4 Years and 42 Days
a closer look at "diligence" and how it applies the IAC claim under Strickland.
When a criminal defendant goes to trial before a jury of his or her peers the anticipated outcomes are either a conviction or an acquittal—though a mistrial is also possible. If the defendant is convicted the case is usually submitted to an appellate court for what's known as a direct appeal (or review), and it's not until that review on the legality of the conviction is completed before it's affirmed and considered final. During this period of time the defendant is convicted, but since the conviction isn't yet affirmed the conviction waits in a sort of legal-limbo where new appellate decisions can still be decided and ratified as law, and those relevant laws can still be applied to relevant issues in the pending case. For example, let's say that a person gets convicted of aggravated littering (aggravated because he's accused of not just tossing a piece of trash on a public highway, the individual in question was said to have loaded all his neighborhood trash onto a flatbed trailer and headed onto a public highway until all the trash had distributed itself through the normal conditions of motion, wind, and nothing being properly secured on the trailer), and let's pretend that the crime in question, in a not so distant dystopia, is not only a crime but a capital crime that can be punished by either death or life imprisonment; and, finally, let's assume that the convicted individual presents his direct appeal to the New Mexico Supreme Court in accordance with Article VI, Section II of the New Mexico Constitution.
Our hypothetical defendant is sent to the Department of Corrections and placed in solitary confinement for the foreseeable future of his appeal, preventing him from having any access to a law library or other inmates who may be willing to assist him. Nevertheless, he motions the Court for permission to represent himself and be provided with basic legal resources by which to defend himself, but is denied without any rationale or explanation offered. Which means that since he's unable to defend his own interests and rights the State assigns an attorney to represent him. Our defendant and his appointed attorney meet to discuss his case and the potential legal issues that should be presented in his appeal. At which time our defendant once again asserts his innocence, asks for a transcribed copy of his trial proceedings, and also requests that he be afforded with legal materials for the purpose of researching his own legal issues—all of which are denied.
Our defendant's appointed appellate counsel sends him a few letters, outlining the issues she intends to present in his appeal, but he's in the dark as to whether or not what is being presented is in his best interest. What he knows for sure is that he's innocent, and that the fact that he wasn't able to confront his only accuser is a crucial element to the fact that the jury wrongfully convicted him. And, it's safe to say that our hypothetical defendant is hopeful, because in the letters being sent to him from his appointed attorney his confrontation issue is present and accounted for on the list of issues to be presented on direct appeal; but, what he doesn't know is that while his case is pending in the state of legal-limbo the New Mexico Supreme Court will make no less than four precedential decisions that will impact the laws as they relate to the issues that are elementally responsible for his wrongful conviction.
Previously, I briefly addressed the U.S. Supreme Court decision in Strickland v. Washington, 466 U.S. 668, (1984) that determined that "effective assistance of counsel" is a crucial element of the constitutional guarantee of being afforded counsel. Meaning, the nation's high court determined that it's not enough to just be assigned counsel, the counsel must be "effective" for the constitutional right to be real. Likewise, because New Mexico's constitution guarantees a direct appeal, that right ensures that appellate counsel be constitutionally "effective," as well. All of which is relevant to our hypothetical narrative of someone convicted of a capital crime—wrongfully.
Therefore, in the state of being "effective" one would assume that if the laws that substantiated someone's conviction were either altered or obliterated by the highest court in the state, and those changes are legally applicable to all cases currently pending on appeal, it would seem obvious that an "effective" attorney would see to it that her client's appeal takes advantage of those changes of law. Of course, as we all know, "obvious" is as relative of a term as "effective" when it comes to any discourse surrounding the law—but let us not be deterred!
Allow me, for a moment, to step into our hypothetical defendant's dystopic predicament where we replace his invented capital crime of aggravated littering with the very real, capital crime of murder. Everything else stands. In particular, the fact that while my case was pending in a state of legal-limbo for four years and forty-two days the New Mexico Supreme Court ruled on four separate cases that fundamentally affected the interpretations of the laws used to convict me, and, not one of those rulings was included in my direct appeal, despite the undeniable fact that every one of the aforementioned decisions was decided prior to my appointed attorney filing my brief-in-chief (the legal brief that presents and substantiates all the claims of error that led to a wrongful conviction).
As most of my readers know, I'm shoulder-deep in the morass of constructing the legal arguments for my latest appeal, and in the process of doing so the issues to be presented are seemingly honing themselves into crude tools that may be able to dig and pry me out of the early grave that I was sentenced to—wrongfully. Here's how the issues look at present:
(1) Mr. Chavez had his constitutional right to present a defense violated by the trial court and it was clear and plain error. Simply put, Mr. Chavez was denied a fair opportunity to rebut a hearsay accusation from a non-testifying declarant and codefendant in direct contravention of the Rules of Evidence. This issue was raised on the record by trial counsel; but, was not flagged or presented by direct appellate counsel, thereby making appellate counsel's representation constitutionally "ineffective" under Strickland for not having presented the issue in Defendant's Brief-in-Chief on direct appeal.
(2) The trial court's discretionary ruling under the Rule of Completeness (11-106 NMRA) clearly violated state law and prejudiced the defendant by placing him the constitutionally untenable position of having to choose between the rebuttal of a hearsay accusation and his right to confront his accuser. Both trial counsel and direct appellate counsel were constitutionally "ineffective" under Strickland, respectively, for (a) failing to object to the court's misapprehension and flawed application of the Rule of Completeness in contravention of relevant state court appellate rulings and law; and (b) appellate counsel's failure to flag, present and brief the same in the defendant's Brief-in-Chief, as the IAC claim against trial counsel was clear from the record in accordance with legal precedence in New Mexico.
(3) The trial court abused its discretion in denying the defendant's directed verdict motion on the counts of felony murder, armed robbery, and tampering with evidence (alternative to Count 1, and Counts 2 and 7) because there was clearly an insufficiency of evidence to suggest that defendant had any contact with the victim's wallet, given the State's inability to present any evidence whatsoever that the defendant had any contact with the wallet; moreover, direct-appellate counsel was again constitutionally "ineffective" under Strickland for not having presented this issue in defendant's Brief-in-Chief.
(4) The petitioner's conviction and sentence for Count 2 (armed robbery) contradicts the law under New Mexico's felony murder doctrine as petitioner was convicted and sentenced to both the qualifying felony and the murder in direct contravention of Frazier. Additionally, direct appellate counsel was constitutionally "ineffective" under Strickland for having failed to present this issue in Mr. Chavez's brief-in-chief.
However, while in the process of constructing the legal arguments that substantiate these claims I discovered no less than four precedential appellate rulings from the New Mexico Supreme Court—three of which would have overturned my conviction on their own right, and the fourth would have substantially lessened my sentence—which immediately brought me to the question and observation that I'm sure many of you are probably asking and thinking: is the corruption in the New Mexico judiciary institutional? And, the obvious observation being, nobody—not even his attorney—wanted his conviction to be overturned.
I admit, it does seem conveniently and coincidentally odd that the Justices on the New Mexico Supreme Court (Chief Justice Charles W. Daniels; Edward L. Chavez; Patricio M. Serna; Petra Jimenez Maes; Richard C. Bosson)—before whom my case lingered for more than four years would fail to realize that no less than four of its decisions were applicable to the case pending before them. But, maybe the demands of their positions didn't permit them the luxury and time to deconstruct every case in search of fundamental errors and constitutional violations; after all, the presentation of errors and violations is the duty of the attorney, not the Justices.
So then, we turn the inquest to the appellate attorney (Hon. Kathleen McGarry-Ellenwood): how could you not notice four precedential and pertinent decisions from the very court where your client's case was pending?
As I see it, there are only three rational answers to this question: (1) she wasn't reading the New Mexico Bar Bulletin, so as to apprise herself of the relevant rulings and changes to the law that may have impacted a capital murder case that she had pending; (2) she didn't read the entire transcript to fully apprise herself of the relevant issues; or (3) institutional corruption.
Since I have no evidence whatsoever to substantiate a claim of corruption against a former practicing attorney and current judge (First Judicial District), I can only conclude that the real answer to our inquest is somewhere between 1 and 2, from above. Recently, I revisited the legal brief that she presented on my behalf in 2009, and discovered something interesting that she wrote under her Statement of Compliance to New Mexico's rule of appellate procedure (12-213 (F)(G) NMRA, now known as 12-318 NMRA). She wrote: "I certify that the information on this form is true and correct to the best of my knowledge and belief formed after a reasonable inquiry."
Which means, in layman's terms, "I certify that everything here is true and correct to the best of my knowledge and belief after NOT having read and reviewed the entire record." Which, even I have to admit, that reading an entire trial transcript is about as exciting as reading a almanac from front to back; but, it's necessary for someone who wasn't in the courtroom during the trial so as to understand the context of occurrences that took place and potentially infringed upon a defendant's rights. As I have discussed on previous occasions, the right to an appeal is not something guaranteed under the U.S. Constitution; however, since states are permitted to offer more rights than their federal counterparts, "once a state offers to criminal defendants the opportunity to appeal their cases, it must provide a trial transcript to an indigent defendant if the transcript is necessary to a decision on the merits of the appeal."¹ In other words, the right to a record of sufficient completeness becomes a procedural due process right, since, how can a defendant be expected to exercise a right (in this instance, the right to an appeal) without a copy of the record by which he or she was convicted?
The same question is relevant to how can an attorney, who presumably wasn't in the courtroom during the trial, properly have exercised a defendant's constitutional right to an appeal (NM Const. Art. VI, Sec. II) when she admittedly didn't read the entire trial record? Without having read the record, the appellate attorney couldn't possibly know what evidentiary rulings were made by the trial court; or know whether the evidence was sufficient to support the convictions; or know what the parties requested and how the trial court reasoned and ruled; or know whether lesser-included instructions that were not given might have been supported by the evidence; or known what rulings were sought and made on the questions submitted by the jury; or know whether the jury was polled, and what then transpired; or know in what ways plain or fundamental errors may have occurred and otherwise impacted the defendant's constitutional rights; or even know whether the sentence conformed with the constitutional limitations already established.
What I find so frustrating is the fact that the reason I motioned the New Mexico Supreme Court to be able represent myself—at the very least, as co-counsel—was because I understood that no appointed attorney would do or perform anything more than "a reasonable inquiry" into the domino-effect of detrimental rulings and occurrences that took place at my trial. I understood that the only person on the face of the planet who would willingly read a two-thousand-plus page transcript in an attempt to comprehend how the defendant was wrongfully convicted, was me. Moreover, the reason I wrote letters to the appointed-attorney requesting a copy of my trial transcript was because it was clear from my limited conversations with her that she had many clients and interests vying for her time, and I only had one—me.
Twenty years ago, a hypothetical convicted someone in the New Mexico Department of Corrections attempting to seriously pursue legal research was deemed about as "reasonable" a request as asking for weekend furloughs to spend time with family. Even after I was released from the state's supermax (23 hour lockdown) prison into a general population setting, a visit to a prison's law library was basically a visit to the broom closet or storage room. They had one or two tables, a mismatched decades-old collection of legal books from Georgetown Law, a legal dictionary, a list of addresses to innocence advocacy groups across the country, and the address to the New Mexico Supreme Court Library for requesting no more than two legal cases per month. And, an inmate was only permitted access to the "law library" for four hours a day (Mon-Fri) on a first come basis because only 10 inmates were allowed in the library at any given time.
Today, law libraries are offered to us on tablets with up-to-date access to case law, statutes, court rules, and more legal books and publications than I could ever possibly read. In other words, the correctional paradigm in New Mexico is shifting for the better which makes everything from legal research to this newsletter possible. And also makes it possible to see possibilities of justice and maybe even freedom in the not-so-distant future.
Without this shifting correctional paradigm currently taking place in New Mexico, I would not have discovered the four aforementioned cases: State v. Frazier, 2007 NMSC 32, 142 N.M. 120, 164 P.3d 1 (N.M. 2007); State v. Zamarripa, 2009 NMSC 1, 145 N.M. 402, 199 P.3d 846 (N.M. 2008); State v. Barr, 2009 NMSC 24, 146 N.M. 301, 210 P.3d 198 (N.M. 2009), overruled on the grounds by State v. Tollardo, 275 P.3d 110 (N.M. 2012); and, State v. Belanger, 2009 NMSC 25, 146 N.M. 357, 210 P.3d 783 (N.M. 2009). The entirety of the legal arguments on how these cases apply to the issues above will be published here after I submit my petition for habeas corpus to the Second Judicial District Court in Albuquerque, New Mexico. But, for the purposes of this post I'll give a summary.
Frazier (Issue 4) made it impossible under New Mexico's felony murder doctrine for a defendant to be convicted and sentenced for both the predicate felony (armed robbery) and the subsequent murder because of double jeopardy. It's surprising that the aforementioned Justices didn't notice that they were affirming a conviction for felony murder on the very issue where they had just made a substantial precedential ruling. Kind of like taking a shower without realizing that you just stepped out of the shower; but like I said, maybe they don't actually have time to read the briefs presented to them.
Zamarripa is a very interesting case with lots of similarities to my own. More importantly, it was a case overturned by the New Mexico Supreme Court on one issue: that the defendant "was denied the right to confront a critical witness against him at trial." Sound familiar? Well, it should, because my inability to confront my only accuser and alleged codefendant, as my trial attorney Joseph Riggs reiterated many times to the trial court, was the critical issue of my case from which every other issue in my appellate arsenal emanates. This was the first domino of the aforementioned domino-effect, the grand poobah or Maximus of all legal issues; and yet, despite having been brought to the appellate counsel's attention on the docketing statement prepared by trial counsel (assuming, of course, that reading the docketing statement was part of the aforementioned "reasonable inquiry") she missed it.
As mentioned, the parallels between my case and Zamarripa are substantial. The defendant there was likewise being accused by the State without an opportunity to cross-examine the testimony being used to allege guilt. Likewise, the prosecution—probably having learned from its success in having prosecuted me through an accusation via proxy—pursued a similar tactic against Mr. Zamarripa, by motioning the trial court for a ruling that would permit the State to introduce a testimonial statement from the codefendant who had stated to police that he had never seen the victim with a firearm (which diluted the Mr. Zamarripa's self-defense theory) and made statements that opened the door for the State to introduce gang expert testimony, even though the defendant himself wasn't a gang member. Similar to the prosecution's strategy in my case, the State didn't want to grant complete use-immunity to the declarant because if permitted to testify under oath he would have been subjected to cross-examination that would have benefitted the defense.
Therefore, the State motioned the trial court for a limited use-immunity for codefendant where his immunity would only be applicable to the extent of stating on the record whether or not his previous statements to police were truthful. Zamarripa's attorney objected to the statement under the Crawford ruling that prevents such statements from being introduced without subsequently being afforded confrontation and cross-examination. Nevertheless, the defendant's objection was overruled.
Then, a discussion in the courtroom ensued between all the parties as to what portions of the codefendant's statements should be introduced and the court suggested that if both parties were in agreement the whole statement could be introduced. The State wanted that to occur, but wanted to know if the defendant, in agreeing to the entirety of the statement being introduced, whether or not he was waiving his Crawford objections. Defense counsel was adamant that he wasn't:
I am not waiving Crawford. I think the questions I asked are going to be answered with the Fifth Amendment. That was made prior to the Court's ruling. The Court considered [Crawford] and made its decision, and counsel and the client respect that decision, but I think I haven't waived Crawford and I don't intend to, but I think within this purview.... If [the codefendant] takes the fifth amendment, I am stuck with that. That doesn't waive Crawford.... the Crawford argument has been considered and rejected as far as applicable to whether [the codefendant] can testify summarily in the Court's ruling....I would be willing to stipulate without waiving Crawford. I am saying at this point my Crawford argument was much stronger, was asserted prior to the Court's ruling. At this point it really doesn't make much difference. The Court has said this statement is coming in, so I am saying if it's coming in, put it [sic] in the statement. I know I'm not going to get anything more out of [the codefendant] because that's the terms that inure...in the order. The terms are the statement comes in, [the codefendant] doesn't have to testify, can still assert his fifth....The Court rejected [the Crawford argument] and we will proceed.
Similarly, in my case, when the State motioned the trial court for a ruling that would allow the prosecution to introduce an accusation from a codefendant through the proxy of his spouse, my attorney objected both under Crawford and the rules of evidence because the proffered statement and accusation didn't meet all the requirements of an excited utterance (Rule 11-803 (2) NMRA). The trial court determined, however, as it related to the Crawford objection, that since the statement had been made to the codefendant's spouse and since she wasn't law enforcement the statement wasn't "testimonial" and therefore wasn't subject to the constitutional limitations of the confrontation clause. While it was true that the codefendant had made the statement to his spouse, it was also true that he had also made a verbatim statement to the police under interrogation and told the police of his previous, verbatim statement to his spouse. Therefore, the statement itself was potentially testimonial, but the trial court ruled that since the accusation had been repeated to an individual who wasn't law enforcement that suddenly it could be introduced as a direct accusation of guilt against the defendant without being subjected to cross-examination. And, as it related to the rule of evidence objection, the trial court reasoned that since the codefendant was "crying" and "trembling" that it didn't matter that he (a) wasn't the victim of the crime, and, (b) had both a motive and opportunity to fabricate a lie.
Likewise, when it came to the point later in the trial where the trial court changed its previous in limine ruling that permitted the defendant to introduce certain non-hearsay statements of the codefendant for the established purpose of attacking the codefendant's credibility, since his accusation had been introduced without being subjected to cross-examination, the only option available to the defendant, at that point, if the attorney wanted to rebut the accusation was to agree to the entirety of codefendant's statements and accusations. And, in doing so, made a very similar declaration on the record to that of Mr. Zamarripa's attorney:
I'm not going to waive my objections under Crawford. However, given the choice of not doing the cross-examination that I think is relevant in this case or letting the state have all the statements in, I will let all the statements in, I will let all the statements in [sic]. Now, this means that they can come back and pick and choose the truths. And I recognize that that's where that goes. However, I mean, I will go through this process because I think it's important to defend the case properly, stating on the record that I'm not waiving my Crawford objection but proceeding because at this point the Court has fairly effectively gutted the cross-examination and our ability to put on a defense since we can't call Eloy Montano.
Clearly, the situations of both defendants were similar. In both instances the attorneys objected to the initial introduction of the inculpatory testimony because it couldn't be tested through cross-examination. In both instances the respective attorneys agreed to the introduction of the statements in question, but only did so under the duress of a bad situation where all that was left to them was finding the best way to navigate the imposed predicament not of their making. And the Court in Zamarripa agreed, stating, "we have held on numerous occasions that, when confronted with an accomplice's statement, a defendant's rights to confront are only satisfied where he or she is allowed the opportunity to cross-examine the accomplice on the statement." Moreover, as it related to the attorney's choice under the duress of bad situation not of his own making, the Court's ruling is illuminating:
Although the defense counsel participated in the discussion about how best to handle [the codefendant's] statement and, in so doing, stipulated to admission of the statement and said that he waived cross-examination, his Crawford argument had been made and rejected by that point. Participating in the discussion "in light of the rulings made" did not constitute a "knowing and voluntary" waiver of the prior Crawford objection. See Padilla, 2002-NMSC-016, ¶18, 132 N.M. 247, 46 P.3d 1247. We particularly decline to imply a waiver in light of defense counsel's clear statement: "I am not waiving Crawford...and I don't intend to."
...Defense counsel's reliance on [the codefendant's] statement after his Crawford objections had been made and rejected did not constitute a waiver. An objection is not waiver where, after it is overruled, the objecting party agrees to the introduction of statements similarly objectionable and relies on them to make its case. Sayner v. Sholer, 77 N.M. 579, 581, 425 P.2d 743, 744 (1967) ("The court having already overruled the proper objection..., counsel was placed in the rather unenviable position of having to make the best of a bad situation. This was not a waiver.") Arguing evidence admitted over an attorney's objection in the client's favor is consonant with an attorney's professional responsibility to zealously advocate for the client and the attorney's duty to act diligently under Rule 16-103 NMRA. There is no waiver where a defense attorney, his or her original objection rejected by the court, determines to "make the best of a bad situation" and argues the improperly admitted evidence in the client's favor.
Obviously, a diligent attorney advocating zealously for her client would have noticed the similarities between my case and that of Zamarripa and would thereby have presented in her brief the very same arguments that the Court had used to overturn Zamarripa's conviction. In the same way that a diligent attorney would have noticed the similarities between my case and the case in State v. Barr, 2009 NMSC 24, 146 N.M. 301, 210 P.3d 198 (N.M. 2009), overruled on the grounds by State v. Tollardo, 275 P.3d 110 (N.M. 2012).
In Barr, the Court reiterated and slightly expanded New Mexico's holdings on the requirements that the opposing party must meet in order to use the Rule of Completeness to introduce other portions of a declarant's statement not already before the jury. This rule played an oversized role in placing the entirety of my only accuser's testimonial statements before the jury without being permitted the opportunity to cross-examine the declarant on those statements. Any diligent advocate who had read any of the relevant portions of the trial transcript would have noticed that (a) the trial court misapprehended the limitations previously placed on the Rule of Completeness (11-106 NMRA) by the appellate rulings in New Mexico; and (b) trial counsel clearly failed to object to the trial court's misapprehension which amounted to an abuse of discretion. Which brings us, finally, to State v. Belanger, 2009 NMSC 25, 146 N.M. 357, 210 P.3d 783 (N.M. 2009).
In the legal brief that I am currently constructing, the domino-effect I have explained here is presented as a contextual starting point to better understand the cumulative impact of the occurrences that deprived me of my fundamental rights to due process and confrontation. As I have explained, that first domino to fall was the State's introduction of an accusation that couldn't be challenged through cross-examination—i e., Eloy's accusation of guilt presented through the proxy of his spouse. As my trial attorney diligently declared before the trial court: the "[d]efendant is being denied his right to confront and cross-examine under both New Mexico and federal case law. The essence of this trial is this particular issue."
In Belanger, the defendant was likewise placed in the unenviable position of not being able to introduce a declarant's out-of-court statements that were both relevant and crucial to his defense because the declarant was claiming privilege under the Fifth Amendment. The State didn't want to grant the declarant use-immunity because the statements were exculpatory to the defendant and detrimental to its case. The diligent defense attorney asked the court to force the prosecution to grant immunity since it had already declared that it had no intention of prosecuting the declarant, the trial court agreed and the State appealed. The outcome of which was that the New Mexico Supreme Court amended Rule 5-116 NMRA, thereby allowing the defendant to motion the trial court for use-immunity regardless of whether the prosecution agrees. Specifically, the Court determined that: "there are times, however limited, when a trial court must exercise its own review and decide whether to grant use immunity to a defense witness, even without the concurrence of the prosecution. The legitimate needs of the prosecution can and must be balanced against the potential for erosion of important constitutional rights of the accused."
This rule change would have unequivocally altered the trial trajectory of my case. In fact, it stands to reason that the prosecution would never have attempted to introduce its only accusation and direct-evidence of guilt through the vehicle and proxy of the codefendant's spouse had Rule 5-116 allowed for the defense to ask for use-immunity for the witness. The trial court would have had no choice but to apply the two-pronged test established in Belanger—"the defendant must show that the proffered testimony is admissible, relevant and material to the defense and that without it, his or her ability to fairly present a defense will suffer to a significant degree."—balanced against whatever legitimate interest the State may have in preventing the use-immunity from being granted (and the State's intent to prosecute the declarant is not enough because the Court reasoned that use-immunity would not prevent a future prosecution.).
Collectively, the holdings in these four cases should have been applied to the issues in my case. With the exception of Frazier, any one of the remaining three cases could have overturned my wrongful conviction; and, together, well, I think that possibility speaks for itself. The challenge I'm faced with as I look to apply these holdings to the facts and issues of my case is whether the ineffective assistance of counsel rubric established in Strickland will actually produce a ruling that my counsel was constitutionally "ineffective" for having failed to flag and present these issues and holdings to either the trial or appellate courts.
Strickland requires a defendant who claims ineffective assistance of counsel to clearly demonstrate both cause and prejudice, the latter of which being the more difficult of the two hurdles to overcome. But, in applying Strickland, the New Mexico Supreme Court has ruled as it relates to the "prejudice" prong that "[a] petitioner suffers prejudice when there is a reasonable probability that had it not been for a deficient performance by appellate counsel, the petitioner would have prevailed on direct appeal."³ Which, based on what I have alluded to here, I believe that standard can be met.
When an innocent criminal defendant is convicted and subsequently denied the ability to defend his own case and thereby appointed counsel, it's imperative that the attorney be constitutionally effective to the literal extent of all that "effective" implies. A "reasonable inquiry," as my appointed counsel qualified her efforts of delving into my trial record, where the most obvious issues were overlooked is neither diligent, zealous or "reasonable." According to Rule 16-103 NMRA on Diligence, "[a] lawyer should pursue a matter on behalf of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor." Asking that an attorney be apprised of relevant legal decisions from the very Court where her client's capital murder case was pending for four years and forty-two days doesn't seem like too much to ask; and yet, that's exactly what I asked from the attorney I didn't hire. What I wanted was the ability and resources by which to vindicate my own right to an appeal through self-representation; and since that right was denied and counsel was appointed, the fact that that counsel couldn't be bothered to review enough of the record to know how current rulings of the same Court ultimately affected the constitutionality of her client's capital murder conviction is beyond troubling—it's "ineffective assistance of counsel"—it's a violation that prevented plain and fundamental errors from being brought to both the trial and appellate courts' attention that has prejudiced the client with the loss of more than two decades of his liberty. Where four years and forty-two days was just the beginning.
FOOTNOTES:
1. Ake v. Oklahoma, 470 U.S. 68, 76 (1985) 2. Stroud v. Hooks, 3:18-CV-00120-FDW (W.D.N.C. Feb 26, 2019) 3. Likens v. Franco, 433 P.3d 288, ¶34 ((N.M. 2018)
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