The most common ground for vacating a conviction through habeas corpus is ineffective assistance of counsel.[56]  The right to counsel, secured by the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 15 of the California Constitution, includes the guarantee that the defendant will receive effective representation.[57]  The Ninth Circuit has noted that the “conviction of an innocent person as a result of [his or her] lawyer’s incompetence constitutes one of the most serious infringements of the integrity of the judicial process.”[58]

 

            A guilty plea may be attacked in post-conviction proceedings on the ground it was entered as a result of ineffective assistance of counsel.[59]  “[A] guilty plea lacks the required voluntariness and understanding if entered on advice of counsel that fails to meet the minimum standards of effectiveness derived from the Sixth and Fourteenth Amendments.”[60]  “[I]f the quality of counsel’s advice falls below a certain minimum level, the client’s guilty plea cannot be knowing and voluntary because it will not represent an informed choice.  And a lawyer who is not familiar with the facts and law relevant to his client’s case cannot meet that required minimal level.”[61] 

[56] An excellent article on this area in general is Sevilla, Investigating and Preparing an Ineffective Assistance of Counsel Claim, 37 Mercer L. Rev. 927 (1986) and, focusing on immigration cases, Rosenberg & Stern, Ineffective Assistance of Counsel, Interpreter Releases, May 23, 1988, pp. 529‑537.  For a useful checklist of California decisions identifying successful (and unsuccessful) grounds of IAC, see Attorney Incompetence, Appendix A, Grounds of Incompetence, 17 Western State L. Rev. 270.  For a comprehensive collection of federal decisions reversing convictions on grounds of ineffective assistance of counsel, see L. Fassler, Ineffective Assistance Of Counsel (1994), published by Southwest Legal Services, P.O. Box 57091, Tucson, AZ 85732.

[57] Powell v. Alabama, 287 U.S. 45, 71 (1932); People v. Pope (1979) 23 Cal.3d 412, 422.

[58] Morris v. California, 966 F.2d 448, 453 (9th Cir.), cert. denied, 113 S. Ct. 96 (1992).

[59] United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990); Scott v. Wainwright, 698 F.2d 427 (11th Cir. 1983); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), rehearing denied, 667 F.2d 93 (5th Cir. 1982), cert. denied, 456 U.S. 992 (1982); Ford v. Parratt, 638 F.2d 1115 (8th Cir. 1981).

[60] Hill v. Lockhart, 474 U.S. 52, 57 (1985); Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988); United States. v. Rummery, 698 F.2d 764, 766 (5th Cir. 1983), citing Trahan v. Estelle, 544 F.2d 1305, 1309 (5th Cir. 1977).

[61] Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974).

Ninth Circuit

POST CON RELIEF " PLEA AGREEMENT " WAIVER OF RIGHT TO CLAIM IAC
Washington v. Lambert, 422 F.3d 864 (9th Cir. 2005) (plea agreement waiver of right to set aside a conviction on grounds of ineffective assistance of counsel is not effective to preclude doing so, since the plea agreement itself, containing the waiver, is not knowing or voluntary, collecting cases); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (leaving open possibility; collecting cases); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995) (claim of ineffective assistance of counsel, in violation of the Sixth Amendment, can be reviewed on the merits on appeal notwithstanding a purported waiver of this right contained in a plea agreement); accord, Department of Justice, U.S. Attorney's Manual http://www.usdoj.gov/usao/eousa/foia_reading_room/ usam/title9/crm00626.htm; but see United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007)(plea agreement waiving right to challenge conviction for ineffective assistance of justice will be enforced unless enforcement would result in a miscarriage of justice); United States v. Snelson, No. 07-3202 (8th Cir. Feb. 10, 2009)(accord); cf. Ohio Ethics Opinion 2001-6 (2001)(it is unethical to waive of ineffective assistance of counsel claims in plea agreements); Tennessee Ethics Opinion 94-A-549 (1994)(same); North Carolina Ethics Opinion 129 (1993)(same); Vermont Ethics Opinion 95-4 (1995) (same); NACDL Ethics Advisory Committee, Proposed Formal Opinion No. 03-02 (February 2003)(it is unethical for criminal defense lawyers to participate in plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255), found at <http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf>.

INDIGENT APPELLANT ENTITLED TO COUNSEL WHO ACTS AS AN ACTIVE ADVOCATE
United States v. Griffy, 895 F.2d 561(9th Cir. February 01, 1990)

Other

BIBLIOGRAPHY POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL
Csar Cuauhtmoc Garca Hernndez, Major Issues the Courts Have Been Dealing with Since Padilla v. Kentucky, 2011 Emerging Issues 5882 (Sept. 8, 2011).

PRACTICE ADVISORY " POST CON RELIEF " GROUNDS " GUILTY PLEA " REQUIREMENT PLEA MUST BE VOLUNTARY, KNOWING, AND INTELLIGENT " PLEA INVALIDATED BY INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA NEGOTIATIONS
To be valid, a plea of guilty must be free and voluntary, knowing and intelligent. Boykin v. Alabama, 395 U.S. 238 (1969). While a guilty plea validly taken waives various pre-plea claims of error, there are at least eight exceptions to this rule. See A. AMSTERDAM, TRIAL MANUAL 5 FOR THE DEFENSE OF CRIMINAL CASES 195 (1988). Chief among the "issues that survive a plea of guilty are . . . (e) whether [the defendant] was adequately represented by counsel in connection with the plea . . . ." Id., citing Williams v. Kaiser, 323 U.S. 471 (1945); Tollett v. Henderson, 411 U.S. 258 (1973); Hill v. Lockhart, 106 S.Ct. 366 (1985).

CAL POST CON " JUVIE " IAC " MOTION FOR NEW JURISDICTIONAL HEARING CRIMINAL - LAW & PROCEDURE
People v. E.S., No. A118547 Denial of a motion for a new jurisdictional hearing is reversed and remanded for ineffective assistance of counsel where: 1) defendant counsel's performance was deficient and fell below an objective standard of reasonableness under prevailing professional norms; and 2) as a result of defendant counsel's deficient performance, the jurisdictional proceedings were fundamentally unfair and unreliable.

NACDL ETHICS ADVISORY COMMITTEE
Proposed Formal Opinion 03-02 (February 2003) Question Presented: NACDLs Ethics Advisory Committee, as well as the Strike Force and other committees, have received queries regarding a requirement in some federal plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255. The question presented is whether it is ethical for a criminal defense lawyer to participate in such a plea agreement. We have determined that it is not. Digest: Case law has split on this issue with the weight of authority sustaining such waivers in general, but not where the client seeks to set aside his or her conviction by claiming that the plea itself was induced by ineffective assistance. No opinion we could find discussed the ethical implications of defense counsel agreeing to a waiver of an ineffective assistance claim as a general waiver of rights in a plea agreement. It is the opinion of the NACDL Ethics Advisory Committee that, aside from the general effect the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement that limits the clients ability to claim ineffective assistance of counsel because the lawyer has a conflict of interest in agreeing to such a provision because it amounts to prospective limiting of liability. Therefore, the lawyer is duty bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it. ... <http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf>

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CRITICAL STAGES OF THE PROCEEDING
The right to effective assistance of counsel applies at every critical stage of the prosecution, including guilty pleas, not merely at trial. Mempa v. Rhay, 389 U.S. 128, 134 (1967); White v. Maryland, 373 U.S. 59, 60 (1963). A guilty plea . . . is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront ones accusers. While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is itself a conviction, and the high stakes for the defendant require the utmost solicitude. Florida v. Nixon, 543 U.S. 175, 187 (2004) (citations omitted) (emphasis added). The Supreme Court has held that the Sixth Amendment guarantees effective assistance of counsel at sentence. Mempa v. Rhay, 389 U.S. 128, 137 (1967); see Glover v. United States, 531 U.S. 198, 203-204 (2001)(non-capital sentencing).