Opportunity lost? The ineffective assistance doctrine's applicability to foregone plea bargains.

• Author: Rufo, Anthony E.

Imagine a criminal defendant accused of a serious felony. His defense counsel arrives woefully unprepared for the first day of trial. There is little hope of receiving a continuance as the presiding judge denied all previous requests. The charges carry the potential for a life sentence, but there is a plea bargain offer on the table that will allow the defendant to serve considerably less time. What is such a defendant to do--take the plea with certain results or risk going to trial with an attorney unprepared for the task? Later, the same defendant who accepted the plea bargain files a petition for a writ of habeas corpus claiming that ineffective assistance of counsel rendered his decision to accept the plea involuntary. Will the court grant the defendant's petition? (1)

Now imagine a similar scenario; however, the attorney arrives ready for trial. She recommends that the defendant reject the plea bargain because the prosecution will not be able to establish a key element of the crime.

Ultimately, it turns out that the attorney is incorrect, but an otherwise fair and valid trial takes place. The court sentences the defendant to thirty years in prison; twenty more than would have been served if the defendant had accepted the plea bargain. As in the first scenario, the defendant files a habeas petition, this time claiming that ineffective assistance of counsel caused him to reject his plea bargain. Will the court grant this petition? (2)

1. INTRODUCTION

   The Constitution's Sixth Amendment promises that "[i]n all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense." (3) In order to protect the defendant's liberties in the adversarial system contemplated by the Sixth Amendment the mere presence of an attorney on behalf of the accused is not sufficient. (4) The Sixth Amendment promises that an attorney for the accused will be qualified to play an active role in meeting the demands of the prosecution's case. (5) As such, the Supreme Court recognized that the right to counsel is the "right to the effective assistance of counsel." (6)

   For years, the states and the federal circuits handled the issue of what qualified as ineffective assistance of counsel. (7) In 1984, the Supreme Court established a test to measure all ineffective assistance claims with its decision in Strickland v. Washington. (8) The test consists of two prongs: the attorney's performance must have been deficient and this deficiency must have materially prejudiced the defense. (9)

   A year after deciding Strickland, the Supreme Court in Hill v. Lockhart addressed the question of whether the Strickland test covered pretrial proceedings. (10) The Court specifically stated that a defendant who accepted a plea bargain under an attorney's advice could prove ineffective assistance by demonstrating attorney error and prejudicial effect. (11) Despite requests for certiorari, the Supreme Court has not yet rendered a decision relating to a habeas petition based on ineffective assistance arising from a foregone plea bargain. (12)

   This Note will address the ineffective assistance doctrine as it applies to plea bargaining, with a focus on the limitations of the Strickland test and federal habeas corpus provisions. (13) Part II will discuss the historical foundation of the ineffective assistance doctrine, its application to both accepted and rejected plea bargains, criticism of the Strickland test, and federal habeas corpus legislation. (14) Part III will analyze Supreme Court jurisprudence as it applies to the ineffective assistance doctrine, demonstrate the different approaches state and federal courts use to apply the doctrine to foregone plea bargains, and consider the effect that the Strickland test and federal habeas corpus procedures may play in the differing approaches' settlement. (15) Part IV concludes that without Supreme Court intervention, the federal circuits will be unable to address directly the doctrinal split within their own jurisdictions. (16)

2. HISTORY

   1. The Writ of Habeas Corpus

      A prisoner convicted in a state court may seek to challenge the constitutionality of his or her incarceration by petitioning for a federal writ of habeas corpus. (17) A prisoner seeking habeas relief will commonly assert ineffective assistance of counsel. (18) Congress granted the federal district courts, circuit courts, and the Supreme Court jurisdiction over habeas cases. (19) Prisoners incarcerated by the federal courts are likewise able to petition for habeas corpus relief. (20) A successful pleading for a writ of habeas corpus may result in release from incarceration, although the indictment that led to the conviction may remain intact. (21)

   2. Plea Bargaining

      Plea bargains resolve the overwhelming majority of criminal cases in the United States. (22) The Constitution does not guarantee a person accused of a crime the right to a plea bargain. (23) Nonetheless, prosecutors must observe the principles of equal protection when engaged in plea bargaining. (24) A defendant who agrees to a plea bargain admits guilt to every element of the criminal charge. (25) As a result, the defendant waives a number of constitutional rights and protections, including the right to trial by jury and the right against self incrimination. (26) A defendant must enter into a plea bargain voluntarily and the advice of counsel must be competent. (27)

   3. Ineffective Assistance of Counsel

      The history of the ineffective assistance of counsel doctrine begins with the Sixth Amendment's promise of the right to counsel at criminal proceedings. (28) In Johnson v. Zerbst, (29) the Supreme Court announced that defendants have a right to both retained and appointed counsel in federal criminal trials. (30) While Congress's ratification of the Fourteenth Amendment in 1868 paved the way for an individual's right to assistance of counsel in state proceedings, it was not until Powell v. Alabama (31) that the Supreme Court determined that states should observe the Sixth Amendment right to counsel in certain criminal proceedings. (32) The Powell Court specifically limited its ruling to capital cases, stating that it was unnecessary to make a determination regarding other circumstances. (33) Approximately ten years later in Betts v. Brady, (34) the Supreme Court held that the Due Process Clause only guarantees defendants in state criminal proceedings the right to counsel when denial of such is "offensive to the common and fundamental ideas of fairness and right." (35)

      Criticism of the Court's opinion in Betts was swift--beginning with Justice Black's dissenting opinion joined by Justices Douglas and Murphy. (36) Justice Black stated his opinion that the Fourteenth Amendment made the Sixth Amendment guarantee of right to counsel applicable to the states. (37) In the years that followed, the criticism of Betts continued, culminating in a 1961 concurring opinion with Justice Douglas, joined by Justice Brennan, calling for the Court to overturn Betts. (38) Finally, in the landmark decision Gideon v. Wainwright, (39) the Court overturned Betts and guaranteed all criminal defendants in either state or federal proceedings an absolute right to the assistance of counsel. (40)

      The effective assistance doctrine first appeared within constitutional jurisprudence in 1932. (41) In the years that followed, the Supreme Court referred to the doctrine, but did not establish a particular standard or test for several decades. (42) In 1970, the Court alluded, in dicta, to a single standard for judging the effectiveness of counsel that proved instructive for many jurisdictions. (43) Nonetheless, the federal circuits adhered to a number of different standards to deal with the ineffective assistance of defense counsel issue during criminal proceedings. (44)

      In 1984, through its decision in Strickland v. Washington, the Supreme Court finally settled the issue by developing an official test for judging whether defense counsel rendered ineffective assistance. (45) The test consists of two prongs. (46) The first prong addresses an attorney's performance; it requires a reviewing court to determine whether defense counsel has acted in a deficient manner. (47) The second prong addresses the outcome; it requires a reviewing court to determine whether defense counsel's deficiencies resulted in prejudice that materially affected the trial's outcome. (48) Despite the creation of a standard for judging ineffective assistance of defense counsel, Strickland provides no specific guidelines to evaluate a lawyer's performance. (49)

      United States v. Cronic, (50) argued and decided on the same day as Strickland, serves as an exception to the prejudice prong of the Strickland test. (51) The Cronic decision stands for the proposition that there are certain circumstances in which a court can presume prejudice. (52) The Cronic Court defined what circumstances would render effective assistance by competent counsel all but impossible, pointing to its decision in Powell v. Alabama. (53) The Court held that the law presumes a defense attorney is competent and that the burden of proving a Sixth Amendment violation belongs to the accused. (54)

      On appeal, ineffective assistance of counsel is perhaps the claim most often asserted by convicted criminals. (55) Despite the frequency with which convicted criminals bring such claims, it is uncommon for ineffective assistance to be the basis for the reversal of a criminal conviction. (56) In the years following the Strickland decision there has been significant criticism of the degree to which ineffective assistance jurisprudence protects the constitutional rights of criminal defendants. (57)

      The criticism of the Strickland standard begins with Justice Marshall's dissent from the Court's majority decision. (58) Justice Marshall disagreed with both prongs of the test for ineffective assistance. (59) In objecting to the attorney performance prong of the test, Justice...