Legal Question in Criminal Law in California

Habeas appeal for ineffective assistance of counsel

At sentencing, the defence atty presents a poorly prepared and researched motion for downward departures. The written motion includes only the briefest mention of a couple key issues with no supporting points and authorities. During the sentencing the attorney orally defends the key issues but again presents no supporting points and authorities.

Without supporting documentation, points and authorities, the issues are deemed �immaterial�.

The atty then fails to file a motion with the supporting points and authorities in a timely matter. There is additional similar behavior as well.

For appeals purposes, does this rise to the level to be considered ineffective assistance of counsel?


Asked on 3/07/03, 10:05 pm

1 Answer from Attorneys
Robert Miller Robert L. Miller & Associates, A Law Corporation

Re: Habeas appeal for ineffective assistance of counsel

Thanks for your posting.

The appeals court will use the U.S. Supreme Court's two prong test in determining ineffective assistance of counsel:

First, the defendant must show that counsel�s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment.

Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel�s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Strickland v. Washington, 466 US 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984).

I hope that this helps, but if you have other questions, need more information, or feel that you need legal representation, please feel free to email me directly at [email protected]. I'm happy to help in any way that I can.

Read more
Answered on 3/10/03, 2:02 pm


Related Questions & Answers

More Criminal Law questions and answers in California