Archive for May 11, 2005

C’mon – keep up with me here. See post below for explanation of acronym in title.

So anyway, Smith v. Comm’r was released today. Petitioner raised claims of ineffective assistance of trial counsel at sentencing, constructive denial of counsel and IA of Habeas counsel.

However, the habeas court had denied certification to appeal, so the first issue was whether that was an abuse of discretion under the Simms standard.

Instead of analyzing only that issue, the Court analyzes the other claims and then comes back to Simms.

U.S. v. Cronic applies to claims of constructive denial of counsel. The Court explained,

In United States v. Cronic, 466 U.S. 648, (1984), the United States Supreme Court recognized a narrow exception to Strickland’s holding. Cronic instructed that a presumption of prejudice applies in certain limited circumstances ‘‘when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate. . . .’’ Id., 659–60.

The court explained that no showing of prejudice is required when counsel is either totally absent or prevented from assisting the accused during a critical stage in the proceeding, when counsel ‘‘entirely fails to subject the prosecution’s case to meaningful adversarial testing’’ and when a defendant is ‘‘denied the right of effective cross-examination.’’

[sidebar: except in Texas, where it's OK for an attorney to sleep during a trial.]
In this case, however, it was odd that constructive denial was pled, because in a prior habeas, effective assistance was found.

Cronic, however, requires that for a presumption of prejudice to apply, the surrounding circumstances must have "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial."

The claim of IA(T)C revolved around the failure to call a forensic scientist that founded a drug addict treatment center. There was evidence adduced at the habeas trial that this scientist was reluctant to get involved and that trial counsel "thought she was crazy" and made the tactical decision not to call her.

Words of death for any Habeas claim: "tactical decision". Almost anything can be a tactical decision and anytime an attorney claims that, proving a Habeas claim gets that much more difficult. True to form, the Court rejects this claim.

The claim of IA(H)C revolved around the failure to raise the previous two claims. The Court decided that since it determined the previous two claims had no merit, Habeas counsel could not have been ineffective.

THEN the Court rules that because there are no viable claims for appeal, the Habeas Court did not abuse it’s discretion in denying certification under Simms.