Ineffective assistance of counsel on habeas corpus

Jay Leiderman
By: Jay Leiderman
January 20 2017

A Petitioner is entitled to competent privately retained counsel on Habeas Corpus. (In re Clark (1993) 5 Cal.4th 750, 780)  In addition to that, here, the ineffective assistance of counsel has denied the petitioner access to the courts.  The ineffective assistance of counsel claimed denied petitioner actual access to courts including the trial court, the appeals court and the court on habeas.  As stated by the California Supreme Court in In re Clark (1993) 5 Cal.4th 750, 779 (emphasis added):

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“In limited circumstances, consideration may be given to a claim that prior habeas corpus counsel did not competently represent a petitioner. An imprisoned defendant is entitled by due process to reasonable access to the courts, and to the assistance of counsel if counsel is necessary to ensure that access, but neither the Eighth Amendment nor the due process clause of the United States Constitution gives the prisoner, even in a capital case, the right to counsel to mount a collateral attack on the judgment. [¶] Regardless of whether a constitutional right to counsel exists, a petitioner who is represented by counsel when a petition for writ of habeas corpus is filed has a right to assume that counsel is competent and is presenting all potentially meritorious claims.”

 

This language in Clark applies to a situation like the one presented herein, where counsel and successor counsel denied petitioner access to the courts .

Thus, petitioner was denied due process by the ineffective assistance of counsel.  He has alleged facts to support that he received ineffective assistance of counsel, and the ineffective assistance denied him the right to be present at trial, to appeal, and to present the claims in his habeas.   The Clark court was clear that they could not countenance improper representation that would fail to present all potential meritorious claims.

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