Ineffective Assistance of Counsel Claim Prevails!

The Sixth Circuit has heard the wailing of our readers who, in the comments to this post, decry the difficulty of prevailing in a claim of ineffective assistance of counsel, and reminds us that an assertion of failure to raise legal issues has a better chance of success than challenging questionable trial strategy or preparation.  See United States v. Ballard, No. 03-5117.  Being as Ballard's attorney failed to raise Apprendi on appeal or request a special verdict when her client was charged with one count of conspiracy to distribute "marijuana, cocaine, and cocaine base," this opinion is something of a stroll down memory lane for sentencing buffs.   Is Ballard's statutory max under 21 USC 841(d) now just five years?

Comments

[Three Generations]

There is always a greater chance of success arguing ineffective assistance of appellate counsel, because there it is easier to see the legal analysis that was ommitted or botched or misapplied.

Take for instance the case of a former client of mine, in whose appellate decision (pdf), the Appellate Court thought it necessary to include these footnotes:

7. In State v. Golding, supra, 213 Conn. 239–40, our Supreme Court stated
that ‘‘a defendant can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.’’ (Emphasis in original.)

8. The defendant has not presented us with the relevant portions of the
transcript, and the only analysis he provides is to state that ‘‘[t]he defendant has satisfied all prongs of [the Golding] test.’’