Effective Assistance Of Counsel

Question 1

Basic permissions

Answer 1

To ensure the basic conditions under which effective assistance is likely to be obtained, the Supreme Court has rendered a series of decisions prohibiting certain forms of interference with the attorney-client relationship. An attorney may not be prohibited from conferring with the client during an overnight recess that falls between direct examination and cross-examination, Geders v. United States, 425 U.S. 80 (1976). A lawyer may not be denied the right to give a closing summation in a nonjury trial, Herring v. New York, 422 U.S. 853 (1975). The state may not prohibit the attorney from eliciting the client’s testimony on direct examination, Ferguson v. Georgia, 365 U.S. 570 (1961), nor may the state restrict the attorney’s choice as to when to put the defendant on the stand, Brooks v. Tennessee, 406 U.S. 605 (1972). There are limits on the Court’s solicitude for criminal defendants, however. In Perry v. Leeke, 488 U.S. 272 (1989), the Court held that the trial court did not err by ordering the defendant not to consult with his lawyer during a 15-minute recess that immediately followed his direct examination and preceded cross-examination

Question 2

Strickland v. Washington

Answer 2

This case requires us to consider the proper standards for judging a criminal defendant’s contention that the Constitution requires a conviction or death sentence to be set aside because counsel’s assistance at the trial or sentencing was ineffective

In preparing for the sentencing hearing, counsel spoke with respondent about his background. He also spoke on the telephone with respondent’s wife and mother, though he did not follow up on the one unsuccessful effort to meet with them. p. 149He did not otherwise seek out character witnesses for respondent. . . . Nor did he request a psychiatric examination, since his conversations with his client gave no indication that respondent had psychological problems. . . .

Counsel decided not to present and hence not to look further for evidence concerning respondent’s character and emotional state. That decision reflected trial counsel’s sense of hopelessness about overcoming the evidentiary effect of respondent’s confessions to the gruesome crimes. . . . It also reflected the judgment that it was advisable to rely on the plea colloquy for evidence about respondent’s background and about his claim of emotional stress: The plea colloquy communicated sufficient information about these subjects, and by [forgoing] the opportunity to present new evidence on these subjects, counsel prevented the State from cross-examining respondent on his claim and from putting on psychiatric evidence of its own. . . .

Counsel also excluded from the sentencing hearing other evidence he thought was potentially damaging. He successfully moved to exclude respondent’s “rap sheet.” . . . Because he judged that a presentence report might prove more detrimental than helpful, as it would have included respondent’s criminal history and thereby undermined the claim of no significant history of criminal activity, he did not request that one be prepared. . . .

In giving meaning to the requirement [of effective assistance of counsel,] we must take its purpose—to ensure a fair trial—as the guide. The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.

As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance. . . . When a convicted p. 151defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.

More specific guidelines are not appropriate

The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

Representation of a criminal defendant entails certain basic duties. Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. . . . From counsel’s function as assistant to the defendant derive the overarching duty to advocate the defendant’s cause and the more particular duties to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. . . .

These basic duties neither exhaustively define the obligations of counsel nor form a checklist for judicial evaluation of attorney performance. In any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way

court deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel’s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment

strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether. And when a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel’s failure to pursue those investigations may not later be challenged as unreasonable

Conflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice. The government is not responsible for, and hence not able to prevent, attorney errors that will result in reversal of a conviction or sentence

Question 3

Strickland test

Answer 3

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Accordingly, the appropriate test for prejudice finds its roots in the test for materiality of exculpatory information not disclosed to the defense by the prosecution, United States v. Agurs, 427 U.S., at 104, 112-113, and in the test for materiality of testimony made unavailable to the defense by Government deportation of a witness, United States v. Valenzuela-Bernal, 458 U.S., at 872-874. The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like

Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies

Question 4

United States v. Cronic, 466 U.S. 648 (1984

Answer 4

the defendant was convicted of mail fraud in connection with a “check kiting” scheme.12. Shortly before trial, Cronic’s defense counsel withdrew; the trial judge “appointed a young lawyer with a real estate practice to represent [Cronic], but allowed him only 25 days for pretrial preparation, even though it had taken the Government over four and one-half years to investigate the case and it had reviewed thousands of documents during that investigation.” Id., at 652. At trial, the prosecution introduced extensive testimony from two co-conspirators who had entered into plea bargains; Cronic declined to take the stand due to concerns about his prior convictions being introduced against p. 160him. Cronic’s lawyer presented no defense, but did cross-examine the prosecution’s witnesses with some success. Cronic was convicted on 11 out of 13 counts, and received a 25-year sentence; he appealed on the grounds, inter alia, that his trial counsel was constitutionally ineffective. The Tenth Circuit did not find specific flaws in defense counsel’s performance, but reversed the convictions nevertheless, holding that the Sixth Amendment was violated because the circumstances of the case created an “inference” that defense counsel could not perform effectively; this inference was based on: “(1) the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel.” 675 F.2d 1126, 1129 (10th Cir. 1982).

The Supreme Court, in an opinion by Justice Stevens, held unanimously (Justice Marshall concurred in the judgment) that no such “inference” of constitutional ineffectiveness arose from the facts of the Cronic case

example, if a defendant was denied a lawyer entirely during a critical stage of the trial, United States v. Cronic, 466 U.S. 648 (1984), the Sixth Amendment is violated without any showing of prejudice

Question 5

Avery v. Alabama, 308 U.S. 444 (1940)

Answer 5

But every refusal to postpone a criminal trial will not give rise to such a presumption. counsel was appointed in a capital case only three days before trial, and the trial court denied counsel’s request for additional time to prepare. Nevertheless, the Court held that, since evidence and witnesses were easily accessible to defense counsel, the circumstances did not make it unreasonable to expect that counsel could adequately prepare for trial during that period of time, id., at 450-453. Thus, only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial. . . .

Question 6

Categories of cases

Answer 6

Strickland, the Court exempted several categories of cases from the requirement that the defendant, in order to win on an ineffective-assistance-of-counsel claim, must show prejudice as a result of counsel’s specific errors of performance:13. (1) actual or constructive denial of counsel (as in Gideon or Powell); (2) certain kinds of state interference with counsel (e.g., refusing to allow counsel to meet with the defendant during an overnight recess, see Geders v. United States, 425 U.S. 80 (1976)); and (3) some situations involving attorney conflicts of interest, see Cuyler v. Sullivan, 446 U.S. 335 (1980), discussed infra, at page 182. Cronic adds a fourth category of “presumed prejudice”: where “counsel failed to function in any meaningful sense as the government’s adversary

Question 7

Bell v. Cone, 535 U.S. 685 (2002)

Answer 7

, the defendant was convicted of robbery and capital murder and sentenced to death. At the sentencing p. 162proceeding, the defense counsel cross-examined government witnesses but called no defense witnesses, refering instead to the evidence introduced at trial in support of the defendant’s insanity claim. The defense counsel also waived the closing argument, ostensibly to avoid giving the prosecutor a chance to argue in rebuttal. The defendant argued that this amounted to a “fail[ure] to subject the prosecution’s case to meaningful adversarial testing,” and so amounted to ineffective assistance of counsel without regard to whether there was any prejudice. With only Justice Stevens dissenting, the Court disagreed:

When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete. . . . Here, respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind. . . .

Question 8

Strickland points

Answer 8

There are two key practical observations to be made about Strickland. First, Strickland emphasizes that, with respect to defense attorney performance, “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” In other words, as soon p. 163as a reviewing court decides that defense counsel acted “strategically,” it’s pretty much game over for the defendant’s claim of ineffective assistance of counsel.

Second, Strickland explains that “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” In other words, reviewing courts can quickly and easily dispose of most ineffective-assistance claims simply by determining that, given the totality of the evidence of guilt, the defendant most likely would have been convicted no matter what the defense attorney did—and courts generally do so, because it is an approach that avoids unnecessarily critiquing defense attorneys

Question 9

Right to counsel on appeal

Answer 9

Recall that Douglas held that a criminal defendant has the right to counsel—under the Fourteenth Amendment, not the Sixth Amendment—on his first appeal as of right (later clarified by Halbert to include all first-level appeals). Evitts v. Lucey, 469 U.S. 387 (1985), addressed the related question “whether the Due Process Clause of the Fourteenth Amendment guarantees the criminal defendant the effective assistance of counsel on such an appeal.” In other words, does the right to counsel on appeal carry with it the corresponding right to have that appellate counsel perform to a minimally acceptable level? In Evitts, the Court, in an opinion by Justice Brennan, held that the answer to this question is “yes

Question 10

Nix v. Whiteside, 475 U.S. 157 (1986

Answer 10

), the defendant (Whiteside) was charged with murder. Initially, he told his court-appointed lawyer (Robinson) that he stabbed the victim while the victim was reaching for a gun. Upon further questioning, however, he admitted that he had not actually seen a gun. No gun was found at the crime scene, and none of the other witnesses reported seeing a gun. About one week before the trial, Whiteside told Robinson that he had seen something “metallic” in the victim’s hand. He added, “If I don’t say I saw a gun I’m dead.” Robinson informed Whiteside that this would be perjury, and that he would not assist in it. Robinson told Whiteside that if he insisted on perjuring himself, Robinson would advise the trial court about the perjury, impeach Whiteside’s testimony, and withdraw from Whiteside’s representation.

The Court split 5-4 on the application of Strickland’s performance prong to Robinson’s conduct, with the dissent critical of Robinson for essentially “judging” his own client, but the majority found Robinson’s conduct acceptable under prevailing professional norms

Question 11

Lockhart v. Fretwell, 506 U.S. 364 (1993

Answer 11

), was a capital case in which Fretwell’s defense counsel failed to object to one of the aggravating circumstances that was used to authorize the death penalty. Under binding Eighth Circuit precedent, the objection surely would have succeeded, and the defendant almost surely would have avoided the death sentence. By the time the issue was raised in Fretwell’s federal habeas corpus petition, however, an intervening Supreme Court decision had reversed the Eighth Circuit’s prior precedent. Reviewing Fretwell’s ineffective-assistance claim, the Court held that he suffered no “prejudice” under Strickland, because the outcome in his case was “neither unfair nor unreliable”; avoiding the death sentence based on erroneous precedent would have been a “windfall to which the law does not entitle”

Question 12

ineffective-assistance-of-counsel cases where deficient performance alone is sufficient to make out a violation, because prejudice is conclusively presumed.

Answer 12

For example, if a defendant was denied a lawyer entirely during a critical stage of the trial, United States v. Cronic, 466 U.S. 648 (1984), the Sixth Amendment is violated without any showing of prejudice. See supra at page 159. The same presumption of prejudice applies if the defendant was denied a lawyer on appeal, Penson v. Ohio, 488 U.S. 75 (1988). In addition, if the defendant specifically indicates that he wants to appeal his conviction, even from a guilty plea, and defense counsel does not file a notice of appeal, the Strickland test is satisfied—the failure to abide by the client’s wishes in this context is professionally unreasonable, and because defendant was deprived of an appeal that he otherwise would have taken, prejudice is again presumed. Roe v. Flores-Ortega, 528 U.S. 470 (2000).

But suppose the defendant not only pled guilty, but as part of the plea deal signed a waiver of his right to appeal. If the defendant later tells his lawyer to appeal anyway and the lawyer does not, is it still ineffective assistance of counsel? in 2019 the Supreme Court held that even an appeal waiver does not relieve defense counsel of his or her obligation to abide by the client’s wishes. Just as importantly, the Court concluded that the presumption of prejudice that attached to other failures to file an appeal continued to apply when the defendant had signed an appeal waiver. Garza v. Idaho, 139 S. Ct. 738 (2019)

Question 13

ROMPILLA v. BEARD, 545 U.S. 374 (2005)

Answer 13

ROMPILLA v. BEARD, 545 U.S. 374 (2005):

This case calls for specific application of the standard of reasonable competence required on the part of defense counsel by the Sixth Amendment. We hold that even when a capital defendant’s family members and the defendant himself have suggested that no mitigating evidence is available, his lawyer is bound to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the sentencing phase of trial

There is an obvious reason that the failure to examine Rompilla’s prior conviction file fell below the level of reasonable performance. Counsel knew that the Commonwealth intended to seek the death penalty by proving Rompilla had a significant history of felony convictions indicating the use or threat of violence, an aggravator under state law. Counsel further knew that the Commonwealth would attempt to establish this history by proving Rompilla’s prior conviction for rape and assault, and would emphasize his violent character by introducing a transcript of the rape victim’s testimony given in that earlier trial. . . . It is also undisputed that the p. 176prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried.

It is clear, however, that defense counsel did not look at any part of that file, including the transcript, until warned by the prosecution [twice]. . . . [C]rucially, even after obtaining the transcript of the victim’s testimony on the eve of the sentencing hearing, counsel apparently examined none of the other material in the file

The dissent thinks this analysis creates a “rigid, per se” rule that requires defense counsel to do a complete review of the file on any prior conviction introduced, but that is a mistake. Counsel fell short here because they failed to make reasonable efforts to review the prior conviction file, despite knowing that the prosecution intended to introduce Rompilla’s prior conviction not merely by entering a notice of conviction into evidence but by quoting damaging testimony of the rape victim in that case. The unreasonableness of attempting no more than they did was heightened by the easy availability of the file at the trial courthouse, and the great risk that testimony about a similar violent crime would hamstring counsel’s chosen defense of residual doubt. . . . Other situations, where a defense lawyer is not charged with knowledge that the prosecutor intends to use a prior conviction in this way, might well warrant a different assessment.

Question 14

Buck v. Davis, 137 S. Ct. 759 (2017)

Answer 14

, the Court held that a death-row inmate was entitled to appeal the denial of a Rule 60(b)(6) motion to reopen the trial judgment against him, in a federal habeas case involving alleged ineffective assistance of defense counsel for calling as a witness at capital sentencing a psychologist who testified that defendant’s race increased the probability of future dangerousness, because the defendant had demonstrated a valid IAC claim and because the case presented “extraordinary” circumstances sufficient to justify granting exceptional relief under Rule 60(b)(6). Chief Justice Roberts, writing for the majority, explained: “Relying on race to impose a criminal sanction ‘poisons public confidence’ in the judicial process. It thus injures not just the defendant, but ‘the law as an institution, . . . the community at large, and . . . the democratic ideal reflected in the processes of our courts

Question 15

Schriro v. Landrigan, 550 U.S. 465 (2007

Answer 15

In), the defendant refused to allow his defense counsel to present mitigating evidence at capital sentencing, and indeed told the trial judge that he did not want to have such evidence introduced, preferring instead to “bring on” the death penalty. The Court, by 5-4, held that the Ninth Circuit erroneously ordered a federal district court to hold an evidentiary hearing on the defendant’s ineffective-assistance claim, finding instead that the denial of the evidentiary hearing was within the district court’s discretion in light of the defendant’s own actions.

Schriro suggests that, at least in some cases, a capital defendant will be held to the negative consequences of his own decisions. In light of this, should a defense lawyer always be required to secure the defendant’s prior consent before conceding guilt at trial and focusing his efforts entirely on arguing for leniency at capital sentencing? If the lawyer concedes guilt without the defendant’s consent, is this the kind of “fail[ure] to subject the prosecution’s case to meaningful adversarial testing,” that triggers the Cronic presumption of prejudice? In Florida v. Nixon, 543 U.S. 175 (2004), the Supreme Court unanimously answered “no” to both questions (Chief Justice Rehnquist was ill and did not participate). According to the Court, the decision to concede guilt in a capital case is not the same as entering a guilty plea or waiving basic trial rights (both of which would have to be done with the defendant’s express consent)

Question 16

Hill v. Lockhart, 477 U.S. 52 (1985

Answer 16

), the defendant pled guilty to first-degree murder in state court, then two years later sought habeas relief on the ground that his guilty plea was involuntary as a result of ineffective assistance of counsel because he received erroneous information about his parole eligibility from his counsel. Counsel advised the defendant that he would have to serve one-third of his time before he would be eligible for parole, whereas in fact he had to serve one-half of his time as a result of a previous conviction, of which counsel was apparently not informed by the defendant.

The Supreme Court, per Justice Rehnquist, disagreed. The Court first concluded that the Strickland test for ineffective assistance of counsel—that the lawyer performed deficiently, and that but for his deficient performance, there is a reasonable p. 197probability that the outcome of the case would have been different—applied in the plea bargain context, with qualification. The “performance” prong is the same in the plea context as it is in a challenge to a defense lawyer’s performance at trial: Did the lawyer’s representation fall below an objective standard of reasonableness? But the “prejudice” prong, said the Court, needs to be stated somewhat differently: “[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial

In many guilty plea cases, the “prejudice” inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the “prejudice” inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial. . . .

In Lee v. United States, 137 S. Ct. 1958 (2017), the Court clarified that “the inquiry . . . focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial. . . . [T]he possibility of even a highly improbable result may be pertinent to the extent it would have affected [the defendant’s] decisionmaking.” Thus, even a defendant without any plausible legal defense may still prevail under Hill—if he can prove, based on “contemporaneous evidence to substantiate [his] expressed preferences,” that with proper legal advice he would have rolled the dice and elected to go to trial.

Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland

Question 17

Padilla v. Kentucky, 559 U.S. 356 (2010)

Answer 17

In, by contrast, the Court concluded that a defense attorney’s failure to fully advise the defendant concerning one special consequence of pleading guilty was ineffective performance. Counsel did not inform Padilla, a noncitizen who had resided lawfully in the United States for 40 years and had served with honor in Vietnam, that his plea of guilty to a drug charge would render him automatically removable and further told him that he need not worry about the immigration consequences of the plea. The prior law had been reasonably clear that, at most, the right to effective assistance extended to advice concerning the direct consequences of a plea, and not to collateral consequences. The effect of a conviction on immigration status had largely been viewed as collateral. However, the Court concluded that the effect on Padilla was so dramatic—automatic deportation after having spent 40 years in the United States—that the direct/collateral distinction was blurred, and that, in any event, a reasonably competent lawyer would have advised of such a clear and dramatic consequence

Padilla, the Court . . . made clear that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”

Question 18

Missouri v Frye

Answer 18

What about a case in which the defendant, due to allegedly poor advice from his defense lawyer, rejects a favorable plea bargain offered by the prosecution and then later gets convicted, either after a trial or pursuant to a subsequent (but less favorable) plea bargain?

This case arises in the context of claimed ineffective assistance that led to the lapse of a prosecution p. 199offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later. The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected. If there is a right to effective assistance with respect to those offers, a further question is what a defendant must demonstrate in order to show that prejudice resulted from counsel’s deficient performance

This case arises in the context of claimed ineffective assistance that led to the lapse of a prosecution p. 199offer of a plea bargain, a proposal that offered terms more lenient than the terms of the guilty plea entered later. The initial question is whether the constitutional right to counsel extends to the negotiation and consideration of plea offers that lapse or are rejected

The prosecution sent a letter to Frye’s defense lawyer, offering two possible plea bargains. One of those offers would have substituted a misdemeanor charge, with a recommendation of a 90-day sentence, for the felony charge. The defense lawyer never told Frye about the plea offers, and the offers expired. A few days before Frye’s preliminary hearing, he was once again arrested for driving on a revoked license. Frye then pleaded guilty, with no plea bargain, to the original felony charge and was sentenced to three years in prison. In a state postconviction motion, Frye alleged that his defense lawyer rendered him constitutionally ineffective assistance of counsel. Frye testified that he would have accepted the plea bargain to the misdemeanor charge if he had been told about it

This Court now holds that, as a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date. When defense counsel allowed the offer to expire without advising the defendant or p. 202allowing him to consider it, defense counsel did not render the effective assistance the Constitution requires.

Here defense counsel did not communicate the formal offers to the defendant. As a result of that deficient performance, the offers lapsed. Under Strickland, the question then becomes what, if any, prejudice resulted from the breach of duty

To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203 (2001) (“[A]ny amount of [additional] jail time has Sixth Amendment significance”).

In a case, such as this, where a defendant pleads guilty to less favorable terms and claims that ineffective assistance of counsel caused him to miss out on a more favorable earlier plea offer, Strickland’s inquiry into whether “the result of the proceeding would have been different,” 466 U.S., at 694, requires looking not at whether the defendant would have proceeded to trial absent ineffective assistance but whether he would have accepted the offer to plead pursuant to the terms earlier proposed.

In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented. This further showing is of particular importance because a defendant has no right to be offered a plea, see Weatherford, 429 U.S., at 561, nor a federal right that the judge accept it, Santobello v. New York, 404 U.S. 257, 262 (1971). In at least some States, including Missouri, it appears the prosecution has some discretion to cancel a plea agreement to which the defendant has agreed

Question 19

LAFLER v. COOPER

Answer 19

In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported to the client but, on advice of counsel, was rejected. In Frye there was a later guilty plea. Here, after the plea offer had been rejected, there was a full and fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain. The instant case comes to the Court with the concession that counsel’s advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment

Cooper was charged with assault with intent to murder, along with three other offenses. The prosecution offered to dismiss two of the charges, and to recommend a sentence of 51 to 85 months in prison on the remaining two charges, in exchange for a guilty plea. Cooper communicated to the trial judge his willingness to accept the plea offer and admit his guilt. But he ultimately rejected the plea offer, allegedly because his defense counsel advised him that the prosecution would not be able to prove his intent to kill because the victim had been shot below the waist. At trial, Cooper was convicted on all counts and received a mandatory minimum sentence of 185 to 360 months in prison. In a postconviction motion, Cooper alleged ineffective assistance of counsel in connection with his attorney’s advice to reject the plea offer. The postconviction court rejected the claim, and the Michigan Court of Appeals affirmed. Cooper then filed a federal habeas corpus petition raising the same claim of ineffective assistance

In Hill, the Court held “the two part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.” 474 U.S., at 58. The performance prong of Strickland requires a defendant to show “‘that counsel’s representation fell below an objective standard of reasonableness.’” 474 U.S., at 57 (quoting Strickland, 466 U.S., at 688). In this case all parties agree the performance of respondent’s counsel was deficient when he advised respondent to reject the plea offer on the grounds he could not be convicted at trial. In light of this concession, it is unnecessary for this Court to explore the issue

To establish Strickland prejudice a defendant must “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id., at 694. In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice. See Frye, ante (noting that Strickland’s inquiry, as applied to advice with respect to plea bargains, turns on “whether ‘the result of the proceeding would have been different’” (quoting Strickland, supra, at 694)); see also Hill, 474 U.S., at 59 (“The . . . ‘prejudice,’ requirement . . . focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process”). In Hill, when evaluating the petitioner’s claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show “that there is a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Ibid.

In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3½ times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence.

As to prejudice, respondent has shown that but for counsel’s deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea. See 376 Fed. Appx., at 571-572. In addition, as a result of not accepting the plea and being convicted at trial, respondent received a minimum sentence 3½ times greater than he would have received under the plea. The standard for ineffective assistance under Strickland has thus been satisfied

213As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”)