When raising a claim of ineffective assistance of counsel (“IAC”), it is important to understand when to present the argument. I have been asked, do I file the claim in the direct appellate brief or the post-conviction brief? Because this is a common question, I want to offer some guidance.
Understanding ineffective assistance of counsel
When someone presents to the court a claim they were the recipient of ineffective assistance of counsel, they are alleging that counsel was “deficient,” and that the deficient performance “prejudiced the defense.” See: Strickland v. Washington, 104 S.Ct. 2052 (1984).
All Federal and most State Courts adhere to the two prong approach defined in Strickland. However, Alaska State Courts use a slightly more lenient standard of prejudice than demanded by Strickland. See: Risher v. State, 523 P.2d 421 (Alaska 1974). Hawaii’s IAC standard is more protective than Strickland. See: State v. Aplaca, 837 P.2d 1298 (Haw. 1992). Pennsylvania State Courts follow Strickland, but divide Strickland’s single performance prong into two parts addressing arguable merit and reasonable strategy. See: Commonwealth v. Lewis, 245 A.3d 1044 (Pa. 2020).
While State Courts may take a slightly different approach when reviewing an IAC claim, each state is consistent by requiring a defendant to show: 1) his or her counsel’s performance was deficient and, 2) the deficient performance prejudiced the defense and deprived the defendant of a fair trial.
For a better understanding of IAC and the two pronged approach of ineffectiveness, I encourage you watch my short “Ineffective assistance of counsel” video [YouTube link] or read my post describing what is ineffective assistance of counsel [Blog link].
Why following the Strickland standard is important
As noted, some State Courts may use a more lenient or different approach to the IAC standard identified within Strickland. But what happens if the State defendant loses their IAC argument in State Court? He or she will probably seek federal habeas review of the IAC claim.
During this subsequent federal habeas review, all Federal Courts will apply the two prong approach defined by Strickland to the State Court defendant’s claims. Thus, to avoid federal habeas preclusion of the IAC claim, or an argument by the State that the defendant failed to give the State Court fair notice of the federal claim, all State Court briefs should incorporate, and argue, the Strickland standard of ineffectiveness.
Arguing the Strickland standard of ineffectiveness in every State Court brief provides the State “fair notice” the defendant is relying upon the Federal guarantee in support the IAC claim. This makes the transition into the Federal Court smooth and prevents preclusion of the IAC claim during any subsequent habeas proceeding.
I have wrote numerous posts regarding the habeas corpus process. The concept of “fair notice” is discussed in depth in my post titled, What is exhaustion of state remedies? [Link] If you are unfamiliar with the habeas corpus process, I encourage you to learn more through the habeas posts which can be found by selecting the habeas corpus tag at the end of this blog post.
Presenting an IAC claim on direct appeal
Generally, state case law indicates an IAC claim shouldn’t be raised in the direct appellate brief. “Rarely is ineffective assistance of counsel established on appeal since the record usually sheds no light on counsel’s reasons for action or inaction.” See: People v. Woodruff, 421 P.3d 588 (Cal. 2018). Some states, like Arizona, will have provisions prohibiting a defendant from arguing an IAC claim on direct appeal. See: State v. Spreitz, 39 P.3d 525 (Ariz. 2002).
Other states will permit a defendant to argue an IAC claim on direct appeal. Where arguments of IAC are permissible on direct appeal, counsel’s ineffectiveness must be discernible from the trial record (court transcripts). See: People v. Rivera, 525 N.E.2d 698 (N.Y. 1988).
For example, if the prosecution repeatedly, and improperly, made reference to the defendant’s post arrest silence without objection. Possibly, counsel failed to object to inadmissible evidence that without its admission would have resulted in an acquittal. These are instances where counsel’s ineffectiveness can be gleaned from the record, making a favorable appellate ruling plausible.
Federal defendants are discouraged from presenting any IAC claim on direct appeal and directed to raise the claim in a 28 U.S.C. §2255 collateral proceeding. See: Massaro v. United States, 123 S.Ct. 1690 (2003). “[A]n ineffective assistance of counsel claim may be brought in a collateral proceeding under §2255, whether or not the petitioner could have raised the claim on direct appeal.” See also: United States v. Flores, 739 F.3d 337 (7th Cir. 2014). “We have said many times that it is imprudent to present an ineffective assistance argument on direct appeal.”
A potential pitfall to raising an IAC claim on direct appeal
Presenting an IAC claim in a direct appellate brief could have unintended consequences. For instance, the court may consider, but ultimately deny, the IAC claim raised in the direct appeal which was premised on the trial transcripts.
Subsequently, a defendant may seek to argue a different claim of IAC in the post-conviction process which isn’t premised on the trial record content. Theoretically, the court could preclude the subsequent IAC argument under the concept of res judicata because IAC has already once been litigated and decided.
At best, the court may not rule on the direct appellate claim of IAC. Instead, the court could hold the claim would be best presented during a post-conviction process where additional evidence could be introduced during an evidentiary hearing. [What is an evidentiary hearing blog link]
Presenting an IAC claim during the post-conviction process
Case law indicates the best mechanism for presenting a claim of IAC is during the post-conviction, or “collateral relief” process. In some States, such proceedings may be titled, “petition for post-conviction relief,” “state habeas corpus,” “writ of error coram nobis,” “relief from personal restraint,” or the like. For the Federal Court defendant, this means filling a petition pursuant to 28 U.S.C. §2255.
The post-conviction process is the preferred mechanism for presenting an IAC claim due to an ability to supplement the trial record with additional evidence. This may be accomplished through affidavits or post-trial testimony received during an evidentiary hearing. [What is an evidentiary hearing?]
Consider a defendant who is claiming trial counsel was ineffective for failing to interview and call an alibi witness at trial. To establish the deficiency and prejudicial components required by Strickland, the defendant must be able to introduce evidence why counsel failed to call the witness and evidence regarding what the witness would have testified about.
This evidence wouldn’t be in the court record, making it impossible to raise counsel’s ineffectiveness on direct appeal. However, such evidence could be conveyed to the court during a post-conviction proceeding.
Remember, most evidence needed to support an IAC claim will rarely be contained within the trial record. This makes it almost universal practice to wait until after the direct appeal has been exhausted to advocate a claim of IAC.
Benefits to raising IAC after the direct appeal is complete
There is another reason not to raise an IAC claim during the direct appeal. A defendant may need to pursue an IAC claim regarding his or her appellate counsel. Such a claim would only be ripe after the conclusion of the direct appeal process.
For the State Court defendant, there will (usually) only be one opportunity to transition into the Federal Court to pursue federal habeas corpus relief. Through timing and proper presentation, the State Court defendant would be able to bring all the direct appellate claims, and any trial/appellate post-conviction IAC claims, into the Federal Court though a single habeas corpus petition.
My closing thoughts
I have encountered very few cases where a defendant presents an IAC claim during the direct appellate process. By an overwhelming majority, all IAC claims are presented in some form of post-conviction process. I cannot stress enough, before presenting any criminal argument to a court, an attorney should be consulted on a case by case basis.
I also encourage anyone looking to present a claim of IAC to purchase a copy of my book, The Colossal Book of Criminal Citations [Buy now]. Readers will find thousands of case law references to assist when seeking relief in a criminal case. I address numerous topics from pretrial motions and jury selection to post-conviction and federal habeas corpus petitions. This is an excellent resource for presenting claims in all levels of state or federal court. Books are in stock and ready for immediate shipping.