by Kent Russell and Tara Hoveland, attorneys

This column provides “Habeas Hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on state habeas corpus and on “AEDPA,” the federal habeas corpus law that now governs habeas corpus practice in courts throughout the United States.

INEFFECTIVE ASSISTANCE OF COUNSEL

Understanding and Satisfying the Strickland Test for IAC

The landmark case of Strickland v. Washington, 466 U.S. 668 (1984), establishes that ineffective assistance of counsel (“IAC”) claims require two showings: (1) Deficient Performance (What went wrong?); and (2) Prejudice (So what?). In this column, we’ll deconstruct these core requirements and give you guidance on how to satisfy them.

IAC: Deficient Performance

To show deficient performance pursuant to Strickland, your lawyer’s overall conduct of the defense must have fallen below “an objective standard of reasonableness ... under prevailing professional norms.” That is, your lawyer performed, contrary to your best interests, in a way that a reasonable lawyer would not have. To evaluate such a claim, the court will presume that your lawyer “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” To overcome this presumption, you must “identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment.” Then, the court will determine whether “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance.” Id. at 689-90.

Here are some hints for how to investigate and present a case seeking to demonstrate deficient performance:

1. Politely but firmly ask your lawyer for your file. Don’t be shy; it is your file and you have a right to it. If the file is too large and/or you don’t want to risk keeping it in your cell, have the lawyer send it to a family member or trusted friend. Ideally, this person can make a copy of the file so the original stays intact. This is important because you can then use copies of documents as exhibits and still have the entire original file in case it is needed as exhibit in an evidentiary hearing.

2. Make a list of the major items in the file and copy them. By focusing on the most important stuff, your index and cache of documents will be small enough to keep in your cell and you can refer to them when asking for copies of documents to be sent to you.  

3. Overview the file. Keep in mind that the duties of a reasonably competent attorney include all of the following:

• Obtain discovery in a timely fashion. (Does the file contain all the relevant police reports, lab reports, and more in time for their effective use at trial?);

• Thoroughly investigate the facts. (e.g., locate and interview witnesses and obtain any evidence not included in the discovery. Is there any evidence your lawyer did these things or hired a private investigator to do them?);

• Research the applicable law. (Are there memos and case law on the key legal issues?);

• Consult with relevant experts and obtain – or diligently try to obtain sufficient funds to do so. (Was an expert retained or appointed? Do you need more money than the court is initially willing to authorize? If so, why?);

• Move to suppress unconstitutionally obtained evidence. (Note that you can’t challenge the merits of a denial of a search-and-seizure motion on habeas corpus, although you can argue that your lawyer performed deficiently in failing to make a motion to suppress that had a decent chance of success.);

• Object to — and/or file motions to exclude — inadmissible evidence. (Are there motions in limine regarding the main issues?);

• Investigate — and/or object to — the use of invalid or inadmissible priors. (Are there any motions to strike or bifurcate priors that should have been made but weren’t?);

• Advise the client thoroughly and accurately regarding correct sentencing exposure. (Did the lawyer fail to accurately give you the low-down on what you were facing if convicted and what you could or couldn’t do at sentencing?);

• Advise of any adverse immigration consequences; and

• Take timely action to have your direct appeal filed and pursued by competent appellate counsel.

4. Mine the file for the “gold” you can use in proving deficient performance. Make a list of specific acts or omissions that do not fit within the range of reasonable competence. Then flesh out your list with the documents that support your claim, so you can attach those to your petition. In searching for evidence of possible deficient performance, ask yourself these questions: (1) Was there any reasonably obtainable evidence/witnesses that your lawyer did not find? If so, were there any attorney or investigator notes regarding efforts to find them? (2) Were there any laws applicable to your case that your lawyer was unaware of? If so, what were they? (3) Was expert testimony used by the prosecution in your case? If so, what does the correspondence in the file show about trial counsel’s efforts to obtain contradictory expert testimony for the defense?

5. Important: You must prove that each of the acts and/or omissions that you contend amount to deficient performance did not result from an informed tactical choice. Either you have to show that trial counsel had no sensible strategic reason for what he did or failed to do, or that he failed to conduct a sufficient investigation in order to make a reasonable, informed decision as to what strategy to pursue in the first place. (See Wiggins v. Smith, 539 U.S. 510, 525 (2003)) “[A] lawyer who fails adequately to investigate and introduce evidence that demonstrates his client’s factual innocence, or that raises sufficient doubt as to that question to undermine confidence in the verdict, renders deficient performance.” For a good summary of the duty to investigate before making “tactical” decisions, see, e.g., Richter v. Hickman, 578 F.3d 944, 956-57 (9th Cir. 2009):

“Counsel is obligated to conduct a reasonable investigation in order to present the most persuasive case that he can. Counsel must conduct a pretrial investigation into the availability of independent, objective sources to support the part of his client’s testimony that he knows or can reasonable expect will be challenged, and subsequently to present to the jury any evidence he finds that tends to show his client’s innocence, tends to undermine the prosecution’s case, or raises a reasonable doubt as to his client’s guilt, unless he makes an informed strategic decision that the risks of introducing such evidence outweigh its benefit to the defense.”

6. Send your lawyer something in writing (and keep a copy), asking him/her to address any specific questions you have about your case. (If the response is helpful, ask if she/he will sign a declaration. It can be helpful to draft a suggested declaration yourself and ask your lawyer to either sign it as-is or make appropriate changes.)

7. If your lawyer stops communicating with you, draft your own declaration detailing your attempts to get a declaration from counsel and attach your letter(s) and his/her responses. Although these will be hearsay, they are still supportive of your allegations and may lead to the court ordering an evidentiary hearing at which you can subpoena counsel’s attendance.

8. Provide detailed evidence supporting your allegations. For example: investigation reports and/or declarations from witnesses your attorney never contacted; evidence that was not found or presented; expert witness declarations from experts who should have been called at trial but weren’t, and copies of anything from the file that shows that your attorney was aware of the evidence or witnesses, but failed to pursue them.

IAC: Prejudice

So what? That’s the fundamental question to ask yourself in trying to satisfy the “prejudice” prong of the Strickland test after you’ve hopefully established deficient performance as discussed in the previous section.

There are two essential components to the requirement for showing prejudice in IAC cases: First you should define IAC prejudice for the court in the most favorable way while still coming within the limits imposed by case law. Second, you have to prove IAC prejudice by providing the most persuasive reasons that you can to convince the court that trial counsel’s errors were serious enough to require a new trial.

Defining IAC Prejudice

Strickland holds that, to establish prejudice, the petitioner must demonstrate “a reasonable probability that, but for counsel’s ... errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Note that the second sentence defines “reasonable probability” in a way that is different from how an ordinary person would think of “probability” – namely as something that is more likely to happen than not. That’s important, because this ordinary definition of “probability” suggests that the “reasonable probability” needed to show IAC prejudice requires more than a 50/50 chance of a better result if counsel had performed competently. On the contrary, however, the cases make clear that the minimum showing for Strickland’s prejudice requirement in IAC cases is “even less than a fifty-fifty chance.” (See, e.g., Hernandez v. Chappell, 878 F.3d 843, 846 (9th Cir. 2017). Granted, it is also clear from Strickland that more is required than a showing of the mere “possibility” of a different result. Nevertheless, putting these limits together, Strickland defines the “reasonable probability” requirement as one that is more demanding than a showing that counsel’s errors had some possible or conceivable effect on the outcome of the trial (for example, the lower “Chapman” standard that would apply where constitutional error is shown on direct appeal) – but less stringent than a 50/50 showing or the 51% preponderance of the evidence needed in civil cases generally.

Now that we are clear on what a “reasonable probability” is not in IAC cases, just what is it? Again, the Strickland definition focuses on “undermining confidence in the outcome.” But whose confidence are we talking about, and what’s enough to undermine it? Although there are no definitive answers to these questions in the existing case law, the Hernandez case I’ve cited above is helpful, because it reminds us that there are 12 jurors sitting in a criminal case, and that a conviction requires the unanimous consent of all 12. Therefore, if there is a strong likelihood that even one juror who voted for conviction would have voted not guilty if counsel hadn’t performed deficiently, IAC prejudice has been established. Thus, in Hernandez, where counsel’s error consisted of a failure to raise a diminished capacity defense to the charges, the court explained: “Our confidence in the outcome of [the] trial is undermined [because] we believe it likely that at least one juror would have concluded that Hernandez suffered from the mental impairment required for a successful defense of diminished mental capacity.”

In sum, and integrating the unanimity requirement with the need for the State to prove guilt beyond a reasonable doubt, we wind up with the following definition of IAC prejudice: A reasonable probability (once again, more than a mere possibility but something less than a 51% probability) that at least one juror, upon hearing the evidence which trial counsel should have introduced but did not, would have concluded that the prosecution had failed in its burden to prove the defendant guilty beyond a reasonable doubt.

Proving IAC Prejudice

Although no two cases are exactly the same, there are several factors which, if they apply in your case, should be emphasized to the court in arguing that you have met the standard for showing IAC prejudice:

Seriousness of the error: If the error was one of omission, show that the error deprived the defendant of a critical defense that had a good chance of succeeding, or of key evidence that would have supported that potentially viable defense.

Frequency of the error: If the error was one of commission (e.g., the introduction of harmful evidence that could have been excluded), show that it came up multiple times rather than just once.

Prosecutor’s emphasis on the evidence affected by the error: Use the prosecutor’s final argument to demonstrate that the prosecutor hammered away at the damage that resulted from counsel’s performance. For example, if counsel failed to establish a viable alibi, cite all the instances in which the prosecutor argued that defendant’s presence at the scene was firmly established.

Strength of the prosecution’s case: The weaker the prosecution’s case for conviction, the stronger the likelihood that counsel’s errors affected the verdict. If possible, go into the teeth of the worst evidence against the defendant, and establish an innocent explanation for most or all of it.

Length of the jury deliberations: The longer the jury deliberated, the more likely it is that they were in doubt about the prosecution’s case, and would have been influenced to change their vote to not guilty if they had heard the favorable evidence that defense counsel failed to elicit.

Juror requests for read-back of testimony: If the jury asked during deliberations for a read-back of testimony that would have been refuted or undermined by more competent representation, bring that squarely to the court’s attention.

Favorable jury findings on alternate issues: Examples: (1) The victim was shot to death and the jury was asked to make a finding that the defendant personally used a weapon, but did not make that finding; (2) The jury was asked to find the defendant guilty of a greater crime, but came instead with a verdict on a lesser included offense; (3) Outright acquittal on some of the charges.

Evidence omitted due to counsel’s deficient performance was not covered by other evidence. Where the error is counsel’s failure to elicit favorable evidence, show that the same or similar evidence was not introduced through other evidence that came in via any other sources.

Comparison of the favorable evidence that would have come in through competent representation with the more damning evidence that was introduced at trial. For example, where the prosecutor used uncontradicted expert testimony to convict the defendant, show through expert witness declarations that a defense expert could have successfully challenged the reliability of the forensic evidence. 

Law partners Kent A. Russell and Tara K. Hoveland specialize in habeas corpus. Kent has practiced criminal law for over 45 years, has consistently received Martindale-Hubbell’s highest rating for excellence and legal ethics, and is the author of the California Habeas Handbook 2.0, which thoroughly explains state and federal habeas corpus, parole, and other post-conviction remedies. Tara, who has 25-plus years of experience and is a certified specialist in appellate law, is a contributing editor for the Handbook and is admitted in both CA and AZ. To buy the California Habeas Handbook, use the optional order form on the website – russellhabeas.com – and/or send your $79 check to Kent Russell, “CHH”, 3169 Washington St., San Francisco, CA 94115.

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