“In certain Sixth Amendment contexts, prejudice is presumed….
. In those circumstances, counsel breaches the duty of loyalty, perhaps the most basic of counsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests…., it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice for conflicts of interest. Even so,….Prejudice is presumed only if the defendant demonstrates that counsel ‘actively represented conflicting interests’ and that ‘an actual conflict of interest adversely affected his lawyer’s performance.'”
Strickland v. Washington (1984) 466 U.S. 668, 692
“A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel’s loyalty to his or her client. (See Glasser v. United States (1942) 315 U.S. 60, 69–70, other citations omitted) It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.”
People v. Doolin (2009) 45 Cal.4th 390, 417.
“The right to counsel is the right -to effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 686, 80674, 104 S.Ct. 2052 (1984). “When a jurisdiction provides an appeal of right, due process also guarantees the assistance of counsel on appeal.” Evitts v. Lucey, 469 U.S. 387, 83 821, 105 S.Ct. 830 (1985). This right does not extend to “discretionary appeals,” Wainright v. Torna, 455 U.S. 586, 71 475, 102 S.Ct. 1300 (1982), “petitions for certiorari,” Ross v. Moffitt, 417 U.S. 600, 41 341, 94 S.Ct. 2437 (1974), or “post-conviction proceedings,” Coleman v. Thompson, 501 U.S. 722, 115 640, 111 S.Ct. 2546 (1991); Pennsylvannia v. Finley, 481 U.S. 551, 95 539, 107 Sect. 1990 (1987).
The defendant has a right to expect that his attorney will use every skill, expend every energy, and tap every legitimate resource in exercise of independent professional judgment on behalf of defendant and in undertaking representation. Frazer v. United States, 18 F.3d 778, 779 (9th Cir. 1994); U.S.C.A. Const. Amend 6. Counsel owes defendant duty of loyalty, unhindered by state or by counsel’s constitutionally deficient performance.
Ineffectiveness is presumed when an actual conflict of interest is shown or an irreconcilable conflict between counsel and the defendant.
Examples of grounds for claim of ineffective assistance of counsel are as follows:
- Counsel was ineffective in investigation, preparation or for another substantial reason
- Counsel’s performance was deficient and prejudiced defendant
- Counsel’s serious errors deprived defendant of fair trial
- Counsel provided bad advice
- Counsel had conflict of interest
- Counsel and defendant had irreconcilable differences
- Counsel was not prepared within requisite range of competence
- Counsel’s performance fell below an objective standard of reasonableness
- Counsel’s failure to investigate mitigating evidence
- Counsel’s failure to investigate mitigating circumstances for sentencing
- Counsel’s failure to object to factual errors in PSR and adequately prepare defendant for sentencing
- Counsel’s failure to subject prosecution’s case to meaningful adversarial testing
- Counsel’s failure to file timely motions
- Counsel’s failure to advocate the defendant’s theory of the case
- Counsel’s failure to negotiate results favorable to the defendant in plea negotiations
- Counsel’s failure to be competent, prompt and diligent
- Counsel’s failure to maintain adequate communications with defendant
- Counsel’s absence through critical stages of the prosecution
- Court’s failure to provide substitute counsel
- Court’s failure to hold inquiry into claim of ineffective assistance of counsel
- Representation so inadequate and deficient that it denies Sixth Amendment right
- Representation fails to move to suppress evidence, conduct an adequate investigation, raise legal issues at trial, negotiate a plea agreement, introduce exculpatory evidence or file timely notice of appeal
In any case presenting a claim counsel’s assistance was constitutionally ineffective, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances and prevailing norms of practice as reflected in American Bar Association standards. Strickland, at 677.