Right to Counsel and Effective Assistance Checklist

Does the Right to Counsel Exist?
o When in Proceedings
 PRE-TRIAL
 Critical Stage
 TRIAL
 Actual imprisonment
 Joint representation
 POST-CONVICTION
o Scope of Right
 Offenses that Right Attaches To
 Right to Consult with Counsel
 Right of Indigent
o Self-Representation [pro se]
 effective waiver of right to counsel
 right to self-representation:
 no right to proceed on appeal
o Remedy for Denial of Counsel or Ineffective Waiver of Right
 At Trial—reversible error
 Non-trial—harmless error

Did Counsel Provide Ineffective Assistance?
o Procedural Requirements
 Right to Counsel Must Attach
 May be brought under §2255—federal HC for federal prisoners
o Elements of Claim:
 Unreasonable conduct by counsel
 Reasonable probability that conduct affected outcome of case
Right to Counsel and Effective Assistance Checklist Expanded

Does the Right to Counsel Exist?
o When in Proceedings
 PRE-TRIAL
 Critical Stage—∆ is entitled to assistance of counsel at any critical stage1 of the
proceeding [Gilbert v. California]
o post-adversary proceeding lineups
o custodial interrogation
o psychiatric examinations
o pretrial arraignments
o preliminary hearings—probable cause to prosecute type

TRIAL

Actual imprisonment
o Rule: right to counsel exists in criminal prosecutions if actual
imprisonment is ultimately imposed [Scott v. Illinois].2
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
Suspended Sentence: a suspended sentence that may end up in actual
imprisonment, may not be imposed unless ∆ was accorded right to counsel
[Alabama v. Shelton]
Conviction Enhancement: an un-counseled conviction, valid b/c no
imprisonment was imposed, can be used to enhance a subsequent conviction in
which imprisonment is ordered [Nichols v. United States]
Special Case: Joint representation
o Rule: if attorney advises trial court of a conflict of interest, court must
grant separate counsel [Holloway v. Arkansas]
 no requirement by judge to inquire as to conflict of interest—must
be raised by ∆ [Cuyler v. Sullivan]
 failure to inquire may be ineffective assistance upon showing that
conflict adversely affected counsel’s performance [Mickens v. Taylor]

POST-CONVICTION
 Right exists:
o sentencing hearings [Mempa v. Rhay]
o first automatic appeal [Douglas v. California]
 No right to counsel:
o discretionary appeals [Ross v. Moffitt]
o probation or parole revocation hearings [Gagnon v. Scarpelli]
o state post-conviction proceeding [Murray v. Giarratano]—though
usually states grant ∆s access to counsel at such proceedings.
o SCOPE OF RIGHT
Anytime the absence of counsel “might derogate from [her] right to a fair trial.” This does not include grand jury proceedings
(Mandujano) or non-adversarial photo displays (Ash).
2
If ∆, charged with misdemeanor, asks for counsel is denied and is convicted, whether the right to counsel has been violated depends
on ∆’s sentence. If he receives no imprisonment, his right has not been violated.
1

Offenses that Right Attaches To:
 charged offense [McNeil v. Wisconsin]
 same offense under Blockburger test [Texas v. Cobb]3

Right to Consult with Attorney:
 Rule: no right to consult with attorney while testifying
o But… during breaks in testimony:
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Geders v. US—∆ allowed to consult with attorney when break last overnight
Perry v. Leeke—∆ not allowed to consult with attorney during 15-minute break
Right of Indigent
 Appointed Counsel
o Rule: where the right to counsel attaches, persons unable to afford counsel
will be appointed counsel [Gideon v. Wainwright]
o Recoupment Statutes:


Rule: when a person has been given a free attorney, has been convicted, and
later found able to repay, a recoupment statute, which recovers the value of that
attorney, is constitutional [Fuller v. Oregon]
On Appeal
o Transcript on Appeal—when appealing on the record, indigent is entitled to
copy of the transcript [Griffin v. Illinois]
o Automatic Appeal—right to appointed counsel [Douglas v. California]


Appointed counsel may move to withdraw from representation, if she prepares
an Anders brief [Anders v. California].
The Court has maintained a flexible approach towards Anders briefs allowing
states to experiment with alternatives [Smith v. Robbins].
o Discretionary Appeal—no right to appointed counsel [Ross v. Moffitt]

Forfeiture of Assets—government may forfeit assets that individual was going to
use to pay legal fees [US v. Monsant; Caplin & Drysdale v. US]
o Self-Representation [pro se]
 effective waiver of right to counsel
 To waive the right to counsel, ∆ must be:
o advised of the right to counsel
o be competent to intelligently and voluntarily abandon the right
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3
∆’s ability to represent herself has no bearing on her competence to choose selfrepresentation—standard to represent self is equivalent to standard to stand at
trial [Godinez v. Moran]
it would be unconstitutional violation of DP rights to require competence to be
shown by more then preponderance of evidence [Cooper v. Oklahoma]
right to self-representation:
 Rule: when ∆ adequately waives the right to counsel, she has a constitutional
right to represent herself [Faretta v. California]
o additional assistance of counsel
Mere factual relatedness is not sufficient to extend the right.

court may still appoint counsel to help as long as jury understands
that ∆ is representing herself [McKaskle v. Wiggins]
o no right to proceed on appeal
 no right to self representation on appeal [Martinez v. Court of Appeal]
o Remedy for Denial of Counsel or Ineffective Waiver of Right
 At Trial—reversible error
 Non-trial—harmless error

Did Counsel Provide Ineffective Assistance?
o Procedural Requirements:
 Rule: claim can only be brought where the right to counsel attaches
 Habeas: § 2255: may be brought regardless of whether or not the ∆ could have
previously brought the claim on direct appeal [Massaro v. US]
o Elements of Claim:
 Unreasonable conduct by counsel—must point to specific errors of trial counsel
 claim cannot be based on inferences drawn from counsel’s inexperience, lack of
time to prepare, gravity of the charges, complexity of defenses or accessibility of
witnesses to counsel [US v. Cronic]

Reasonable probability that conduct affected outcome of case


∆ would not have been convicted
∆ received a sentence longer that it would have been with effective assistance [Glover v.
US]
Not Ineffective Assistance
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Failure to raise a federal constitutional claim that was
the law at the time of the proceeding but that was later
overruled [Lockhart v. Fretwell]
Failure to file an appeal if ∆ has said nothing on the
topic [Roe v. Flores Ortega]
Lack of a meaningful relationship between ∆ and his
public defender [Morris v. Slappy]
Failure to get public defender of choice [Morris v.
Slappy]
Failure to present mitigating evidence or make a closing
argument at a capital sentencing proceeding [Bell v.
Cone]
Refusal to allow ∆ to substitute as his counsel an
attorney representing two co-∆s even though all three ∆s
waived their right to conflict-free counsel [Wheat v. US]
Young and inexperienced counsel appointed with 25
days to investigate and prepare for trial [US v. Cronic]
Ineffective Assistance
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Failure to file an appeal when it was clearly meritorious
due to the successful appeal of a co-∆ [US v. Reincke]
Failure to object to a prosecution when the charge was
expressly barred [In re Williams]
Failure to file timely motion to suppress [Kimmelman v.
Morrison]
Failure to file timely notice of appeal [Evitts v. Lucey]
Death Penalty Case: failure to fully investigate ∆’s life
history where there’s reason to believe that the
investigation could uncover mitigating facts [Wiggins v.
Smith]