A defendant seeking to establish that he received ineffective assistance of counsel during a criminal proceeding must demonstrate (1) that his attorney’s performance was so deficient that it fell below “an objective standard of reasonableness” and (2) that “a reasonable probability [exists] that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”


This Strickland v. Washington standard became known as the deficiency/prejudice components—that deficiency is the gateway to prejudice. More significantly, the Supreme Court in Strickland issued a strong instruction to the lower courts that they “must indulge a strong presumption that counsel’s performance was within the wide range of reasonable professional assistance.”


Presumption of Prejudice in Appeal Cases


In 2000, the Supreme Court in Roe v. Flores-Ortega issued a significant exception to the Strickland prejudice inquiry by finding that when an attorney’s deficient performance results in a defendant losing an appeal he or she would have otherwise sought, prejudice must be presumed “with no further showing from the defendant of the merits of his underlying claims.” This presumption of prejudice applies even in cases where a defendant has waived his or her right to appeal.


The Supreme Court recently reaffirmed this presumption of prejudice standard.


Defendant Waived Right to Appeal


In 2015, Gilberto Garza entered into two plea agreements with prosecutors in the state of Idaho. These agreements contained a standardized “right to appeal” waiver. The state trial court then imposed sentencing in both cases, shortly after which Garza informed his counsel that he wanted to appeal the convictions/sentences. Garza studiously continued to instruct counsel, via telephone calls and letters, that he wanted an appeal filed. Counsel did not heed these client instructions by failing to file a timely requisite notice of appeal. Instead counsel stated an appeal posed problems because Garza had waived his right to appeal in the plea agreements.


Defendant Requested Counsel to File Appeal


Garza challenged his conviction/sentences in post-conviction pleadings filed in the Idaho trial court and the state’s two appellate courts. All three courts denied relief with the Idaho Supreme Court ruling that in light of Garza’s appeal waiver, he would have to prove both the deficiency and prejudice components to secure relief. The court said Garza had failed to do so.


The Idaho Supreme Court, however, noted that it had joined the two federal appellate circuit courts that had refused to literally adopt the Roe v. Flores-Ortega presumption of prejudice rule in such cases, even though eight other federal appellate courts had done so.


Garza sought, and secured, rare certiorari review before the Supreme Court. Conflict among the federal circuits, and the state courts, with respect to one of the high court’s rulings will almost always lead to certiorari review because such conflicts “offends the principle that, under one national law, people who are similarly situated should be treated similarly.”


Right to Appeal Relinquished by Deficient Counsel


On February 27, 2019, the Supreme Court in Garza held that the defendant’s counsel was deficient in his handling of the defendant’s desire to appeal and that the presumption of prejudice rule pronounced in Roe v. Flores-Ortega applied in his case, making it clear to all the lower federal and state courts that this is the “law of the land”:


“Contrary to the argument by Idaho and the U. S. Government, as amicus, that Garza never ‘had a right’ to his appeal and thus that any deficient performance by counsel could not have caused the loss of any such appeal, Garza did retain a right to his appeal; he simply had fewer possible claims than some other appellants. The Government also proposes a rule that would require a defendant to show— on a case-by-case basis—that he would have presented claims that would have been considered by the appellate court on the merits. This Court, however, has already rejected attempts to condition the restoration of a defendant’s appellate rights forfeited by ineffective counsel on proof that the defendant’s appeal had merit … Moreover, it is not the defendant’s role to decide what arguments to press, making it especially improper to impose that role upon the defendant simply because his opportunity to appeal was relinquished by deficient counsel. And because there is no right to counsel in postconviction proceedings and, thus, most applicants proceed pro se, the Government’s proposal would be unfair, ill advised, and unworkable.”


Justices Thomas, Gorsuch and Alito dissented. Justice Thomas, who almost always dissents in cases in which the Court seeks to either expand or protect a criminal defendant’s existing rights, expressed his disdain for a criminal defendant’s right to effective assistance of counsel:


“…, our precedents seek to use the Sixth Amendment right to counsel to achieve an end it is not designed to guarantee. The right to counsel is not an assurance of an error-free trial or even a reliable result. It ensures fairness in a single respect: permitting the accused to employ the services of an attorney. The structural protections provided in the Sixth Amendment certainly seek to promote reliable criminal proceedings, but there is no substantive right to a particular level of reliability. In assuming otherwise, our ever-growing right-to-counsel precedents directly conflict with the government’s legitimate interest in the finality of criminal judgments. I would proceed with far more caution than the Court has traditionally demonstrated in this area.”


Effective Assistance of Counsel


The Supreme Court first recognized the right to effective assistance of counsel in guilty plea cases in McMann v. Richardson in 1970 when it specifically stated that a guilty plea defendant “cannot be left to the mercies of incompetent counsel.”


At his confirmation hearing on September 9, 1991, Justice Thomas told the U.S. Senate:


“… I think … that you cannot simply, because you have the votes, begin to change rules, to change precedent … when you have a precedent that has been relied on in the development of subsequent Supreme Court law … I think that you would give significant weight to repeated use of that precedent.”


Justices Shirk Precedent


Justice Gorsuch took this commitment a step further at his March 22, 2017 confirmation hearing:


“I will follow the law of judicial precedent in this and in every other area, Senator, it’s my promise to you.”


Both Justices Thomas and Gorsuch shirked their commitment to precedent—in this instance, the McMann and Strickland precedents—when they said the Sixth Amendment guarantees only the right to “employ the services of counsel,” not the right to effective assistance of counsel as the Supreme Court recognized five decades ago in McMann and which it has continuously adhered to, along with every other state and federal appellate court in the country, during that period of time.


This will be the Clarence Thomas legacy on the Supreme Court—contempt for precedent. Just earlier this year Justice Thomas indicated he is believes the landmark 1964 freedom of the press ruling in New York Times v. Sullivan should be overturned. While Justice Gorsuch did not join Thomas in this opinion, his submissive following of Thomas in the Garza dissent indicates he is receptive to changing, not adhering to, Supreme Court precedent—the very thing he promised the U.S. Senate he would do.