12-d Common Ineffective Assistance of Counsel Claims

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12-D. Common Ineffective Assistance of Counsel Claims

Below are some of the most common ineffective counsel claims that have succeeded. This does not mean that these claims are always successful or that this list includes every possible ineffective counsel claim. When you plead these claims, be sure to check the case law in your state.

(1) Counsel is not qualified to practice law;⁵⁰

(2) Counsel had a conflict of interest;⁵¹

(3) Counsel failed to investigate⁵² or perform certain pretrial functions;⁵³

(4) Counsel failed to properly select a jury;⁵⁴

(5) Counsel failed to pursue defenses available to defendant;⁵⁵

(6) Counsel did not properly advise defendant about a plea;⁵⁶

(7) Counsel did not advise non-citizen defendant of possible deportation risks of a guilty plea;⁵⁷

(8) Counsel failed to use important evidence or testimony at trial;⁵⁸

(9) Counsel failed to object to improper use of evidence at trial;⁵⁹

(10) Counsel failed to request proper jury instructions;⁶⁰

(11) Counsel failed to object to improper jury instructions;⁶¹

(12) Counsel failed to present or argue an appeal,⁶² or to present a meritorious issue (one that was likely to be successful) on appeal;⁶³ and

(13) Counsel's conduct at trial was simply so bad that it was ineffective.⁶⁴

50. See United States v. Novak, 903 F.2d 883, 890 (2d Cir. 1990) (holding that "counsel" does not include an individual who present himself as a lawyer but obtains admission to the bar under false pretenses). See also Solina v. United States, 709 F.2d 160, 167-69 (2d Cir. 1983) (requiring reversal where defendant was unaware that counsel was unlicensed to practice law in any state, and "the lack of such authorization stemmed from failure to seek it or from its denial for a reason going to legal ability, such as failure to pass a bar examination, or want of moral character"); but see Waterhouse v. Rodriguez, 848 F.2d 375, 382-83 (2d Cir. 1988) (framing rule to exclude situation where licensed attorney is unknowingly disbarred during trial).

51. See the discussion in Part C(1)(c) of this Chapter.

52. See Wiggins v. Smith, 539 U.S. 510, 535-38, 123 S. Ct. 2527, 2542-44, 156 L. Ed. 2d 471, 493-95 (2003) (finding decision of counsel not to expand investigation of petitioner's life history for mitigating evidence beyond pre-sentence investigation report and department of social services records fell short of prevailing professional standards and amounted to ineffective assistance); Appel v. Horn, 250 F.3d 203, 215-18 (3d Cir. 2001) (finding counsel's failure to investigate or prepare for the petitioner's competency determination violated his right to effective assistance and merited granting habeas corpus relief); People v. LaBree, 34 N.Y.2d 257, 259-61, 313 N.E.2d 730, 731-32, 357 N.Y.S.2d 412, 413-15 (1974) (finding ineffective assistance based on counsel's inadequate investigation and preparation); see also Henry v. Poole, 409 F.3d 48, 67-72 (2d Cir. 2005) (finding counsel's failure to investigate led counsel to present alibi defense for the wrong date and helped an otherwise weak prosecution case).

53. See Kimmelman v. Morrison, 477 U.S. 365, 385-91, 106 S. Ct. 2574, 2588-91, 91 L. Ed. 2d 305, 326-29 (1986) (finding ineffective assistance of counsel where counsel failed to conduct any pretrial discovery and failed to file timely motion to suppress illegally seized evidence); Gersten v. Senkowski, 426 F.3d 588, 609-15 (2d Cir. 2005) (finding that attorney's failure to seek medical expert consultation for the defense or to investigate critical government evidence constituted ineffective assistance of counsel); People v. Donovan, 184 A.D.2d 654, 654-56, 585 N.Y.S.2d 70, 71-72 (2d Dept. 1992) (ordering a new trial for ineffective assistance of counsel after attorney did not move to suppress certain evidence and failed to conduct an adequate investigation before the trial).

54. See Johnson v. Armontrout, 961 F.2d 748, 755-56 (8th Cir. 1992) (finding ineffective...