Deferring Ineffectiveness Claims to Collateral Review: Ensuring Equal Access and a Right to Appointed Counsel

The article addresses a problem in criminal procedure that leaves an increasingly large number of defendants without a remedy to protect their right to effective assistance of counsel at trial and on direct appeal. The problem stems from the decision of states to move ineffectiveness claims from direct appeal to the post-conviction process and the fact that over half the states limit access to post-conviction remedies to defendants who are in custody. If the defendant’s prison sentence is completed during the period direct appeal is pending, or, in some jurisdictions, before the collateral review process is completed, the defendant is shut out of the only forum to challenge the ineffectiveness of trial counsel. The custody requirement also deprives the defendant of access to the only forum to challenge the ineffectiveness of direct appeal. Moreover, in contrast to direct appeal, states do not have an obligation under the Fourteenth Amendment to appoint counsel for indigent defendants in post-conviction proceedings, and, in the many states, there is no state law right to appointed counsel in non-capital post-conviction cases. The article argues that because a defendant has a constitutional right to effective trial and direct appeal counsel, a state violates fairness and equality mandated by Fourteenth Amendment if it closes the post-conviction process to defendants who complete their prison sentence. Simply put, the right to effective trial and direct appeal counsel is of “no value” if a state denies access to the only procedure to enforce the right. Drawing on the Court’s recent decision in Halbert v. Michigan, the article argues that where the post-conviction process serves as the “one and only appeal” for claims of ineffectiveness of trial and direct appeal counsel, fairness and equality require the state to appoint counsel for indigent defendants