Effective assistance of counsel? Really?

In Hawkins v. Coyle, Case Nos. 05-4032/4049, the Sixth Circuit held petitioner Hawkins, who was sentenced to death, was not prejudiced by his trial counsel’s failure to conduct any mitigation investigation on Hawkins’ behalf. Hawkins had been convicted of committing four counts of aggravated murder, each of which carried two death penalty specifications, and two counts of aggravated robbery with a firearm. The jury recommended a death sentence on each of the aggravated murder counts, and the trial court sentenced Hawkins to death.

In his habeas petition, Hawkins argued his trial counsel was ineffective for failing to conduct any investigation for mitigation purposes, choosing instead to rely on a theory of residual doubt. The panel recognized "a complete failure to make an independent investigation of mitigating evidence will often not be reasonable." However, applying what it termed "a careful reading" of Wiggins v. Smith, 539 U.S. 510, 521-22 (2003), the panel believed trial counsel’s failure to investigate mitigation might not necessarily be deficient "so long as counsel’s decision not to investigate is reasonable under the circumstance."

In determining whether Hawkins’ circumstance excused trial counsel’s failure to investigate mitigation, the panel reviewed several Sixth Circuit cases in which it was found that trial counsel’s failure to investigate mitigating evidence prejudiced a capital defendant, as is required to succeed in an ineffective of assistance of counsel claim under Strickland v. Washington, 466 U.S. 668 (1984). The panel then concluded prejudice is not easily found when the petitioner was not himself a victim of abuse and did not suffer from mental disorders or difficulties.

In Hawkins’ evidentiary habeas hearing, Hawkins demonstrated, via affidavit, that his father was an alcoholic, his parents had divorced, his father physically assaulted his mother on one occasion, his sister died at the age of three, and he appeared to be depressed and tried at least twice to commit suicide at a young age. Noting the suicide attempts made this a "closer case," the panel ultimately held the affidavits did not demonstrate the prejudice needed under Strickland and denied habeas relief.

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In Richards v. United States, Case No. 05-2135, the Sixth Circuit reviewed petitioner Richards’ claim that his trial counsel was ineffective for failing to file a direct criminal appeal on Richards’ behalf and, alternatively, for failing to consult Richards about filing an appeal. Richards’ trial counsel denied discussing an appeal with Richards but admitted he was unaware of the 10-day time limit to file a direct criminal appeal, stating "I don’t do federal appeals . . . .there’s no reason for me to be cognizant of those appeal rights."

The panel found the district court was not clearly erroneous in choosing to credit trial counsel over Richards on the issue of whether Richards specifically asked trial counsel to file an appeal on Richards’ behalf. The panel also found trial counsel’s failure to consult with Richards was not objectively unreasonable conduct as there were no non-frivolous grounds for appeal in the panel’s opinion as Richards received the sentence he bargained for in his plea agreement. For the same reasons, the panel found Richards suffered no prejudice as a result of trial counsel’s failure to file an appeal on his behalf and denied habeas relief.