Appellate Counsel - Principal Office In Dallas

Providing Representation In Civil & Criminal Appeals

Phone

972 802 1788

Strickland Standard

The Supreme Court of the United States and the Court of Criminal Appeals recognize that a defendant has a Sixth Amendment right to the effective assistance of counsel.

Claims of ineffective assistance of counsel almost never succeed on direct appeal and in almost all cases are more appropriate for habeas review.  Raising a claim of ineffective assistance of counsel on direct appeal could but need not waive this claim in habeas.

The standard for evaluating whether counsel was constitutionally effective is the Strickland standard.  Strickland requires that a party who claims that his counsel was ineffective must establish two things: (1) deficient performance of trial or appellate counsel; and, (2) harm resulting from that deficiency sufficient to undermine confidence in the outcome.

The proper standard of review for claims of ineffective assistance of counsel is whether, considering the totality of the representation, counsel’s performance was ineffective.

Under Strickland, an attorney’s performance is deficient when it falls below an objective standard of reasonableness under prevailing professional norms and according to the necessity of the case.  In determining whether an attorney’s performance fell below this objective standard of reasonableness, the Court of Criminal Appeals will determine prevailing norms by considering the standards published by the American Bar Association and other similar sources.

Click here for a link to the ABA standards for defense attorneys.

Determining Whether Counsel was Ineffective

A determination of whether counsel was effective begins with the investigation of the writ. This includes obtaining a copy of the attorney’s file, speaking with the attorney, locating and interviewing witnesses, and obtaining sworn testimony.  This is often the most time consuming part of a writ investigation.

An evaluation of an attorney’s effectiveness includes the attorney’s investigation of the underlying offense, the attorney’s representation of the client at trial, and the attorney’s advice to the client.

Most claims of ineffective assistance of counsel fail to show the prejudice prong.  Most attorneys will make a mistake during the representation of a client, but that is not enough to prevail on habeas.  Instead, the applicant must be able to show that this deficiency somehow undermines confidence in the outcome of the trial or the direct appeal.