Second, the question presented in the cert petition posits that it can be shown “but for” the ineffectiveness, the defendant would have plead. If such a fact is established, there is little worry about in regards to the “two bite” argument.
See my case details at http://www.exposedinjustice.com A case where the states Attorney and Judge knew that a public defender was under investigation for sexual misconduct but still allowed him to stand for accused in court.

You can criticize this as overly formalistic, but the bottom line is that to rule for the defendant in Hoffman would be a significant expansion. The right to effective assistance is to make sure that defendants get fair trials (and when I say trials, i mean all of the pretrial crap going along with it, e.g., suppression, alibi etc.) or plead guilty with their eyes open. When a defendant fails to accept a plea and then claims IAC (to say nothing of his “having his cake and eating it too”–i.e., he got to roll the dice at trial, and he got a good deal) and gets a fair trial, then he has gotten what was promised him by the constitution, i.e., a reliable determination of guilt, which is all the Constitution promises. Remember, you have to prove more than simply ineffective rep–you have to prove harm, and the harm has to go to the reliability of the judgment. Here, there’s none of that.

I seem to recall earlier that you were quite sure of yourself. I sense some slippage.[/quote]

I’ll address the rest later, but there is no slippage. I am pretty sure that there is (or has to be) right to effective assistance of counsel at all stages and that includes pre-trial/plea bargaining.

You can criticize this as overly formalistic, but the bottom line is that to rule for the defendant in Hoffman would be a significant expansion. The right to effective assistance is to make sure that defendants get fair trials (and when I say trials, i mean all of the pretrial crap going along with it, e.g., suppression, alibi etc.) or plead guilty with their eyes open. When a defendant fails to accept a plea and then claims IAC (to say nothing of his “having his cake and eating it too”–i.e., he got to roll the dice at trial, and he got a good deal) and gets a fair trial, then he has gotten what was promised him by the constitution, i.e., a reliable determination of guilt, which is all the Constitution promises. Remember, you have to prove more than simply ineffective rep–you have to prove harm, and the harm has to go to the reliability of the judgment. Here, there’s none of that.

I seem to recall earlier that you were quite sure of yourself. I sense some slippage.

That makes it inapposite to a case where the lawyer told the criminal to take a plea.

Thus, I think it difficult to get around the quotes in Cronic.[/quote]

However, there is a question as to whether there should have been a trial in the first place. I don’t think the 6th Amendment jurisprudence restricts effective assistance only during a trial. I understand your quoting Cronic, but why don’t you think a defendant would be entitled to effective representation during the pre-trial stages?

That makes it inapposite to a case where the lawyer told the criminal to take a plea.

Thus, I think it difficult to get around the quotes in Cronic.

“Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”[/quote]

That quote does not talk about the finding of guilt after trial. A finding of guilt can also be via a plea of guilty.

I’ve updated my post to reflect more. There’s a history of jurisprudence holding that the plea bargaining process is a critical stage and that a defendant is entitled to effective assistance during all stages of a criminal proceeding, not just a trial.