Criminal Appeal

No Strickland at Sentencing?

In a decision issued last week, Davis v. Grigas, no. 05-15211, the Ninth Circuit held that---for purposes of federal habeas review under AEDPA---it is not clealy established by U.S. Supreme Court authority that the two-step Strickland standard for reviewing ineffective assistance of counsel applies to counsel's handling of a non-capital sentencing. This may be a surprise to many attorneys and judges who routinely apply Strickland to the sentencing context.

The petitioner had aruged that sentencing counsel was ineffective in failing to investigate and present mitigating evidence at sentencing. The Ninth Circuit, relying on its earlier decision in Cooper-Smith v. Palmateer, 397 F.3d 1236, 1242 (9th Cir.), cert. denied, 126 S. Ct. 442 (2005), concluded that no relief was available under the "contrary to" prong of AEDPA (i.e., "contrary to clearly established Federal law, as determined by the Supreme Court of the United States") because it is not clearly estabished that Strickland applies to non-capital sentencing:

However, as we have previously recognized, the Strickland Court “expressly declined to ‘consider the role of counsel in an ordinary sentencing, which . . . may require a different approach to the definition of constitutionally effective assistance.’ ” Cooper-Smith, 397 F.3d at 1244 (quoting Strickland, 466 U.S. at 686). Moreover, since Strickland, the Supreme Court has not delineated a standard which should apply to ineffective assistance of counsel claims in noncapital sentencing cases. Id. Therefore, as we said in Cooper-Smith, there is no clearly established federal law as determined by the Supreme Court in this context. Id.

We note that, even though the Strickland standard does not by necessity apply to the noncapital sentencing context, the Nevada courts were nonetheless free to adopt that standard for use in this context, as they appear to have done. Id. However, because there is no clearly established Supreme Court precedent that applies to this context, we are unable to grant Davis habeas relief on this ground.

As I understand this ruling, the Court does not disagree that it is clearly established that there is a right to counsel at criticial stages of criminal proceedings, that non-capital sentencing is a critical stage, and that the right to counsel means the right to effective assistance of counsel. What the Court views as not clearly established is whether the two-step Strickland test applies.

The opinion was authored by Judge Hall and joined by Judge Silverman. Judge Graber concurred, questioning whether Cooper-Smith, the opinion relied upon by the majority, was correctly decided.

 

"This is an appeal run amok."

"[A]n appeal run amok" is how California's Third Appellate District described a child dependency appeal in the first sentence of a published opinion filed yesterday. In the second sentence of the decision, authored by Presiding Justice Scotland, the court noted that "Not only does the appeal lack merit, the opening brief is a textbook example of what an appellate brief should not be." I couldn't even begin to identify or summarize all the defects and ethical violations the court went on to describe as it addressed each of 19 issues. I'll just mention a couple of unusual aspects of the opinion: the panel identifies the counsel at fault by name in the body of the opinion, the court chides the presiding justice of the court (who happens to also be the author of the opinion) for allowing the oversized brief (76,235 words), and the court directed the clerk to send a copy of the opinion to the state bar.

I do wonder, however, whether it was necessary to so publicly rebuke the attorney in a published opinion. The individual attorney could have been dealt with through the state-bar referral. The problems identified, while not completely isolated to this case, are hardly rampant in appellate briefs in California. And a published opinion is hardly necessary to remind most appellate practitioners of such basics as abiding by court rules, not mis-representing the record, citing authority in support of arguments, and not raising non-cognizable issues. The court itself noted how few applications it gets for leave to file oversized briefs.

For those who need a primer on appellate brief-writing or who enjoy a little appellate-practice rubbernecking, the opinion is worth a read.