What is the role of ineffective assistance at appeal in habeas corpus? Find out here.
A defendant who has suffered a judgment of conviction has a statutory right to appeal, see General Statutes §§ 51- 197a to 51- 197f, 54-94a, 54-95, see also Practice Book § 60-1, et seq.; see also Ghant v. Commissioner, 255 Conn. 1, 17-18 (2000)(claim that Connecticut Constitution guarantees right to appeal not briefed or argued), overruled in part on other grounds, State v. Elson , 311 Conn. 726 (2014), and, if indigent, the constitutional right to counsel in the first appeal as of right. Douglas v. California, 372 U.S. 353 (1963); see also General Statutes § 52-296b; Practice Book §§ 62-8, 63-1, 63-5 and 6307.
An adjunct to the constitutional right to counsel on the initial appeal is the constitutional right to effective assistance of counsel on the appeal. Evitts v. Lucey, 469 U.S. 387 (1985)(right to effective assistance of counsel applies on an appeal as of right); accord Small v. Commissioner, 286 Conn. 707, 712 (2008). The Strickland standard applies to claims of ineffective assistance of appellate counsel. Smith v. Murray , 477 U.S. 527, 535- 36 (1986)(applying Strickland to claim of attorney error on appeal); see also Sekou v. Warden, 216 Conn. 678, 690 (1990).
On the performance prong, the petitioner must “show that [appellate] counsel was objectively unreasonable, see Strickland, 466 U.S., at 687-691, in failing to find arguable issues to appeal—that is, that counsel unreasonably failed to discover nonfrivolous issues and to file a merits brief raising them.” Smith v. Robbins, 528 U.S. 259, 285 (2000); cf. Murray v. Carrier, 477 U.S. 478, 492 (1986)(hearing will inquire “into counsel’s state of mind in failing to raise a claim on appeal”). “If the issues not raised by…appellate counsel lack merit, [the petitioner] cannot [satisfy the performance prong] since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation.” Sekou v. Warden, 216 Conn. at 690.
On the prejudice prong, the petitioner “must show a reasonable probability that, but for his counsel’s [error], he would have prevailed on his appeal.” Smith v. Robbins, 528 U.S. at 285 (citing Strickland, 466 U.S. at 694); accord Small, 286 Conn. at 717 -24, 728; see, e.g. Small, 286 Conn. at 731 (“petitioner’s claim of ineffective assistance of appellate counsel must fail because he could not demonstrate a reasonable probability that, on appeal, the state could not have met its burden of showing that the omitted instruction was harmless beyond a reasonable doubt”).
Right to Effective Counsel
An adjunct to the right to effective assistance of counsel on appeal is the right to be informed of the right to appeal. Thus, trial counsel or appellate counsel has “a constitutional obligation to advise [the] defendant of appeal rights when either (1) the defendant has reasonably demonstrated to counsel his or her interest in filing an appeal, or (2) a rational defendant would want to appeal under the circumstances.” Ghant v. Commissioner, 255 Conn. at 7 (citing Roe v. Flores-Ortega, 528 U.S. 470, 480 (2000)), overruled in part on other grounds, State v. Elson, supra, 311 Conn. 726; see also ABA Standards for Criminal Justice, Defense Function (3rd Ed. 1993), Standard 4-8.2 Appeal (“(a) After conviction, defense counsel should explain to the defendant the meaning and consequences of the court’s judgment and defendant’s right of appeal.”).
The failure to do so may constitute deficient performance under Strickland. See Ghant, 255 Conn. at 8- 10. Prejudice under Strickland is demonstrated when “‘there is a reasonable probability that, but for counsel’s deficient failure to consult with [the defendant] about an appeal, [the defendant] would have timely appealed.’” Ghant, 255 Conn. at 10 (quoting Roe v. Flores-Ortega , 528 U.S. at 484).
The remedy when both prongs of Strickland are met is the habeas court’s restoration of the petitioner’s appellate rights. See Ghant, 255 Conn. at 2-18 (recognizing the authority of the habeas court to restore appellate rights, but finding that the two-part Roe test was not met and that the restoration was clearly erroneous); cf. State v. Phidd , 42 Conn. App. 17, 27 -29 (habeas court empowered restore petitioner’s appellate rights where petitioner knew of the right, but no appeal was taken due to counsel’s ineffectiveness), cert. denied, 238 Conn. 907 (1996), cert. denied, 520 U.S. 1108 (1997).
Restoration of Appellate Rights
However, before a petitioner can pursue a restoration of his or her appellate rights from the habeas court, the petitioner must file in the Connecticut Appellate Court or Connecticut Supreme Court, as the case may be, a motion for permission to file a late appeal under Practice Book §§ 60 -2 and 60-3 and must fail on the motion. See Janulawicz v. Commissioner, 310 Conn. 265 (2013); Ramos v. Commissioner, 248 Conn. 52 (1999).
Failure of Accurate Representation
The failure of trial counsel or appellate counsel to advise the defendant of the consequences of waiving an appeal may constitute ineffective assistance of counsel. Such failure may also render the defendant’s waiver involuntary and unintelligent and, hence, invalid. See Barlow v. Lopes , 201 Conn. 103 (1986). Likewise, the failure of appellate counsel to advise the defendant of the consequences of withdrawing an appeal may constitute ineffective assistance of counsel and/or render the decision to withdraw involuntary and unintelligent and, thus, invalid. For a discussion of a petitioner’s ability to obtain through a habeas petition reinstatement of a withdrawn appeal, see Kaddah v. Commissioner, 299 Conn. 129 (2010).
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