A criminal defendant has a federal due process right to the effective assistance of counsel on appeal.[125]  The Strickland v. Washington[126] standard applies to claims of ineffective assistance of appellate counsel.  Defendant must demonstrate that the failure to raise an issue on direct appeal was an unreasonable decision and that the omission was prejudicial. 

 

            Appellate counsel is not required to raise every issue, but must instead winnow out losing claims.[127]  As a result, the best way to evaluate a claim of ineffectiveness on appeal is to examine the alleged error to see if it contains sufficient merit that appellate counsel can be faulted for not having raised it.

 

In essence, the reasonableness of counsel’s failure to raise an issue on direct appeal collapses into a simple prejudice inquiry.  Relief must be granted where there is a reasonable probability that a new trial would have been ordered had counsel raised the omitted error on direct appeal.[128] 

 

California courts have held that counsel must prepare a competent legal brief setting forth all arguable issues.[129]  Appellate counsel is obligated to “raise crucial assignments of error that arguably could have resulted in reversal.”[130]  In fact, the greatest disservice appellate counsel could render the client was to brief some issues but omit other arguable claims.[131]  Appellate counsel “serves both the court and [his or her] client by advocating changes in the law if argument can be made supporting change.”[132]

 

            To show a defect of constitutional magnitude, it is not necessary for the appellant to show the claim of ineffective assistance of trial counsel would have prevailed upon appeal.[133]  “The defendant need not show he was entitled to a reversal, but only that inexcusable failure of appellate counsel to raise crucial assignments of error [occurred], which arguably could have resulted in reversal.”[134] 

[125] Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985); People v. Harris (1993) 19 Cal.App.4th 709.

[126] Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

[127] See Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed 987 (1983); see, e.g., Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)(finding ineffective assistance in failing to comply with no-merit brief requirements).

[128] See, e.g., Turner v. Duncan, 158 F.2d 449 (9th Cir. 1998)(finding ineffective assistance of appellate counsel from failure to raise instructional error on direct appeal, noting that error should have been obvious to counsel and probably would have required reversal under existing California law).

[129] People v. Barton (1978) 21 Cal.3d 513, 519, 146 Cal.Rptr. 727, 579 P.2d 1043; see also In re Smith (1970) 3 Cal.3d 192, 197, 90 Cal.Rptr. 1, 474 P.2d 969; People v. Rhoden (1972) 6 Cal.3d 519, 524, 99 Cal.Rptr. 751, 492 P.2d 1143.

[130] People v. Lang (1974) 11 Cal.3d 134, 142, 113 Cal.Rptr. 9; see also In re Harris (1993) 5 Cal.4th 813, 832-34, 21 Cal.Rptr.2d 373.

[131] See People v. Woodard (1986) 184 Cal.App.3d 944, 229 Cal.Rptr 350 [client receives more complete review under Wende if no issues are raised than if some but not all issues are raised].)

[132] People v. Feggans (1967) 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21.

[133] See People v. Lang (1974) 11 Cal.3d 134, 113 Cal.Rptr. 9.

[134] 5 B. Witkin & J. Epstein, Calif. Crim. Law (2d ed. 1989) Trial § 2790, pp. 3383-84; see also People v. Mitchell (99) 68 Cal.App.4th 1489, 81 Cal.Rptr.2d 339.

Other

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " APPELLATE COUNSEL HAS NO DUTY TO RAISE EVERY NONFRIVOLOUS ISSUE REQUESTED BY THE DEFENDANT
Jones v. Barnes, 463 U.S. 745, 754 (1983)(appellate counsel has no duty to raise every nonfrivolous issue requested by the appellant).