In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
The Sixth Amendment’s guarantee of effective assistance of counsel is not satisfied by the mere appointment of counsel regardless of the competence or fidelity of their services; indeed, the “right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance.” 1 Further, the Sixth Amendment’s right to effective assistance applies to counsel regardless of whether counsel is appointed or privately retained or whether the government in any way brought about the defective representation.2 As the Court has explained, “[t]he vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.” 3
The seminal test for adequate representation stems from the Court’s 1984 opinion Strickland v. Washington.4 There are two components to the Strickland test: (1) deficient representation and (2) resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.5
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Footnotes
- 1
- Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)
- 2
- See id. ( “A proper respect for the Sixth Amendment disarms petitioner’s contention that defendants who retain their own lawyers are entitled to less protection than defendants for whom the State appoints counsel.” ).
- 3
- Id.
- 4
- 466 U.S. 668 (1984). In an earlier case, the Court had observed that whether defense counsel provided adequate representation, in advising a guilty plea, depended not on whether a court would retrospectively consider his advice right or wrong “but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 768–71 (1970); see also United States v. Agurs, 427 U.S. 97, 102 n.5 (1976) ( “We think it clear, however, that counsel’s failure to obtain . . . prior criminal record does not demonstrate ineffectiveness.” ); Tollett v. Henderson, 411 U.S. 258, 266 (1973) ( “If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not ‘within the range of competence demanded of attorneys in criminal cases.’” (quoting McMann, 397 U.S. at 771)).
- 5
- Strickland, 466 U.S. at 687. The Court has emphasized that an “ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest ‘intrusive post-trial inquiry’ threaten the integrity of the very adversary process the right to counsel is meant to serve.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Strickland, 466 U.S. at 689–90). Furthermore, ineffective assistance of counsel claims frequently are asserted in federal court to support petitions for writs of habeas corpus filed by state prisoners. E.g., Richter, 562 U.S. at 96–97; Kimmelman v. Morrison, 477 U.S. 365 (1986). Making a successful Strickland claim in a habeas context, as opposed to direct review, was further complicated by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104–132, § 104, 110 Stat. 1218–1219, amending 28 U.S.C. § 2254. See generally, e.g., Shinn v. Martinez Ramirez, No. 20–1009, at 2, 6–22 (U.S. May 23, 2022) (reviewing and applying AEDPA to foreclose evidentiary hearing where “prisoner’s state postconviction counsel negligently failed to develop the state-court record” of ineffective assistance of trial counsel). After the passage of AEDPA, one must go beyond showing that a state court applied federal law incorrectly to also show that the court misapplied established Supreme Court precedent in a manner that no fair-minded jurist could find to be reasonable. E.g., Richter, 562 U.S. at 100–05, 106 (reviewing and applying AEDPA standards to habeas claim premised on ineffective assistance of counsel, and holding that counsel’s decision to forgo inquiry into blood evidence was at least arguably reasonable); see also Burt v. Titlow, 571 U.S. 12, 15 (2013) (reversing Sixth Circuit decision based on “doubly deferential” standard of review for habeas claims under AEDPA and Strickland that does not “permit federal judges to . . . casually second-guess the decisions of their state-court colleagues or defense attorneys” ); Cullen v. Pinholster, 563 U.S. 170, 187 (2011) (evaluating federal habeas claim premised on ineffective assistance of counsel and concluding that standard required by AEDPA had not been met).