Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

The gauge of deficient representation is an objective standard of reasonableness “under prevailing professional norms” that takes into account “all the circumstances” and evaluates conduct “from counsel’s perspective at the time.” 1 Providing effective assistance is not limited to a single path. No detailed rules or guidelines for adequate representation are appropriate, as “[a]ny such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.” 2

Because even the most highly competent attorneys might choose to defend a client differently, “[j]udicial scrutiny of counsel’s performance must be highly deferential.” 3 Counsel’s obligation is a general one: to act within the wide range of legitimate, lawful, and reasonable conduct.4 The Court has advised that “strategic choices made after thorough investigation of [relevant] law and facts . . . are virtually unchallengeable,” 5 and the same is true of reasonable decisions that “make[ ] particular investigations unnecessary,” 6 or reasonable decisions in selecting which issues to raise on appeal.7 In Strickland itself, the allegation of ineffective assistance failed; the Court held that the defense attorney’s decision to forgo character and psychological evidence in a capital sentencing proceeding to avoid rebuttal evidence of the defendant’s criminal history was “the result of reasonable professional judgment.” 8

On the other hand, defense counsel does have a general duty to investigate a defendant’s background, and a decision to limit investigation and presentation of mitigating evidence must be supported by reasonable efforts and judgment.9 Also, even though deference to counsel’s choices may seem particularly apt in the unstructured, often style-driven arena of plea bargaining,10 an accused, in considering a plea, is clearly entitled to advice of counsel on the prospect of conviction at trial and the extent of punishment that might be imposed. Thus, in Lafler v. Cooper the government conceded that the deficient representation part of the Strickland test was met when an attorney erroneously advised the defendant during plea negotiations that the facts in his case would not support a conviction for attempted murder.11 In Missouri v. Frye,12 the Court held that failure to communicate a plea offer to a defendant also may amount to deficient representation.

Moreover, in Padilla v. Kentucky the Court held that defense counsel’s Sixth Amendment duty to a client considering a plea goes beyond advice on issues directly before the criminal court to reach advice on deportation.13 Because of its severity, historical association with the criminal justice system, and increasing certainty following conviction and imprisonment, the Court found deportation to be of a “unique nature.” 14 Further, the Court held that defense counsel failed to meet prevailing professional norms in representing to the defendant that he did not have to worry about deportation because of the length of his legal residency in the United States.15 The Court emphasized that this conclusion was not based on the attorney’s mistaken advice, but rather on a broader obligation to inform a noncitizen client whether a plea carries a risk of deportation.16

Footnotes

1

Strickland, 466 U.S. at 688, 689; see also Maryland v. Kulbicki, 577 U.S. 1, 4 (2015) (per curiam) (reversing an opinion by Maryland’s highest state court, which found that counsel was ineffective because the defendant’s attorneys did not question the methodology used by the state in analyzing bullet fragments, on the grounds that this methodology “was widely accepted” at the time of trial, and courts “regularly admitted [such] evidence” ).

2

Strickland, 466 U.S. at 689. The Court in Strickland observed that “American Bar Association standards and the like” may reflect prevailing norms of practice, “but they are only guides.” Id. at 688. Subsequent cases also cite ABA standards as touchstones of prevailing norms of practice. E.g., Rompilla v. Beard, 545 U.S. 374, 387 (2005); Wiggins v. Smith, 539 U.S. 510, 524 (2003). But in Bobby v. Van Hook, the Court held that the Sixth Circuit had erred in assessing an attorney’s conduct in the 1980s under 2003 ABA guidelines, and also noted that its holding “should not be regarded as accepting the legitimacy of a less categorical use of the [2003] Guidelines to evaluate post-2003 representation.” 558 U.S. 4, 7, 8 n.1 (2009) (per curiam).

3

Strickland, 466 U.S. at 689. The purpose is “not to improve the quality of legal representation, . . . [but] simply to ensure that criminal defendants receive a fair trial.” Id.

4

There is no obligation to assist the defendant in presenting perjured testimony, Nix v. Whiteside, 475 U.S. 157, 171, 175 (1986), and a defendant has no right to require his counsel to use peremptory challenges to exclude jurors on the basis of race. Georgia v. McCollum, 505 U.S. 42, 57 (1992). Also, “effective” assistance of counsel does not guarantee the accused a “meaningful relationship” of “rapport” with his attorney such that he is entitled to a continuance in order to change attorneys during a trial. Morris v. Slappy, 461 U.S. 1, 13–14 (1983).

5

Strickland, 466 U.S. at 690; see also Burt, 571 U.S. at 23–24 (rejecting conclusion that a lack of evidence indicating that counsel gave “constitutionally adequate advice on whether to withdraw [a] guilty plea” justified finding counsel ineffective on Sixth Amendment grounds); Yarborough v. Gentry, 540 U.S. 1, 4–6 (2003) (per curiam) (applying deference to attorney’s choice of tactics for closing argument and reversing federal appellate decision finding that counsel had deprived defendant of effective assistance of counsel).

6

Strickland, 466 U.S. at 691; see also Schriro v. Landrigan, 550 U.S. 465, 475–77 (2007) (determining that federal district court was within its discretion to conclude that attorney’s failure to present mitigating evidence made no difference in sentencing); Woodford v. Visciotti, 537 U.S. 19, 26–27 (2002) (per curiam) (determining that state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors).

7

There is no obligation to present on appeal all nonfrivolous issues requested by the defendant. Jones v. Barnes, 463 U.S. 745, 750–51, 754 (1983) (concluding that appointed counsel may exercise his professional judgment in determining which issues are best raised on appeal).

8

466 U.S. at 699; see also Wong v. Belmontes, 558 U.S. 15, 20, 28 (2009) (per curiam) (rejecting ineffective assistance of counsel claim based on decision not to present additional mitigating evidence); Darden v. Wainwright, 477 U.S. 168, 184–87 (1986) (similar).

9

See Andrus v. Texas, No. 18–9674, slip op. at 1–2, 8 (U.S. Jun. 15, 2020) (per curiam) (concluding the defendant’s counsel provided constitutionally ineffective assistance by inadequately investigating mitigating evidence, providing evidence that bolstered the state’s case, and failing to scrutinize the state’s aggravating evidence); Buck v. Davis, No. 15–8049, slip op. at 17 (U.S. Feb. 22, 2017) (concluding that “[n]o competent defense attorney would introduce” evidence that his client was a future danger because of his race); see also Hinton v. Alabama, 571 U.S. 263, 274 (2014) (per curiam) (holding an attorney’s hiring of a questionably competent expert witness because of a mistaken belief in the legal limit on the amount of funds payable on behalf of an indigent defendant constitutes ineffective assistance); Sears v. Upton, 561 U.S. 945, 951–52, 956 (2010) (per curiam) (concluding that the “cursory nature” of a defense counsel’s investigation into mitigation evidence was constitutionally ineffective); Porter v. McCollum, 558 U.S. 30, 39–40 (2009) (per curiam) (holding an attorney’s failure to interview witnesses or search records in preparation for penalty phase of capital murder trial constituted ineffective assistance of counsel); Rompilla v. Beard, 545 U.S. 374, 385 (2005) (concluding that a defendant’s attorneys’ failure to consult trial transcripts from a prior conviction that the attorneys knew the prosecution would rely on in arguing for the death penalty was inadequate); Wiggins v. Smith, 539 U.S. 510, 526–28 (2003) (holding an attorney’s failure to investigate defendant’s personal history and present important mitigating evidence at capital sentencing was objectively unreasonable).

10

See, e.g., Premo v. Moore, 562 U.S. 115, 123–26 (2011) (reviewing considerations when evaluating ineffective assistance claim at plea bargaining stage and noting that “[p]lea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks” ).

11

566 U.S. 156, 161, 166 (2012).

12

566 U.S. 134, 145 (2012) ( “[A]s 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.” ).

13

Padilla v. Kentucky, 559 U.S. 356, 368–69 (2010).

14

Id. at 365–66. The Court did not address whether distinguishing between direct and collateral consequences of conviction was appropriate in bounding defense counsel’s constitutional duty in a criminal case. Id. at 365.

15

Id. at 359, 367–69.

16

Id. at 369–74 (2010). On the issue of prejudice to the defendant from ineffective assistance, the Court sent the case back to lower courts for further findings. Id. at 369. In Chaidez v. United States, the Court held that Padilla announced a “new rule” of criminal procedure that did not apply “retroactively” during collateral review of convictions then already final. 568 U.S. 342, 358 (2013).