Loving v. U.S., 68 M.J. 1

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. an appellate court considers claims of ineffective assistance of counsel under the two-prong test of Strickland; first, an appellant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, appellant must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive appellant of a fair trial, a trial whose result is reliable; the court need not analyze the Strickland prongs in any particular order
2. to establish prejudice under Strickland, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the context of a capital case challenging the death sentence, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence; the question is whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance
3. even assuming defense counsel was deficient in capital murder case in investigation and presentation of mitigation evidence related to petitioner’s background and social history, petitioner was not prejudiced, as required to support an ineffective assistance of counsel claim, where defense counsel presented a mitigation case that devoted a significant degree of attention to petitioner’s troubled childhood, where the evidence that was not presented, including expert testimony explaining how petitioner’s traumatic childhood negatively impacted his development, did not materially alter his sentencing profile, and where aggravating factors were overwhelming
4. to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing

Core Criminal Law Subjects: Evidence: Relevance

1. evidence about an accused’s background and character is relevant in sentencing because of the belief, long held by this society, that an accused who commits criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than an accused who has no such excuse

Trial Stages: Sentence and Punishment: Evidence

1. evidence about an accused’s background and character is relevant in sentencing because of the belief, long held by this society, that an accused who commits criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than an accused who has no such excuse

Trial Stages: Writs and Interlocutory Appeals: Generally

1. under the standards of 28 USC § 2254(d), a habeas review of a constitutional claim would normally employ a deferential review of the challenged decision
2. to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing

Trial Stages: Appeals: Harmless / Prejudicial Error

1. an appellate court considers claims of ineffective assistance of counsel under the two-prong test of Strickland; first, an appellant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, appellant must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive appellant of a fair trial, a trial whose result is reliable; the court need not analyze the Strickland prongs in any particular order
2. to establish prejudice under Strickland, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the context of a capital case challenging the death sentence, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence; the question is whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance
3. in considering claims of ineffective assistance of counsel, an appellate court undertakes review of the prejudice prong de novo
4. to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing
5. even assuming defense counsel was deficient in capital murder case in investigation and presentation of mitigation evidence related to petitioner’s background and social history, petitioner was not prejudiced, as required to support an ineffective assistance of counsel claim, where defense counsel presented a mitigation case that devoted a significant degree of attention to petitioner’s troubled childhood, where the evidence that was not presented, including expert testimony explaining how petitioner’s traumatic childhood negatively impacted his development, did not materially alter his sentencing profile, and where aggravating factors were overwhelming
6. in capital murder case, where the mitigation case presented at the DuBay hearing provided some new information and arguably did more than round out the details of petitioner’s personal history by offering additional grim and graphic information about his disadvantaged upbringing, it did not ultimately change the sentencing profile presented by defense counsel at trial, and the new evidence did not sufficiently differ in strength and subject matter from the information considered by the members at trial to establish prejudice; as such, petitioner failed to meet his burden to show a reasonable probability that the mitigating evidence introduced at the DuBay hearing would have produced a different result had it been introduced at trial and that at least one member would have struck a different balance

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. an appellate court considers claims of ineffective assistance of counsel under the two-prong test of Strickland; first, an appellant must show that counsel’s performance was deficient; this requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment; second, appellant must show that the deficient performance prejudiced the defense; this requires showing that counsel’s errors were so serious as to deprive appellant of a fair trial, a trial whose result is reliable; the court need not analyze the Strickland prongs in any particular order
2. to establish prejudice under Strickland, appellant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different; a reasonable probability is a probability sufficient to undermine confidence in the outcome; in the context of a capital case challenging the death sentence, an appellate court reweighs the evidence in aggravation against the totality of available mitigating evidence; the question is whether if the members had been able to place the additional evidence on the mitigating side of the scale, there is a reasonable probability that at least one member would have struck a different balance
3. in considering claims of ineffective assistance of counsel, an appellate court undertakes review of the prejudice prong de novo
4. under the standards of 28 USC § 2254(d), a habeas review of a constitutional claim would normally employ a deferential review of the challenged decision.
5. to establish prejudice for an ineffective assistance of counsel claim with respect to sentencing in a capital case, the new evidence that a habeas petitioner presents must differ in a substantial way - in strength and subject matter - from the evidence actually presented at sentencing