Ineffective Assistance of Appellate Counsel

The United States Constitution guarantees that any person charged with a crime must receive not just the assistance of counsel, but the effective assistance of counsel. [1] This right also extends to direct appeal. [2] In declaring this right, the Supreme Court noted that it had previously required the appointment of counsel on appeal for indigent defendants [3] and constitutional safeguards for the procedures of appeals. [4] Thus, the Court held that the constitutional safeguard of the effective assistance of counsel must also extend to the direct appeal from conviction. [5]

Claims of ineffective assistance of appellate counsel face certain challenges. The Supreme Court has recognized that appeal attorneys exclude weaker arguments in favor of stronger ones as a matter of practice. [6] An ineffective assistance of appellate counsel claim is also governed by the same two-prong standard for ineffective assistance of trial counsel which requires deficient performance and resulting prejudice. [7] Prejudice generally means that, but for counsel’s failure to raise a certain issue on appeal, there is a reasonable probability that the results of the appeal would have been different. [8] Stated differently, prejudice means there is a reasonable probability that the issue would have succeeded had it been raised on appeal. [9]

In Alabama, the proper method for raising ineffective assistance of appellate counsel is a Rule 32 petition. [10] This system mirrors the federal system which allows claims of ineffective assistance of appellate counsel to be brought under a 2255 petition. [11] These systems put the trial court in the unique position of judging whether appellate counsel was ineffective for failing to raise claims of error at a trial that it presided over. Nonetheless, even if a trial court is in unfamiliar territory considering appeal issues, that is the process that must be followed. If the court fails to address the ineffective assistance of appellate counsel issue, it could face reversal on appeal. [12]

If you or someone you love think you may have a viable claim of ineffective assistance of appellate counsel, contact Peter Armstrong, Attorney at Law, for a free consultation.

Citations:

1.    Yarborough v. Gentry, 540 U.S. 1, 5 (2003).

2.    Evitts v. Lucey, 469 U.S. 387, 396-97 (1985).

3.    Douglas v. California, 372 U.S. 352, 356-58 (1963).

4.    Griffin v. Illinois, 351 U.S. 12, 18-19 (1956).

5.    Evitts, 469 U.S. at 396.

6.    Jones v. Barnes, 463 U.S. 745, 751 (1983).

7.    Philmore v. McNeil, 575 F.3d 1251, 1264 (11th Cir. 2009); U.S. v. Brown, 528 F.3d 1030, 1032-33 (8th Cir. 2008).

8.    Padgett v. U.S., 791 Fed. Appx. 51, 55 (11th Cir. 2019).

9.    See Dell v. U.S., 710 F.3d 1267, 1276 (11th Cir. 2013) (applying the “would have succeeded” language to an ineffective assistance of appellate counsel claim).

10. Avery v. State, 832 So. 2d 664, 666 (Ala. Crim. App. 2001) (quoting Alderman v. State, 647 So. 2d 28, 31 (Ala. Crim. App. 1994)).

11. Padgett, 791 Fed. Appx. at 54-55; Morelos v. U.S., 709 F.3d 1246, 1253 (8th Cir. 2013).

Brown v. State, 681 So. 2d 1102, 1103-04 (Ala. Crim. App. 1996).