Effective Assistance of Counsel

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.


Annotations

Effective Assistance of Counsel.—“[T]he right to counsel is the right to the effective assistance of counsel.”333 This right to effective assistance has two aspects. First, a court may not restrict defense counsel in the exercise of the representational duties and prerogatives attendant to our adversarial system of justice.334 Second, defense counsel can deprive a defendant of effective assistance by failing to provide competent representation that is adequate to ensure a fair trial,335 or, more broadly, a just outcome.336 The right to effective assistance may be implicated as early as the appointment process. Cases requiring appointment of counsel for indigent defendants hold that, as a matter of due process, the assignment of defense counsel must be timely and made in a manner that affords “effective aid in the preparation and trial of the case.”337 The Sixth Amendment also is implicated when a court appoints a defendant’s attorney to represent his co-defendant as well, where the co-defendants are known to have potentially conflicting interests.338

Restrictions on representation imposed during trial also have been stricken as impermissible interference with defense counsel. The Court invalidated application of a statute that empowered a judge to deny final summations before judgment in a nonjury trial: “The right to the assistance of counsel . . . ensures to the defense in a criminal trial the opportunity to participate fully and fairly . . . .”339 And, in Geders v. United States,340 the Court held that a trial judge’s order preventing a defendant from consulting his counsel during a 17-hour overnight recess between his direct and cross-examination, to prevent tailoring of testimony or “coaching,” deprived the defendant of his right to assistance of counsel and was invalid.341 Other direct and indirect restraints upon counsel have been found to violate the Amendment.342 Government investigators also are barred from impermissibly interfering with the relationship between defendant and counsel.343

Additionally, the Sixth Amendment’s right to effective assistance attaches directly to the fidelity and competence of defense counsel’s services, regardless of whether counsel is appointed or privately retained or whether the government in any way brought about the defective representation. “The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant’s entitlement to constitutional protection.”344 To an argument that a state need only appoint for indigent defendants to satisfy Sixth Amendment requirements, the Court responded that “the State’s conduct of a criminal trial itself implicates the State in the defendant’s conviction”, and no state may proceed against a defendant whose counsel, appointed or retained, cannot defend him fully and faithfully.345

Fidelity has been at issue in cases of joint representation of co-defendants. In Glasser v. United States, the Court found a trial judge erred in appointing one defendant’s attorney to also represent a co-defendant in a conspiracy case; the judge knew of potential conflicts of interest in the case, and the original defendant had earlier expressed a desire for sole representation.346 Counsel for codefendants in another case made a timely assertion to the trial judge that continuing joint representation could pose a conflict of interest, and the Court found that the trial judge erred in not examining the assertion of potential conflict closely and permitting or appointing separate counsel, absent a finding that the risk of conflict was remote.347 Joint representation does not deny effective assistance per se, however. Judges are not automatically required to initiate an inquiry into the propriety of multiple representation, being able to assume in the absence of undefined “special circumstances” that no conflict exists. On the other hand, a defendant who objects to joint representation must be given an opportunity to make the case that potential conflicts exists. Absent an objection, a defendant must later show the existence of an “actual conflict of interest which adversely affected his lawyer’s performance.” Once it is established that a conflict did actively affect the lawyer’s joint representation, however, a defendant need not additionally prove that the lawyer’s representation was prejudicial to the outcome of the case.348

As to attorney competence, although the Court touched on the question in 1970,349 it did not articulate a general Sixth Amendment standard for adequacy of representation until 1984 in Strickland v. Washington.350 There are two components to the Strickland test: deficient representation and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.351 The gauge of deficient representation is an objective standard of reasonableness “under prevailing professional norms” that takes into account “all the circumstances” and evaluates conduct “from counsel’s perspective at the time.”352 Providing effective assistance is not limited to a single path. No detailed rules or guidelines for adequate representation are appropriate: “Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.”353

Because even the most highly competent attorneys might choose to defend a client differently, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”354 Counsel’s obligation is a general one: to act within the wide range of legitimate, lawful, and reasonable conduct.355 “[S]trategic choices made after thorough investigation of relevant law and facts . . . are virtually unchallengeable,”356 as is “a reasonable decision that makes particular investigations unnecessary,”357 or a reasonable decision selecting which issues to raise on appeal.358 In Strickland itself, the allegation of ineffective assistance failed: The Court found that the defense attorney’s decision to forgo character and psychological evidence in a capital sentencing proceeding to avoid rebuttal evidence of the defendant’s criminal history was “the result of reasonable professional judgment.”359

On the other hand, defense counsel does have a general duty to investigate a defendant’s background, and limiting investigation and presentation of mitigating evidence must be supported by reasonable efforts and judgment.360 Also, even though deference to counsel’s choices may seem particularly apt in the unstructured, often style-driven arena of plea bargaining,361 an accused, in considering a plea, is clearly entitled to advice of counsel on the prospect of conviction at trial and the extent of punishment that might be imposed. Thus, in Lafler v. Cooper, the government conceded that the deficient representation part of the Strickland test was met when an attorney erroneously advised the defendant during plea negotiations that the facts in his case would not support a conviction for attempted murder.362

Moreover, in Padilla v. Kentucky, the Court held that defense counsel’s Sixth Amendment duty to a client considering a plea goes beyond advice on issues directly before the criminal court to reach advice on deportation.363 Because of its severity, historical association with the criminal justice system, and increasing certainty following conviction and imprisonment, deportation was found to be of a “unique nature”: the Court pointedly stated that it was not addressing whether distinguishing between direct and collateral consequences of conviction was appropriate in bounding defense counsel’s constitutional duty in a criminal case.364 Further, the Court held that defense counsel failed to meet prevailing professional norms in representing to Padilla that he did not have to worry about deportation because of the length of his legal residency in the U. S. The Court emphasized that this conclusion was not based on the attorney’s mistaken advice, but rather on a broader obligation to inform a noncitizen client whether a plea carries a risk of deportation.365 Silence is not an option. On the issue of prejudice to Padilla from ineffective assistance, the Court sent the case back to lower courts for further findings.366

What constitutes prejudice from attorney error, the second Strickland requirement, has proved to be a more difficult issue, and subject367 The touchstone of “prejudice” under Strickland is that the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.”368 Nevertheless, defendants frequently fall short on the prejudice requirement, with the Court posing it as a threshold matter and failing to find how other representation could have made a significant difference.369

Beyond Strickland’s “reasonable probability of a different result” starting point, there are issues of when an “outcome determinative” test alone suffices, what exceptions exist, and whether the general rule should be modified. In Lockhart v. Fretwell, the Court appeared to refine the Strickland test when it stated that an “analysis focusing solely on mere outcome determination” is “defective” unless attention is also given to whether the result was “fundamentally unfair or unreliable.”370 However, the Court subsequently characterized Lockhart as addressing a class of exceptions to the “outcome determinative” test, and not supplanting it. According to Williams v. Taylor, it would disserve justice in some circumstances to find prejudice premised on a likelihood of a different outcome.371 An overriding interest in fundamental fairness precluded a prejudice finding in Lockhart, for example, because such a finding would be nothing more than a fortuitous windfall for the defendant. As another example, it would be unjust to find legitimate prejudice in a defense attorney’s interference with a defendant’s perjured testimony, even if that testimony could have altered a trial’s outcome.372 In Lafler v. Cooper, four dissenters further would have imposed a fundamental fairness overlay to foreclose relief whenever a defendant proceeded to trial after turning down a plea offer because of incompetent advice of counsel.373 In their view, conviction after a full and fair trial cannot be prejudicial in a constitutional sense, even if a forgone plea would have yielded lesser charges or punishment. This view did not prevail, however.

A second category of recognized exceptions to the application of the “outcome determinative” prejudice test includes the relatively limited number of cases in which prejudice is presumed. This presumption occurs when there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”374 These situations, the Court explained in United States v. Cronic, involve some kind of “breakdown of the adversarial process,” and include actual or constructive denial of counsel, denial of such basics as the right to effective cross-examination, or failure of counsel to subject the prosecution’s case to meaningful adversarial testing.375 “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice],”376 and consequently most claims of inadequate representation continue to be measured by the Strickland standard.377


333 McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). “[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel . . . .” 397 U.S. at 771. As a corollary, there is no Sixth Amendment right to effective assistance where there is no Sixth Amendment right to counsel. Wainwright v. Torna, 455 U.S. 586 (1982) (summarily holding that defendant may not raise ineffective assistance claim in context of proceeding in which he had no constitutional right to counsel).

334 E.g., Geders v. United States, 425 U.S. 80 (1976) (trial judge barred consultation between defendant and attorney overnight); Herring v. New York, 422 U.S. 853 (1975) (application of statute to bar defense counsel from making final summation).

335 Strickland v. Washington, 466 U.S. 668, 686 (1984).

336 Lafler v. Cooper, 566 U.S. ___, No. 10–209, slip op. (2012) (erroneous advice during plea bargaining).

337 Powell v. Alabama, 287 U.S. 45, 71–72 (1932); Glasser v. United States, 315 U.S. 60, 70 (1942).

338 Glasser v. United States, 315 U.S. 60 (1942).

339 Herring v. New York, 422 U.S. 853, 858 (1975). “[T]he right to assistance to counsel has been understood to mean that there can be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary factfinding process that has been constitutionalized in the Sixth and Fourteenth Amendments.” 422 U.S. at 857.

340 425 U.S. 80 (1976).

341 Geders was distinguished in Perry v. Leeke, 488 U.S. 272 (1989), in which the Court upheld a trial court’s order that the defendant and his counsel not consult during a 15-minute recess between the defendant’s direct testimony and his cross-examination.

342 E.g., Ferguson v. Georgia, 365 U.S. 570 (1961) (where Georgia statute, uniquely, barred sworn testimony by defendants, a defendant was entitled to the assistance of counsel in presenting the unsworn statement allowed him under Georgia law); Brooks v. Tennessee, 406 U.S. 605 (1972) (alternative holding) (statute requiring defendant to testify prior to any other witness for defense or to forfeit the right to testify denied him due process by depriving him of the tactical advice of counsel on whether to testify and when).

343 United States v. Morrison, 449 U.S. 361 (1981) (Court assumed that investigators who met with defendant on another matter without knowledge or permission of counsel and who disparaged counsel and suggested she could do better without him, interfered with counsel, but Court held that in absence of showing of adverse consequences to representation, dismissal of indictment was inappropriate remedy).

344 Cuyler v. Sullivan, 446 U.S. 335, 344 (1980).

345 Id.

346 315 U.S. 60 (1942).

347 Holloway v. Arkansas, 435 U.S. 475 (1978). Counsel had been appointed by the court.

348 Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980). Accord But see Wood v. Georgia, 450 U.S. 261 (1981) (where counsel retained by defendants’ employer had conflict between their interests and employer’s, and all the facts were known to trial judge, he should have inquired further); Wheat v. United States, 486 U.S. 153 (1988) (district court correctly denied defendant’s waiver of right to conflict-free representation; separate representation order is justified by likelihood of attorney’s conflict of interest). Where an alleged conflict is not premised on joint representation, but rather on a prior representation of a different client, for example, a defendant may be required to show actual prejudice in addition to a potential conflict. Mickens v. Taylor, 535 U.S. 162 (2002). For earlier cases presenting more direct violations of defendant’s rights, see Glasser v. United States, 315 U.S. 60 (1942); United States v. Hay-man, 342 U.S. 205 (1952); and Ellis v. United States, 356 U.S. 674 (1958).

349 In McMann v. Richardson, 397 U.S. 759, 768–71 (1970), the Court observed that whether defense counsel provided adequate representation, in advising a guilty plea, depended not on whether a court would retrospectively consider his advice right or wrong “but on whether that advice was within the range of competence demanded of attorneys in criminal cases.” See also Tollett v. Henderson, 411 U.S. 258, 266–69 (1973); United States v. Agurs, 427 U.S. 97, 102 n.5 (1976).

350 466 U.S. 668 (1984). Strickland involved capital sentencing, and the Court had left open the since-resolved issue of what standards might apply in ordinary sentencing, where there is generally far more discretion than in capital sentencing, or in the guilt/innocence phase of a capital trial. 466 U.S. at 686.

351 The Court often emphasizes that the Strckland test is necessarily difficult to pass: Ineffective assistance of counsel claims can put rules of waiver and forfeiture at issue and otherwise threaten the integrity of the adversarial system if wide-ranging, after-the-fact second-guessing of counsel’s action is freely encouraged. E.g., Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 15 (2011). Furthermore, ineffective assistance of counsel claims frequently are asserted in federal court to support petitions for writs of habeas corpus filed by state prisoners. Making a successful Strickland claim in a habeas context, as opposed to direct review, was made doubly daunting by the Antiterrorism and Effective Death Penalty Act of 1996 (Aedpa). Pub. L. No. 104–132, § 104, 110 Stat. 1218–1219, amending 28 U.S.C. § 2254. After the passage of Aedpa, one must go beyond showing that a state court applied federal law incorrectly to also show that the court misapplied established Supreme Court precedent in a manner that no fair-minded jurist could find to be reasonable. Harrington v. Richter, 562 U.S. ___, No. 09–587, slip op. at 10–14, 15–16 (counsel’s decision to forgo inquiry into blood evidence held to be at least arguably reasonable). See also Burt v. Titlow, 571 U.S. ___, No. 12–414, slip op. (2013); Cullen v. Pinholster, 563 U.S. 170 (2011).

352 466 U.S. at 688, 689. See also Maryland v. Kulbicki, 577 U.S. ___, No. 14– 848, slip op. at 3 (2015) (per curiam) (reversing an opinion by Maryland’s highest state court, which found that counsel was ineffective because the defendant’s attorneys did not question the methodology used by the state in analyzing bullet fragments, on the grounds that this methodology “was widely accepted” at the time of trial, and courts “regularly admitted [such] evidence”).

353 466 U.S. at 689. Strickland observed that “American Bar Association standards and the like” may reflect prevailing norms of practice, “but they are only guides.” Id. at 688. Subsequent cases also cite ABA standards as touchstones of prevailing norms of practice. E.g., Wiggins v. Smith, 539 U.S. 510, 524 (2003), and Rompilla v. Beard, 545 U.S. 374, 387 (2005). But in Bobby v. Van Hook, the Court held that the Sixth Circuit had erred in assessing an attorney’s conduct in the 1980s under 2003 ABA guidelines, and also noted that its holding “should not be regarded as accepting the legitimacy of a less categorical use of the [2003] Guidelines to evaluate post2003 representation.” . 558 U.S. ___, No. 09–144, slip op. at 5 n.1 (2009) (per curiam).

354 Strickland, 466 U.S. at 689. The purpose is “not to improve the quality of legal representation, . . . [but] simply to ensure that criminal defendants receive a fair trial.” Id.

355 There is no obligation to assist the defendant in presenting perjured testimony, Nix v. Whiteside, 475 U.S. 157 (1986), and a defendant has no right to require his counsel to use peremptory challenges to exclude jurors on the basis of race. Georgia v. McCollum, 505 U.S. 42 (1992). Also, “effective” assistance of counsel does not guarantee the accused a “meaningful relationship” of “rapport” with his attorney such that he is entitled to a continuance in order to change attorneys during a trial. Morris v. Slappy, 461 U.S. 1 (1983).

356 Strickland, 466 U.S. at 690. See also Yarborough v. Gentry, 540 U.S. 1 (2003) (deference to attorney’s choice of tactics for closing argument); Burt, slip op. at 10 (2013) (where a reasonable interpretation of the record indicated that a criminal defendant claimed actual innocence, the defendant’s attorney was justified in withdrawing a guilty plea).

357 Strickland, 466 U.S. at 691. See also Woodford v. Visciotti, 537 U.S. 19 (2002) (state courts could reasonably have concluded that failure to present mitigating evidence was outweighed by “severe” aggravating factors); Schriro v. Landrigan, 550 U.S. 465 (2007) (federal district court was within its discretion to conclude that attorney’s failure to present mitigating evidence made no difference in sentencing).

358 There is no obligation to present on appeal all nonfrivolous issues requested by the defendant. Jones v. Barnes, 463 U.S. 745 (1983) (appointed counsel may exercise his professional judgment in determining which issues are best raised on appeal).

359 466 U.S. at 699. Accord Wong v. Belmontes, 558 U.S. ___, No. 08–1263 (2009) (per curiam); Darden v. Wainwright, 477 U.S. 168 (1986) (decision not to introduce mitigating evidence).

360 See Buck v. Davis, 580 U.S. ___, No. 15–8049, slip op. at 17 (2017) (concluding that “[n]o competent defense attorney would introduce” evidence that his client was a future danger because of his race); see also Hinton v. Alabama, 571 U.S. ___, No. 13–6440, slip op. (2014) (per curiam) (holding that an attorney’s hiring of a questionably competent expert witness because of a mistaken belief in the legal limit on the amount of funds payable on behalf of an indigent defendant constitutes ineffective assistance); Sears v. Upton, 561 U.S. 945, 952 (2010) (concluding that the “cursory nature” of a defense counsel’s investigation into mitigation evidence was constitutionally ineffective); Porter v. McCollum, 558 U.S. 30, 40 (2009) (holding that an attorney’s failure to interview witnesses or search records in preparation for penalty phase of capital murder trial constituted ineffective assistance of counsel); Rompilla v. Beard, 545 U.S. 374 (2005) (concluding that a defendant’s attorneys’ failure to consult trial transcripts from a prior conviction that the attorneys knew the prosecution would rely on in arguing for the death penalty was inadequate); Wiggins v. Smith, 539 U.S. 510 (2003) (holding that attorney’s failure to investigate defendant’s personal history and present important mitigating evidence at capital sentencing was objectively unreasonable).

361 See, e.g., Premo v. Moore, 562 U.S. ___, No. 09–658, slip op. (2011).

362 Lafler v. Cooper, 566 U.S. ___, No. 10–209, slip op. (2012). Failure to communicate a plea offer to a defendant also may amount to deficient representation. Missouri v. Frye, 566 U.S. ___, No. 10–444, slip op. (2012) (“[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused.”).

363 Padilla v. Kentucky, 559 U.S. ___, No. 08–651, slip op. (2010).

364 559 U.S. ___, No. 08–651, slip op. at 8.

365 559 U.S. ___, No. 08–651, slip op. at 12–16.

366 In Chaidez v. United States, 568 U.S. ___, No. 11–820, slip op. (2013), the Court held that Padilla announced a “new rule” of criminal procedure that did not apply “retroactively” during collateral review of convictions then already final. For a discussion of retroactive application of the Court’s criminal procedure decisions, see supra Article III: Section 2. Judicial Power and Jurisdiction: Clause 1. Cases and Controversies; Grants of Jurisdiction: Judicial Power and Jurisdiction-Cases and Controversies: The Requirements of a Real Interest: Retroactivity Versus Prospectivity.

367 The Frye Court observed that, according to the Bureau of Justice Statistics, ninety-seven percent of recent federal convictions and ninety-four percent of recent state convictions had resulted from guilty pleas. Hill v. Lockhart had earlier established a basis for a Sixth Amendment challenge to a conviction arising from a plea bargain if a defendant could show he accepted the plea after having received ineffective assistance of counsel. By laying a basis for a Sixth Amendment challenge to a failure to accept a plea offer from the prosecution, Frye and Lafler recognized the possiblility of prejudice from ineffective bargaining alone regardless of the fairness of a subsequent conviction after a later plea to the court or a full trial.

368 See Strickland, 466 U.S. at 694. This standard does not require that a “defendant show that counsel’s deficient conduct more likely than not altered the outcome in the case.” Id. at 693. At the same time, the Court has concluded that the “prejudice inquiry under Strickland applies to cases beyond those in which there was only “little or no mitigation evidence” presented. See Sears v. Upton, 561 U.S. 945, 955 (2010); Porter v. McCollum, 558 U.S. 30, 40 (2009) (evaluating the “totality of mitigating evidence” to conclude that there was “a reasonable probability that the advisory jury—and the sentencing judge—‘would have struck a different balance’” but for the counsel’s deficiencies). For a recent example of a criminal defendant who succeeded on the prejudice prong of the Strickland test, see Buck v. Davis, 580 U.S. ___, No. 15–8049, slip op. at 18–19 (2017) (holding that, in a case where the focus of a capital sentencing proceeding was on the defendant’s likelihood of recidivism, defense counsel had been ineffective by introducing racially charged testimony about the defendant’s future dangerousness, and “[r]easonable jurors might well have valued [the testimony] concerning the central question before them.”).

369 See, e.g., Smith v. Spisak, 558 U.S. 139, 154–56 (2010). In Hill v. Lockhart, the Court applied the Strickland test to attorney decisions to accept a plea bargain, holding that a defendant must show a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. See 474 U.S. 52, 59 (1985). As a result, the prejudice question with respect to when a counsel’s deficient performance leads the defendant to accept a guilty plea rather than go to trial is not whether the trial would have resulted in a not guilty verdict. See Roe v. Flores-Ortega, 528 U.S. 470, 482–83 (2000). Instead, the issue is whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” Id. at 483. As a result, prejudice may be very difficult to prove if the defendant’s decision about going to trial turns on his prospects of success and those chances are affected by an attorney’s error. See Premo v. Moore, 562 U.S. 115, 118 (2011). However, when a defendant’s choice to accept a plea bargain has nothing to do with his chances of success at trial, such as if the defendant is primarily concerned with the respective consequences of a conviction after trial or by plea, a defendant can show prejudice by providing evidence contemporaneous with the acceptance of the plea that he would have rejected the plea if not for the erroneous advice of counsel. See Lee v. United States, 582 U.S. ___, No. 16–327, slip op. at 7–9 (2017) (holding that a defendant whose fear of deportation was the determinative factor in whether to accept a plea agreement could show prejudice resulting from his attorney’s erroneous advice that a felony charge would not lead to deportation even when a different result at trial was remote).

370 506 U.S. 364, 368–70 (1993). Defense counsel had failed to raise a constitutional claim during sentencing that would have saved the defendant from a death sentence. The case precedent that supported the claim was itself overturned after sentencing but before defendant asserted in a habeas writ that he had received ineffective assistance. The Court held, 7–2, that even though the adequacy of counsel’s representation is assessed under the standards that existed contemporaneously with the conduct, it was inappropriate in assessing prejudice to give the defendant the benefit of overturned case law. So long as the defendant was not deprived of a procedural or substantive right to which he would still be entitled, relief is not available. 506 U.S. at 372–73.

371 529 U.S. 362 (2000).

372 529 U.S. at 391–93. The latter example references Nix. v. Whiteside, 475 U.S. 157, 175–76 (1986).

373 566 U.S. ___, No. 10–209, slip op. (2012) (Scalia, J., with Roberts, C.J., and Thomas, J., dissenting); 566 U.S. ___, No. 10–209, slip op. (2012) (Alito, J., dissenting).

374 United States v. Cronic, 466 U.S. 648, 658 (1984).

375 466 U.S. at 657, 659. But see Bell v. Cone, 535 U.S. 685 (2002) (failure to introduce mitigating evidence and waiver of closing argument in penalty phase of death penalty case was not failure to test prosecution’s case, where mitigating evidence had been presented during guilt phase and where waiver of argument deprived skilled prosecutor of an opportunity for rebuttal); Mickens v. Taylor, 535 U.S. 162 (2002) (failure of judge who knew or should have known of an attorney’s conflicting interest to inquire as to whether such conflict was prejudicial not grounds for automatic reversal). In Wright v. Van Patten, 128 S. Ct. 743 (2008) (per curiam), the Supreme Court noted that it has never ruled on whether, during a plea hearing at which the defendant pleads guilty, defense counsel’s being linked to the courtroom by speaker phone, rather than being physically present, is likely to result in such poor performance that Cronic should apply. The fact that the Court has never ruled on the question means that “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law,’” and, as a consequence, under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), the defendant is not entitled to habeas relief. Id. at 748 (quoting Carey v. Musladin, 549 U.S. 70, 77 (2006), as to which see “Limitations on Habeas Corpus Review of Capital Sentences” under Eighth Amendment, infra.

376 Cronic, 466 U.S. at 659 n.26.

377 Strickland and Cronic were decided the same day, and the Court’s opinion in each cited the other. See Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 n.41. The Cronic presumption of prejudice may be appropriate when counsel’s “overall performance” is brought into question, whereas Strickland is generally the appropriate test for “claims based on specified [counsel] errors.” Cronic, 466 U.S. at 666 n.41. The narrow reach of Cronic has been illustrated by subsequent decisions. Not constituting per se ineffective assistance is a defense counsel’s failure to file a notice of appeal, or in some circumstances even to consult with the defendant about an appeal. Roe v. Flores-Ortega, 528 U.S. 470 (2000). But see Lozada v. Deeds, 498 U.S. 430, 432 (1991) (per curiam). See also Florida v. Nixon, 543 U.S. 175 (2004) (no presumption of prejudice when a defendant has failed to consent to a tenable strategy counsel has adequately disclosed to and discussed with him). A standard somewhat different from Cronic and Strickland governs claims of attorney conflict of interest. See discussion of Cuyler v. Sullivan under “Protection of Right to Retained Counsel,” supra.