Amicus Brief — Strickland v. Washington

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No. 82-1554

In The

AWE 19 1983

|

ae L. STEVAS,

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LED

=2K

Supreme Court of the United States

October Term, 1982

CHARLES E. STRICKLAND, Superintendent, Florida

State Prison: JIM SMITH, Attorney General of Florida,

and LOUIE L. WAINWRIGHT, Secretary, Florida De-

partment of Corrections,

Petitioners,

vs.

DAVID LEROY WASHINGTON,

Respondent.

18)

On Writ Of Certiorari To The

United States Court Of Appeals

For The Former cinta Circuit (Unit B)

BRIEF AMICI CURIAE OF THE STATES OF ALA-

BAMA, ARIZONA, ARKANSAS, CALIFORNIA, COLO-

RADO, CONNECTICUT, GEORGIA, HAWAII, IDAHO,

INDIANA, KANSAS, KENTUCKY, LOUISIANA,

MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,

MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NEVADA, NEW JERSEY, NEW MEXICO,

NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLA-

HOMA, OREGON, PENNSYLVANIA, RHODE ISLAND,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE,

UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST

VIRGINIA, AND WYOMING IN SUPPORT OF PETI-

TIONERS

ty

w

MIKE GREELY

Attorney General of Montana

JOHN H. MAYNARD

Arsistant Attorney General

Counsel of Record

Justice Building

215 North Sanders

Helena, Montana 59620

(406) 449-2026

Attorneys for Amici Curiae

COCKLE PRINTING CO., 251i Douglas St., Omaha 68102

TABLE OF CONTENTS

Pages

Interest of Amici Curiae coacuiaaar evan

Summary of Argument a Nee

Argument:

I. Introduction on saecereea etree

II. The Right to Counsel <citsteaninesiideanaaeaiene uae

III. The Burden Of Proving Ineffective Assistance .

Of Counsel

A. The Federal Circuits.

“J

ao ns

Bi The tates, 2.2. Wc cmianncseeneeeaeea

IV. Federal Court Analysis Of Ineffective Assist-

TNO CUBAN acc

V. Appropriate Standards Of Review ccc 13

Cee 5 cones | sie eb eaSacliia al ar

Fs | | a eT EM UT

TABLE OF AUTHORITIES

Cases:

Argersinger v. Hamlin, 407 U.S. 4d (i972) ww. i

Brady v. Maryland, 373 U.S. 83 (1963) 16, 17

Burroughs v. State, 590 S. W. 2d 695 (Mo. App.

1979) 9

Callahan v. State, 426 So. 2d 801 (Miss. 1983) aa

Chandler v. Florida, 449 U.S. 570 (1982) ww. ee

ii

TABLE OF AUTHORITIES—Continued

Pages

Chandler y. State, 261 Ind. 161, 300 N. E. 2d 877

| cr 8

Codianna v. Morris, 660 P, 2d 1101 (Utah 1983) .... = 9

Coles v. Peyton, 389 F. 2d 224 (4th Cir. 1968), cert.

oer co eee (1008) 12

Commonwealth v. Bundridge, 268 Pa. Super. 1,

407 A. 2d 406 (1979) a tnindn tsa

Commonwealth y. Schlieff, 5 Mass. App. 665, 369

ae 9

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

1978), cert. denied, 440 U.S. 974 .979) ........ meme t |

Cupp v. Naughten, 414 U.S. 141 (1973) comecnmmmme 14

Davis v. State, 40 Md. App. 467, 391 A. 2d 872

Deason v. State, 263 Ark. 56, 562 S. W. 2d 79 (1978),

cert. denied, 439 U.S, 839 ........ ae 4

Dyer v. Crisp, 613 F. 2d 275 (10th Cir. 1980) wu. 12

Engle v. Isaac, 456 U.S, 107 (1982) .. 18

Fernandez v. United States, 375 A. 2d 484 (D.C.

App. 1977) 9

Fitzgerald v. Estelle, 505 F. 2d 1334 (5th Cir. 1974) 7

Gentry v. Warden, Conn. Correctional Institution,

167 Conn. 639, 356 A. 2d 902 (1975) &

iil

TABLE OF AUTHORITIES—Continued

Pages

Gideon v. Wainwright, 372 U.S. 335 (1963) occu 6

Glasser v. U. 8., 315 U. 8. 60 (1942)... CB

Gray v. Lucas, 677 F. 2d 1086 (5th Cir, 1982) ou. 7,11

Hankerson vy. North Carolina, 432 U.S. 233 (1977) .. 15

Henderson v. Kibbe, 481 U.S. 145 (1977) cocccccuomemm 16

Jackson v. Denno, 378 U.S. 368 (1964) ccc 6

In Re Kasper, 451 A. 2d 1125 (Vt. 1982) cocccccccummame = 9

Kelly v. Warden, House of Corrections, 701 F. 2d

311 (4th Cir, 1983) on ilecdinnaainnianibensanae’ Ta

Kelsey v. State, 569 P, 2d 1028 (Okla. Crim. 1977) .... 9

Kibler v, State, 267 S.C. 250, 227 S.E, 2d 199 (1976) 9

Knight v. State, 394 So. 2d 997 (Fla. 1981) wou. =

Lang v. Murch, 438 A, 2d 914 (Me. 1981) ccc 8

Lenz v, State, 97 Nev. 65, 624 P. 24 15 (1981) un nnewm 9

Lewis v. State, Ala. Cr. App., 367 So. 2d 542 (1978) .... 8

Marzullo v. Maryland, 561 F. 2d 540 (4th Cir. 1977),

cert. denied, 435 U.S. 1011 (1978) 10, 12

McMann vy. Richardson, 897 U.S. 759 (1970) ecco 6, 7, 10,

11, 12, 13

MeNabb v. U.S., 318 U.S, 332 (1943) .. 14

Matthews v. United States, 518 F. 2d 1245 (7th

Cir. 1975) &

Michel v. Louisiana, 350 U.S. 91 (1955) 5

iv

TABLE OF AUTHORITIES—Continued

Pages

Mooney v. Holohan, 294 U.S. 103 (1935) coccecccccmmun 15

Moore v. United States, 432 F. 2d 730 (3d Cir. 1970) 10

Mylar v. Alabama, 671 F. 2d 1299 (11th Cir. 1982) .... 12

People v. Greer, 79 Tll, 2d 103 (1980) occ =

People v. Moore, 56 App. Div. 2d 877, 392 N. Y.S,

ee A ig BITE Dsante “ee

People v. Myers, 617 P. 2d 808 (Colo. 1980) occu 8

People v. Pope, 23 Cal. 3d 412, 425 Cal. Rptr. 732,

590 Py 2d 859 (1979) ooccccmmmovummnmmnnmnmnsnnna oe

Powell v. Alabama, 287 U.S. 45 (1932) occu 5

Price v. Perini, 520 F. 2d 807 (6th Cir. 1975), cert.

denied, 423 U.S. 950 (1975) ....... Nimenaes ailetuainapae 7

Raymond y. State, 146 Ga. App. 452, 246 S. E.

Be EE), sctciidecdnssteeteiesaneescee + cciadnicneaigaidenaabaiiok 8

Rook vy. Cupp, 18 Or. App. 608, 526 P, 2d 605 (1974) ..... 9

Rose v. Lundy, 455 U.S. 509 (1982) 00000. vce Sl 3

Sims v. State, 295 N. W. 2d 420 (Iowa, 1980) nnnccuumum §

Smith v. Phillips, 455 U.S. 209 (1982) eeccccmusessnmnne 17

Spilman v. State, 633 P. 2d 183 (Wyo. 1981) coco 9

Stanley v. Zant, 697 F’. 2d 955 (11th Cir. 1983) .......... es

State ex rel. Wine v. Bordenkircher, 230 S. E. 2d

747 (W. Va. 1976)

State v. Antone, 615 P. 2d 101 (Hawaii, 1980) ... ae

y

TABLE OF AUTHORITIES—Continued

Pages

State v. Desroches, 110 R. I. 497, 293 A. 24 912 (1972) 9

State v. Hess, 12 Wash App. 787, 532 P. 2d 1173,

affirmed $6 Wash, 2d 51, 541 P, 2d 1222 (1975)

State v. Kroeplin, 266 N. W. 2d 537 (N.D. it)

State v. Lang, 202 Neb. 9, 272 N. W. 2d 775 (1978) ... 9

State v, Lytle, 48 Ohio St. 2d 391, 358 N. E. 2d 623

CY secon , : sudeananiameates ces a

State v. McBride, 296 N. W. 2d 551 (S.D, 1980) .. 9

State v. McGuinty, 97 N. M. 360, 639 P, 2d 1214

©

State v. McKenney, 101 Idaho 149, 609 P. 2d 1140

State v. Pencek, 224 Kan. 725, 585 P. 2d 1052 (970)... 2

State v. Powless, 272 N. W. 2d 258 (Minn. 1978) ....W..... 9

State v. Rose, 608 P. 2d 1074 (Mont. 1980) 0

State v. Watson, 653 P. 2d 351 (Ariz. 1982) uu. 8

Stone v. Powell, 428 U.S, 465 (1976) 0 8

Tollett v. Henderson, 411 U.S, 258 (1973) occccnmm ie

True v. State, No. 82-297 (Me. 1983) ... 8

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

2d 634 (7th Cir. 1975), cert. denied sub nom.

Sielaff v. Williams, 423 U.S. 876 (1977) ou... 11

United States v. Agurs, 427 U.S. 97 (1976) 15, 16

vi

TABLE OF AUTHORITIES—Continued

Pages

United States v. Bosch, 584 F. 24 1113 (1st Cir.

United States v. Bubar, 567 F. 2d 192 (2d Cir.

1977), cert. denied, 4384 U.S. 872 (1977) aw 10

United States v. Cronic, 675 F. 2d 1126 (10th Cir.

United States v. Decoster, 624 F. 2d 196 (1979)

(D.C. Cir.), cert. denied, 444 U.S. 944 (1979) 8, 12

United States v. Frady, 456 U.S. 152 (1982) 20000000 =18

United States v. Gray, 565 F. 2d 881 (5th Cir.

re

United States v. Joyce, 542 F. 2d 158 (2d Cir. 1976) ..... 7

United States v. Malone, 558 F. 2d 435 (Sth Cir.

1977) = “ 11

United States v. Massaro, 544 F. 2d 547 (1st Cir.

1976), cert. denied, 429 U.S. 1052 (1977) oT

United States v. Swallow, 511 F. 2d 514 (10th Cir.

1975) s

United States v. Toney, 527 F. 2d 716 (6th Cir.

1975), cert. dented, 429 U.S. 838 (1976) 0. ae |

United States v. Valenzuela-Bernal, 102 S. Ct.

3440 (1982) 19

Statute:

28 U.S.C. § 2254 2

vii

TABLE OF AUTHORITIES—Continued

Pages

TExTs:

Case Comment, Decoster IJ]: New Issues in In-

effective Assistance of Counsel, 70 J. Crim. L.

Ore a a ee A 13

Comment, Ineffective Assistance of Counsel: Who

Bears the Burden of Proof?, 29 Baytor L. Rev.

Be a Meccan Sale RE co Se A 19

Coub, “The Case Against Modern Federal Habeas

Corpus”, 57 A. B.A. 3.393 (1871) — _.._.._... @

Reports and Proposals, 31 Crim. L. Rev. (BNA) 2469 13

Want, The Caseload Monster in the Federa! Courts,

69 A.B. A. J. 613 (1983) .... niicuse eanueaamnieg

ConsTITUTION:

Me Sk ae a a |

8 ei | ee oe 2 eR

U.S. Const. amend XIV 0. 2,6

No. 82-1554

SS

In The

Supreme Court of the United States

October Term, 1982

CHARLES E. STRICKLAND, Superintendent, Florida

State Prison; JIM SMITH, Attorney General of Florida,

and LOUIE L. WAINWRIGHT, Secretary, Florida De-

partment of Corrections,

Petitioners,

vs,

DAVID LEROY WASHINGTON,

Respondent.

On Writ Of Certiorari To The

United States Court Of Appeals

For The Former Fifth Circuit (Unit B)

O—

BRIEF AMICI CURIAE OF THE STATES OF ALA-

BAMA, ARIZONA, ARKANSAS, CALIFORNIA, COLO-

RADO, CONNECTICUT, GEORGIA, HAWAII, IDAHO,

INDIANA, KANSAS, KENTUCKY, LOUISIANA,

MAINE, MARYLAND, MASSACHUSETTS, MICHIGAN,

MINNESOTA, MISSISSIPPI, MISSOURI, MONTANA,

NEBRASKA, NEVADA, NEW JERSEY, NEW MEXICO,

NORTH CAROLINA, NORTH DAKOTA, OHIO, OKLA-

HOMA, OREGON, PENNSYLVANIA, RHODE ISLAND,

SOUTH CAROLINA, SOUTH DAKOTA, TENNESSEE,

UTAH, VERMONT, VIRGINIA, WASHINGTON, WEST

VIRGINIA, AND WYOMING IN SUPPORT OF PETI-

TIONERS

ray

Vv

The states noted above, by and through their respec-

tive Attorneys General (see Appendix), appear on behalf

of their citizens and file this brief pursuant to Rule 36.4

of the Rules of this Court.

9°

9

-

INTEREST OF AMICI CURIAE

As the chief legal officers of their respective states,

these Attorneys Genera! and States Attorneys often repre-

sent the correctional administrators of their states in fed-

eral habeas corpus actions initiated pursuant to 28 U.S.C.

§ 2254. Moreover, they have a vital interest in ensuring

the integrity of the criminal justice process in their re-

spective states. With ever-increasing frequency they must

defend state criminal convictions in federa] court against

Sixth and Fourteenth Amendment allegations of ineffec-

tive assistance of counsel. For these reasons the amici

have a substantial and continuing interest in the establish-

ment of consistent and reasonable federa) standards for

application in cases involving claims of ineffective assist-

ance of counsel.

ry

“™

SUMMARY OF ARGUMENT

The United States Court of Appeals for the'Eleventh

Circuit, sitting en banc, imposed new and unduly burden-

some standards for evaluating claims of ineffective assist-

ance of counsel in collateral proceedings by rejecting the

sound reasoning of the Florida Supreme Court and the

United States District Court, which had both reviewed

and rejected the defendant's claim. This case demonstrates

how state and federal courts have failed to establish rea-

sonable and consistent methods of analyzing these claims

absent further direction from this Court. The Court

should adopt a standard that emphasizes the truth-seeking

function of the trial by placing the burden of proof en-

tirely on the defendant in collateral proceedings to prove

that the acts or omissions of his counsel, which he alleges

3

to be ineffective, affected the outcome of his trial] or the

severity of his sentence,

Yr

Vd

ARGUMENT

I. Introduction

In this case the amici curiae seek the correct standard

for federa) court review of claims of ineffective assistance

of counse! to be applied in collateral proceedings arising

out of state court convictions. In light of the total ex-

haustion requirement of Rose v. Lundy, 455 U.S. 509

(1982), the analysis provided by this Court will bear on

cases in which state courts have already reviewed and re-

jected claims of ineffective assistance of counsel. In many

cases much time will have elapsed since the convictions.

Because these claims are tardy and speculative, they

threaten the integrity of our entire criminal justice sys-

tem, raising the possibility that such claims will material-

ize in every case in which a conviction has occurred.

State courts should continue to be the primary forum

for fair resolution of claims of ineffective assistance of

counsel, The administration of criminal justice varies dra-

matically from state to state, simply because the states

face criminal] justice problems that vary dramatically with

region, population, local economies, ete. A defendant who

challenges the adequacy of his or her representation should

bear the burden of showing that the claimed inadequacy

affected the outcome of the trial. Just as this Court can-

not be the final arbiter of every state criminal conviction,

lower federal courts should not endure the responsibility

of evaluating counsel's representation in every state court

conviction according to a complex checklist that may ulti-

mately be relevant to the circumstances of only a fraction

of cases.

In keeping with the goals of the criminal justice sys-

tem this Court must recognize the efficacy of swift and

certain adjudication of claims. The burden to provide

finality in state criminal convictions rests first with the

states, and depends upon comity between state and federal

courts. Federal courts should not disturb state court re-

jections of a defendant's claims without, at the very least,

an affirmative showing that the alleged ineffectiveness of

counsel affected the outcome of the defendant's trial. The

exhaustive review by state courts of federa! claims entitles

state courts to similar consideration by federal courts.

The tide of federal habeas corpus actions denigrates the

state judicial process, and threatens federal courts as well.

In 1982, nearly 10,000 habeas corpus actions were filed in

federal court. Want, The Caseload Monster in the Fed-

eral Courts, 69 A. B. A. J. 613 (1983),

In several landmark decisions this Court has addressed

issues that relate to the requirement of counsel. These

decisions have formed a context within which other courts

have derived additional rules concerning counsel's per-

formance. Provided herein is a review of several relevant

cases, as well as a review of federal and state decisions on

counsel's representation, all of which are a backdrop to

the essence of the States’ argument. This Court must de-

vise a guide which emphasizes scrutiny of the defendant's

culpability in place of analysis that simply puts the de-

fense attorney on trial. To do otherwise is to invite “Mon-

day morning quarterbacking” over a defense attorney's

performance. The guide which this Court sets forth must

recognize that justice suffers when the state court trial

is reduced to a preliminary step in the process of second-

guessing a defense attorney's strategy in presenting a

client’s case,

II. The Right To Counsel

The Sixth Amendment states that, “In all criminal

prosecutions, the accused shall enjoy the right... to have

the Assistance of Counsel for his defence.” U.S. Consr.

amend. VI. In Powell v. Alabama, 287 U.S. 45, 71 (1932),

the Court held that the Constitution mandated an “effee-

tive appointment” of counsel in a capital case. In Glasser

v. U.S., 315 U.S. 60, 70 (1942), the Court held that the

Sixth Amendment requires that the assistance of counsel

in a federal court be “untrammelled” and “unimpaired”

by the trial court. This Court later found a presumption

of effectiveness of counsel that the evidence in Michel v.

Louisiana, 350 U.S. 91, 101 (1955), did not overcome. The

Court’s observations evolved into a set of general rules

that have been adopted by state and federal courts. They

are:

(1) all attorneys who are admitted as members of the

bar are presumed to be competent, and are pre-

sumed to have acted competently in any given

situation; (2) the fact that connsel was physically

or mentally ill, aged, intoxicated, young or inex-

perienced, does not itself overcome the presump-

tion of effectiveness: (3) such facts, however,

may be combined with other evidence to estab-

lish a claim of ineffectiveness; (4) great defer-

ence is to be given to the attorneys in the area

of trial strategy and trial tacties; (5) courts will

not judge an attorney’s performance on the basis

of hindsight: and (6) effective representation

does not mean that the lawyer has to be perfect

or infallible, or that the defendant has to prevail.

5 Am. Jur. Proof of Facts 2D, Ineffective Assist-

ance of Counsel § 4 (1975).

Gideon v. Wainwright, 372 U.S. 335 (1963), held that the

Sixth Amendment guarantee was a fundamental right es-

sential to a fair trial and binding on the states by virtue

of the Fourteenth Amendment.

In McMann v. Richardson, 397 U.S. 759, 771 (1970),

the Court discussed, in dicta, advice given by counsel. For

the first time, the Court hinted at an objective standard

which trial courts should strive to maintain. The Court

commented that whether advice is competent:

depends as an initial matter, not on whether a court

would retrospectively consider 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. On the one hand, uncertainty is in-

herent in predicting court decisions; but on the other

hand defendants facing felony charges are entitled

to the effective assistance of competent counsel. Be-

yond this we think the matter, for the most part,

should be left to the good sense and discretion of the

trial courts with the admonition that if the right to

counsel guaranteed by the Constitution is to serve its

purpose, defendants cannot be left to the mercies of

incompetent counsel, and that judges should strive

to maintain proper standards of performance by at-

torneys who are representing defendants in criminal

cases in their court. (Emphasis added.)

The Court further stated, citing Jackson v. Denno, 378

U.S. 368 (1964), that a defendant alleging that he was

incompetently advised by his attorney and seeking to

make a collateral attack in a federal court on a guilty

plea in a state court must demonstrate “gross error on

the part of counsel.” McMann, 397 U.S. at 772. The

right to counsel guaranteed by the Sixth Amendment was

later extended to all cases in which a defendant may be

imprisoned in Argersinger v. Hamlin, 407 U.S. 25, 37

(1972).

III. The Burden Of Proving Ineffective Assistance

Of Counsel

A. The Federal Circuits.

This Court has not explicitly commented on the allo-

cation of the burden of proof as to prejudice, nor has it

applied the harmless error doctrine to ineffective assist-

ance of counsel claims. The issue of allocation of the bur-

den of proof has two separate parts, the showing of in-

effectiveness and the showing of prejudice. All courts

hold that the defendant must prove acts or omissions on

the part of counsel which constitute the rendering of in-

effective assistance. The circuits and state courts do not

always agree, however, on which party bears the burden

of proving whether, and to what extent, the criminal de-

fendant was prejudiced by his counsel’s representation.

See Kelly v. Warden, House of Corrections, 701 F. 2d 311

(ih Cir. 1983), reh’g granted.

The First, Second, Fifth, Sixth, Seventh, Ninth, Tenth,

Eleventh, and District of Columbia Circuits have expressly

required the defendant to prove the prejudicial effects of

his attorney’s incompetent assistance. United States v.

Massaro, 544 F. 2d 547, 551 (1st Cir. 1976), cert. denied

429 U.S. 1052 (1977); United States v. Joyce, 542 F. 2d

158, 160 (2d Cir. 1976): Gray v. Lucas, 677 F. 2d 1086

(5th Cir. 1982); Fitzgerald v. Estelle, 505 F. 2d 1334 (5th

Cir. 1974); Price v. Perini, 520 F. 2d 807 (6th Cir. 1975),

8

cert. denied, 423 U.S. 950 (1975); Matthews v. United

States, 518 F. 2d 1245 (7th Cir. 1975); Cooper v. Fitz-

harris, 586 F. 2d 1325 (9th Cir. 1978) (en banc), cert. de-

nied, 440 U.S. 974 (1979); United States v. Swallow, 511

F. 2d 514 (10th Cir. 1975); United States v. Decoster, 624

F. 2d 196 (1979) (D.C. Cir.) (en bane), cert. denied 444

U.S. 944 (1979); Stanley v. Zant, 697 F. 2d 955 (11th Cir.

1983); Cf. United States v. Cronic, 675 F. 2d 1126 (10th

Cir. 1982) (prejudice inferred from circumstances).

B. The States.

The majority of state courts which have addressed

the issue place the burden of showing prejudice upon the

defendant though the decisions do not always distinguish

the burden of showing ineffectiveness from the burden of

showing prejudice. Lewis v. State, Ala. Cr. App., 367 So.

2d 542 (1978); Deason v. State, 263 Ark. 56, 562 S. W. 2d

79 (1978), cert. denied, 439 U.S. 839; State v. Watson, 653

P, 2d 351, 355 (Ariz. 1982) (defendant must show counsel's

ineffectiveness; state must then show harmlessness beyond

a reasonable doubt); People v. Pope, 23 Cal. 3d 412, 425

Cal. Rptr. 732, 590 P. 2d 859 (1979); People v. Myers, 617

P. 2d 808 (Colo. 1980); Gentry v. Warden, Conn. Correc-

tional Institution, 167 Conn. 639, 356 A. 2d 902, 906 (1975);

Knight v. State, 394 So. 2d 997 (Fla. 1981); Raymond v.

State, 146 Ga. App. 452, 246 S. E. 2d 461 (1978); State v.

Antone, 615 P. 2d 101 (Hawaii, 1980); State v. McKenney,

101 Idaho 149, 609 P. 2d 1140 (1980); People v. Greer, 79

Ill. 2d 103 (1980); Chandler v. State, 261 Ind. 161, 300

N. E. 24 877 (1973) ; Sims v. State, 295 N. W. 2d 420 (Iowa,

1980); State v. Pencek, 224 Kan. 725, 585 P. 2d 1052

(1978): True v. State, No. 82-297 (Me. 1983); Lang v.

9

Murch, 438 A. 2d 914 (Me. 1981); Davis v, State, 40 Md.

App. 467, 391 A. 2d 872 (1978); Commonwealth v. Schlief,,

5 Mass. App. 665, 369 N. E. 2d 723 (1977); State v. Pow-

less, 272 N. W. 2d 258 (Minn. 1978); Callahan v. State,

426 So. 2d 801 (Miss. 1983); Burroughs v. State, 590 S. W.

2d 695 (Mo. App. 1979); State v. Rose, 608 P. 2d 1074

(Mont. 1980); Lenz v. State, 97 Nev. 65, 624 P. 2d 15

(1981) ; State v. Lang, 202 Neb. 9, 272 N. W. 2d 775 (1978) ;

People v. Moore, 56 App. Div. 2d 877, 392 N. ¥.S. 2d 321

(2d Dept., 1977); State v. Kroeplin, 266 N. W. 2d 537

(N. D. 1978); State v. McGuinty, 97 N. M. 360, 639 P. 2d

1214 (1982); State v. Lytle, 48 Ohio St. 2d 391, 358 N. E.

2d 623 (1976): Kelsey v. State, 569 P. 2d 1028 (Okla. Crim.

1977) ; Rook v. Cupp, 18 Or. App. 608, 526 P. 2d 605 (1974) ;

Commonwealth v. Bundridge, 268 Pa. Super. 1, 407 A. 2d

406 (1979); State v. Desroches, 110 R.I. 497, 293 A. 2d

913 (1972); Kibler v. State, 267 S.C. 250, 227 S. E. 2d 199

(1976); State v. IIcBride, 296 N. W. 2d 551 (S. D. 1980);

Codianna v. Morris, 660 P. 2d 1101 (Utah, 1983); In Re

Kasper, 451 A. 2d 1125, 1126 (Vt. 1982); State v. Hess,

12 Wash. App. 787, 532 P. 2d 1173, affirmed as qualified

on other grounds, 86 Wash. 2d 51, 541 P. 2d 1222 (1975);

State ex rel. Wine v. Bordenkircher, 230 S. E. 2d 747 (W.

Va. 1976); Spilman v. State, 633 P. 2d 183 (Wyo. 1981);

Fernandez v. United States, 375 A. 2d 484 (D.C. App.

1977).

IV. Federal Court Analysis Of Ineffective Assistance

Claims

In the past, the Circuit Courts have rarely distin-

guished direct appeals from collateral attacks in analyz-

ing claims of ineffective assistance of counsel. Instead,

they have simply evaluated the targeted acts or omissions

10

of counsel in light of various nebulous and subjective

standards of performance. The standards they apply

ean be broken down into two basic categories. The first

standard is “farce or mockery of justice,” a standard still

employed in the Second Cireuit. United States v. Bubar,

567 F.2d 192, 202 (2d Cir. 1977), cert. denied, 434 U.S.

872 (1977). Once commonly utilized, this standard has

heen supplanted by a number of variations of the second

standard, “range of competence.” This standard evolved

from the Court's inquiry in McMann v. Richardson, 397

U.S. 759, 771 (1970), concerning whether defense counsel’s

“advice was within the range of competence demanded of

attorneys in criminal cases.” See also Tollett v. Hender-

son, 411 U.S. 258 (1973).

Following McMann, the First, Third, Fourth, Seventh

and Eighth Cireuits adopted “range of competence” stand-

ards derived from the McMann language. The First and

Fourth Circuits asked whether counsel’s performance was

“within the range of competence expected of attorneys in

criminal cases.” United States v. Bosch, 584 F.2d 1113,

1121 (1st Cir. 1978); Marzullo v. Maryland, 561 F. 2d 540,

543 (4th Cir. 1977), cert. denied, 435 U.S. 1011 (1978) (en

bane as to adoption of McMann standard). The Third Cir-

cuit adopted a tort standard, applied to professionals in

general, which focuses on “the exercise of the customary

skill and knowledge which normally prevails at the time

and place.” Moore v. United States, 432 F.2d 730, 736

(3d Cir. 1970) (en banc).

Another variation of the “range of competence” stand-

ard, adopted by the Seventh Circuit, “guarantees a crim-

inal defendant legal assistance which meets a minimum

standard of professional representation.” United States

11

ex rel, Williams v. Twomey, 510 F.2d 634, 641 (7th Cir.

1975), cert. denied sub nom. Sielaff v. Williams, 423 U.S.

876 (1977). The Eighth Cireuit requires that trial coun-

sel “exercise the customary skills and diligence that a

. reasonably competent attorney would perform under sim-

ilar circumstances.” United St.tes v. Malone, 558 F.2d

435, 438 (Sth Cir. 1977),

Another formulation of the second standard that is

frequently used requires that counsel's representation be

“reasonably effective.” The “reasonably effective” stand-

ard also evolved from the language in McMann v, Rich-

ardson, 397 U.S. 759, 771 (1970), stating that defendants

are entitled to the “effective assistance of competent coun-

sel.” The “reasonably effective” standard is used in the

First, Fifth, Sixth, Ninth, Tenth, Eleventh and D.C. Cir-

cuits. The First Cireuit held in United States v. Bosch, 584

F. 2d 1113, 1121 (1st Cir. 1978), that it is sufficient if eoun-

sel is prepared and conducts the defense with reasonable

knowledge and skill and with an exercise of knowledgeable

choices of trial tactics. The First Circuit, therefore, ap-

plies both the “range of competence” and “reasonably ef-

fective” standards.

The Fifth and Sixth Cireuits ask “whether counsel

was reasonably likely to render and did render reason-

ably effective counsel.” Gray v. Lucas, 677 F.2d 1086

(5th Cir. 1982); United States v. Gray, 565 F. 2d 881, 887

(5th Cir. 1976); United States v. Toney, 527 F. 2d 716, 720

(6th Cir. 1975), cert. denied, 429 U.S. 838 (1976). The

Ninth Cireuit states that a defendant must be afforded

“reasonably competent and effective defense representa-

tion.” Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir.

1978) (en bane), cert. denied, 440 U.S. 974 (1979). The

12

reasonable competence and reasonably effective represen-

tation tests are also used in the Tenth and Eleventh Cir-

cuits. Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir. 1980);

Mylar v. Alabama, 671 F. 2d 1299, 1300 (11th Cir. 1982).

A few courts have attempted to use “specific guide-

lines” as a basis for evaluating claims of ineffective as-

sistance. The guidelines define acceptable conduct of

counsel at trial as well as what conduct is required both

before and after trial. The Fourth Circuit adopted this

standard in Coles v. Peyton, 389 F. 2d 224 (4th Cir. 1968),

cert. denied, 393 U.S, 849 (1968), holding that counsel fe.

an indigent defendant should be appointed promptly, must

be afforded reasonable opportunity to prepare a defense,

must confer with his client without undue delay and as

often as necessary to advise him of his rights and ascer-

tain available and unavailable defenses, and must con-

duct appropriate fartual and legal investigations. In a

later decision, Marzullo v. Maryland, 561 F.2d 540 (4th

Cir. 1977), the Fourth Circuit adopted the MeMann stand-

ard, without expressly overruling Coles v. Peyton. In U.

S. v. Decoster, 624 F.2d 196 (D.C. Cir. 1976), the Court

rejected the sjecifie guidelines approach advocated by

Judge Bazelon in his dissenting opinion,

In the instant case, the Eleventh Circuit has ettempt-

ed to graft a clumsy, convoluted checklist approach onto

their analysis in an attempt to give their rationale the

appearance of a more objective process. What the an-

alysis accomplishes, however, is to shift the focus even

further from the question of the fairness of the defend-

ant’s trial, which is exactly where the focus should remain.

This variety of approaches bears out Justice White’s

remarks to the Criminal Justice Section of the American

13

Bar Association last year, in which he noted that the frame

of reference for analyzing counsel’s conduct is not set-

tled. Nor, he said, is it clear whether prejudice or a like-

lihood of prejudice must be shown, or indeed “what preju-

dice” might be in a case of counsel ineffectiveness. Re-

ports and Proposals, 31 Crm. L. Rev. (BNA) 2469.

At the present time, the standards for determining

error are so broad that the requirement of showing preju-

dice may be the only part of the analysis that is ultimately

useful. In the same vein, prejudice affecting the outcome

is the only determination that can be objectively and con-

sistently determined.

. ineffective assistance of counsel claims require

a different analysis by reviewing courts than the

other sixth amendment cases. In most sixth amend-

ment cases, the reviewing court is presented with an

objective problem: either counsel was appointed and

allowed to confer with his client or not. The basis

of the claim of ineffective assistance, however, re-

quires a more detailed and difficult examination of

counsel’s efforts and abilities in a specific factual sit-

uation. This necessarily amorphous inquiry into

counsel’s effectiveness calls for demonstration of ac-

tual prejudice to the defendant in order to provide

relief only in warranted circumstances.

Case Comment, Decoster III: New Issues in Ineffective

Assistance of Counsel, 70 J. Crim. L. 275, 287 (1980).

V. Appropriate Standards Of Review

This case presents the Court with the opportunity to

resolve the analytical nightmare created by the failure

of lower courts to objectify and apply the McMann dicta.

The Court must recognize the collateral nature of these

proceedings and apply the appropriate standards of re-

14

view utilized in its recent decisions. In Cupp v. Naughten,

414 U.S. 141, 144 (1973), the Court granted certiorari to

consider whether the giving of a certain jury instruction

“so offended established notions of due process as to de-

prive the respondent of a constitutionally fair trial.” (Em-

phasis added.) The Court stated:

Before a federal court may overturn a conviction re-

sulting from a state trial in which this instruction

was used, it must be established not merely that the

instruction is undesirable, erroneous, or even “uni-

versally condemned,” but that it violated some right

which was guaranteed to the defendant by the Four-

teenth Amendment.

414 U.S. at 146. Criticizing the analysis employed by the

Court of Appeals, the Court went on to say that the lower

court’s analysis put the “cart before the horse.”

.. . the question is not whether the trial court failed

to isolate and cure a particular ailing instruction, but

rather whether the ailing instruction by itself so in-

fected the entire trial that the resulting conviction

violates due process.

414 U.S. at 147.

Likewise, lower courts often put the cart before the

horse when analyzing claims of ineffective assistance of

counsel by quibbling about the advisability of a particular

action or omission of defense counse! rather than focus-

ing on the question of whether the alleged error “so in-

fected the entire trial that the resulting conviction vio-

lates due process.” Moreover, they often fail to heed the

Court’s admonition in McNabb v. U.S., 318 U. 8. 332, 340

(1943) :

It must be remembered that review by this Court of

state action expressing its notion of what will best

15

further its own security in the administration of crim-

inal justice demands appropriate respect for the de-

liberative judgment of a state in so basic an exercise

of its jurisdiction.

This respect for the deliberative judgments of state courts

is vital to the effective administration of the criminal

justice system.

As this Court stated in United States v. Agurs, 427

U.S. 97, 112 (1976), the “overriding concern” is the “jus-

tice of the finding of guilt,” and, therefore, postconviction

relief is warranted only where the defendant is arguably

innocent. See also Hankerson v. North Carolina, 432 U.S.

233, 239 (1977) (the purpose of the burden of proof is “to

prevent the erroneous conviction of innocent persons”) ;

Stone v. Powel’, 428 U.S. 465, 490 (1976) (“[T]he ultimate

question of guilt or innocence .. . should be the central

concern of a criminal proceeding”).

In Agurs, 427 U.S. 97, the defendant alleged that the

prosecution’s failure to tender criminal records of the

victim deprived her of a fair trial as guaranteed by the

Due Process Clause of the Fifth Amendment. The Court

held that the proper standard of materiality on review

by that Court in determining whether constitutional error

had been committed was whether the omitted evidence cre-

ated a reasonable doubt of guilt, an outcome determinative

standard of review. The Court stated that the Court of

Appeals had incorrectly interpreted the constitutional re-

quirement of due process. The Court cited Mooney v.

Holohan, 294 U.S. 103 (1935), where the Court held that

in order to justify a collateral attack on petitioner’s con-

viction, the petitioner must establish fundamental unfair-

ness, i.e., reasonable likelihood that the outcome was af-

16

fected. Agurs, 427 U.S. at 103. The Court also illus-

trated this underlying principle by citing Brady v. Mary-

land, 373 U.S. 83 (1963), stating:

A fair analysis of the holding in Brady indicates that

implicit in the requirement of materiality is a con-

cern that the suppressed evidence might have affect-

ed the outcome of the trial. (Emphasis added.)

Agurs, 427 U.S. at 104. The Brady Court focused on

harm to the defendant, stating:

We now hold that the suppression by the prosecution

of evidence favorable to an accused upon request vi-

olates due process where the evidence is material

either to guilt or to punishment... .

Brady v. Maryland, 373 U.S. at 87. The Agurs Court

stated that it was concerned with “elementary fairness,”

Agurs, 427 U.S. at 110.

The mere possibility that an item of undisclosed in-

formation might have helped the defense, or might

have affected the outcome of the trial, does not es-

tablish “materiality” in the constitutional sense. (Em-

phasis added.)

Agurs, 427 U.S. at 109-110. The Court stated that its

overriding concern was with the justice of the finding of

guilt and that its frame of reference was, therefore, to

the context of the entire record. 427 U.S. at 112.

In an even more recent decision involving a collateral

attack, Henderson v. Kibbe, 431 U.S. 145 (1977), the

Court rejected the suggestion that the omission of an in-

struction on causation “so infected the entire trial that

the resulting conviction violated due process.” The Court

also stated:

17

The burden of demonstrating that an erroneous in-

struction was so prejudicial that it will support a col-

lateral attack on the constitutional validity of a state

court’s judgment is even greater than the showing

required to establish plain error on direct appeal.

The question in such a collateral proceeding is “wheth-

er the ailing instruction by itself so infected the en-

tire trial that the resulting conviction violates due

process,” [citation omitted], not merely whether “the

instruction is undesirable, erroneous, or even ‘uni-

versally condemned’.”

431 U.S. at 154. This Court elaborated on the rationale

for so holding by stating in an accompanying footnote:

The strong interest in preserving the finality of judg-

ments, see, e.g., Blackledge v. Allison, 431 U.S. 63

(Powell, J., econeurring): Schneckloth v. Bustamonte,

412 U.S. 218, 256-266 (Powell, J., concurring), as well

as the interest in orderly trial procedure, must be

overcome before collateral attack can be justified.

For a collateral attack may be made many years after

the conviction when it may be impossible, as a prac-

tical matter, to conduct retrial.

Similar concerns should be recognized in the instant case.

In Smith v. Phillips, 455 U.S. 209 (1982), this Court,

citing Brady, noted that the touchstone of due process

analysis is the fairness of the trial. The Court also held

that in a federal habeas action, the findings of the trial

judge are presumptively correct under 28 U.S.C. 4 2254

(d). The Court cited the holding of Sumner v. Mata, 449

U.S. 539, 551 (1981), that “federal courts in such proceed-

ings must not disturb the findings of state courts unless

the federal habeas court articulates some basis for dis-

arming such findings of the statutory presumption that

they are correct and may be overcome only by convincing

evidence.” 455 U.S. at 218. The Smith Court also cited

18

Chandler v. Florida, 449 U.S. 570, 582-83 (1982), for the

principle that “[fjederal courts hold no supervisory au-

thority over state judicial proceedings and may intervene

only to correct wrongs of constitutional dimension.”

In United States v. Frady, 456 U.S. 152 (1982), the

defendant alleged prejudice from a faulty jury instruc-

tion. This Court determined the appropriate standard of

review and allocation of the burden of proof in a collat-

eral proceeding requires that the defendant “clear a sig-

nificantly higher hurdle than would exist on direct ap-

peal.” 456 U.S. at 166.

The Court reiterated its emphasis that the error must

be evaluated in the total context of the events at trial.

Frady, 456 U.S. at 169. The Frady Court also stated that

it was the defendant who had to shoulder the burden of

showing not merely that the errors created a possibility

of prejudice, but that they worked to his actual (Court’s

emphasis) and substantial disadvantage, infecting his en-

tire trial with error of constitutional dimension. 456 U.S.

at 170. The Court indicated that there must be a “sub-

stantial likelihood” that the outcome would have been

affected “to overcome society's justified interests in the

finality of criminal judgments.” 456 U.S. at 175.

In Engle v. Isaac, 456 U.S. 107 (1982), the defendant

asserted the unconstitutionality of a rule placing the bur-

den of proving an affirmative defense on criminal defend-

ants. The Court stated “we have long recognized, how-

ever, that the Constitution guarantees criminal defend-

ants only a fair trial and a competent attorney. It does

not insure that defense counsel will recognize and raise

every conceivable constitutional claim.” 456 U.S. at 134.

19

The defendant in United States v. Valenzuela-Bernal,

102 8. Ct. 3440 (1982), alleged that he was denied due proc-

ess or the Sixth Amendment right of confrontation be-

cause of the deportation of some alien witnesses. The

Court held:

Due process guarantees that a criminal defendant will

be treated with “that fundamental! fairness essential

to the very concept of justice. In order to declare a

denial of it we must find that the absence of that fair-

ness fatally infected the trial; the acts complained of

must be of such quality as necessarily prevents a fair

trial.”

102 S. Ct. at 3449.

CONCLUSION

In evaluating claims of ineffective assistance of coun-

sel, courts must remember:

The purpose of the court is to seek the truth in a man-

ner which provides fundamental fairness to all par-

ties, both the defendant and society. Reliance on

theoretical flaws in this truth-seeking process which

have no real world consequences defeats the purpose

for which the court was created and does a disservice

to all parties involved.

Comment, Ineffective Assistance of Counsel: Who Bears

the Burden of Proof?, 29 Bayvor L. Rev. 29, 48 (1977).

By adhering to the principles of its recent decisions

involving collateral attacks, the Court will further restore

balance to our federal system, the loss of which has gen-

erated so much concern in recent years:

Conviction in the state courts now has become merely

the starting point of interminable litigation. State

appeals are followed by successive petitions for fed-

20

eral habeas corpus and successive federal appeals.

What is involved is a repetitious, indefinite, costly

process of judicial screening, rescreening, sifting, re-

sifting, examining and re-examining of state crim-

inal judgments for possible constitutional error... .

No other nation in the world has so little confidence in

its judicial system as to tolerate these collateral at-

tacks on criminal court judgments.

Coub, “The Case Against Modern Federal Habeas Cor-

pus,” 57 A.B. A.J. 323, 326 (1971).

The cost of relitigating claims of ineffective assistance

of counsel in federal court is great. Narrowing the in-

stances in which the federa] courts may discard the rea-

soned judgments of our state courts with respect to an

issue involving so many subjective elements will help re-

store the public confidence on which the s. stem depends,

The decision of the court below should be reversed

and the case remanded for reconsideration of the petition-

er’s claim of ineffective assistance of counsel under a

standard whereby petitioner is required to prove that the

actions or omissions of his counsel affected the outcome

of his trial or the severity of his sentence.

Respectfully submitted this 18th day of August, 1983.

MIKE GREELY

Attorney General

State of Montana

Justice Building

215 North Sanders

Helena, Montana 59620

By:

JOHN H. MAYNARD

Assistant Attorney General

Counsel of Record

App. l

APPENDIX

State of Alabama

Charles A. Graddick

Attorney General

P.O. Box 948

Montgomery, Alabama 36102

(205) 834-5150

State of Arizona

Robert K. Corbin

Attorney General

1275 West Washington

Phoenix, Arizona 85007

(602) 255-4266

State of Arkansas

John Steven Clark

Attorney General

Justice Building

Little Rock, Arkansas 72201

(501) 371-2007

State of California

John Van de Kamp

Attorney General

800 Tishman Building

3580 Wilshire

Los Angeles, California 90010

(213) 736-2304

(Sacramento (916) 445-9555)

State of Colorado

Duane Woodard

Attorney General

1525 Sherman St., 3rd Floor

Denver, Colorado 80203

(303) 866-3611

State of Connecticut

Austin J. McGuigan

Chief State’s Attorney

P.O. Box 500

Wallingford, Conn. 06492

State of Georgia

Michael J. Bowers

Attorney General

132 State Judicial Building

Atlanta, Georgia 30334

(404) 656-4

State of Hawaii

Tany S. Hong

Attorney General

State Capitol

Honolulu, Hawaii 96813

(808) 548-4740

State of Idaho

Jim Jones

Attorney General

State House

Boise, Idaho 83720

(208) 334-2400

State of Indiana

Linley E. Pearson

Attorney General

219 State House

Indianapolis, Indiana 46204

(317) 232-6201

State of Kansas

Robert T. Stephan

Attorney General

Judicial Center, 2nd Floor

Topeka, Kansas 66612

(913) 296-2215

State of Kentucky

Steven L. Beshear

Attorney General

State Capitol

Frankfort, Kentucky 40601

(502) 564-4002

State of Louisiana

William J. Guste, Jr.

Attorney General

2-3-4 Loyola Building

New Orleans, Louisiana 70112

(504) 568-5575

(Baton Rouge (504) 342-7013)

State of Maine

James E. Tierney

Attorney General State House

Augusta, Maine 04330

(207) 289-3661

App. 2

State of Maryland

Stephen H. Sachs

Attorney General

Seven North Calvert Street

Baltimore, Maryland 21209

(301) 576-6300

State of Massachusetts

Francis X. Bellotti

Attorney General

One Ashburton Place

20th Floor

Boston, Massacnusetts 02108

(617) 727-2200

State of Michigan

Frank J. Kelley

Attorney General

Law Building

Lansing, Michigan 48913

(517) 373-1110

State of Minnesota

Hubert H. Humphrey, III

Attorney General

102 State Capitol

St. Paul, Minnesota 55155

(612) 296-2591

State of Mississippi

William A, Allain

Attorney General

Carroll Gartin Justice Bldg.

P.O. Box 220

Jackson, Mississippi 39205

(601) 354-7130

State of Missouri

John D. Ashcroft

Attorney General

P.O. Box 899

Jefferson City, Missouri 65102

(314) 751-3321

State of Montana

Michael T. Greel

Attorney Genera

justice Building

Helena, Montana 59620

(406) 449-2026

State of Nebraska

Paul L. Douglas

Attorney General

State Capitol

Lincoln, Nebraska 68509

(402) 471-2682

State of Nevada

Brian McKay

Attorney General

Heroes Memorial Building

Capitol Complex

Carson City, Nevada 89710

(702) 885-4170

State of New Jersey

Irwin |. Kimmelman

Attorney General

Richard J. Hughes

Justice Complex, CNO80

Trenton, New Jersey 08625

State of New Mexico

Paul Bardacke

Attorney General

Bataan Bidg., P.O. Box 1508

Santa Fe, New Mexico 87501

(505) 982-6000

State of North Carolina

Rufus L. Edmisten

Attorney General

Department of Justice

P.O. Box 629

Raleigh, North Carolina 27602

(919) 733-3377

State of North Dakota

Robert Wefald

Attorney General

State Capitol

Bismarck, No. Dakota 58505

(701) 224-2210

State of Ohio

Anthony Celebrezze

Attorney General

State Office Tower

30 East Broad Street

Columbus, Ohio 43215

(614) 466-3376

App. 3

State of Oklahoma

Michael Turpen

Attorney General

112 State Capitol

Oklahoma City, Okla. 73105

(405) 521-3921

State of Oregon

Dave Frohnmayer

Attorney General

100 State Office Building

Salem, Oregon 97310

(503) 378-6368

State of Pennsylvania

LeRoy S. Zimmerrnan

Attorney General

Strawberry Square, 16th Floor

Harrisburg, Penn, 17120

(717) 787-3391

State of Rhode Island

Dennis J. Roberts, II

Attorney General

72 Pine Street

Providence, R. |. 02903

(401) 274-4400

State of South Carolina

T. Travis Medlock

Attorney General

Robert C. Dennis Office Bidg.

1000 Assembly Street

Columbia, So. Carolina 29211

(803) 758-3970

State of South Dakota

Mark V. Meierhenry

Attorney General

State Capitol

Pierre, South Dakota 57501

(605) 773-3215

State of Tennessee

William M. Leech, Jr.

Attorney General

450 James Robertson Parkway

Nashville, Tenn. 37219

(615) 475-2501

State of Utah

David L. Wilkinson

Attorney General

236 State Capitol

Salt Lake City, Utah 84114

(801) 533-5261

State of Vermont

John J. Easton

Pavilion Office Bldg.

Montpelier, Vermont 05602

(802) 828-3171

State of Virginia

Gerald L. Baliles

Attorney General

101 N. 8th Street-5th Fl.

Richmond, Virginia 23219

State of Washington

Kenneth O. Eikenberry

Attorney General

Temple of Justice

Olympia, Washington 98504

(206) 753-2550

State of West Virginia

Chauncey H. Browning

Attorney General

State Capitol

Charleston, W. Virginia 25305

(304) 348-2021

State of Wyoming

Archie G. McClintock

Attorney General

123 State Capitol

Cheyenne, Wyoming 82002

(307) 777-7841