Pro Se Habeas Petitions
Habeas counsel should immediately obtain a copy of the pro se habeas petition. The pro se petition, along with the appellate opinion, often serves as habeas counsel’s initial foray into the case. Also, a pro se petition should never get rejected out of hand. Rather, the petition should get investigated and researched, as the claims may have merit. The merit or non- merit of the claims in the pro se petition should always get discussed with the client.
At the same time, habeas counsel should not limit his or her review to the claims in the pro se petition. A pro se petitioner generally lacks the legal knowledge to identify all the grounds for a collateral attack on the judgment. Habeas counsel, thus, should comb the entire record for meritorious claims.
Court-Appointed Habeas Counsel
Although an indigent petitioner has no federal constitutional right to counsel in a state collateral proceeding after exhaustion of direct appellate review, see Pennsylvania v. Finley, 481 U.S. 551 (1987); but see Coleman v. Thompson, 501 U.S. 722, 755-56 (1991)(may have federal constitutional right to counsel in initial state collateral proceeding if it is the first place ineffective assistance of counsel can be alleged); Martinez v. Ryan, 566 U.S. 1, , 132 S.Ct. 1309, 1315-21 (2012)(same), he or she has a statutory right to counsel “in any habeas corpus proceeding arising from a criminal matter….” General Statutes § 51-296(a). Practice Book § 23-26 implements the statutory right.
The filing of a pro se habeas petition generally leads to the appointment of counsel under the statute, as most pro se petitioners are indigent. See Zollo v. Commissioner, 133 Conn. App. 266, 285 (“Generally, a petition for writ of habeas corpus is filed by a self-represented petitioner for whom a public defender is later appointed.”), cert. granted on other grounds, 304 Conn. 910 (2012). Court -appointed habeas counsel must provide constitutionally effective representation. Lozada v. Warden , 223 Conn. 834 (1992). Court-appointed habeas counsel must also adhere to the Rules of Professional Conduct, in particular, Rule 1.1 Competence, Rule 1.3 Diligence, and Rule 1.4 Communication.
Privately Retained Habeas Counsel
Privately retained habeas counsel, like court-appointed habeas counsel, must provide constitutionally effective representation. Habeas counsel must also adhere to the Rules of Professional Conduct, Rules 1.1, 1.3 and 1.4 in particular.
In any habeas case where counsel is retained, the legal fee and scope of the representation must be in writing unless the petitioner is a regular or long -standing client. See Rules of Professional Conduct, Rules 1.5 Fees; see also ABA Standards for Criminal Justice, Defense Function (3rd Ed. 1993), Standard 4-3.3 Fees. Putting the agreement in writing helps to create trust between the lawyer and client, especially the new client. Failing to put the agreement in writing serves neither party’s interest and will only exacerbate the matter when the client claims faulty representation.
Keeping the Client Informed
Keeping the client informed is essential to a healthy attorney- client relationship and to the success of the habeas case. The ABA Standards for Criminal Justice, Defense Function (3rd Ed. 1993) require that habeas counsel keep the petitioner informed about the status of the case. See Standard 4-3.8 Duty to Keep Client Informed (“keep the client informed”); Standard 4-5.1 Advising the Accused (“advise the accused with complete candor”). Rule 1.4 Communication of the Rules of Professional Conduct also requires that the client be kept informed about the status of the case and consulted when necessary. Rule 1.4(a)(1)(2)(3). The rule further requires counsel to provide an explanation of any issue that is necessary to an informed decision by the client. Rule 1.4(b).