The most common ground for vacating a conviction through habeas corpus is ineffective assistance of counsel.[64]  The right to counsel, secured by the Sixth and Fourteenth Amendments to the United States Constitution and parallel provisions of state constitutions, includes the guarantee that the defendant will receive effective representation.[65]  The Ninth Circuit has noted that the “conviction of an innocent person as a result of [his or her] lawyer’s incompetence constitutes one of the most serious infringements of the integrity of the judicial process.”[66]

 

            A guilty plea may be attacked in post-conviction proceedings on the ground it was entered as a result of ineffective assistance of counsel.[67]  “[A] guilty plea lacks the required voluntariness and understanding if entered on advice of counsel that fails to meet the minimum standards of effectiveness derived from the Sixth and Fourteenth Amendments.”[68]  “[I]f the quality of counsel’s advice falls below a certain minimum level, the client’s guilty plea cannot be knowing and voluntary because it will not represent an informed choice.  And a lawyer who is not familiar with the facts and law relevant to his client’s case cannot meet that required minimal level.”[69] 

 

            Whether counsel has violated the relevant ABA Standards has been held by the Supreme Court to be relevant in considering whether counsel’s action or inaction fell below the required standard of competence.[70]

[64] An excellent article on this area in general is Sevilla, Investigating and Preparing an Ineffective Assistance of Counsel Claim, 37 Mercer L. Rev. 927 (1986), and, focusing on immigration cases, Rosenberg & Stern, Ineffective Assistance of Counsel, Interpreter Releases, May 23, 1988, pp. 529‑537.  For a useful checklist of California decisions identifying successful (and unsuccessful) grounds of ineffective assistance of counsel, see Attorney Incompetence, Appendix A, Grounds of Incompetence, 17 Western State L. Rev. 270.  For a comprehensive collection of federal decisions reversing convictions on grounds of ineffective assistance of counsel, see L. Fassley, Ineffective Assistance Of Counsel (1994), published by Southwest Legal Services, P.O. Box 57091, Tucson, AZ 85732.

[65] Powell v. Alabama, 287 U.S. 45, 71 (1932); People v. Pope, 23 Cal.3d 412, 422 (1979).

[66] Morris v. California, 966 F.2d 448, 453 (9th Cir.), cert. denied, 113 S. Ct. 96 (1992).

[67] United States v. Keller, 902 F.2d 1391, 1394 (9th Cir. 1990); Scott v. Wainwright, 698 F.2d 427 (11th Cir. 1983); Bradbury v. Wainwright, 658 F.2d 1083, 1087 (5th Cir. 1981), rehearing denied, 667 F.2d 93 (5th Cir. 1982), cert. denied, 456 U.S. 992; Ford v. Parratt, 638 F.2d 1115 (8th Cir. 1981).

[68] Hill v. Lockhart, 474 U.S. 52, 57 (1985); Agtas v. Whitley, 836 F.2d 1233, 1235 (9th Cir. 1988); United States v. Rummery, 698 F.2d 764, 766 (5th Cir. 1983), citing Trahan v. Estelle, 544 F.2d 1305, 1309 (5th Cir. 1977).

[69] Herring v. Estelle, supra, 491 F.2d at 128.

[70] Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003); Valdez v. Johnson, 93 F.Supp.2d 769 (S.D.Tex. 1999).

ARTICLE - POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - RIGHT TO COUNSEL ON POST-CONVICTION REVIEW
"The ABA Standards require that counsel should be provided at every state of the proceedings, including sentencing, appeal, and post-conviction review." (J. HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE PRACTICE 2:5, p. 41 and n.1 (2005), citing ABA STANDARDS, PROVIDING DEFENSE SERVICES, Std. 5-5.2.) "There is no right to counsel for discretionary review or collateral review unless it can lead to procedural default in a mandatory post-trial process.") (Id. at 2.6, p. 46 [footnotes omitted].), citing Robinson v. Norris, 60 F.3d 457 (8th Cir. 1995); Dawan v. Lockhart, 980 F.2d 470 (8th Cir. 1992) (no right to counsel on discretionary review, unless it can lead to procedural default in a mandatory post-trial process).

Defense counsel has the duty to present appropriate motions at the trial court level to protect the rights of the defendant. This is a part of the Sixth Amendment right to the effective assistance of counsel. Thus, counsel has the duty to file appropriate motions to withdraw guilty pleas or for a new trial, and the motions must be filed and pursued competently. (J. HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE PRACTICE 20:2, p. 736 (2005) [footnotes omitted].)

When the need for a motion to withdraw a guilty plea is indicated by the facts or circumstances of the case, defense counsel has a duty to pursue it. For example, defense counsel has been held under a duty to file a motion to withdraw the plea where the prosecutor failed to adhere to the plea agreement or where the pre-sentence report indicated the defendant still maintained his innocence. Counsel has been found ineffective for failure to raise the defect of lack of a factual basis for the plea of guilty, [FN6] or the defendant's competence to enter it, the trial court's rejection of an alternative sentence, or not timely pursuing such a withdrawal motion.

(J. HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE PRACTICE 20:2, p. 737 (2005) [footnotes omitted]; see generally, Annotation, Adequacy of defense counsel's representation of criminal client regarding post-plea remedies, 13 A.L.R.4th 533 3-7.

Defense counsel also has a duty to competently present post-trial motions. Accordingly, defense counsel have been held ineffective for failing to present fundamental grounds for plea withdrawal in a motion. (J. HALL, JR., PROFESSIONAL RESPONSIBILITY IN CRIMINAL DEFENSE PRACTICE 20:2, p. 736 (2005), citing People v. Porter, 61 Ill.App.3d 941, 19 Ill. Dec. 173, 378 N.E.2d 788 (4th Dist. 1978) (abrogated on other grounds by People v. Wilk, 124 Ill.2d 93, 124 Ill.Dec. 398, 529 N.E.2d 218 (1988) (obvious ground for withdrawal omitted); see generally Annotation, Adequacy of defense counsel's representation of criminal client regarding appellate and post-conviction remedies, 15 A.L.R.4th 582 (1982).

Federal Decisions - Ninth Circuit.

Raley v. Ylst, 470 F.3d 792 (9th Cir. 2006);
Raley v. Ylst, 444 F.3d 1085 (9th Cir. 2006);
Landrigan v. Schriro, 441 F.3d 638 (9th Cir. 2006);
Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006);
Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005);
Fields v. Brown, 431 F.3d 1186 (9th Cir. 2005);
U.S. v. Sandoval-Lopez, 409 F.3d 1193 (9th Cir. 2005);
Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004);
Johnson v. U.S., 362 F.3d 636 (9th Cir. 2004);
Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004);
Cockett v. Ray, 333 F.3d 938 (9th Cir. 2003);
U.S. v. Skurdal, 341 F.3d 921 (9th Cir. 2003);
Hayes v. Woodford, 301 F.3d 1054 (9th Cir. 2002);
Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002);
Payton v. Woodford, 258 F.3d 905 (9th Cir. 2001);
Bailey v. Newland, 263 F.3d 1022 (9th Cir. 2001);
U.S. v. Baker, 256 F.3d 855 (9th Cir. 2001);
Wildman v. Johnson, 261 F.3d 832 (9th Cir. 2001);
U.S. v. Jimenez Recio, 258 F.3d 1069 (9th Cir. 2001);
U.S. v. Recio, 226 F.3d 1087 (9th Cir. 2000);
Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000);
Gerlaugh v. Stewart, 129 F.3d 1027 (9th Cir. 1997);
Pollard v. White, 119 F.3d 1430 (9th Cir. 1997);
Taylor v. Reno, 164 F.3d 440 (9th Cir. 1998);
Coe v. Thurman, 922 F.2d 528 (9th Cir. 1990);
Katz v. U.S., 920 F.2d 610 (9th Cir. 1990);
Miller v. Keeney, 882 F.2d 1428 (9th Cir. 1989);
U.S. v. Lewis, 880 F.2d 243 (9th Cir. 1989);
Branch v. Cupp, 736 F.2d 533 (9th Cir. 1984);
Gustave v. U.S., 627 F.2d 901 (9th Cir. 1980);
U.S. v. Currie, 589 F.2d 993 (9th Cir. 1979);
Miller v. McCarthy, 607 F.2d 854 (9th Cir. 1979);
Farrow v. United States, 580 F.2d 1339 (9th Cir. 1978);
Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978);
Cooper v. Fitzharris, 551 F.2d 1162 (9th Cir. 1977);
High v. Rhay, 519 F.2d 109 (9th Cir. 1975);
Hayward v. Stone, 527 F.2d 256 (9th Cir. 1975);
Riser v. Craven, 501 F.2d 381 (9th Cir. 1974);
Sanders v. Craven, 488 F.2d 478 (9th Cir. 1973);
Buster v. Hocker, 428 F.2d 820 (9th Cir. 1970.

Federal Decisions. District Court Decisions in Ninth Circuit.

Fonseca v. Hall, 568 F. Supp. 2d 1110 (C.D. Cal. 2008);
Penton v. Kernan, 528 F. Supp. 2d 1020 (S.D. Cal. 2007);
Pop v. Yarborough, 354 F. Supp. 2d 1132 (C.D. Cal. 2005);
Banyard v. Duncan, 342 F. Supp. 2d 865 (C.D. Cal. 2004);
Franklin v. Small, 161 F. Supp. 2d 1087 (N.D. Cal. 2001);
Odle v. Calderon, 884 F. Supp. 1404 (N.D. Cal. 1995);
U.S. v. Nguyen, 997 F. Supp. 1281 (C.D. Cal. 1998);
U.S. v. Racich, 35 F. Supp. 2d 1206 (S.D. Cal. 1999);
Campbell v. Crist, 491 F. Supp. 586 (D. Mont. 1980);

Federal Decisions - Other Circuits.

Wilkins v. Bowersox, 145 F.3d 1006 (8th Cir. 1998);
U.S. v. Wolff, 127 F.3d 84 (D.C. Cir. 1997);
U.S. v. Taylor, 77 F.3d 368 (11th Cir. 1996);
U.S. v. Garcia, 956 F.2d 41 (4th Cir. 1992);
Tolliver v. U.S., 563 F.2d 1117 (4th Cir. 1977);


State Decisions.

People v. Nicewanner, 93 Ill. App. 3d 1, 48 Ill. Dec. 503, 416 N.E.2d 776, 13 A.L.R.4th 527 (3d Dist. 1981);
Ex parte Harris, 596 S.W.2d 893 (Tex. Crim. App. 1980);
People v. Morguez, 90 Ill. App. 3d 471, 45 Ill. Dec. 795, 413 N.E.2d 128 (1st Dist. 1980);
Com. v. Manning, 263 Pa. Super. 430, 398 A.2d 212 (1979);
Com. v. Ingram, 467 Pa. 591, 359 A.2d 754 (1976).

Sixth Circuit

POST CON RELIEF - ATTORNEY CLIENT PRIVILEGE - WAIVER BY ASSERTING IAC CLAIM
Generally, the mere filing of a post-conviction claim does not waive the attorney-client privilege. Rather, it is when the claim asserts inadequacy or failures by former counsel that an implied waiver exists. There is conflict over the breadth of the waiver. In re Lott, 424 F.3d 446, 457-458 (6th Cir. 2005) (litigants cannot hide behind the privilege if they are relying upon privileged communications to make their case), stands for the position that the waiver is narrow, tailored to just those issues related to the claim, not to the entire relationship.

     For discussions on whether and when a claim of ineffective assistance of counsel waives attorney-client privilege, see Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001) (when a habeas petitioner such as Johnson launches an attack on the reasonableness of his attorney's strategy in conjunction with a claim of ineffective assistance of counsel, he puts at issue his communications with counsel relating to those strategic choices); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) (when a client raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege with regard to "all communications relevant" to the issue of counsel's adequacy), citing 8 J. Wigmore, Evidence 2327 (McNaughton rev. 1961); Vial v. United States, 1998 U.S. Dist. LEXIS 9722 (D.R.I. Apr. 14, 1998); In re Lott, 424 F.3d 446, 453-454 (6th Cir. Ohio 2005).

     In the habeas context, courts have found implied waiver of these privileges when the petitioner "injects into [the] litigation an issue that requires testimony from its attorneys or testimony concerning the reasonableness of its attorneys' conduct." Johnson v. Alabama, 256 F.3d 1156, 1178 (11th Cir. 2001). The implied waiver in habeas proceedings has typically been the result of a petitioner's assertion of his own counsel's ineffectiveness. See id. ("By alleging that his attorneys provided ineffective assistance of counsel in their choice of a defense strategy, [the petitioner] put at issue--and thereby waived--any privilege that might apply to the contents of his conversations with those attorneys to the extent those conversations bore on his attorneys' strategic choices."); Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003); see also Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974) ("When a client calls into public question the competence of his attorney, the privilege is waived.").

     Implied waivers are consistently construed narrowly. Courts "must impose a waiver no broader than needed to ensure the fairness of the proceedings before it." Bittaker, 331 F.3d at 720 (habeas proceeding). "A broad waiver rule would no doubt inhibit the kind of frank attorney-client communications and vigorous investigation of all possible defenses that the attorney-client and work product privileges are designed to promote." Id. at 722. In another recent case from the Northern District, the Court applied implied waiver, but rejected an attempt by the warden to unnecessarily pierce the attorney-client privilege. See Mason v. Mitchell, 293 F. Supp. 2d 819, 823-24 (N.D. Ohio 2003). In Mason, the district court found that the petitioner implicitly waived the attorney-client privilege by putting his attorney's performance at issue, but was careful to note that "the waiver in habeas cases should be limited to the extent necessary to litigate a petitioners's ineffective assistance of counsel claims." Id. (citing Bittaker, 331 F.3d at 722). As such, the Mason court rejected the warden's request "to question the Petitioner about what he told his trial counsel regarding his involvement in the crime." Id. Also in Mason, while the District Court found the petitioner had implicitly waived the work product privilege regarding a psychiatric examination, that waiver did not extend to the privilege surrounding any inculpatory statements the Petitioner may have made to the psychiatrist. Id. at 825. . "The attorney-client privilege cannot at once be used as a shield and a sword." United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir. 1991). But, while the sword stays sheathed, the privilege stands. Tasby v. United States, 504 F.2d 332, 336 (8th Cir. Ark. 1974).

     It has long been the law that a client may waive protection of the privilege, either expressly or impliedly. Blackburn v. Crawfords, 70 U.S. (3 Wall.) 175, 194, 18 L. Ed. 186 (1865). One of the circumstances which may support a conclusion of a waiver is an attack by the client upon his attorney's conduct which calls into question the substance of their communications. A client has a privilege to keep his conversations with his attorney confidential, but that privilege is waived when a client attacks his attorney's competence in giving legal advice, puts in issue that advice and ascribes a course of action to his attorney that raises the specter of ineffectiveness or incompetence. Here, the confidentiality of the attorney-client relationship was breached by Tasby. Surely a client is not free to make various allegations of misconduct and incompetence while the attorney's lips are sealed by invocation of the attorney-client privilege. Such an incongruous result would be inconsistent with the object and purpose of the attorney-client privilege and a patent perversion of the rule. When a client calls into public question the competence of his attorney, the privilege is waived. Laughner v. United States, 373 F.2d. 326 (5th Cir. 1967); Sherman v. United States, 261 F. Supp. 522, 531 (D.Haw.), aff'd 383 F.2d 837 (9th Cir. 1966); see Pruitt v. Peyton, 243 F. Supp. 907 (E.D.Va. 1965); United States v. Butler, 167 F. Supp. 102 (E.D.Va. 1957), aff'd 260 F.2d 574 (4th Cir. 1958). See, Northup v. State, 272 A.2d 747, 751 (Me. 1971).

     Courts have usually held that the presentation of the issue of inadequate representation of counsel constitutes a waiver of the privilege and permits testimony by the attorney relevant to the issue including the disclosure of conversations between him and his former client which would otherwise be privileged. Moore v. State, 231 Ind. 690, 111 N.E.2d 47 (1953); State v. Kruchten, 101 Ariz. 186, 417 P.2d 510 (1966); Hand v. State, Mo., 447 S.W.2d 529 (1969); People v. Northrop, 29 A.D.2d 895, 287 N.Y.S.2d 987 (1968); United States ex rel. Richardson v. McMann (2d Cir., 1969) 408 F.2d 48; Laughner v. United States (5th Cir., 1967) 373 F.2d 326. Thanks to David Beneman for this briefing.

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCING ADVICE
United States v. Manzo, 675 F.3d 1204 (9th Cir. Apr. 5, 2012) (defense counsel's failure to anticipate that the drug offenses would be grouped for sentencing purposes and then advise the defendant to move to withdraw his agreement to plead guilty was constitutionally deficient).

POST CON RELIEF " PROCEDURE " RIGHT TO COUNSEL " NO RIGHT TO COUNSEL ON PETITION FOR POST-CONVICTION RELIEF
Martinez v. Schriro, 623 F.3d 731 (9th Cir. Sept. 27, 2010) (there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constituted the first tier of review for an ineffective assistance of counsel claim), petition for certiorari granted, Martinez v. Ryan, 131 S.Ct. 2960 (Jun. 6, 2011)).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL
Edwards v. LaMarque, ___ F.3d ___, WL 270118 (9th Cir. Feb. 1, 2007) (reversing grant of habeas on ineffective assistance grounds where, despite a self-proclaimed assertion by trial counsel that his performance was inadequate, a California court was not objectively unreasonable in determining that defendant's counsel made a reasonable, tactical decision to ask the questions that led to his waiver of the spousal privilege). http://caselaw.lp.findlaw.com/data2/circs/9th/0455752p.pdf

POST CON RELIEF - GROUNDS - RIGHT TO COUNSEL - CONFLICT OF INTEREST - MISTRIAL AS REMEDY
United States v. Elliot, __ F.3d __ (9th Cir. Apr. 18, 2006) (trial court did not err in declaring mistrial when it appeared that defense counsel had previously represented a witness).

POST CON RELIEF - INEFFECTIVE ASSISTANCE OF COUNSEL
Earp v. Ornoski, ___ F.3d ___, 2005 WL 3440810 (9th Cir. Dec. 16, 2005) (denial of habeas petition reversed where petitioner had never been given an evidentiary hearing on prosecutorial misconduct and ineffective assistance of counsel claims).
http://caselaw.lp.findlaw.com/data2/circs/9th/0399005p.pdf

RIGHT TO COUNSEL
'Nonetheless, we cannot allow a "myopic insistence on expeditiousness" to render the right to counsel "an empty formality" Biwot v. Gonzales, 403 F.3d 1094 (9th Cir. 2005) citing Ungar v. Sarfite, 376 U.S. 575 (1964).

POST CON RELIEF - PLEA AGREEMENT - WAIVER OF RIGHT TO CLAIM IAC
Washington v. Lambert, 422 F.3d 864 (9th Cir. 2005) (plea agreement waiver of right to set aside a conviction on grounds of ineffective assistance of counsel is not effective to preclude doing so, since the plea agreement itself, containing the waiver, is not knowing or voluntary); see also United States v. Jeronimo, 398 F.3d 1149, 1156 n.4 (9th Cir. 2005) (leaving open possibility; collecting cases); United States v. Attar, 38 F.3d 727, 731 (4th Cir. 1994), cert denied, 115 S. Ct. 1957 (1995) (claim of ineffective assistance of counsel, in violation of the Sixth Amendment, can be reviewed on the merits on appeal notwithstanding a purported waiver of this right contained in a plea agreement); accord, Department of Justice, U.S. Attorney's Manual http://www.usdoj.gov/usao/eousa/foia_reading_room/

usam/title9/crm00626.htm; but see United States v. McIntosh, 492 F.3d 956, 959 (8th Cir. 2007) (plea agreement waiving right to challenge conviction for ineffective assistance of justice will be enforced unless enforcement would result in a miscarriage of justice); United States v. Snelson, No. 07-3202 (8th Cir. Feb. 10, 2009) (accord); cf. Ohio Ethics Opinion 2001-6 (2001)(it is unethical to waive of ineffective assistance of counsel claims in plea agreements); Tennessee Ethics Opinion 94-A-549 (1994) (same); North Carolina Ethics Opinion 129 (1993)(same); Vermont Ethics Opinion 95-4 (1995) (same); NACDL Ethics Advisory Committee, Proposed Formal Opinion No. 03-02 (Feb. 2003) (it is unethical for criminal defense lawyers to participate in plea agreements that bar collateral attacks on convictions under 28 U.S.C. 2255).

POST CONVICTION RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - ORIGINAL COUNSEL CANNOT RAISE OWN INEFFECTIVENESS; EXCEPTION TO STATE STATUTE OF LIMITATIONS WHERE IT TAKES MORE TIME TO SEE IF IAC CLAIM EXISTS
Leavitt v. Arave, ___ F.3d ___ (9th Cir. June 14, 2004) (original counsel cannot raise own ineffectiveness; exception therefore exists to state post-conviction relief statute of limitations where more time is necessary for independent counsel to determine whether IAC claim exists).
http://caselaw.lp.findlaw.com/data2/circs/9th/0199008p.pdf

POST CON RELIEF - ATTORNEY-CLIENT PRIVILEGE - RIGHT TO IN CAMERA INSPECTION OF DEFENSE COUNSEL'S FILE
The right to an in camera inspection of defense counsel's file arises once the government claims there has been a waiver due to a claim of IAC. The waiver is only as broad as necessary to enable the govt. to litigate the IAC claim. Defense counsel can make a motion for in camera inspection of the defensive file and for a protective order when the government moves to obtain a copy of the allegedly ineffective defense counsel's file. See Bittaker v. Woodford, 331 F.3d 715 (9th Cir. 2003).

The Supreme Court has indicated that it is the "duty of the District Court to treat ... material as presumptively privileged" upon "receiving a claim of privilege" and then to order "an in camera examination" of that material in order to ascertain the validity of the claim and provide for a meaningful appellate review: Upon receiving a claim of privilege ... it became the further duty of the District Court to treat the subpoenaed material as presumptively privileged and to require the Special Prosecutor to demonstrate that the prejudicial material was essential to the justice of the [pending criminal] case ... here the District Court treated the material as presumptively privileged, proceeded to find that the Special Prosecutor had made a sufficient showing to rebut the presumption, and ordered an in-camera examination of the subpoenaed material. United States v. Nixon, 418 U.S.683, 713-714 (1974). Indeed, it is for the Court, in the first instance, to make a preliminary determination regarding privilege. See United States v. Jote's Inc., 720 F. Supp. 99, 101 (N.D. Ohio 1987); United States v. Zolin, 491 U.S. 554 (1989).

The appropriate procedure for establishing a privilege is via an in camera, ex parte, proffer to the Court outside the presence of counsel for the government so that the privilege is not deemed waived across the board. See e.g., Laughner v. United States, 373 F.2d 326, 327 n. 1 (5th Cir. 1967) ("where, as here, the client alleges a breach of duty to him by the attorney, we have not the slightest scruple about deciding that he thereby waives the privilege as to all communications relevant to that issue.") (emphasis added). [The privilege holders] should be allowed to present their argument ex parte because if the government is present the very information sought to be suppressed would be exposed. United States v. Jote's Inc., supra at 101, citing In re Walsh, 623 F.2d 489, 494 n.5 (7th Cir. 1980) and In re Berkley & Co., Inc., 629 F.2d 548, 552 (8th Cir. 1980).

Other

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE ON APPEAL - STANDARD OF REVIEW - MILITARY COURT
United States v. Miller, 63 M.J. 452, 455-456 (U.S. Armed Forces, Aug. 29, 2006) (applying Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984)).

NACDL ETHICS ADVISORY COMMITTEE
Proposed Formal Opinion 03-02 (Feb. 2003) "It is the opinion of the NACDL Ethics Advisory Committee that, aside from the general effect the courts might give such waivers, the rules of professional ethics prohibit a criminal defense lawyer from signing a plea agreement that limits the clients ability to claim ineffective assistance of counsel because the lawyer has a conflict of interest in agreeing to such a provision because it amounts to prospective limiting of liability. Therefore, the lawyer is duty bound to object to portions of a plea agreement that limit 2255 claims and refuse to assent to such an agreement with such language in it." http://www.nacdl.org/public.nsf/2cdd02b415ea3a64852566d6000daa79/ethicsopinions/$FILE/op03-02.pdf

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - REMEDY - PLACING DEFENDANT IN SAME SITUATION HE OCCUPIED WHEN ERROR OCCURRED
Kimmelman v. Morrison, 477 U.S. 365, 379, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986) (in fashioning a remedy for ineffective assistance of counsel, the court must put the defendant back in the position he would have been in had he received effective assistance of counsel); Nunes v. Mueller, 350 F.3d 1045 (9th Cir.2003); United States v. Blaylock, 20 F.3d 1458, 1468 (9th Cir. 1994).