III Common Post-conviction Claims

• Library: Post-Conviction Practice: A Manual for Illinois Attorneys (2012 Ed.)

III. Common Post-Conviction Claims

The rest of this manual is dedicated to listing and discussing substantive issues that you may raise in your client's petition. This list is not exhaustive; anything can occur during a trial that deprives your client of his rights. Therefore, review the list of issues, but keep an open and creative mind.

Be sure to think about the following issues in terms of both Illinois law and U.S. Constitutional law. Obviously, the earlier in the process you are able to win a reversal, the better for your client. In Illinois, it is possible to win a reversal when an error violates state law, even if it does not rise to the level of a federal constitutional violation.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

A common claim in post-conviction litigation is the deprivation of effective assistance of counsel, in violation of the Sixth Amendment. U.S. Const. amend. VI; Strickland v. Washington, 466 U.S. 668, 686 (1984). Remember that your client's right to effective assistance of counsel attaches not just at trial, but also at other critical stages including arraignments, post-indictment interrogations, post-indictment lineups, and the entry of a guilty plea. Missouri v. Frye, 132 S. Ct. 1399 (2012).

Strickland set forth a two-prong test for IAC claims. People v. Barrow, 133 Ill. 2d 226 (1989); People v. Albanese, 104 Ill. 2d 504 (1984). The petitioner must prove that (1) counsel's performance fell below an objective standard of reasonableness; and (2) the representation prejudiced him in that there is a reasonable probability, but-for counsel's conduct, that the outcome would have been different. Strickland, 466 U.S. at 687.

Counsel's overarching duty is to act reasonably in advocating the defendant's case and bringing to bear such skills and knowledge as will render the trial a reliable adversarial testing process. Id. at 688. This duty includes reasonable investigation, or to make a reasonable decision that makes a particular investigation unnecessary. Id. at 691. See also Hall v. Washington, 106 F.3d 742, 749 (7th Cir. 1997) (an attorney's decision not to present certain witnesses can only rationally be made after some inquiry of investigation by defense counsel). Thus, a claim that trial counsel failed to investigate is more likely to succeed than other IAC claims because there is far less substance or decision making to which the court must defer.

Whether counsel was effective usually depends on a court's evaluation of counsel's performance as a whole. The court will presume that counsel is competent, and the burden is on you to prove otherwise. Rarely is a single error considered sufficiently egregious that it will require reversal of a conviction. If you decide to raise an IAC claim, you should raise every defect in counsel's performance that you found during your investigation. This is true even if a court has previously found effective assistance where there were similar deficiencies in performance. In the total picture of counsel's performance in your particular case, any one of his errors might be the one that tips the balance.

You should read pre-trial motion hearings to determine whether: (1) defense counsel did an adequate job of presenting evidence in support of his motion; (2) evidence presented would have supported a grant of relief on a theory other than the one argued by defense counsel; (3) the judge made a correct legal ruling based on the evidence before him; and (4) there are any statements by any witnesses that indicate the witness has additional information that did not come out at the hearing.

Sometimes, but not always, hearings take place on these motions. If you find motions in the file for which there is no hearing transcript, find out whether a hearing was held and whether it was transcribed. The trial file will only contain information indicating the date and dispositions of each hearing, so you will have to obtain the transcripts. If there was no hearing, find out whether counsel was refused one, whether he neglected to ask for a hearing, or whether he agreed to have the motion heard on the papers. Explore with trial counsel why he made the choices he did. Finally, read the motions to determine whether counsel provided sufficient factual and legal support, or whether he simply relied on form motions.

Remember that when alleging facts of an IAC claim in your petition, you must also allege evidence to demonstrate prejudice. See appendix IV.A for a list of possible ineffective assistance of counsel claims at the trial and appellate level. Below is a discussion of two recent IAC rules, including a discussion of retroactivity, which is important for post-conviction cases that arose before these decisions.

1. Counsel's Duty to Advise of Immigration Consequences

In Padilla v. Kentucky, the U.S. Supreme Court held that it was ineffective for counsel to fail to advise her client of the deportation consequences of a guilty plea. 130 S. Ct. 1473, 1487 (2010). In Padilla, the defendant's attorney failed to advise her client of the deportation risk when discussing his decision to plead guilty. Id. at 1478. The defendant maintained that he relied on counsel's advice, and that if he had known of the deportation risk, he would have gone to trial. Id. The court found that, under Strickland, failure to advise a client of deportation consequences was per se ineffective. However, the Court maintained that a petitioner must still prove the prejudice prong of the Strickland test to succeed on his IAC claim. Id. at 1487.

Padilla was announced in 2010; thus, post-2010, any failure of counsel to advise his client about deportation consequences of a guilty plea is actionable. However, an important issue remaining in Padilla litigation is whether it applies retroactively, to individuals who pleaded guilty pre-2010 under faulty advice regarding their immigration consequences. Retroactivity depends on whether the law is a "new" rule. Under Teague v. Lane, if the rule is found to be "new," it does not apply retroactively.¹⁴

Significantly, the U.S. Supreme Court has granted certiorari in Chaidez v. United States, the Seventh Circuit decision holding that Padilla is not retroactive. 655 F.3d 684 (7th Cir. 2011) cert. granted, 132 S. Ct. 2101 (2012). The Court's decision in Chaidez will be historic for future post-conviction petitioners asserting IAC-Padilla claims. However, until the Court issues its decision, Chaidez is the law in the Seventh Circuit and Padilla does not apply to ineffective representation pre-2010.¹⁵

2. Challenging Guilty Pleas Under Lafler & Frye

In 2012, the U.S. Supreme Court decided a pair of cases that secured defendants' Sixth Amendment right to effective assistance of counsel at the plea-bargaining stage of criminal proceedings. First, in Missouri v. Frye, the Court held that the Sixth Amendment right to effective assistance of counsel applies to the consideration of plea offers that lapse or are rejected, and that right applies to all 'critical' stages of criminal proceedings. 132 S. Ct. 1399 (2012). In Frye, the defendant's attorney failed to tell the defendant about an offer from the state for a reduction from a felony to a misdemeanor. Id. at 1404. The offer lapsed. Id. Consequently, the defendant pled guilty to a felony instead of a misdemeanor. Id. The Court held that, to be constitutionally effective, counsel must communicate plea offers to the client. Id. at 1408.

The Frye Court also held that, to show prejudice, defendants must demonstrate a reasonable probability that (1) they would have accepted the more favorable plea offer had they had effective assistance of counsel; and (2) the plea would have been entered without the prosecution's canceling it or the trial court's refusing to accept it. Id. at 1409. Therefore, practically, post-conviction attorneys must ask for an evidentiary hearing on these issues, and should carefully investigate and prepare witnesses to successfully meet the difficult standards to show prejudice.

Next, in Lafler v. Cooper, counsel's ineffective advice led the defendant to reject a good offer and instead proceed to trial. 132 S. Ct. 1376 (2012). Both the defendant-petitioner and the respondent conceded that counsel's advice was ineffective and thus satisfied the first prong of Strickland. Id. at 1384. For the second prong, petitioner alleged that the prejudice was having to stand trial. Id. at 1385. The Court held that, to allege prejudice, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that under the offer, the conviction or sentence (or both) would have been less severe than actual judgment and sentence imposed after trial. Again, this holding illustrates the importance for post-conviction attorneys litigating this issue to request an evidentiary hearing on these issues.

Because Frye and Lafler are new cases, there has been no decision as to whether they apply retroactively. However, use the above-referenced materials on retroactivity, in section Ill part A.1, if you plan to present such a claim on your client's behalf.

B. BRADY AND PROGENY

Another important claim that often arises in post-conviction litigation is the withholding of potentially exculpatory evidence from defendants facing trial, in violation of the Brady rule. Illinois and many other states have a continuing history of Brady violations, and they provide a ripe opportunity for post-conviction relief. Whether the misconduct is on the part of law enforcement or prosecutors, Brady claims are extremely important to preserve, and can lead to successful post-conviction petitions, and even reversals of convictions.¹⁶

In Brady v. Maryland, 373 U.S. 83 (1963), the defendant testified in his capital murder trial and admitted to participating in the crime, but claimed that another man, Boblit, did the actual killing. The...