A criminal defendant has a federal due process right to the effective assistance of counsel on appeal.[137]  The Strickland v. Washington[138] standard applies to claims of ineffective assistance of appellate counsel.[139]  Defendant must demonstrate that the failure to raise an issue on direct appeal was an unreasonable decision and that the omission was prejudicial. 

 

            Appellate counsel is not required to raise every issue,[140] but must instead winnow out losing claims.[141]  As a result, the best way to evaluate a claim of ineffectiveness on appeal is to examine the alleged error to see if it contains sufficient merit that appellate counsel can be faulted for not having raised it.

 

In essence, the reasonableness of counsel’s failure to raise an issue on direct appeal collapses into a simple prejudice inquiry;  relief must be granted where there is a reasonable probability that a new trial would have been ordered had counsel raised the omitted error on direct appeal.[142] 

 

California courts have held that counsel must prepare a competent legal brief setting forth all arguable issues.[143]  Appellate counsel is obligated to “raise crucial assignments of error that arguably could have resulted in reversal.”[144]  In fact, the greatest disservice appellate counsel could render the client was to brief some issues but omit other arguable claims.[145]  Appellate counsel “serves both the court and [his or her] client by advocating changes in the law if argument can be made supporting change.”[146]

 

            To show a defect of constitutional magnitude, it is not necessary for the appellant to show the claim of ineffective assistance of trial counsel would have prevailed upon appeal.[147]  “The defendant need not show he was entitled to a reversal, but only that inexcusable failure of appellate counsel to raise crucial assignments of error [occurred], which arguably could have resulted in reversal.”[148] 

 

[137] Evitts v. Lucey, 469 U.S. 387, 83 L.Ed.2d 821, 105 S.Ct. 830 (1985); People v. Harris, 19 Cal.App.4th 709 (1993).

[138] Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).

[139] United States v. Skurdal, 341 F.3d 921 (9th Cir., August 27, 2003) (failure to file proper Anders [no merit] brief in support of appointed appellate counsel’s motion to be relieved of appointment to represent appellant on direct appeal constituted denial of effective assistance of counsel under the Fifth Amendment).  Counsel’s motion to withdraw, in addition to not raising whatever arguable issues existed, as required by Anders, also did not inform the appellate court that appellant had been found to lack the capacity to waive counsel on appeal, and that court proceeded to allow appellant to represent himself without conducting further inquiry into his capacity to do so.

[140] United States v. Alaimalo, 313 F.3d 1188 (9th Cir. December 20, 2002) (failure of both trial and appellate lawyers to make meritless challenge to warrantless entry into home did not constitute ineffective assistance of counsel because officers had probable cause to believe that package containing illegal drugs had been taken inside defendant’s house and might be destroyed).

[141] See Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314, 77 L.Ed 987 (1983); Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (finding ineffective assistance in failing to comply with no-merit brief requirements).

[142] See, e.g., Turner v. Duncan, 158 F.2d 449 (9th Cir. 1998) (finding ineffective assistance of appellate counsel from failure to raise instructional error on direct appeal, noting that error should have been obvious to counsel and probably would have required reversal under existing California law).

[143] People v. Barton, 21 Cal.3d 513, 519, 146 Cal.Rptr. 727, 579 P.2d 1043 (1978); see also In re Smith, 3 Cal.3d 192, 197, 90 Cal.Rptr. 1, 474 P.2d 969 (1970); People v. Rhoden, 6 Cal.3d 519, 524, 99 Cal.Rptr. 751, 492 P.2d 1143 (1972).

[144] People v. Lang, 11 Cal.3d 134, 142, 113 Cal.Rptr. 9 (1974); see also In re Harris, 5 Cal.4th 813, 832-34, 21 Cal.Rptr.2d 373 (1993).

[145] See People v. Woodard, 184 Cal.App.3d 944, 229 Cal.Rptr 350 (1986) (client receives more complete review under Wende if no issues are raised than if some but not all issues are raised).

[146] People v. Feggans, 67 Cal.2d 444, 447, 62 Cal.Rptr. 419, 432 P.2d 21 (1967).

[147] See People v. Lang, 11 Cal.3d 134, 113 Cal.Rptr. 9 (1974).

[148] B. Witkin & J. Epstein, Calif. Crim. Law, Trial § 2790, pp. 3383-84 (2d ed. 1989); see also People v. Mitchell, 68 Cal.App.4th 1489, 81 Cal.Rptr.2d 339 (1999).

Ninth Circuit

POST CON RELIEF - GROUNDS - COUNSEL - INEFFECTIVE ASSISTANCE - IAC ON APPEAL
Moormann v. Schriro, ___ F.3d ___ (9th Cir. October 13, 2005) (denial of petition for habeas corpus relief reversed where petitioner sufficiently asserted claims of ineffective assistance of appellate counsel).
http://caselaw.lp.findlaw.com/data2/circs/9th/0099015p.pdf