What is the standard for determining whether appellate counsel provided effective assistance?

In 2009, the New York Court of Appeals in People v Borrell (2009 NY Slip Op 03589, 12 NY3d 365[2009] held that the test if not whether appellate counsel failed to raise a potentially winning and potentially dispositive issue, but whether the failure of appellate counsel to raise such an issue deprived defendant of the advocacy to which he was constitutionally entitled. The Court explained that “[t]o be meaningful, appellate representation need not be perfect, and representation may be meaningful even where appellate lawyers have failed to brief potentially meritorious issues.” (One wonders if clients think that appellate counsel who failed to raise a meritorious issue was effective).

By contrast, in Ramchair v Conway (-- F3d --, 2010 WL 1253893 [2d Cir 2/2/10] the United States Court of Appeals for the Second Circuit repeated its prior holdings that that “to establish ineffective assistance of appellate counsel, [the movant] must show that ‘counsel’s representation fell below an objective standard of reasonableness,’ and that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different” (Forbes v 16 United States, 574 F3d 101, 106 [2d Cir. 2009] [per curiam])and that an appellant “may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker” (Mayo v Henderson, 13 F3d 528, 533 [2d Cir 1994]).

Applying this far less stringent test, the Court in Ramchair v Conway held that a New York appellant had been denied his right to effective appellate counsel when his counsel failed to raise a meritorious issue, but had raised two weaker issues, instead. Previously, the New York Court of Appeals had affirmed a rejection of that claim (People v Ramchair, 8 NY3d 313, 316 [2007]) reasoning that appellate counsel's brief to the Appellate Division had been “comprehensive,” and the arguments raised therein “strong” (Id.). The New York Court of Appeals concluded that “appellate counsel might have determined as a matter of reasonable appellate strategy that there was a greater likelihood of success pursuing the right to present a defense argument, rather than focusing on the mistrial application" (Id., 8 N.Y.3d at 317). By contrast, the Second Circuit found that raising issues that had minimal support in the law, while failing to raise the issue which a reasonable appellate court would have granted, deprived Mr. Ramchair of his right to effective assistance of appellate counsel and that the New York Court of Appeals' conclusion to the contrary was unreasonable.

Of course, pursuant to the Supremacy Clause of the United States Constitution (US Const Article VI, Clause 2) New York may not afford criminal appellants a lesser degree of protection of the right to effective assistance of appellate counsel than provided under the United States Constitution. But what is the correct standard? Ultimately, only the United States Supreme Court can answer that.