(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.)

How to plead ineffective assistance of counsel
1.    Must allege specific error:  In Cronic, 466 U.S. 648, the Supreme Court held that specific attorney error must be alleged in a claim of ineffective assistance of counsel.  A lack of experience, by itself, is never ineffective assistance of counsel.
2.    Must show alleged error was not part of legitimate trial strategy:  A successful allegation of serious attorney error will not be supported by a reasonable explanation.  See State v. Borchardt, 396 Md. 586 (2007) (valid strategic reasons for not calling mitigation specialist and neuropsychologist and for limiting neurologist’s testimony).
a.    Examples of errors unsupported by reasonable trial strategy
i.    Failure to conduct pre-trial investigation:  In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court held that trial counsel rendered constitutionally deficient assistance because he failed to file a timely suppression motion to suppress semen-stained bed sheet that was seized without a search warrant.  Trial counsel failed to conduct any pretrial discovery and was unaware of the search and the State’s intention to introduce the sheet until trial.
ii.    Failure to investigate Defendant’s background & put on mitigating evidence in capital case:  In Wiggins v. Smith, 539 U.S. 510 (2003), in a death penalty case, defense counsel never conducted an investigation of Defendant’s background or put on any evidence of Defendant’s traumatic childhood.  After being denied post conviction relief, Defendant succeeded on federal habeas corpus relief.  The Supreme Court held that counsel committed prejudicial serious attorney error in failing to investigate Defendant’s life history prior to the capital sentencing proceeding and failing to present mitigating evidence.  In Maryland, the standard practice for capital cases included preparing a detailing social history of Defendant.  See Rompilla v. Beard, 545 U.S. 374 (2005) (counsel had an investigative duty to make reasonable efforts to learn of mitigating evidence).  Cf. Burger v. Kemp, 483 U.S. 776 (1987) (failure to introduce evidence of Defendant’s childhood not ineffective assistance of counsel when counsel reasonably believed evidence would harm Defendant’s case).
iii.    Failure to timely file notice of appeal:  In Roe v. Flores-Ortega, 528 U.S. 470 (2000), Defendant pleaded guilty to murder.  At sentencing, the trial court advised Defendant of his right to file an appeal within 60 days.  Defendant sought habeas relief, arguing that his trial counsel was ineffective for failing to file the appeal as promised.  The Supreme Court held that counsel was ineffective in failing to file a timely notice of appeal.  Counsel committed serious attorney error because his performance fell below an objective standard of reasonableness by disregarding specific instructions from Defendant to file a notice of appeal.  Counsel has a constitutionally imposed duty to consult with Defendant when there is reason to think either (1) that a rational Defendant would want to appeal, or (2) that this Defendant reasonably demonstrated to counsel an interest in appealing. “Consulting” means explaining the advantages and disadvantages of taking an appeal, and making reasonable efforts to discover Defendant’s wishes on the matter.  If counsel fails to meet this duty, it is error, and the next question is whether the error was prejudicial.  The denial of an entire judicial proceeding to Defendant is presumptively prejudicial.  When Defendant can show that counsel’s deficient performance led to a forfeiture of an appeal, prejudice is presumed.
iv.    Failure to advise Defendant of maximum sentence in guilty plea proceedings:  In Williams v. State, 326 Md. 367 (1992), the COA held that trial counsel’s failure to advise Defendant, who rejected ten-year offer, that the maximum possible sentence was a 25-year mandatory sentence constituted ineffective assistance of counsel.
b.    Examples of “errors” supported by reasonable trial strategy
i.    Failure to raise claim on direct appeal:  In Smith v. Murray, 477 U.S. 527 (1986), the Supreme Court held that appellate counsel’s failure to raise a claim was not serious prejudicial attorney error.  Defendant was convicted of murder and the prosecution pursued the death penalty.  At the sentencing phase, defense counsel objected to the testimony of defense counsel requested court-appointed psychiatrist, who examined Defendant prior to trial, regarding Defendant’s admission to the psychiatrist that once he tore the clothes off of a girl on a school bus and then decided rape her.  Defense counsel did not raise the issue of the erroneous testimony on appeal, on the grounds that defense counsel did not believe current state law supported the claim on appeal.  Defendant sought habeas relief, arguing that the admission of this testimony violated his Fifth Amendment privilege against compelled self-incrimination, and that appellate counsel was ineffective for failing to raise this issue on appeal.  The Supreme Court held that Defendant was barred from raising this claim for habeas relief because he was procedurally defaulted because he could have brought, but chose not to bring, the claim on direct appeal.  Appellate counsel’s failure to raise the claim was a result of a deliberate, tactical decision based on the nature of state law at that time, and was not so deficient that it fell below a reasonable attorney standard for purposes of Sixth Amendment’s protection for effective assistance of counsel.
ii.    Failure to discover prior felony convictions prior to advising Defendant to plead guilty:  In Hill v. Lockhart, 474 U.S. 52 (1985), Defendant pleaded guilty based on the advice of trial counsel that he would become eligible for parole after serving one-third of his prison sentence.  This information was erroneous because Defendant had a previous felony conviction, which was unknown to trial counsel, and which postponed Defendant’s parole eligibility.  Defendant argued that his guilty plea was involuntary based on ineffective assistance of counsel.  The Supreme Court held that, in the guilty plea context, Defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.  In this case, Defendant did not allege in his habeas petition that, had counsel correctly informed him about his parole eligibility date, he would have pleaded not guilty and gone to trial.  Defendant did not allege any special circumstances demonstrating that he placed particular emphasis on his parole eligibility in deciding whether to plead guilty.  Moreover, the Court noted that Defendant had signed a statement indicating that he did not have any prior felony convictions, thus making it reasonable for counsel not to investigate further.
3.    Must show reasonable probability that error affected outcome of case:  In Lockhart v. Fretwell 506 U.S. 364 (1993), the Supreme Court clarified the “prejudice prong” of Strickland.  In that case, Defendant was convicted of felony murder and sentenced to death based on the aggravating factor that the murder was committed for the purpose of pecuniary gain.  A later case held that it was unconstitutional for Defendant to be sentenced based on an aggravating factor that was also an element of the offense.  Thus, Defendant sought an appeal on this issue but was denied for lack of preservation.  Defendant sought habeas corpus relief, arguing that counsel was ineffective for preserving the issue for appellate review.  The Supreme Court held that counsel’s failure to object, although probably error, was not prejudicial for purposes of Sixth Amendment effective assistance of counsel.  The Court noted that, unlike attorney error, which looks at counsel’s performance based on the existing law, prejudice is not necessarily determined under the laws existing at the time of trial.  Rather, to show prejudice, Defendant must show that attorney error was so serious as to deprive Defendant of a fair or reliable trial, and not only that the outcome of the trial might have been different.  The 1985 decision referred to by Defendant was overruled four years later.  Defendant’s trial was neither unreliable nor fundamentally unfair based on trial counsel’s failure to object to the particular aggravating factor.