12-c-1 The Federal Standard

• Library: A Jailhouse Lawyer's Manual (2020 Edition)

12-C-1. The Federal Standard

The standard for ineffective assistance of counsel under the U.S. Constitution is the same no matter where you are. There are three ways you can make an ineffective counsel claim under federal law: you can claim (1) that your lawyer was actually ineffective, (2) constructively ineffective, or (3) that he had a conflict of interest that caused him to be actually ineffective. Each claim requires you to prove different things.

(a) Actual Ineffectiveness: The Strickland Test

To claim that your lawyer was actually ineffective, you must pass the two-part Strickland test.²³ The first part of this test, the "deficient performance" prong, requires you to prove that your lawyer's performance was "deficient."²⁴ For this prong, the court decides whether your lawyer's representation fell below an "objective standard of reasonableness."²⁵ This means the court sees if your lawyer acted in a way that most other lawyers would think is acceptable. Since this standard can apply differently in different situations, you must identify the specific things your lawyer did that were so bad that you were effectively deprived of your right to counsel.²⁶ You cannot just say that you had a bad lawyer or that your lawyer did not do enough to help you. You must point to the specific things your lawyer did poorly or did not do at all and show that these failures made your representation fall below the professional standards for lawyers.

If the court finds your lawyer's representation fell below this objective standard of reasonable lawyering (that it was deficient), it will apply the second part of the Strickland test. The second part, the "prejudice prong," requires you to prove there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."²⁷ This means that you not only have to point out what your lawyer did wrong, but you also have to show that your lawyer's actions hurt you and possibly changed the outcome of your case. You can only win on an ineffective counsel claim if you can satisfy both parts of the test.²⁸ You should remind the court that the Supreme Court has specifically said that the "prejudice prong" requires you to show only a "reasonable probability" of a different result, and you do not have to prove that your lawyer's errors "more likely than not altered the outcome" of your trial.²⁹

Ineffective counsel claims are some of the most difficult claims to plead successfully because of the second part of the Strickland test. Courts usually do not find that an attorney's behavior affected a trial so strongly that the outcome is unreliable. When you are making an ineffective counsel claim, you should ask the court to consider the total effect of all of your lawyer's errors.³⁰ Try to find cases where defendants successfully made claims based on facts similar to yours and argue your claim in a similar way. Unfortunately, for every successful ineffective counsel claim, there are many others that do not win. So, be aware of recent cases that work against you and try to point out how those cases are different from your case.

(b) Constructive Ineffectiveness: The Cronic Standard

If you cannot establish that your lawyer was actually ineffective under the Strickland test (above), the second type of ineffective assistance of counsel claim available under the U.S. Constitution is a "constructive denial" of assistance claim as described in...