(The below is for post conviction attorneys and for inmates seeking information or materials regarding post convictions.  It was written by Professor Byron L. Warnken.  If your friend or loved one is seeking a post conviction lawyer, please call Warnken, LLC at 410-262-8341.  We would be happy to explain your situation in plain english.  Thanks for visiting our website.)

I.    Effective assistance of counsel:  If Defendant has a right to counsel, Defendant has a right to effective assistance of counsel.  This was the holding in Cf. Wainright v. Torna, 455 U.S. 586 (1982) (failure to timely file application for discretionary appeal did not constitute ineffective assistance of counsel because there is no right to counsel on discretionary appeals); Pennsylvania v. Finley, 481 U.S. 551 (1987) (no ineffective assistance of counsel in state post conviction proceeding because no right to counsel).  Ineffective assistance of counsel is brought in post conviction or habeas proceedings.  In rare instances, ineffective assistance of counsel claims may be brought on direct appeal.  Mosley v. State, 378 Md. 548 (2003) (ineffective assistance of counsel only heard on direct appeal when record is sufficiently developed and critical facts are not in dispute); Smith v. State, 394 Md. 184 (2006) (when counsel violated attorney-client privilege, sufficient to review as ineffective assistance of counsel on direct appeal because to review in separate proceeding would waste judicial resources).
A.    No distinction between retained & appointed counsel:  In Cuyler v. Sullivan, 446 U.S. 335 (1980), the Supreme Court held that retained counsel and appointed counsel are held to the same standard of competence under the Sixth Amendment.
B.    Standard for proving ineffective assistance of counsel:  The leading case that established the standard for proving ineffective assistance of counsel is Strickland v. Washington, 466 U.S. 668 (1984).  In that case, Defendant pleaded guilty to capital murder and was sentenced to death.  Defendant subsequently filed a federal habeas corpus petition, arguing that trial counsel rendered ineffective assistance at sentencing in several respects, including the failure to (1) request a psychiatric report, (2) investigate and present character witnesses, and (3) seek a pre-sentence investigation.  The Supreme Court held that, in order to demonstrate that counsel’s assistance was so defective as to require a conviction or sentence be vacated, Defendant must show that (1) counsel’s performance was deficient, and counsel made serious attorney error when counsel’s performance fell below the objective standard of competence, and (2) that the deficient performance prejudiced the defense, such that there is a reasonable probability or significant possibility of a different result had counsel not made serious attorney error.  Under the facts of this case, the Court held that trial counsel’s conduct was not ineffective.
1.    Two-pronged Strickland test
a.    Performance prong:  The standard, under Strickland, is that an attorney’s performance must be reasonable under the prevailing professional norms.  Generally, a decision that is appropriate within the ethical and professional standards to which attorneys are bound will be considered proper performance under this prong.  See Nix v. Whiteside, 475 U.S. 157 (1986); Evans v. State, 151 Md. App. 365 (2003) (failure to argue that the search of Defendant’s rectal area for drugs on a public street was unreasonable constituted serious attorney error).
b.    Prejudice prong:  If Defendant can show that counsel breached the professional norms in terms of performance, Defendant must show that that the error caused prejudice, i.e., whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.  Strickland, 466 U.S. 668.  This is a difficult standard to overcome.  See Hiligh v. State, 375 Md. 456 (2003) (failure to argue involuntariness of Defendant’s confession based on failure to comply with prompt presentment requirements constituted ineffective assistance because, had this argument been raised, there is a substantial possibility that jury would have found confession involuntary and disregarded it).
C.    The Cronic exception and the presumption of prejudice. Ordinarily, the two-part Strickland test applies to claims of ineffective assistance of counsel. However, in certain narrow situations, Defendant’s Sixth Amendment right to effective assistance of counsel may be shown to have been violated, without inquiring into counsel’s actual performance or requiring a showing of prejudice.  U.S. v. Cronic, 466 U.S. 648 (1984). The Cronic test is a narrow exception to the two-part Strickland test, and it applies only when there is a “breakdown in the adversarial process,” such that “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” Id. at 662, 659. This includes the complete denial of counsel (e.g., counsel is totally absent, or prevented from assisting Defendant).  Wright v. Van Patten, 128 S. Ct. 743 (2008).