficiently demonstrated that the

actions of counsel had a probable effect on the outcome of

the prosecution and substantially prejudiced him. The

vacating of the judgment of conviction entered on the

basis of that plea therefore would be an appropriately

tailored remedy to remove the taint of counsel’s incom-

petence. Compare United States y. Hastings, supra, slip

op. 6-8; United States v. Morrison, supra, 449 U.S. at

364-365. And, finally, to preserve a conviction entered on

the basis of a guilty plea that was not intelligently made

would be “fundamentally unfair“ to the accused, irrespec-

tive of whether derelictions of counsel or something else

caused the problem.

35

There is, however, no need to determine in this case the

precise nature of the inquiry into whether a conviction

must be set aside because of asserted inadequacies in

counsel’s performance. At a minimum, McMann and the

decisions of the lower courts require that the defendant

identify specific and serious derelictions in counsel’s per-

formance and demonstrate some degree of prejudice as a

result. Yet, in the instant case, the court of appeals re-

versed respondent’s convictions on che ground of ineffec-

tive assistance of counsel without identifying any errors

committed by attorneys Colston and Rivas in their repre-

sentation of respondent, much less errors that caused their

performance to fall below “the range of competence de-

manded of attorneys in criminal cases.” Nor did the

court demonstrate any resulting prejudice or unfairness

to respondent. The court instead simply “inferred” that

counsel's assistance was constitutionally inadequate based

on the existence of certain “circumstances” that in them-

selves are not measures of the adequacy of a lawyer’s

actual performance. As we now explain, these factors are

wholly inadequate to sustain respondent’s burden of over-

coming the presumption that his attorneys rendered com-

petent assistance.

C. The Circumstances Relied Upon By The Court Of

Appeais Do Not Support Its Finding Of Ineffectiveness

1. There Was Adequate Time To Prepare For Trial

In inferring that counsel rendered inadequate assist-

ance, the court of appeals placed substantial reliance on

the fact that counsel had 25 days to prepare for trial, a

period of time the court apparently believed was insuffi-

cient. See Pet. App. 4a. The court’s reliance on this fac-

tor is flatly inconsistent with prior decisions of this Court,

including, most recently, Morris v. Slappy, supra.

In Chasbers v. Maroney, the defendant claimed that

the appearance on the day of his second trial of a Legal

Aid Attorney other than the one who represented him at

his first trial was so belated that the attorney could not

have furnished effective assistance of counsel. 399 U.S.

at 53-54. The Court rejected this contention, noting that

the defendant’s claim of prejudice resulting from the sub-

stitution of counsel was “without substantial basis” and

that the Court was “not disposed to fashion a per se rule

requiring reversal of every conviction following tardy ap-

pointment of counsel” (id. at 54). See also Morris v.

Slappy, supra, slip op. 9-10; Mancusi v. Stubbs, 408 U.S.

204, 214 (1972).

The substitution of counsel in this case a full 25 days

prior to trial cannot be said to have been “tardy,” es-

pecially when compared with the facts of Chambers v.

Maroney; and as in Chambers v. Maroney, there was no

finding by the courts below that respondent was at all

prejudiced by the timing of the substitution of counsel

and trial. Indeed, when Colston first was appointed to

represent respondent, the date of the trial was postponed

in response to Colston’s request for a continuance. Colston

requested that a minimum of 30 additional days be al-

lowed prior to trial, but the court cut the continuance “a

few days short” so that the trial could begin on the first

day of the court’s monthly docket (J.A. 35-36). No ob-

sequently ask for a further continuance on the ground

that inadequate time was available for trial preparation.

The Court observed in Avery v. Alabama, supra, 308

U.S. at 446, that s] ince the Constitution nowhere speci-

37

court's denial of counsel's request for a continuance based

on counsel’s affidavits stating that they did not have suffi-

cient time to prepare for trial. The Court noted that

counsel had performed their duties well and that there

was no indication that the attorneys could have done

more had additional time been granted. 308 U.S. at 450,

452.

We may assume that the usual practice today would be

to allow counsel more preparation time than the three

days permitted in Avery, especially in a capital case.“

Nevertheless, the decisions in Avery and Chambers v.

The Speedy Trial Act, as amended in 1979 (Pub. L. No. 96-43,

Section 2, 93 Stat. 327), provides that “[u)nless the defendant

consents in writing to the contrary, the trial shall not commence less

than thirty days from the date on which the defendant first appears

through counsel or expressly waives counsel and elects to proceed

pro se.” 18 U.S.C. (Supp. V) 3161(c) (2). The purpose of this pro-

vision is to ensure the defendant a minimum amount of preparation

time in even the simplest case. See A. Partridge, Legislative

History of Title I of the Speedy Trial Act of 1974, at 70-75 (Fed.

Judicial Center 1980); United States v. Mers, 701 F.2d 1321, 1333

{llth Cir. 1983).

This requirement was fully satisfied here. Section 3161(c) (2)

“guarantee[s] to the criminal defendant ne right to a delay of at

least 30 days between arraignment and trial”. United States v.

Wooten, 688 F.2d 941, 950-951 (4th Cir. 1982). Respondent appeared

for arraignment with his retained counsel, Levine, on February 22,

1980, and his trial did not commence until July 14, 1980—almost

five months later.

In addition to enacting the automatic 30-day trial preparation

provision in 1979, Congress recognized that additional preparation

time would be needed in some cases. Congress therefore also

Maroney must foreclose any argument in this case that

the scheduling of the trial—after the court granted all

but a few days of the requested continuance—violated re-

spondent’s right to the assistance of counsel, at least with-

out a showing, entirely absent here, of a clear abuse of

discretion and substantial prejudice.? Indeed, the Tenth

Circuit itself previously has recognized these principles

in sustaining the denial of a continuance that was re-

quested in order to allow counse! adequate time to pre-

pare. United States v. Gonzales-Palma, 645 F.2d 844

(10th Cir.), cert. denied, 454 U.S. 861 (1981) (defend-

ant must show “clear abuse of discretion resulting in

manifest injustice”); United States v. Schwanke, 598

F.2d 575, 579 (10th Cir. 1979). .

Just tais past Term, this Court again stressed that

“(t]rial judges necessarily require a great deal of lati-

tude in scheduling trials,” and that only an “unreasoning

and arbitrary ‘insistence upon expeditiousness in the face

of a justifiable request for delay, violates the right to the

assistance of counsel.” Morris v. Slappy, supra, slip op.

9-10, quoting Ungar v. Sarafite, 376 U.S. 575, 589

(1964). In the instant case, the trial court’s accommoda-

tion of respondent’s request for a continuance and the

court’s trial schedule was in no way “unreasoning and

arbitrary.” Furthermore, on the first day of trial, Colston

stated that he was “ready” to proceed (Tr. 3). “In

the face of the unequivocal and uncontradicted statement

by a responsible officer of the court that he was fully

prepared and ‘ready’ for trial,” it was entirely proper for

the court to proceed. Morris v. Slappy, supra, slip op. 10;

see also id. at 4 (Brennan, J., concurring in the result).

* See United States v. Rodriguez-Ramos, 704 F.2d 17 (1st Cir.

1983), petition for cert. pending, No. 82-1837; United States v.

Wuagneuz, 683 F.2d 1343, 1355-1356 (1lst Cir. 1982), petition for

cert. pending, No. 82-1687; United States v. McDonald, 672 F.2d

864 (11th Cir. 1982); United States v. Badwan, 624 F.2d 1228, 1281

(4th Cir. 1980), cert. denied, 449 U.S. 1124 (1981); United States

v. Berkwitt, 619 F.2d 649, 659 (7th Cir. 1980).

39

2 Counsel's Inexperience Did Not Justify A Finding

Of Ineff ectiveness

The court of appeals also relied on the fact that attor-

ney Colston did not have prior experience—at least sub-

stantial experience—in criminal trials. Pet. App. 5a. We

do not dispute that inexperience is a factor that in turn

could contribute to a lawyer’s rendering inadequate as-

sistance and that a trial court should assure itself that

the attorney assigned to represent a defendant is capable

of doing so.“ “Nonetheless, in determining whether there

has been effective assistance, the primary focus must be

on how well counsel performed in the particvlar case, not

on how much experience counsel had. Counsel may some-

times compensate for their lack of experience by unusual

zeal and industry. Moreover, courts recognize that ‘law

school does not endow the young awyer with all of the

skills, abilities and “know-how” of the experienced advo-

cate’ and that the young attorney ‘must gain experience

somewhere, somehow, and sometime.’” Harris v. House-

wright, 697 F.2d 202, 205 (8th Cir. 1982) (citations and

footnote omitted), quoting Smotherman v. Beto, 276 F.

Supp. 579, 589 (N DO. Tex. 1967).

Accordingly, where counsel was inexperienced, the de-

fendant nevertheless is not entitled to relief unless he

can show an “actual adverse impact upon the fairness

of the trial resulting from counsel’s lack of trial ex-

perience” or “specific omissions by counsel indicating a

lack of preparation and degree of skill reasonably re-

quired of counsel in a criminal case.” Daniels v. Maggio,

669 F.2d 1075, 1082 (5th Cir. 1982), cert denied, No.

81-6858 Nov. 1, 1982). The court of appeals in this

28 See Project on Standards for Criminal Justice, Standard Re-

lating to Providing Defense Service § 2.2 and commentary at 27-29

(Approved Draft 1968) .

See also United States v. Badolato, 701 F.2d 915, 926 (11th

Cir. 1983); United States v. Easter, 539 F.2d 663, 666 (8th Cir.

1976), cert. denied, 434 U.S. 844 (1977) ; United States er rel. Wil-

liams v. Twomey, 510 F.2d 634, 638-639 (7th Cir.), cert. denied,

423 U.S. 876 (1975).

40

case made no finding that Colston’s lack of experience in

criminal trials in turn caused his performance to fall

below the range of competence required of attorneys in

criminal cases or even that it caused him to commit any

errors at all. Indeed, as we have recited in the State-

ment (see pages 6-7, supra), the trial judge—who, un-

like the court of appeals, had an opportunity to observe

Colston and Rivas—repeatedly praised their perform-

ance (J.A. 94-97, 104). So did respondent (J. A. 94-95,

97), until the jury returned a verdict of guilty (J.A.

97).

The court of appeals also ignored the fact that Colston

was assisted by Rivas, who, according to an uncontra-

dicted affidavit filed by the government in the court of

appeals, had extensive prior experience in criminal cases

(App. A, ira, la). This indicates that to the extent

The court of appeals’ failure to consider the role of Rivas, and

the government’s need to rely on an affidavit filed in the court of

appeals, highlight the inappropriateness of deciding a claim of in-

competent assistance of counsel on direct appeal, without the benefit

of an evidentiary record. Resolution of a claim of ineffective assist-

ance of couvsel often depends on the circumstances of the par-

ticular case, including the facts known to the accused and counsel as

well as counsel’s reasons for taking or not taking certain actions.

An evidentiary record ordinarily would have to be developed on

these points before a court could conclude that counsel’s assistance

had been ineffective. (A court might more readily reject a claim of

ineffective assistance without a hearing, at least where no sub-

stantial claim of prejudice is made. See Chambers v. Maroney,

supra, 399 U.S. at 59).

For this reason, other courts of appeals have recognized that

claims of ineffective assistance of counsel should be presented to

the district court in the first instance, either in a motion for a new

trial (if made within the time limits permitted by Fed. R. Crim. P.

33) or in a proceeding under 28 U.S.C. 2255. See United States v.

Frankenberry, 696 F.2d 239, 242 (3d Cir. 1982), cert. denied, No.

82-6256 (June 27, 1983); United States v. Badolato, supra, 701

F.2d at 925; United States v. Strum, 671 F.2d 749, 750-751 (3d

Cir.), cert. denied, No. 81-6689 (Oct. 4, 1982); United States v.

Lurz, 666 F.2d 69, 78 (4th Cir. 1981), cert. denied, 455 U.S. 1005

(1982); United States v. Barham, 666 F.2d 521, 524 (5th Cir.),

cert. denied, 456 U.S. 947 (1982); United States v. Phillips, 664

-~

41

Colston might have believed it would be unwise for him

to handle respondent’s defense by himself, he fulfilled his

ethical obligation by associating an experienced attorney

with him in the case. See Model Code of Professional

Responsibility DR 6-101 A 1 (1978); Project on

Standards for Criminal Justice, Standards Relating to

Providing Defense Services 2.2 comment f Approved

Draft 1968).

3. The Finding Of Ineffectiveness Was Not Justified

By The Complexity Of The Case

The court of appeals made no substantial effort to

assess the complexity of this case or the ability of Col-

ston and Rivas to grasp it in the time allowed. The

Court simply counted the number of witnesses (17) and

exhibits (50) in the case, and, on that basis, found it to

be “apparently” less complex than the trial involved in

its prior decision in United States v. King, supra, in

which there had been 200 witnesses and 5000 exhibits.

Pet. App. 5a. But the court did not find the compara-

tively less complexity to be a reason for a different result

here, because, in the court’s view, this case “was not an

F.2d 971 (5th Cir. 1981), cert. denied, 457 U.S. 1136 (1982);

United States v. Aulet, 618 F.2d 182, 185-186 (2d Cir. 1980) ; United

States v. Payton, 615 F.2d 922, 925 (Ist Cir.), cert. denied, 446

U.S. 969 (1980); United Stat v. Gray, 611 F.2d 194, 197 (7th

Cir. 1979), cert. denied, 446 U.S. 911 (1980).

Because no evidentiary record had been developed in this case,

the court of appeals, if it was not prepared to reject respondent's

unsubstantiated claims altogether, should have declined to reach the

issue, without prejudice to respondent's raising it in a proceeding

under 28 U.S.C. 2255. This clearly is a more appropriate procedure

when a claim of ineffective assistance of counsel is raised for the

first time on appeal than remanding to the district court for further

proceedings, as the Tenth Circuit did in United States v. Golub,

638 F.2d 185 (1980). After proceedings on remand in Golub, the

court of appeals reversed its prior decision and reinstated the con-

viction (694 F.2d 207 (1982)), but in the meanwhile the finality

of the conviction had been delayed for more than two years.

42

ideal one for an aspiring criminal defense lawyer to cut

his teeth on,“ since “‘{m]ail fraud cases tend to be fac-

tually and legally complex. Pet. App. 5a, quoting United

States v. Golub, supra, 638 F.2d at 188. This reasoning

is wholly unsatisfactory.

The question before the court of appeals was not

whether this was an “ideal” case for Colston to handle,

but rather whether respondent received constitutionally

adequate legal assistance. The court of appeals pointed

to nothing to suggest that he did not, and it also over-

looked the assistance that respondent and Colston re-

ceived from Rivas, who evidently was an experienced—

not aspiring! —eriminal defense lawyer, and who there-

fore presumably was capable of handling cases that were

not ideal.“

Nor was it significant whether mail fraud cases gen-

erally “tend” to be complex. The offense of mail fraud

broadly embraces any fraudulent scheme or artifice—re-

gardless of complexity or simplicity—coupled with use of

the mails “for the purpose of executing such scheme.”

18 U.S.C. 1341. See, e.g., United States v. Maze, 414

U.S. 395, 400 (1974) ; Pereira v. United States, 347 U.S.

1, 8 (1954). The relevant inquiry therefore was whether

this case was too complex to be prepared for trial within

25 days. Plainly it was not. As we have explained in the

Statement (see page 4, supra), the fraud established

by the government’s evidence consisted of a relatively

simple check-kiting scheme involving a series of similar

transactions. Counsel apparently concluded that the only

plausible defenses were to disassociate respondent from

the check writing or to dispel the inference of fraudulent

intent, and Colston pursued both of these lines of de-

fense. No one has suggested the availability of any

markedly superior line of defense. Moreover, neither the

government’s case nor the defense presented to that case

raised issues of unusual complexity or reqiured extensive

experience in defending fraud cases.

43

4. The Gravity Of The Charges Does Not Justify The

Finding Of Ineif ectivencss

The court of appeals observed that respondent faced a

sentence of up to 65 years’ imprisonment and in fact was

sentenced to a term of 25 years, as compared with the

five-year sentence faced by the defendant in King. It is

not apparent why the court of appeals believed that this

comparison of the two cases supported an “inference” of

ineffective assistance of counsel in the instant case. Re-

spondent faced a maximum of 65 years imprisonment

only because he was charged with a course of conduct

involving 13 separate counts of mail fraud, each of which

carried a maximum five-year sentence. See 18 U.S.C.

1341. Moreover, this Court has recognized that the diffi-

culty of a case and the need for the special skills of

counsel are not necessarily proportional to the severity

of the potential sentence. See Argersinger v. Hamlin,

supra, 407 U.S. at 33-34, 36-37; id. at 41 (Burger, C.J.,

concurring in the result); id. at 47-48 (Powell, J., con-

curring in the result).

It may well be that in common practice, a lawyer

would—and should—devote particular effort to a case in

which the consequences of conviction are severe. But even

if the Sixth Amendment could be said to impose a some-

what more exacting standard of attorney performance

when the potential penalty is unusually severe—a princi-

ple that would be difficult to interpret and apply “—there

The Fifth Circuit, in rejecting the contention that a higher

standard for gauging competence should apply to capital cases or

cases in which the defendant is exposed to lengthy confinement,

observed that recognition of a sliding scale for th[e] constitu-

tional standard [of ineffective assistance of counsel] would also

suggest, for example, that a defendant charged with aggravated

assault would be entitled to a more effective lawyer than one charged

with simple assault or public intoxication. We decline to embark on

such a treacherous path.” Washington v. Watkins, 655 F.2d 1346,

1357 n.18 (1981), cert. denied, 456 U.S. 949 (1982). See also Wash-

ington v. Strickland, supra, 693 F.2d at 1250 n.12; cf. Avery v.

Alabama, supra. While it is arguable that the qualitative difference

44

is no indication in this case that the efforts of Colston and

Rivas were not appropriately commensurate to the grav-

ity of the offense.

5. The Location Of Witnesses Has Not Been Shown

To Have Impaired The Effectiveness Of Respond-

ent’s Trial Counsel

The final factor considered by the court of appeals was

the accessibility of witnesses to counsel. Because this fac-

tor was not considered in King, the court of appeals was

unable to compare the two cases on this point. The court

therefore simply observed: “In [respondent’s} case no de-

fense witnesses appeared, but the government’s witnesses

eame from four different states. [Respondent] lived in

Florida and Georgia, his attorney in Oklahoma.” Pet.

App. 5a. This recitation—the court’s complete discussion

of the point—clearly lends no support to an inference of

constitutionally inadequate assistance. There was no find-

ing that Colston and Rivas in fact were unable to confer

with respondents and interview witnesses or otherwise

learn the substance of the information they possessed, or,

if Colston and Rivas were unable to do so, that respond-

ent was prejudiced as a result.

D. The Court Of Appeals Erred In Believing It Would

Be Inappropriate To Require A Showing Of Specific

Errors By Counsel

The court of appeals acknowledged that respondent had

not shown that trial counsel had “failed to exercise ‘the

skill, judgment and diligence of a reasonably competent

defense attorney’, which is how the Sixth Amendment

right to assistance of counsel is described in [the Tenth]

Circuit.” Pet. App. 3a, quoting Dyer v. Crisp, supra, 613

45

F.2d at 278. But it explained its decision to dispense

with that requirement here, and instead to “infer” inade-

quate assistance based on the five factors discussed above,

as follows (Pet. App. 3a):

Cases after Dyer have established that when cir-

cumstances hamper a given lawyer’s preparation of

a defendant’s case, the defendant need not show

specified errors in the conduct of his defense in or-

der to show ineffective assistance of counsel. See

United States v. King, 664 F.2d 1171, 1172-73 (10th

Cir. 1981); United States v. Golub, 638 F.2d 185,

187 (10th Cir. 1980). This is an eminently reason-

able rule, for there is no way an appellate court can

say precisely how a given case would have been han-

dled by a reasonably diligent and properly prepared

lawyer. The prejudice from lack of preparation and

experience cannot be nicely weighed.

The factual premises on which the court rested its anal-

ysis are wholly unsubstantiated: there simply has been

no showing or finding that Colston and Rivas’s prepara-

tion of the case was at all “hampered” by circumstances;

that there was a “lack of preparation” or (in light of

Rivas’ apparent prior experience in criminal cases) a

“lack of * * * experience”; or that Colston and Rivas

were not “reasonably diligent and properly prepared law-

ver [s].“ There was, accordingly, no reason on this rec-

ord for the court to invoke a novel Sixth Amendment

rule that dispenses with a requirement that the defend-

ant show specific errors in counsel’s performance and re-

sulting prejudice. See Morris v. Slappy, supra, slip op.

12-13; id. at 3 (Brennan, J., concurring in the result) ;

id. at 1 (Blackmun, J., concurring in the judgment).

In any event, the court of appeals’ analysis would be

gravely flawed even if its factual premises were correct.

A factual determination that circumstances did bring

some temporal or other pressures to bear on the attor-

neys in their preparation of the case would not serve to

distinguish this case from most criminal cases. In light

46

of this reality, it is clear that Inlot every restriction

on counsel’s time or opportunity to investigate or to con-

sult with his client or otherwise to prepare for trial vio-

lates a defendant's Sixth Amendment right to counsel.”

Morris v. Slappy, supra, slip op. 9. As we have explained

above (see pages 15, 27-28, 36-37, supra), only where the

timing or other circumstances of counsel’s appointment

were such that an opportunity for consultation and prep-

aration was precluded, as in Powell v. Alabama, may a

court set aside a conviction without identifying specific

errors by counsel and finding substantial prejudice to the

accused as a result. Because this case in no way resem-

bles Powell v. Alabama with regard to the timing of the

appointment of counsel, the proper question in this case

was not whether Colston and Rivas’s preparation of the

case was “hampered,” but whether the representation re-

spondent ultimately received was constitutionally adequate.

Nor, contrary to the court of appeals’ apparen belief

(see Pet. App. 3a), would it be inappropriate or unfair

to require respondent to make a showing that his law-

yers’ performance was outside the range of competence

demanded of attorneys in criminal cases. If the basis of

a defendant’s claim is that the lawyer who represented

him did not adequately prepare, he should be capable of

demonstrating the nature of counsel’s omissions that re-

sulted from the asserted lack of preparation—e.g., by

identifying a witness who should have been, but was not,

interviewed and called to testify; evidence that might

have been unearthed with greater diligence; motions or

objections that would have been made by a more atten-

tive lawyer; or a basis for impeaching government wit-

nesses that might have been developed. See Morris v.

Slappy, supra, slip op. 12-13 (Brennan, J., concurring in

the result). This is information to which the defendant

has or could develop access. Compare United States v.

Valenzuela-Bernal, supra, slip op. 11-13, 14. If the de-

fendant cannot make such a showing, then the asserted

* 7

wa —

5

*

47

lack of preparation cannot be said to have rendered coun-

sel’s assistance “ineffective,” because it could not be shown

even to have had an effect on the presentation of the de-

fense. The District of Columbia Circuit stressed this

point in its seminal en banc decision in United States v.

Decoster, supra. There the court rejected the dissenting

judges’ emphasis on specific duties of counsel in the ab-

stract and held instead that an asserted failure to in-

vestigate—a concrete example of a failure to prepare that

was shown there but was not found there—must be con-

sidered in terms of whether there was any resulting im-

pact on the prospects for a successful defense at trial.

624 F.2d at 208-213, 215-217 (plurality opinion) ; id. at

232-234, 244-245 (concurring opinion). See also Wash-

ington v. Strickland, supra, 693 F.2d at 1258-1262.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

Rex E. Lee

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

EDWIN S. KNEEDLER

Assistant to the Solicitor General

JOHN FICHTER DE PUE

Attorney

AUGUST 1983

= Of course, the defendant also would have show that any

errors he did identify were “serious derelictions” and that he was

substantially prejudiced as a result.

la

APPENDIX A

AFFIDAVIT OF RYLAND L. RIVAS

STATE OF OKLAHOMA)

) gs:

COUNTY OF GRADY )

The undersigned Affiant, by request of the United

States Attorney’s Office, Western District of Oklahoma,

makes the following statements:

That he has been in the practice of law since May,

1974, and is admitted to the Bar of the State of Okla-

homa, and is a member in good standing of the United

States District Court for the Western District of Okla-

homa and the U.S. Court of Appeals for the Tenth Cir-

cuit.

Affiant further states that prior to the year of 1980,

he has had extensive experience in the practice of crim-

inal law and has tried jury eases ranging from escape

from the penitentiary to murder in the Ist degree. Affi-

ant further states that he has attended numerous schools

and continuing education courses regarding the trial of

criminal matters including attendance of the National

Criminal Defense Lawyers Trial Advocacy Program lo-

cated in Houston, Texas.

Affiant further states that he assisted Mr. Chris Col-

ston in his preparation of defense for Harrison Cronic

and was present during all stages in the proceedings to

assist Mr. Colston with the preparation and drafting of

motions, examination of witnesses and examination of all

evidence available to Mr. Colston.

Further Affiant saith not on this 20th day of May,

1982.

/s/ Ryland L. Rivas

RYLAND L. RIVAS

2a

Subscribed and sworn to before me this 20th day of

May, 1982.

/s/ Karen Bell

Notary Public

My Commission Expires:

October 16, 1983.

3a

APPENDIX B

SURVEY OF THE DECISIONS OF THE COURTS OF

APPEALS REGARDING THE STANDARD TO BE

EMPLOYED IN ESTABLISHING INEFFECTIVE

ASSISTANCE OF COUNSEL

DISTRICT OF COLUMBIA: United States v. Decos-

ter, 624 F.2d 196, 208 (en banc) (plurality opinion),

cert. denied, 444 U.S. 944 (1979) (“serious incompetency

that falls measurably below the performance ordinariiy

expected of fallible lawyers”; “gross shortfall”): United

States v. Wood, 628 F.2d 554, 559 (1980) (en banc)

(same); United States v. Green, 680 F.2d 183, 188

(1982), cert. denied, No. 82-5552 (Feb. 22, 1983).

FIRST: United States v. Bosch, 584 F.2d 1113, 1121

(1978) (“reasonably competent assistance” standard is

“shorthand” for “assistance within the range of compe-

tence expected of attorneys in criminal cases”; convicted

defendant must show that error “clearly resulted from

neglect or ignorance rather than from informed, profes-

sional deliberation”); United States v. Talavera, 668

F.2d 625, 632 (1982) (same); United States v. Garcia,

698 F.2d 31, 33-35 (1983) (same); Cepulonis v. Ponte,

699 F.2d 573, 575 (1983) (same).

SECOND: United States v. Wight, 176 F.2d 376, 379

(1949), cert. denied, 338 U.S. 950 (1950) (“farce and

mockery”) ; United States v. Helgesen, 669 F.2d 69, 71,

cert. denied, 456 U.S. 929 (1982) (same); Langone v.

Smith, 682 F.2d 287 (1982) (same); Solina v. United

States, 709 F.2d 160, 162 (1983) (same).

THIRD: Moore v. United States, 482 F.2d 730, 736,

738 (1970) (en banc) (citing Restatement (Second) of

Torts § 299(a): counsel required to exercise “the cus-

tomary skill and knowledge which normally prevails at

the time and place”; noting failure of counsel adequately

to pursue “fundamental issue” of identification) ; United

States v. Baynes, 687 F.2d 659, 665 (1982) (same; fail-

4a

ure to investigate a “critical source of potentially excul-

patory evidence”) ; United States ex rel. Caruso v. Zelin-

sky, 689 F.2d 435, 438 (1982) (same; alleged failure of

counsel to advise client of plea bargain would constitute

a “gross deviation from professional standards“).

FOURTH: Marzullo v. Maryland, 561 F.2d 540, 544

(1977), cert. denied, 435 U.S. 1011 (1978) (whether

“defense counsel’s representation [was!] within the range

of competence demanded of attorneys in criminal cases“;

counsel’s error must be “so flagrant” that a court can

conclude that it “resulted from neglect or ignorance

rather than from informed, professional deliberation“);

Taylor v. Starnes, 650 F.2d 38, 41 (1981) (same);

Sneed v. Smith, 670 F.2d 1348, 1353, 1355 (1982)

(same); Knight v. Johnson, 699 F.2d 162, 166 (1983)

(“within the range of competence demanded of attorneys

in criminal cases

FIFTH: Akridge v. Hopper, 545 F.2d 457, 459, cert.

denied, 431 U.S. 941 (1977) (defendant must demon-

strate that counsel’s advice was not “within the range

of competency demanded of attorneys in criminal

cases”); Winfrey v. Maggio, 664 F.2d 550, 553 (1981)

(same); Washington v. Watkins, 655 F.2d 1346, 1355

(1981) (“counsel reasonably likely to render and ren-

dering reasonably effective assistance” (emphasis in orig-

inal)); Hayes v. Maggio, 699 F.2d 198, 201 (1983)

(same). Boyd v. Estelle, 661 F.2d 388, 389 (1981)

(same; counsel’s performance must be “seriously inade-

quate”); Uptain v. United States, 692 F.2d 8, 9-10

(1982) (same).

SIXTH: Beasley v. United States, 491 F.2d 687, 696

(1974) (assistance of counsel required by the Sixth

Amendment is “counsel likely to render and rendering

reasonably effective assistance”; “defense counsel must

perform at least as well as a lawyer with ordinary train-

ing and

E

in the criminal law and must

protect his client’s interest”); Poole v. Perini, 659 F.2d

730, 736 (1981) (same); United States v. Warner, 690

5a

F.2d 545, 555 (1982) (same); United States v. Yelardy,

567 F.2d 863, 865, 866 (1978) (“whether petitioner was

deprived of rudimentary legal assistance”; “within the

range of competence demanded of attorneys in criminal

cases

SEVENTH: United States ex rel. Williams v. Twomey,

510 F.2d 634, 641, cert. denied, 423 U.S. 876 (1975)

(“legal assistance which meets a minimum standard of

professional representation”; there is no presumption of

failure to meet a constitutional standard merely because

counsel made “egregious errors, tactical or strategic“);

Alicea v. Gagnon, 675 F.2d 913, 926 (1982) (“legal as-

sistance which meets a minimum standard of professional

representation”); United States ex rel. Cosey v. Wolff,

682 F.2d 691, 693 (1982) (same); Clay v. Director, Ju-

venile Division, 631 F.2d 516, 522 (1980) (“withir the

range of competence demanded of attorneys in criminal

cases”); United States ex rel. Edwards v. Warden, 676

F.2d 254, 258 (1982) (“within the reasonable range

of professional competence constitutionally required”) ;

United States v. Weston, 708 F.2d 302, 306 (1983)

(“legal assistance which meets a minimum standard of

professional representation”; defendant must establish

“grossly incompetent professional conduct” or “represen-

tation which is in any aspect * * * shockingly inferior to

what may be expected of the prosecution’s representa-

tion“).

EIGHTH: Reynolds v. Mabry, 574 F.2d 978 (1978)

(“reasonably competent lawyer”); Long v. Brewer, 667

F.2d 742, 745 (1982) (“behavior of counsel falling meas-

urably below that which might be oxpected from an ordi-

nary fallible lawyer”; defendant must show “serious in-

competency, inefficiency, or inattention of counsel’’) ;

Walker v. Solem, 687 F.2d 1235, 1236-1237 (1982)

(same; “failed to perform an essential duty”); White

Hawk v. Solem, 693 F.2d 825, 827 (1982) (same; “pre-

sumption that counsel has rendered effective assistance” ;

“gross error“).

6a

NINTH: Cooper v. Fitzharris, 586 F.2d 1325, 1330

(1978) (en banc), cert. denied, 440 U.S. 974 (1979)

(“within the range of competence demanded of attorneys

in criminal cases”; “serious dereliction”) ; United States

v. Sanford, 673 F.2d 1070, 1073 (1982) (same); United

States v. Gibson, 690 F.2d 697, 703-704 (1982) (“reason-

ably competent and effective counsel’; “within the range

of competence demanded of criminal attorneys in reason-

ably difficult cases

TENTH: Dyer v. Crisp, 613 F.2d 275, 278 (en banc),

cert. denied, 445 U.S. 945 (1980) (counsel must “exer-

cise the skill, judgment and diligence of a reasonably

competent defense attorney”); United States v. Golub,

694 F.2d 207, 213 (1982) (same; United States v.

Glick, 710 F.2d 639, 644 (1983) (same; court must de-

termine whether attorney’s performance fell below the

standard).*

ELEVENTH: Mylar v. Alabama, 671 F.2d 1299,

1301 (1982), cert. denied, No. 81-2240 (July 6, 1983);

(within the “range of competence demanded of attorneys

in criminal cases; Stanley v. Zant, 697 F.2d 955, 958

(1988) (same); an “objective assessment of whether

trial counsel fell below acceptable professional standards

in not advocating the underlying claim”) ; Washington v.

Strickland, 693 F.2d 1243, 1250 (former 5th Cir. Unit

B 1982) (en banc), petition for cert. granted, No. 82-

1554 (June 6, 1983) (“counsel reasonably likely to ren-

der and rendering reasonably effective assistance given

the totality of cireumstances”’).

* The Tenth Circuit decisions do not include the decision in the

instant case or in United States v. King, 664 F.2d 1171 (1981), or

United States v. Golub, 638 F.2d 185 (1980), rev'd, 694 F.2d 207

(1982), which did not require a showing of specific errors by coun-

sel because of the court’s view that counsel’s preparation was

hampered.

bev 3

7a

APPENDIX C

SURVEY OF THE DECISIONS OF THE COURTS

OF APPEALS REGARDING THE REQUIREMENT

THAT PREJUDICE BE SHOWN TO OBTAIN RELIEF

ON A CLAIM OF INEFFECTIVE ASSISTANCE

OF COUNSEL

DISTRICT OF COLUMBIA: United States v. De-

coster, 624 F.2d 196, 20 (en banc) (plurality opinion),

cert. denied, 444 U.S. 944 (1979) (accused must demon-

strate “a likelihood that counsel’s inadequacy affected the

outcome of the trial”); id. at 232 (MacKinnon, J., con-

curring) (“substantial unfair prejudice to his defense“);

United States v. Wood, 628 F.2d 554, 559 (1980) (en

banc) (must show that counsel’s performance was “likely

to have resulted in prejudice to appellant’s case; United

States v. Hinton, 631 F.2d 769, 771 (1980) (must show

“a likelihood that counsel’s inadequacy prejudiced his de-

fense ; United States v. Patterson, 652 F.2d 1046, 1048

(1981) (“{n]o counsel, however skillful, could have ‘af-

fected the outcome’ of this case: United States v. Green,

680 F.2d 183, 189 (1982), cert. denied, No. 82-5552

(Feb. 22, 1983) (“likelihood of effect on the outcome”).

FIRST: United States v. Ritch, 583 F.2d 1179, 1183,

cert. denied, 439 U.S. 970 (1978); (accused “bears the

burden of establishing actual prejudice”); United States

v. Campa, 679 F.2d 1006, 1014 (1982) (same).

SECOND: LiPuma v. Commissioner, Dep’t of Cor-

rections, 560 F.2d 84, 92, cert. denied, 434 U.S. 861

(1977) (“the prejudice resulting from counsel’s alleged

neglect must be actual and not merely possible”) ; United

States v. Aulet, 618 F.2d 182, 188 (1980) (same).

THIRD: United States ex rel. Johnson v. Johnson,

531 F.2d 169, 177-178, cert. denied, 425 U.S. 997 (1976)

(noting that petitioner was not prejudiced by counsel’s

failure to locate witness) ; United States v. Baynes, 687

F.2d 859, 670-671 (1982) (habeas corpus petitioner must

“demonstrate that there is a ‘reasonable possibility’ that

S

8a

had the error of which he complains not occurred, the

jury might have arrived at a different outcome”; must

“demonstrate that his attorney’s ineffectiveness was not

harmless beyond a reasonable doubt“; United States ex

rel. Caruso v. Zelinsky, 689 F.2d 435, 438 (1982) (“ac-

cused must be prejudiced by counsel's incon :petence be-

fore relief will be granted“).

FOURTH: Marzullo v. Maryland, 561 F.2d 540, 546

(1977), cert. denied, 435 U.S. 1011 (1978) (failure of

counsel to protect defendant from “prejudicial” reference

to prior rape charge) ; Taylor v. Starnes, 650 F.2d 38, 41

(1981) (court cannot conclude that counsel’s failure to

request lesser included offense instruction was “harmless

beyond a reasonable doubt”); Via v. Superintendent,

Powhatan Correctional Center, 643 F.2d 167, 175 (1981)

(noting that defendant was prejudiced by counsel’s lack

of preparation for trial, which led him to plead guilty).

FIFTH: Washington v. Watkins, 655 F.2d 1346, 1362

(1981) (noting that at time of the decision, it was “clear

that some degree of prejudice must be shown,” but that

it was then “unclear as to the precise degree of prejudice

that a defendant must demonstrate” (emphasis in origi-

nal)); Boyd v. Estelle, 661 F.2d 388, 389 (1981) (rele-

vant inquiry is “whether counsel’s inadequacy prejudiced

the fairness of his client’s trial”); Uptain v. United

States, 692 F.2d 8, 10 (1982) (same); Rubio v. Estelle,

689 F.2d 533, 535 (1982) (habeas corpus petitioner must

show an “adverse impact upon the fairness of her trial

resulting from [counsel’s] lapse”); Youngblood v. Mag-

gio, 696 F.2d 407, 409-410 (1983) (habeas petitioner

must show counsel’s performance “was so inadequate as

to render his trial unfair”).

SIXTH: Beasley v. United States, 491 F.2d 687, 696

(1974) (“Harmless error tests do not apply in regard to

the deprivation of a procedural right so fundamental as

the effective assistance of counsel’); McKeldin v. Rose,

631 F.2d 458, 460-461 (1980), cert. denied, 450 U.S. 969

9a

(1981) (same); Wiley v. Sowders, 647 F.2d 642, 650,

cert. denied, 454 U.S. 1091 (1981) (“question remains

open whether an adjudication of ineffective assistance re-

quires a showing that defense counsel’s performance af-

fected the outcome”’).

SEVENTH: United States v. Berkwitt, 619 F.2d 649,

659 (1980) (claim of ineffectiveness unsupported by “any

specific instance of prejudice”) ; United States v. Murzyn,

631 F.2d 525, 534 (1980), cert. denied, 450 U.S. 923

(1981) (“in the absence of prejudice,” counsel’s failure

to read leading entrapment decision was not ineffective

assistance; United States v. Berry, 661 F.2d 618, 621

(1981) (noting that the evidence counsel elicited did not

prejudice defendant); Wade v. Franzen, 678 F.2d 56, 59

(1982) (“harmless error” rule).

EIGHTH: Long v. Brewer, 667 F.2d 742, 745 (1982)

(defendant must show prejudice“ that he was “likely

deprived * * * of an otherwise available, substantial

ground of defense: Walker v. Solem, 687 F.2d 1235,

1237 (1982) (defendant must show counsel’s failure

“prejudiced his defense”); United States v. Kelly, 687

F.2d 1217, 1219 (1982) (defendant must show that he

“suffered material prejudice in the defense of his case“;

White Hawk v. Solem, 693 F.2d 825, 827 (1982) (defend-

ant must show “he was prejudiced by [counsel’s] fail-

ure

NINTH: Cooper v. Fitzharris, 586 F.2d 1325, 1331

(1978) (en banc), cert. denied, 440 U.S. 974 (1979) (re-

lief granted “only if it appears that the defendant was

prejudiced by counsel’s conduct”); Powell v. Spalding,

679 F.2d 163, 167 (9th Cir. 1982) (same) ; United States

v. Gibson, 690 F.2d 697, 704 (1982) (same); Baumann

v. United States, 692 F.2d 565, 572 (1982) (same);

United States v. Altamirano, 633 F.2d 147, 152-153

(1980), cert. denied, 454 U.S. 839 (1981) (counsel’s

many errors did not deprive defendant of a “fair trial“);

Fritchie v. McCarthy, 664 F.2d 208, 214 (1981) (“touch-

stone” is whether defendant “received a fair trial“).

i

10a

TENTH: Dyer v. Crisp, 613 F.2d 275, 278 (en banc),

cert. denied, 445 U.S. 945 (1980) (noting that defendant

“was not prejudiced by trial mistakes“; United States v.

Porterfield, 624 F.2d 122, 124-125 (1980) (where incom-

petence of counsel is “pervasive,” the defendant is not

required to prove “prejudice”; burden instead is on gov-

ernment to “establish the lack of prejudice”); United

States v. Payne, 641 F.2d 866, 867-868 (1981) (noting

the Porterfield holding that specific proof of prejudice is

not required where incompetence is pervasive or in other

unusual circumstances, but stating that this proposition

is “questionable” in light of the subsequent decision in

United States v. Morrison, 449 U.S. 361 (1981)); United

States v. Glick, No. 82-1375 (June 10, 1983) slip op. 12-

13 (quoting United States v. Morrison, supra: the court

must “determine whether the inadequacy ‘has had or

threatens some adverse effect upon the effectiveness of

counsel’s representation or has produced some other prej-

udice to the defense“

ELEVENTH: Washington v. Strickland, 693 F.2d

1243, 1250 (former 5th Cir. Unit B 1982) (‘en banc),

petition for cert. granted, No. 82-1554 (June 6, 1983)

(petitioner “must show that ineffectiveness of counsel re-

sulted in actual and substantial disadvantage to the cause

of his defense“

D ©. 8. coverewenr eee orrice, 1903