SCOTUS: GUIDE FOR PROSPECTIVE INDIGENT PETITIONERS FOR WRITS OF CERTIORARI

October 2005
OFFICE OF THE CLERK SUPREME COURT OF THE UNITED STATES WASHINGTON, D. C. 20543
GUIDE FOR PROSPECTIVE INDIGENT PETITIONERS FOR WRITS OF CERTIORARI

I. Introduction

These instructions and forms are designed to assist petitioners who are proceeding in forma pauperis and without the assistance of counsel. A copy of the Rules of the Supreme Court, which establish the procedures that must be followed, is also enclosed. Be sure to read the following Rules carefully:
Rules 10-14 (Petitioning for certiorari)
Rule 29 (Filingand service on opposing party or counsel)
Rule 30 (Computation and extension of time)
Rules 33.2 and 34 (Preparing pleadings on 81⁄2 x 11 inch paper)
Rule 39 (Proceedings in forma pauperis)
II. Nature of Supreme Court Review

It is important to note that review in this Court by means of a writ of certiorari is not a matter of right, but of judicial discretion. The primary concern of the Supreme Court is not to correct errors in lower court decisions, but to decide cases presenting issues of importance beyond the particular facts and parties involved. The Court grants and hears argument in only about 1% of the cases that are filed each Term. The vast majority of petitions are simply denied by the Court without comment or explanation. The denial of a petition for a writ of certiorari signifies only that the Court has chosen not to accept the case for review and does not express the Court’s view of the merits of the case.
Every petitioner for a writof certiorari is advised to read carefully the Considerations Governing Review on Certiorari set forth in Rule 10. Important considerations for accepting a case for review include the existence of a conflict between the decision of which review is sought and a decision of another appellate court on the same issue. An important function of the Supreme Court is to resolve disagreements among lower courts about specific legal questions. Another consideration is the importance to the public of the issue.

III. The Time for Filing

You must file your petition for a writof certiorari within 90 days from the date of the entry of the final judgment in the United States court of appeals or highest state appellate court or 90 days from the denial of a timely filed petition for rehearing. The issuance of a mandate or remittitur after judgment has been entered has no bearing on the computation of time and does not extend the time for filing. See Rules 13.1 and
13.3. Filing in the Supreme Court means the actual receipt of documents by the Clerk; or their deposit in the United States mail, with first-class postage prepaid, on or before the final date allowed for filing; or their delivery to a third-party commercial carrier, on or before the final date allowed for filing, for delivery to the Clerk within 3 calendar days. See Rule 29.2.

IV. What To File

Unless you are an inmate confined in an institution and not represented by counsel, file:
—An original and ten copies of a motion for leave to proceed in forma pauperis and an original and 10 copies of an affidavit or declarati on in support thereof. See Rule 39.
—An original and 10 copies of a petition for a writ of certiorari with an appendix consisting of a copy of the judgment or decree you are asking this Court to review including any order on rehearing, and copies of any opinions or orders by any courts or administrative agencies that have previously considered your case. See Rule 14.1(i).
—One affidavit or declarati on showing that all opposing parties or their counsel have been served with a copy of the papers filed in this Court. See Rule 29.

If you are an inmate confined in an institution and not represented by counsel, you need file only the original of the motion for leave to proceed in forma pauperis, affidavit or declarati on in supportof the motion for leave to proceed in forma pauperis, the petition
for a writ of certiorari, and proof of service.

The attached forms may be used for the original motion, affidavit or declaration, and petition, and should be stapled together in that order. The proof of service should be included as a detached sheet, and the form provided may be used.

V. Page Limitation

The petition for a writ of certiorari may not exceed 40 pages excluding the pages that precede Page 1 of the form. The documents required to be contained in the appendix to the petition do not count toward the page limit. See Rule 33.2(b).

VI. Method of Filing

All documents to be filed in this Court must be addressed to the Clerk, Supreme Court of the United States, Washington, D. C. 20543 and must be served on opposing parties or their counsel in accordance with Rule 29.

INSTRUCTIONS FOR COMPLETING FORMS

I. Motion for Leave to Proceed In Forma Pauperis -Rule 39

A. On the form provided for the motion for leave to proceed in forma pauperis, leave the case number blank. The number will be assigned by the Clerk when the case is docketed.

B. On the line in the case caption for “petitioner ”, type your name. As a pro se petitioner, you may represent only yourself. On the line for “respondent”, type the name of the opposing party in the lower court. If there are multiple respondents, enter the first respondent, as the name appeared on the lower court decision, followed by “et al.” to indicate that there are other respondents. The additional parties must be listed in the LIST OF PARTIES section of the petition.

C. If the lower courts in your case granted you leave to proceed in forma pauperis,
check the appropriate space and indicate the court or courts that allowed you to proceed in forma pauperis. If none of the lower courts granted you leave to proceed in forma pauperis, check the block that so indicates.

D. Sign the motion on the signature line.

II. Affidavit or Declaration in Support of Motion for Leave to Proceed In Forma Pauperis

On the form provided, answer fully each of the questions. If the answer to a question is “0,” “none,” or “not applicable (N/A),” enter that response. If you need more space to answer a question or to explain your answer, attach a separate sheet of paper, identified with your name and the question number. Unless each question is fully answered, the Clerk will not accept the petition. The form must either be notarized or be in the form of a declaration. See 28 U. S. C. §1746.

III. Cover Page -Rule 34

When you complete the form for the cover page:

A. Leave case number blank. The number will be assigned by the Clerk when the case is docketed.

B. Complete the case caption as you did on the motion for leave to proceed in forma pauperis.

C. List the court from which the action is brought on the line following the words “on petition for a writ of certiorari to.” If your case is from a state court, enter the name of the court that last addressed the merits of the case. For example, if the highest state court denied discretionary review, and the state court of appeals affirmed the decision of the trial court, the state court of appeals should be listed. If your case is federal, the United States court of appeals that decided your case will always be listed here.

D. Enter your name, address, and telephone number in the appropriate spaces.

IV. Question(s) Presented

On the page provided, enter the question or questions that you wish the Court to review. The questions must be concise. Questions presented in cases accepted for review are usually no longer than two or three sentences. The purpose of the question presented is to assist the Court in selecting cases. State the issue you wish the Court to decide clearly and without unnecessary detail.

V. List of Parties

On the page provided, check either the box indicating that the names of all parties appear in the caption of the case on the cover page or the box indicating that there are additional parties. If there are additional parties, list them. Rule 12.6 states that all parties to the proceeding whose judgment is sought to be reviewed shall be deemed parties in this Court, and that all parties other than petitioner shall be respondents. The court whose judgment you seek to have this Court review is not a party.

VI. Table of Contents

On the page provided, list the page numbers on which the required portions of the petition appear. Number the pages consecutively, beginning with the “Opinions Below” page as page 1.

VII. Index of Appendices

List the description of each document that is included in the appendix beside the appropriate appendix letter. Mark the bottom of the first page of each appendix with the appropriate designation, e.g., “Appendix A.” See Rule 14.1 pertaining to the items to be included in the appendix.

A. Federal Courts

If you are asking the Court to review a decision of a federal court, the decision of the United States court of appeals should be designated Appendix A. Appendix A should be followed by the decision of the United States District Court and the findings and recommendations of the United States magistrate judge, if there were any. If the United States court of appeals denied a timely filed petition for rehearing, a copy of that order should be appended next. If you are seeking review of a decision in a habeas corpus case, and the decision of either the United States District Court or the United States Court of Appeals makes reference to a state court decision in which you were a party, a copy of the state court decision must be included in the appendix.

B. State Courts

If you are asking the Court to review a decision of a state court, the decision of which review is sought should be designated Appendix A. Appendix A should be followed by the decision of the lower court or agency that was reviewed in the decision designated Appendix A. If the highest court of the state in which a
decision could be had denied discretionary review, a copy of that order should follow. If an order denying a timely filed petition for rehearing starts the running
of the time for filing a petition for a writ of certiorari pursuant to Rule 13.3, a copy of the order should be appended next.

As an example, if the state trial court ruled against you, the intermediate court of appeals affirmed the decision of the trial court, the state supreme court denied discretionary review and then denied a timely petition for rehearing, the appendices
should appear in the following order:

Appendix A Decision of State Court of Appeals

Appendix B Decision of State Trial Court

Appendix C Decision of State Supreme Court Denying Review

Appendix D Order of State Supreme Court Denying Rehearing

VIII. Table of Authorities

On the page provided, list the cases, statutes, treatises, and articles that you reference in your petition, and the page number of your petition where each authority appears.

IX. Opinions Below

In the space provided, indicate whether the opinions of the lower courts in your case have been published, and if so, the citation for the opinion below. For example, opinions of the United States courts of appeals are published in the Federal Reporter. If the opinion in your case appears at page 100 of volume 30 of the Federal Reporter, Third Series, indicate that the opinion is reported at 30 F. 3d 100. If the opinion has been designated for publication but has not yet been published, check the appropriate space. Also indicate where in the appendix each decision, reported or unreported, appears.

X. Jurisdiction

The purpose of the jurisdiction section of the petition is to establish the statutory source for the Court’s jurisdiction and the dates that determine whether the petition is timely filed. The form sets out the pertinent statutes for federal and state cases. You need provide only the dates of the lower court decisions that establish the timeliness of the petition for a writ of certiorari. If an extension of time within which to file the petition for a writ of certiorari was granted, you must provide the requested information pertainingto the extension. If you seek to have the Courtreview a decision of a state court, you must provide the date the highest state court decided your case, either by ruling on the merits or denying discretionary review.

XI. Constitutional and Statutory Provisions Involved

Set out verbatim the constituti onal provisions, treaties, statutes, ordinances and regulations involved in the case. If the provisions involved are lengthy, provide their citation and indicate where in the Appendix to the petition the text of the provisions appears.

XII. Statement of the Case

Provide a concise statement of the case containing the facts material to the consideration of the question(s) presented; you should summarize the relevant facts of the case and the proceedings that took place in the lower courts. You may need to attach additional pages, but the statement should be concise and limited to the relevant facts of the case.

XIII. Reasons for Granting the Petition

The purpose of this section of the petition is to explain to the Court why it should grant certiorari. It is important to read Rule 10 and address what compelling reasons exist for the exercise of the Court’s discretionary jurisdiction. Try to show not only why the decision of the lower court may be erroneous, but the national importance of having the Supreme Court decide the question involved. It is important to show whether the decision of the court that decided your case is in conflictwith the decisions of another appellate court; the importance of the case not only to you but to others similarly situated; and the ways the decision of the lower court in your case was erroneous.

You will need to attach additional pages, but the reasons should be as concise as possible, consistent with the purpose of this section of the petition.

XIV. Conclusion

Enter your name and the date that you submit the petition.

XV. Proof of Service

You must serve a copy of your petition on counsel for respondent(s) as required by Rule 29. If you serve the petition by first-class mail or by third-party commercial carrier, you may use the enclosed proof of service form. If the United States or any department, office, agency, officer, or employee thereof is a party, you must serve the Solicitor General of the United States, Room 5614, Department of Justice, 950 Pennsylvania
Ave., N.W., Washington, D. C. 20530–0001. The lower courts that ruled on your case are not parties and need not be served with a copy of the petition. The proof of service may be in the form ofa declarati on pursuant to 28 U. S. C. §1746.

No.
IN THE
SUPREME COURT OF THE UNITED STATES
— PETITIONER (Your Name)
VS.
— RESPONDENT(S)
MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner asks leave to file the attached petition for a writ of certiorari without prepayment of costs and to proceed in forma pauperis.

[ ] Petitioner has previously been granted leave to proceed in forma pauperis in the following court(s):

[ ] Petitioner has not previously been granted leave to proceed in forma pauperis in any other court.

Petitioner ’s affidavit or declaration in support of this motion is attached hereto.

(Signature)

AFFIDAVIT OR DECLARATION IN SUPPORT OF MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

I, , am the petitioner in the above-entitled case. In support of my motion to proceed in forma pauperis, I state that because of my poverty I am unable to pay the costs of this case or to give security therefor; and I believe I am entitled to redress.
1.
For both you and your spouse estimate the average amount of money received from each of the following sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly, semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions for taxes or otherwise.
Income source
Average monthly amount during
Amount expected
the past 12 months
next month
You
Spouse
You
Spouse
Employment
$
$
$
$
Self-employment
$
$
$
$
Income from real property
$
$
$
$
(such as rental income)
Interest and dividends
$
$
$
$
Gifts
$
$
$
$
Alimony
$
$
$
$
Child Support
$
$
$
$
Retirement (such as social
$
$
$
$
security, pensions,
annuities, insurance)
Disability (such as social
$
$
$
$
security, insurance payments)
Unemployment payments
$
$
$
$
Public-assistance
$
$
$
$
(such as welfare)
Other (specify):
$
$
$
$
Total monthly income:
$
$
$
$
2.
List your employment history for the past two years, most recent first. (Gross monthly pay is before taxes or other deductions.)
Employer
Address
Dates of
Gross monthly pay
Employment
$
$
$
3. List your spouse’s employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or other deductions.)
Employer Address Dates of Gross monthly pay
Employment $ $ $
4. How much cash do you and your spouse have? $ Below, state any money you or your spouse have in bank accounts or in any other financial institution.
Financial institution Type of account Amount you have Amount your spouse has
$$ $$ $$
5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary household furnishings.
� Home � Other real estate Value Value
� Motor Vehicle #1 � Motor Vehicle #2 Year, make & model Year, make & model Value Value
� Other assets Description Value
6. State every person,
business,
or
organization owing you
or
your
spouse
money, and the
amount owed.
Person owing you or
Amount owed to you
Amount owed to your spouse
your spouse money
$
$
$
$
$
$
7. State the persons who rely on you or your spouse for support.
Name Relationship Age
8. Estimate the average monthly expenses of you and your family. Show separately the amounts
paid by your spouse.
Adjust any payments that
are
made weekly, biweekly, quarterly, or
annually to show the monthly rate.
You
Your spouse
Rent or home-mortgage payment
(include lot rented for mobile home)
$
$
Are real estate taxes included?
� Yes
� No
Is property insurance included? � Yes
� No
Utilities (electricity, heating fuel,
water, sewer, and telephone)
$
$
Home maintenance (repairs and upkeep)
$
$
Food
$
$
Clothing
$
$
Laundry and dry-cleaning
$
$
Medical and dental expenses
$
$
You Your spouse
Transportation (not including motor vehicle payments) $ $
Recreation, entertainment, newspapers, magazines, etc. $ $
Insurance (not deducted from wages or included in mortgage payments)
Homeowner ’s or renter ’s
$
$
Life
$
$
Health
$
$
Motor Vehicle
$
$
Other:
$
$
Taxes (not deducted from wages or included in mortgage payments)
(specify):
Installment payments Motor Vehicle Credit card(s) Department store(s) Other:
$
$
$
$
$
$
$
$
$
$
Alimony, maintenance, and support paid to others
$
$
Regular expenses for operation of business, profession,
or farm (attach detailed statement)
$
$
Other (specify):
$
$
Total monthly expen ses:
$
$
9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the next 12 months?
� Yes � No If yes, describe on an attached sheet.
10.
Have you paid – or will you be paying – an attorney any money for services in connection with this case, including the completion of this form? � Yes � No
If yes, how much?
If yes, state the attorney’s name, address, and telephone number:
11.
Have you paid—or will you be paying—anyone other than an attorney (such as a paralegal or a typist) any money for services in connection with this case, including the completion of this form?
� Yes � No
If yes, how much?
If yes, state the person’s name, address, and telephone number:
12. Provide any other information that will help explain why you cannot pay the costs of this case.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on: , 20
(Signature)
No.
IN THE
SUPREME COURT OF THE UNITED STATES
— PETITIONER
(Your Name)
vs.
— RESPONDENT(S) ON PETITION FOR A WRIT OF CERTIORARI TO
(NAME OF COURT THAT LAST RULED ON MERITS OF YOUR CASE)
PETITION FOR WRIT OF CERTIORARI
(Your Name)
(Address)
(City, State, Zip Code)
(Phone Number)
QUESTION(S) PRESENTED
LIST OF PARTIES
[ ]All parties appear in the caption of the case on the cover page.
[ ]All parties do not appear in the caption of the case on the cover page. A list of all parties to the proceeding in the court whose judgment is the subjectofthis petition is as follows:
TABLE OF CONTENTS
OPINIONS BELOW ........................................................................................................ 1
JURISDICTION...................................................................................................................
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .................................
STATEMENT OF THE CASE ............................................................................................
REASONS FOR GRANTING THE WRIT ..........................................................................
CONCLUSION ....................................................................................................................
INDEX TO APPENDICES
APPENDIX A
APPENDIX B
APPENDIX C
APPENDIX D
APPENDIX E
APPENDIX F
TABLE OF AUTHORITIES CITED
CASES PAGE NUMBER
STATUTES AND RULES
OTHER
IN THE
SUPREME COURT OF THE UNITED STATES
PETITION FOR WRIT OF CERTIORARI
Petitioner respectfully prays that a writof certiorari issue to review the judgment below.
OPINIONS BELOW
[ ]For cases from federa l courts:
The opinion of the United States court of appeals appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
The opinion of the United States district court appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
[ ]For cases from state courts:
The opinion of the highest state court to review the merits appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
The opinion of the court appears at Appendix to the petition and is
[ ] reported at ; or, [ ] has been designated for publication but is not yet reported; or, [ ]is unpublished.
1.
JURISDICTION
[ ]For cases from federa l courts:
The date on which the United States Court of Appeals decided my case was .
[ ]No petition for rehearing was timely filed in my case.
[ ]A timely petition for rehearing was denied by the United States Courtof Appeals on the following date: , and a copy of the order denying rehearing appears at Appendix .
[ ]An extension of time to file the petition for a writof certiorari was granted to and including (date) on (date) in Application No. A .
The jurisdiction of this Court is invoked under 28 U. S. C. §1254(1).
[ ]For cases from state courts:
The date on which the highest state court decided my case was . A copy of that decision appears at Appendix .
[ ]A timely petition for rehearing was thereaf ter denied on the following date: , and a copy of the order denying rehearing appears at Appendix .
[ ]An extension of time to file the petition for a writof certiorari was granted to and including (date) on (date) in Application No. A .
The jurisdiction of this Court is invoked under 28 U. S. C. §1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
STATEMENT OF THE CASE
REASONS FOR GRANTING THE PETITION
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted,
Date:
No.
IN THE
SUPREME COURT OF THE UNITED STATES
— PETITIONER
(Your Name)
VS.
— RESPONDENT(S)
PROOF OF SERVICE
I, , do swear or declare that on this date,
, 20 , as required by Supreme Court Rule 29 I have served the enclosed MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS and PETITION FOR A WRIT OF CERTIORARI on each party to the above proceeding or that party’s counsel, and on every other person required to be served, by depositing an envelope containing the above documents in the United States mail properly addressed to each of them and with first-class postage prepaid, or by delivery to a third-party commercia l carrier for delivery within 3calendar days.
The names and addresses of those served are as follows:
I declare under penalty of perjury that the foregoing is true and correct. Executed on , 20
(Signature)

The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was rep......

Strickland v. Washington
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Strickland v. Washington
Supreme Court of the United States
Argued January 10, 1984
Decided May 14, 1984
Full case name: Strickland, Superintendent, Florida State Prison, v. Washington
Citations: 466 U.S. 668; 466 U.S. 668; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984)

Prior history: Writ of habeas corpus denied by the United States District Court for the Southern District of Florida; reversed by the Eleventh Circuit, 693 F.2d 1243 (11th Cir. 1982); cert. granted, 462 U.S. 1105 (1983)

Holding
To obtain relief due to ineffective assistance of counsel, a criminal defendant must show that counsel's performance fell below an objective standard of reasonableness and that counsel's deficient performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding would have been different.
Court membership
Chief Justice: Warren E. Burger
Associate Justices: William J. Brennan, Byron White, Thurgood Marshall, Harry Blackmun, Lewis Franklin Powell, Jr., William Rehnquist, John Paul Stevens, Sandra Day O'Connor
Case opinions
Majority by: O'Connor
Joined by: Burger, White, Blackmun, Powell, Rehnquist, Stevens
Concurrence/dissent by: Brennan
Dissent by: Marshall
Laws applied
Sixth Amendment

In Strickland v. Washington, 466 U.S. 668 (1984), the United States Supreme Court established a two-part test for establishing a claim of ineffective assistance of counsel. Under this test, a criminal defendant may not obtain relief unless he can show that counsel's performance fell below an objective standard of reasonableness, and that counsel's performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding—the trial, the sentencing hearing, the appeal—would have been different.
Contents
[hide]

* 1 Facts
* 2 Majority opinion
* 3 Dissenting opinion
* 4 See also
* 5 External links

[edit] Facts

In 1976, Washington committed three brutal stabbing murders, kidnapping, attempted murder, and theft. His two accomplices were arrested, and then Washington surrendered and gave a lengthy statement to the police confessing to the kidnapping and one of the murders. Washington was indicted in Florida for those crimes, and an experienced criminal defense attorney was appointed to represent him.

Washington did not follow his lawyer's advice, and later confessed to the other two murders. Eventually, also against the advice of counsel, Washington pleaded guilty to all of the crimes, with the result that he was eligible for the death penalty. This meant that there would be a sentencing hearing before a judge, who would hear evidence in support of and in opposition to a death sentence.

Counsel began gathering information about Washington's background. Counsel spoke with Washington's wife and mother, but did not personally meet with either of them. Counsel found no other character witnesses for Washington. He also did not request a psychiatric examination, because his conversations with Washington did not suggest to him that Washington might have psychological problems. At this point, counsel abandoned his investigation of Washington's background -- a decision that "reflected trial counsel's sense of hopelessness about overcoming the evidentiary effect of [Washington's] confessions to the gruesome crimes." In part, this was also a strategic decision on counsel's part, since the testimony of the hearing at which Washington had pleaded guilty would provide ample evidence about the crimes themselves, and counsel did not want to give the State a chance to cross-examine Washington on the stand about the details of the crimes at the sentencing hearing.

Counsel's strategy for the sentencing hearing was based on the trial judge's remarks. He urged Washington to express remorse for his crimes. Counsel also pointed to Washington's lack of prior criminal history and emotional stress at the time of the crimes. Counsel offered these facts to support his argument for a life sentence. But the trial judge found much in the way of aggravation, including the brutality of the crimes, and only one mitigating factor, Washington's lack of prior criminal history. The trial judge sentenced Washington to death for each of the three murders. The Florida Supreme Court affirmed the convictions and death sentences on direct appeal.

Washington then sought collateral relief in the Florida state courts. He argued that counsel was inadequate in preparing for the sentencing hearing. He argued counsel should have asked for more time to prepare for the hearing, requested a psychiatric report, uncovered and presented more character witnesses, sought a pre-sentence investigation report, presented more meaningful arguments to the sentencing judge, and investigated and cross-examined the medical examiner's reports. The Florida courts rejected these arguments, reasoning that the "aggravating circumstances [were] completely overwhelming," and so nothing counsel could have done would have avoided the death sentences.

Washington then petitioned for a writ of habeas corpus in federal court, raising the same claims for ineffective assistance of counsel. The federal district court held a hearing, but ultimately agreed with the facts as found by the Florida state courts. It ruled that whatever errors counsel may have made in investigating Washington's case for a life sentence, there was no significant likelihood that the trial court would have imposed a life sentence. The federal court of appeals, sitting en banc, reversed, crafting its own test for ineffective assistance of counsel under which the defendant had to show "actual and substantial disadvantage" to his case before obtaining relief. The court of appeals remanded the case to the district court for consideration under this standard, but before the district court could do so, the State asked the U.S. Supreme Court to hear the case. The Court agreed to do so.

[edit] Majority opinion

The Sixth Amendment right to counsel "exists, and is needed, in order to protect the fundamental right to a fair trial." A fair trial is one in which "evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." Criminal defendants require counsel's skill and knowledge in order to be able to successfully rebuff the State's attempt to imprison or execute them. Accordingly, the Court has ruled that counsel must be appointed for criminal defendants if they cannot afford to hire their own counsel. But the fact that "a person who happens to be a lawyer is present at trial alongside the accused... is not enough to satisfy the constitutional command." Counsel must play the role in the adversarial system that allows the system to produce just results. Hence, the right to counsel is the right to the effective assistance of counsel.

A claim that counsel was ineffective, then, has two components. First, the defendant must show that counsel's performance was "deficient," such that counsel's errors were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Second, this deficient performance must be so serious as to deprive the defendant of a fair trial. Without these two showings, "it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

In order to show that counsel's performance was "deficient," the defendant must show that it fell below an "objective standard of reasonableness." The legal profession is capable of maintaining standards that justify the law's presumption that counsel ordinary serves his function in the adversary system. This includes such basic duties as assisting the defendant and showing him undivided loyalty by representing him unburdened by any conflict of interest. Counsel should advocate the defendant's case, consult with the defendant on the important decisions and keep him informed of important developments in the course of the prosecution. But these basic duties do not serve as a "checklist" for counsel, for "no particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Counsel must have "wide latitude" to make "reasonable tactical decisions," lest the requirements for constitutionally effective assistance distract counsel from "the overriding mission of vigorous advocacy of the defendant's cause." Judges who evaluate ineffective assistance claims should, in turn, be highly deferential to counsel's decisions and avoid scrutinizing them in hindsight. Harsh scrutiny would encourage the proliferation of ineffective assistance claims and "dampen the ardor and impair the independence of defense counsel."

Counsel does, however, have a duty to make "reasonable investigations, or to make a reasonable decision that makes particular investigations unnecessary." After all, strategic decisions made in light of a reasonable investigation and compared to plausible options are virtually unchallengeable. By contrast, strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments justify the curtailment of counsel's investigation. These judgments may be informed by statements the defendant himself makes to counsel and the effects of previous strategic choices.

But not all errors on counsel's part justify setting aside the judgment; rather, they must prejudice the defendant's ability to receive a fair trial. In certain circumstances, such as when the defendant has had no counsel at all or when counsel has labored under a conflict of interest, the Court will presume prejudice. But ordinarily, the defendant must show that counsel's deficient performance had an adverse effect on the defense. Since the goal is to ensure that the defendant had a fair trial, the defendant must show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome. When the defendant challenges his conviction, this means he must show that counsel's errors prevented the jury from forming a reasonable doubt as to his guilt. When he challenges a death sentence, as Washington is doing, he must show a reasonable probability that the sentencer would have balanced the aggravation and mitigation evidence differently. These assessments must be made, of course, with respect to the totality of the evidence presented at the hearing, so that when the prosecution's case is weak, the defendant will more easily show prejudice.

Applying this test to Washington's case, the Court concluded that counsel did not perform deficiently and that Washington suffered no prejudice. Counsel's decision to focus on remorse and emotional distress was a reasonable strategic decision in light of the trial judge's stated views on remorse, the heinousness of Washington's crimes, and Washington's own statements to counsel. In view of these considerations, the Court could not conclude that additional mitigating evidence would have given rise to a reasonable probability that the trial judge would have sentenced Washington to life in prison rather than death.

Justice Brennan concurred in the result because he believed that the Court's new test for ineffective assistance, particularly the prejudice prong, would not impede the presentation of mitigating evidence on behalf of capital defendants. "Counsel's general duty to investigate... takes on supreme importance to a defendant in the context of developing mitigating evidence to present to a judge or jury considering the sentence of death; claims of ineffective assistance in the performance of that duty should therefore be considered with commensurate care." However, because Justice Brennan believed that the death penalty is in all circumstances cruel and unusual punishment, he would have vacated Washington's death sentence and remanded for further proceedings.

[edit] Dissenting opinion

Justice Marshall dissented from the majority's holding. He objected that the Court's newly crafted test was unlikely to "improve the adjudication of Sixth Amendment claims." In his view, the performance standard was "so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts." What does "reasonable" mean? Should counsel's performance be judged by reference to a reasonable paid attorney or a reasonable appointed one? After all, Marshall pointed out, "a person of means, by selecting a lawyer and paying him enough to ensure he prepares thoroughly, usually can obtain better representation than that available to an indigent defendant, who must rely on appointed counsel, who, in turn, has limited time and resources to devote to a given case." Marshall also disputed that counsel's performance must be given especially wide latitude, since "much of the work involved in preparing for trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the trial judge, and filing a notice of appeal if there are colorable grounds therefor could profitably be made the subject of uniform standards."

Marshall also disputed that it should be made the defendant's burden to show prejudice from an allegedly incompetent attorney's performance. Nor should prejudice be measured solely with respect to the fairness of the outcome of the trial; the fairness of the procedure matters just as much. "The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree."

Marshall worried that the Court's admonition to future judges, presented with ineffective assistance claims should defer to counsel's strategic judgments, placed too heavy a burden on defendants making such claims.

Finally, Marshall took issue with the Court's conclusion that the same standard for ineffectiveness should apply in a capital sentencing proceeding that applies at an ordinary trial. The capital sentencing process is intended to be especially reliable, and "reliability in the imposition of the death sentence can be approximated only if the sentencer is fully informed of all possible relevant information about the individual defendant whose fate it must determine." The defendant's attorney is responsible for doing this. For this reason, and in light of the "severity and irrevocability of the sanction at stake," the standard for effective assistance in capital sentencing proceedings must be especially stringent. Accordingly, Marshall believed that a person on death row seeking relief from his death sentence on grounds of ineffective assistance should not have to show a reasonable probability that he would not have received a death sentence if counsel had presented more mitigating evidence. Because it was clear that Washington's attorney had failed to investigate and then present large amounts of information to the sentencing judge, Marshall concluded that Washington's lawyer was ineffective.

[edit] See also

* List of United States Supreme Court cases, volume 466
* Wiggins v. Smith

[edit] External links

* Text of the opinion, findlaw.com
* Link to audio of oral argument, OYEZ project

Retrieved from "http://en.wikipedia.org/wiki/Strickland_v._Washington"

Categories: 1984 in law | United States Supreme Court cases | United States Sixth Amendment case law | United States rights of the accused case law
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