Witherspoon, 391 U.S. at 523 n.21; see Fuller, 114 F.3d at 500. Accordingly, we will affirm, on alternative grounds, the District Court's decision to grant the writ.Mayfield v. Woodford, 2001 U.S. App. LEXIS 24030 (9th Cir 11/7/2001) (en banc) Counsel failed to adequately investigate and prepare for the penalty phase or present and explain to the jury the significance of all the available mitigating evidence.Briseno v. Cockrell, 2001 U.S. App. LEXIS 25135 (5th Cir 11/26/2001) Relief denied, chiefly on claims related to ineffective assistance of appellate counsel for the failure to raise an Ake claim.Briseno asserts that the standard of prejudice to be utilized in an ineffective assistance of direct appellate counsel claim as stated in Goodwin conflicts with the Supreme Court's recent decision in Smith v. Robbins, 528 U.S. 259, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000). In Goodwin, we clarified the prejudice requirement of the test to show ineffective assistance of counsel, which the Supreme Court announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
In an order granting Walker an evidentiary hearing, the U.S. District Court holds that our supreme court was wrong, in State v. Starks, 2013 WI 69, 349 Wis. 2d 274, 833 N.W.2d 146, to say an appellate lawyer can’t be ineffective for failing to raise a claim unless that claim is “clearly stronger” that claims the lawyer did raise. The decision explains that SCOW misread Smith v. Robbins, 528 U.S. 259 (2000), as imposing such a rule. The whole thing is worth a read, but here’s the nub, if you’re thinking of challenging our state’s rule:In [Starks], the court held that, to prevail on a claim of ineffective assistance of appellate counsel involving counsel’s failure to raise arguments, the defendant, in addition to showing that appellate counsel performed deficiently and that he was prejudiced as a result, must “also establish why the unraised claims . . . were `clearly stronger’ than the claims that appellate counsel raised on appeal.”
The same Strickland standard for ineffectiveness applies to assess the constitutional effectiveness of post-conviction or appellate counsel. Smith v. Robbins, 528 U.S. 259, 285-86, 287-88 (2000). The defendant raising such a claim must show both that post-conviction or appellate counsel acted unreasonably and a reasonable probability that he or she would have prevailed on appeal but for counsel’s unreasonable behavior.
The state appellate court also found no deficient performance, taking into account the facts that Morris did not complain to [appellate counsel] about feeling coerced beyond the record and that Morris did not indicate any coercion during the plea colloquy.When a lawyer files an Anders brief or no-merit report in a criminal appeal, the standard under the Sixth Amendment for deficient performance is whether “a reasonably competent attorney would have found one nonfrivolous issue warranting a merits brief.” Smith v. Robbins, 528 U.S. 259, 288 (2000); see also Shaw v. Wilson, 721 F.3d 908, 915–16 (7th Cir. 2013). In this case, the appellate record on the direct appeal included the plea colloquy and written documents.
06 postconviction motion, which alleged postconviction counsel was ineffective for failing to raise a plea withdrawal claim on direct appeal, contained sufficient allegations to warrant an evidentiary hearing. Whether postconviction counsel was ineffective under the standard set forth in Smith v. Robbins, 528 U.S. 259 (2000) (to show postconviction counsel was deficient, defendant must generally demonstrate counsel ignored an issue that was “clearly stronger” than the issues raised on direct appeal in order).April 3, 2014, 10:45 a.m. Lorenzo D. Kyles v. William Pollard, 2012AP378-W (Defense counsel: Rob Henak)Whether a client alleging ineffective assistance of counsel based on his trial lawyer’s unavailability or failure to respond to a request for an appeal during the 20-day period for filing a notice of intent to pursue postconviction must raise his claim via a § 974.
§ 974.06 postconviction motion, which alleged postconviction counsel was ineffective for failing to raise a plea withdrawal claim on direct appeal, contained sufficient allegations to warrant an evidentiary hearing.Whether postconviction counsel was ineffective under the standard set forth in Smith v. Robbins, 528 U.S. 259 (2000) (to show postconviction counsel was deficient, defendant must generally demonstrate counsel ignored an issue that was “clearly stronger” than the issues raised on direct appeal in order).The petition for review is not electronically available, so the statement of the issues has been deduced based on the particulars of the case considered in light of the court’s recent cases addressing § 974.
“‘[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of [postconviction] counsel be overcome.’” Smith v. Robbins, 528 U.S. 259, 288 (2000) (citation omitted). Amonoo has not demonstrated that his additional issues are “‘clearly stronger’” than those pursued.
However, the key to unlocking its meaning might be in its concluding paragraphs, which deny that any of the asserted deficiencies might have been prejudicial, ¶¶72-78. Consider, in light of this determination of no prejudice, the idea that the collateral-attack defendant must show that the overlooked issue is “clearly stronger” than any issues raised on direct appeal, Smith v. Robbins, 528 U.S. 259, 288 (2000). Also, Brown v. Finnan, 598 F.3d 416, 425 (7th Cir. 2010) (“An appellate counsel’s performance is deficient if she fails to argue an issue that is both obvious and clearly stronger than the issues raised.”)
§ 974.06 alleges that counsel was ineffective for not raising additional challenges to the effectiveness of trial counsel on direct appellate review?Whether postconviction counsel was ineffective under the “clearly stronger” standard referenced in Smith v. Robbins, 528 U.S. 259, 288, 120 S. Ct. 746, 145 L.Ed.2d 756 (2000) (defendant generally must demonstrate that an ignored issue is “clearly stronger” than issues raised during the direct appeal to show that postconviction counsel performed deficiently by not raising the issue).Cast in these terms, the Issue may well hold interest, at least for appellate practitioners.
In such cases, the petitioner must demonstrate that the issue not presented 'was clearly stronger than issues that counsel did present.'" Caver v. Straub, 349 F.3d 340, 348 (6th Cir. 2003) (quoting Smith v. Robbins, 528 U.S. 259, 289, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000)) (internal citations omitted); see also McFarland v. Yukins, 356 F.3d 688, 710-12 (6th Cir. 2004). [*43] Just as in Caver, "in the instant case, there can be little doubt but that the omitted issue . . . was much stronger than the issues [petitioner's] appellate counsel presented.