UNITED STATES OF AMERICA, PETITIONER V. HARRISON P. CRONIC

   No. 82-660

   In the Supreme Court of the United States

   October Term, 1983

   On writ of certiorari to the United States Court of Appeals for the
tenth circuit

   Brief for the United States

            TABLE OF CONTENTS
   Opinion below
   Jurisdiction
   Constitutional provision involved
   Statement
   Summary of argument
   Argument:
      The court of appeals erred in vacating respondent's
      convictions on the ground of ineffective assistance of
      counsel, because the court did not find that counsel's
      actual performance was deficient in any respect
      A.  No claim of ineffective assistance of counsel
          should be entertained unless serious derelictions
          by counsel are shown that substantially prejudiced
          the defense
      B.  The origins and evolution of the right to
          "effective" assistance of counsel confirm the
          soundness of requiring a showing of serious error and
          substantial prejudice or unfairness
          1.  The explicit textual guarantee
          2.  Use of the term "effective" to connote an
            implicit requirement that counsel be free from
            external restraints
          3.  Use of the term "effective" to refer to the
            nature of counsel's performance without regard
            to external restraints
      C.  The circumstances relied upon by the court of
          appeals do not support its finding of
          ineffectiveness
          1.  There was adequate time to prepare for trial
          2.  Counsel's inexperience did not justify a
            finding of ineffectiveness
          3.  The finding of ineffectiveness was not
            justified by the complexity of the case
          4.  The gravity of the charges does not justify
            the finding of ineffectiveness
          5.  The location of witnesses has not been shown
            to have impaired the effectiveness of
            respondent's trial counsel
      D.  The court of appeals erred in believing it would
          be inappropriate to require a showing of specific
          errors by counsel
   Conclusion
   Appendix A
   Appendix B
   Appendix C

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1a-7a) is reported
at 675 F.2d 1126.

                             JURISDICTION

   The judgment of the court of appeals (Pet. App. 8a) was entered on
April 19, 1982.  A petition for rehearing was denied on July 16, 1982
(Pet. App. 9a).  On September 9, 1982, Justice White extended the time
within which to file a petition for a writ of certiorari to and
including October 14, 1982.  The petition was filed on that date and
granted on February 22, 1983 (J.A. 123).  The jurisdiction of this
Court rests upon 28 U.S.C. 1254(1).

                   CONSTITUTIONAL PROVISION INVOLVED

   The Sixth Amendment to the United States Constitution provides in
pertinent part:

         In all criminal prosecutions, the accused shall enjoy the
      right * * * to have the Assistance of Counsel for his defense.

                          QUESTION PRESENTED

   Whether the court of appeals correctly reversed respondent's
convictions on the ground that he did not receive effective assistance
of counsel at trial, without identifying any error by counsel -- much
less a serious dereliction that fell outside the range of competence
demanded of attorneys in criminal cases -- and without finding any
prejudice to respondent.

                               STATEMENT

   1.  On February 5, 1980, respondent and co-defendants Wylie Merritt
and Carolyn Cummings were indicted in the United States District Court
for the Western District of Oklahoma on 13 counts of mail fraud in
violation of 18 U.S.C. 1341 and 2.  /1/ The indictment charged that
respondent and the co-defendants had engaged in a check-kiting scheme
between banks in Tampa, Florida and Norman, Oklahoma.  The checks were
drawn on the accounts of Skyproof Manufacturing, Inc., a Florida
corporation that was held out as a manufacturer of roof trusses for
mobile homes (Pet. App. 1a-2a;  J.A. 10-23).

   Respondent and Cummings initially were represented by a single
attorney, Arnold D. Levine of Tampa, Florida.  Prior to trial,
however, Levine moved to withdraw as counsel for respondent on the
ground that the interests of Cummings and respondent were in conflict.
 Respondent filed a pro se opposition to the motion to withdraw.
After the motion was filed, the court appointed another attorney,
Chris Colston, to represent respondent, subject to the possibility of
relieving Colston if the court declined to grant Levine's motion to
withdraw. (J.A. 24-27).

   At a hearing on the motion to withdraw, held on June 19, 1980,
respondent attempted to establish that Levine actually sought to
withdraw because of a dispute over fees (J.A. 27-31).  After the
hearing had progressed for a short period, the court concluded that
there was indeed a conflict of interest and hostility between
respondent on the one hand and Levine and Cummings on the other, and
it therefore granted Levine's motion to withdraw (J.A. 31-32).

   The trial previously had been scheduled to begin on June 30, 1980,
some 11 days after the hearing (J.A. 32-33).  At the hearing, however,
respondent informed the court of his view that he could not receive a
fair defense if Colston were given only "one or two weeks to prepare"
for trial (J.A. 33).  Levine told the court that Colston would need 30
days to prepare (J.A. 35), and Colston requested that a minimum of 30
days be allowed (J.A. 35).  The court granted a continuance, but
decided to cut the continuance "a few days short" of the 30 days
requested by Colston so that the trial would commence on the first day
of the court's July docket (J.A. 35).  The record does not disclose
that Colston or respondent thereafter raised any further objection to
the July 14 trial date, which was 25 days from the date of the
hearing.

   Colston stated at the hearing on Levine's motion to withdraw that
the United States Attorney's Office had granted him access to the
files in the postal inspector's office the previous day (J.A. 35), and
the Assistant United States Attorney reiterated at the hearing that
the responsible postal inspection official was prepared to meet with
Colston at the latter's convenience for discovery purposes (J.A. 36).
At the close of the hearing, respondent informed the court that he had
spoken with Colston and that Colston had "been most helpful" (J.A.
38), but respondent pointed out that Colston's specialty was real
estate law and that Colston had previously been involved in only one
federal criminal case.  The court replied that if respondent intended
by this observation to request that he be permitted to select his own
lawyer to be appointed by the court, that request was denied.  The
court explained that Colston was "very bright" and that he had been
selected from an alphabetical list of lawyers in the district who were
qualified and screened for this purpose (J.A. 38).

   2.a.  When the trial commenced as scheduled on July 14, 1980, the
court asked Colston whether respondent was "ready," and Colston said
"yes" (Tr. 3).  Another attorney, Ryland Rivas, was present to assist
Colston in his representation of respondent at trial (Tr. 2).

   The government introduced evidence establishing the existence of
the check-kiting scheme between Skyproof accounts in banks in Tampa
and Norman, with the checks cleared by the use of the mails through
intermediate banks (J.A. 44-46, 48-52, 58-59, 62-64;  Tr. 110-113,
114-130, 134-148, 150-151, 152-160, 167-184, 227-255, 261-283,
323-324).  As a result of these transactions, the Norman Bank of
Commerce suffered a loss of approximately $484,000 (J.A. 51;  Tr. 176,
300, 448).  The checks were signed by co-defendant Cummings, who was
formally the president of Skyproof, but the evidence showed that
respondent directed the affairs of Skyproof (J.A. 49-50, 68, 73;  Tr.
169-172, 186, 223-224, 304-307, 318, 320, 340-343).  Respondent had
not been identified as an officer or owner of the company because of
prior difficulties with the Internal Revenue Service and unfavorable
publicity about prior business dealings (Tr. 475).  Cummings testified
that although she was president of Skyproof, respondent directed its
affairs, conceived of the check-kiting scheme, and instructed her to
sign checks (J.A. 83-84;  Tr. 479-488, 491-492, 494-496, 505, 508,
510-512).  Co-defendant Wylie Merritt, an accountant residing in
Norman who participated in some of the transactions, also testified
that respondent was the true head of Skyproof and had directed its
affairs (Tr. 365, 368, 370, 373, 382, 389, 392, 394-395).  /2/

   b.  Colston's trial strategy, as the court of appeals observed,
consisted in large part of "putting the government to its proofs,
pointing an accusatory finger at one of the allegedly defrauded banks,
and arguing that the bank's toleration of overdrafts was an informal
extension of credit to a legitimate business" (Pet. App. 2a).
Colston's questions to employees of the Norman Bank of Commerce
suggested that, because the bank's lending capability was based upon
the total amount of deposits on its books, the Bank had condoned the
deposit of overdrafts that it believed would be made good later (J.A.
66-67;  Tr. 443).

   In an effort to disassociate respondent from both the check-kiting
transactions and the business entity used in perpetrating the fraud,
Colston, during cross-examination, elicited testimony that Cummings
had executed the checks, that the officials of the banks involved had
never heard of respondent, and that Cummings, not respondent, was the
president and sole stockholder of Skyproof (J.A. 46-47, 53-56, 61-62,
65, 68, 73-74, 77, 80;  Tr. 108, 204-206).  Colston also sought to
establish that although the indictment alleged that Skyproof was
merely a sham, the corporation in fact was a legitimate and growing
business concern and thus would have had a lawful reason to conduct a
large volume of transactions by check (J.A. 70-71, 79, 87).  In
addition, although bank employees testified on direct examination that
in the normal course of business checks were transmitted by express
mail to clearinghouses for collection, those employees admitted on
cross-examination by Colston that they had no personal knowledge that
the specific overdrafts at issue in this case actually were sent
through the mails (J.A. 47-48;  Tr. 149-150, 151-152, 160-162).
Finally, Colston's questioning of the government's principal
witnesses, co-defendants Merritt and Cummings, established that both
would derive substantial benefits with respect to the charges pending
against them as a result of their testimony against respondent (J.A.
77-78, 79, 90-91).  Colston also pursued each of these defense
theories during his closing argument (J.A. 97-103).

   c.  At the close of the government's case, the defense made a
motion to dismiss the indictment on the ground that the government had
failed to establish any case against respondent.  The district court
denied the motion, concluding that the evidence presented a question
for the jury (J.A. 94).  The court previously had granted respondent's
motion to subpoena seven witnesses, and the record indicates that at
least some of those witnesses were present at the time of trial (J.A.
97).  Colston informed the court, however, that the defense would not
call any witness (J.A. 94).  During this conference with the judge,
the following colloquy occurred regarding Colston's performance (J.A.
94-95):

         THE COURT:  * * * This young man, Colston, I think, has done
      a tremendous job representing you.

         (RESPONDENT):  I agree, certainly agree.

         THE COURT:  You acted at one time that you weren't happy, but
      that was earlier when you hadn't seen him in action.

         (RESPONDENT):  I am certainly glad you overruled me.

         THE COURT:  He's a very fine young lawyer and this other
      young man over there too.  * * *

   The court then explained to respondent that he had the right to
testify or not to testify, that if he did testify he would be subject
to cross-examination on the basis of a prior conviction in Tampa for
giving a false statement to a bank, and that he was entitled to have
the jury instructed that no adverse inference should be drawn from his
failure to testify (J.A. 95-97).  Respondent stated that he would
defer to counsel on whether the instruction should be given (J.A. 95)
and agreed that it should be.  After discussing the possible use of
the prior conviction, the court determined that respondent's decision
not to take the stand was made intelligently, with knowledge of all
the options (J.A. 96-97).  Immediately thereafter, a further exchange
occurred regarding the performance of defense counsel (J.A. 97):

         THE COURT:  I want to make a record on one thing I forgot,
      but the second after the Court Reporter left in there,
      (respondent) expressed his personal appreciation of these
      lawyers for the good work they have done and he wanted to make
      it a part of the record.

         (RESPONDENT):  I would also like to state the reason I went
      up to Mr. Colston's office yesterday was so that Mr. Emery, his
      senior law partner, would know that before I either won or lost.

   After Colston expressed his satisfaction with the jury
instructions, the court similarly stated to Colston and co-counsel
Rivas (J.A. 104):

         Well, boys, I want to tell you again I appreciate you two,
      you know, this guy couldn't have got a better representation if
      he had hired someone in Florida or Oklahoma City or anyplace
      else and I appreciate it.

   After deliberating for 2 1/4 hours, the jury returned a verdict of
guilty on 11 counts and not guilty on two counts (Tr. 601).  /3/ On
August 28, 1980, respondent was sentenced to a total of 25 years'
imprisonment and a fine of $11,000 (Pet. App. 2a;  J.A. 5).

   3.  The court of appeals reversed respondent's convictions on the
ground that he was denied the effective assistance of counsel at trial
(Pet. App. 2a).  The court did so even though the district court had
not conducted an evidentiary hearing or made factual findings
concerning the effectiveness of counsel.  /4/ Nor did the court of
appeals find it significant that, as the government contended, there
had been no showing that respondent's counsel had failed to exercise
"'the skill, judgment and diligence of a reasonably competent defense
attorney'" -- the standard utilized by the Tenth Circuit for
evaluating claims of ineffective assistance of counsel (id. at 3a,
quoting Dyer v. Crisp, 613 F.2d 275, 278 (en banc), cert. denied, 445
U.S. 945 (1980)).  The court explained that under its prior decisions,
"when circumstances hamper a given lawyer's preparation of (the case),
the defendant need not show specified errors in the conduct of his
defense in order to show ineffective assistance of counsel" (Pet. App.
3a).  The court of appeals instead "inferred" that counsel's
representation was inadequate by relying on five "circumstances" (Pet.
App. 4a):

      (1) the time afforded for investigation and preparation;  (2)
      the experience of counsel;  (3) the gravity of the charge;  (4)
      the complexity of possible defenses;  and (5) the accessibility
      of witnesses to counsel.

   The court of appeals did not independently assess the degree to
which these factors actually indicated that defense counsel's
performance in this case was seriously deficient;  it simply compared
the circumstances of this case with those of United States v. King,
664 F.2d 1171 (10th Cir. 1981), in which it likewise had "inferred"
that the defendant had received ineffective assistance of counsel, and
concluded that the same result should obtain here.

   The court observed, for example, that Colston had 25 days to
prepare for trial of a case that the government had developed over a 4
1/2-year period, as compared with the 27 days available for
preparation of a defense to the tax fraud charge in King that the
government developed over a 3-year period.  The court also noted that
respondent faced a sentence of up to 65 years' imprisonment and
actually was sentenced to 25 years, while in King the defendant faced
a maximum sentence of only five years.  The court of appeals further
noted that while it had not discussed in King the matter of the
accessibility of witnesses to counsel, here -- although no defense
witnesses testified at trial -- the government's witnesses came from
four states (Pet. App. 4a-5a).  In addition, the court noted that
respondent lived in Florida and Georgia and his lawyer lived in
Oklahoma (id. at 5a).

   The court did perceive a material distinction between this case and
King in that the latter was more complex, involving approximately 200
witnesses and 5000 exhibits, as compared with 17 witnesses and 50
exhibits in this case (Pet. App. 2a, 5a).  Nevertheless, the court
observed that "(respondent's) case was not an ideal one for an
aspiring criminal defense lawyer to cut his teeth on" (ibid.) because,
in the court's view, "'(m)ail fraud cases tend to be factually and
legally complex'" (ibid., quoting United States v. Golub, 638 F.2d
185, 188 (10th Cir. 1980)).  Finally, the court reasoned that if this
case indeed was simpler than King, that advantage was offset by
Colston's lack of experience in criminal trials (Pet. App. 5a).

   4.  The government filed a petition for rehearing with suggestion
for rehearing en banc, noting that the claim of ineffective assistance
of counsel had been raised for the first time on appeal and arguing,
inter alia, that the claim should not be upheld without an evidentiary
hearing.  Pet. for Reh. 1-2.  The government also pointed out (id. at
7-8) that Colston was assisted in his representation of respondent by
another attorney, Ryland Rivas.  In an affidavit appended to the
government's petition for rehearing, Rivas stated that he had been
admitted to practice in 1974 and that prior to 1980, the date of
respondent's trial, he had had "extensive experience in the practice
of criminal law and * * * had tried jury cases ranging from escape
from the penitentiary to murder in the 1st degree" (App. infra, 1a).
Rivas also stated that he "assisted Mr. Chris Colston in his
preparation of defense for (respondent) and was present during all
stages in the proceedings to assist Mr. Colston with the preparation
and drafting of motions, examination of witnesses and examination of
all evidence available to Mr. Colston" (ibid.).

   The government's petition for rehearing and suggestion of rehearing
en banc were denied (Pet. App. 9a).

                          SUMMARY OF ARGUMENT

   The court of appeals erred in reversing respondent's convictions on
the ground that he received ineffective assistance of counsel, without
finding that counsel committed any errors whatever or that respondent
was prejudiced in any way by his attorney's representation.

   A.  A final judgment of conviction entered after a criminal trial
at which the resources of society were concentrated to decide the
guilt or innocence of the accused should not lightly be set aside on
the basis of a subsequent trial of his lawyer's performance.  The
focus of the inquiry, rather, must be on whether the accused received
a fair trial in light of the assistance rendered by counsel.
Accordingly, where, as here, counsel was unfettered by improper
external restraints, a court may not set aside a conviction on the
basis of assertedly ineffective assistance of counsel unless it finds
that counsel committed serious errors that substantially prejudiced
the accused or fundamentally undermined the fairness of the
proceedings.  There are other measures available to legislatures,
courts, law schools, and the organized bar to improve the quality of
performance by defense counsel.  That is not, however, the principal
concern of a court considering the validity of a final judgment of
conviction.  Unless asserted defects in counsel's performance actually
had an "impact on the criminal proceeding, * * * there is no basis for
imposing a remedy in that proceeding." United States v. Morrison, 449
U.S. 361, 365 (1981).

   There are, moreover, a number of mechanisms other than the Sixth
Amendment for correcting serious errors that were overlooked in a
criminal trial.  Under Fed. R. Crim. P. 52(b), plain errors may be
noticed on appeal even if counsel overlooked them at trial, and a new
trial may be granted under Fed. R. Crim. P. 33 on the basis of newly
discovered evidence.  The Court also has made clear that victims of a
fundamental miscarriage of justice ordinarily will be able to satisfy
the "cause and prejudice" standard for overcoming a procedural
default.  In order to avoid circumvention of the standards governing
the correction of error by these other mechanisms, a convicted
defendant seeking relief on the ground of ineffective assistance of
counsel must identify errors by his attorney that were at least as
grave as the substantive errors that would warrant setting aside a
conviction under thos standards.

   This conclusion is supported by a proper respect for the integrity
of trial courts charged with the obligation to assure the availability
of adequate assistance of counsel for defendants.  In addition, the
lawyer for the accused is an officer of the court who is ethically
bound competently and zealously to advance the interests of his
client, and a reviewing court must "start with a presumption that he
was conscious of his duties to his clients and that he sought
conscientiously to discharge those duties." Matthews v. United States,
518 F.2d 1245, 1246 (7th Cir. 1975) (Stevens, J.).

   B.  The evolution of the right to "effective" assistance of counsel
confirms that a defendant must demonstrate serious error and
substantial prejudice or unfairness.  The concept of "effective"
assistance finds it origins in Powell v. Alabama, 287 U.S. 45 (1932),
in which the Court held that the duty to assign counsel was not
discharged by appointment of an attorney so late in the case as to
preclude the giving of effective aid in preparation and at trial.  The
Court since has held that other external restraints on the ability of
counsel to perform in his traditional role are invalid under the Sixth
Amendment because they prevent the attorney from rendering "effective"
assistance.  See, e.g., Glasser v. United States, 315 U.S. 60 (1942)
(conflict of interest);  Geders v. United States, 425 U.S. 80 (1976)
(prohibition against consultation with defendant during overnight
recess).  The Court has treated these cases as involving the
functional equivalent of a total denial of the right to counsel, and
it accordingly has reversed the convictions without requiring any
specific showing of what the attorney would have done if he had been
free of the external restraint or the degree to which the accused was
prejudiced as a result, just as it did in the case of a total denial
of counsel in Gideon v. Wainwright, 372 U.S. 335 (1963).  Where the
alleged "ineffectiveness" of counsel stems not from external
restraints, but from the inadequacy of counsel's own performance, the
errors likewise must be equivalent in their gravity to a denial of the
"Assistance of Counsel" to which the Sixth Amendment explicitly
refers.

   The Court's decision in McMann v. Richardson, 397 U.S. 759 (1970),
supports this conclusion.  There the Court indirectly addressed the
question of the competence of counsel in holding that a guilty plea
could not be set aside as unintelligently made unless the defendant
received advice that was not merely mistaken but outside the range of
competence demanded of attorneys in criminal cases.  By identifying
the ultimate issue to be whether the plea was intelligently made,
McMann indicates that the primary focus must be on the rights of the
accused, not the actions of his attorney.  Advice so deficient that it
renders a guilty plea unintelligent clearly can be said to have
substantially prejudiced the accused and led to a fundamentally unfair
result;  McMann thereby supports the view that this should be the
perspective of the courts in ineffectiveness cases generally.  At a
minimum, McMann and the general thrust of the subsequent decisions of
the courts of appeals require that the convicted defendant identify
specific and serious derelictions by counsel that fell below the
minimum level of performance of reasonably competent counsel and
materially prejudiced the accused.  The court of appeals erred in
reversing respondent's convictions without making such a finding here.

   C.  The circumstances relied upon by the court of appeals were
wholly insufficient to support what it termed an "inference" that
respondent received ineffective assistance of counsel.  Clearly it
cannot be said that the 25 days counsel was allowed prior to trial
precluded him from consulting with respondent and preparing the
defense, so that a conclusive presumption of ineffective assistance of
counsel could be justified under the rationale of Powell v. Alabama.
This Court's decisions in Avery v. Alabama, 308 U.S. 444 (1940), and
Chambers v. Maroney, 399 U.S. 42, 53-54 (1970), foreclose such a
conclusion.  Furthermore, the district court in fact granted
respondent's request for a continuance to allow him time to prepare
for trial, although it cut the continuance a few days short to
accommodate the trial date to the court's schedule.  It was entirely
reasonable for the court to take this course, especially since counsel
proclaimed at the outset of trial that he was ready to proceed.

   Nor did attorney Colston's lack of prior experience in criminal
trials warrant reversal of the conviction without a showing that this
inexperience in turn led to specific errors in conducting the defense.
 Indeed, the district court and respondent expressed enthusiastic
approval of Colston's performance.  The court of appeals also
overlooked the fact that Colston was assisted by another attorney who
apparently had extensive prior experience in criminal trials.

   In addition, whatever the validity of the court of appeals' view
that mail fraud cases generally "tend" to be complex, the court
pointed to nothing to suggest that this case was too complex for
Colston and his colleague to grasp in the time allowed.  The fact that
respondent faced up to 65 years' imprisonment merely reflected that he
was indicted on 13 separate counts of mail fraud arising out of the
same course of conduct, each of which carried a maximum five-year term
of imprisonment.  And, finally, there is no indication that the
location of the government's witnesses in several different states and
respondent's residence in Florida and Georgia had any effect on
counsel's preparation of the case.

   D.  The court of appeals erred in believing that because
circumstances "hampered" counsel's preparation, respondent should be
excused from showing that counsel's performance was not within the
range of competence demanded of defense counsel.  The factual premise
for the court's ruling is unsupported, because there was no finding
that counsel in fact were in any way "hampered" in their preparation.
But even if there were time or other constraints on their performance,
the same probably could be said of the performance by defense counsel
in most criminal trials.  If the asserted lack of preparation or
understanding of certain aspects of the case actually affected the
trial, respondent should be capable of identifying the acts or
omissions that resulted.  The court of appeals failed to find any such
errors, however, and its judgment therefore must be reversed.

                               ARGUMENT

 THE COURT OF APPEALS ERRED IN VACATING RESPONDENT'S CONVICTIONS ON
THE GROUND OF INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE THE COURT DID
NOT FIND THAT COUNSEL'S ACTUAL PERFORMANCE WAS DEFICIENT IN ANY
RESPECT

   The Sixth Amendment provides that "(i)n all criminal prosecutions,
the accused shall enjoy the right * * * to have the Assistance of
Counsel for his defense." The explicit requirement of the Amendment of
course was satisfied in this case, because respondent was represented
by counsel in his prosecution for mail fraud.  Indeed, he was assisted
by two lawyers, one of whom -- according to an uncontradicted
affidavit filed by the government in the court of appeals (App.,
infra, 1a) -- had extensive experience in criminal trials.

   The court of appeals nevertheless held that respondent was denied
his Sixth Amendment right because, in the court's view, the assistance
of counsel respondent concededly received must be deemed to have been
"inadequate" or "ineffective" (Pet. App. 4a-5a).  Yet in vacating
respondent's convictions on this ground, the court did not point to
any error committed by counsel, much less conclude that any such error
was of a kind or magnitude that it caused counsel's performance to
fall below some minimally acceptable level of competence for a lawyer
in a criminal case or deprived respondent of a fair trial.  Nor did
the court find that any error by counsel -- assuming there was error
-- had a probable effect on the outcome of the prosecution or
substantially prejudiced the defense.

   Where, as here, the timing or other circumstances of an attorney's
appointment were not such as to require a conclusive presumption by
the reviewing court that an attorney would be unable to prepare and
conduct an adequate defense (compare Powell v. Alabama, 287 U.S. 45,
71 (1932)), the court may set aside a conviction on the ground of
inadequate assistance of counsel only if it finds specific "gross
errors" or "serious derelictions" by counsel in his actual handling of
the case that caused his representation to fall below the range of
competence demanded of attorneys in criminal cases (McMann v.
Richardson, 397 U.S. 759, 772, 774 (1970)) and further finds that the
defendant suffered substantial prejudice as a result (see, e.g.,
Chambers v. Maroney, 399 U.S. 42, 53-54 (1970)).  Because respondent
has not established, and the courts below did not find, that counsel
committed any such errors or that respondent was prejudiced by
counsel's performance (the court of appeals reversed respondent's
convictions without even providing for an evidentiary hearing on these
matters), the judgment of the court of appeals should be reversed and
respondent's convictions reinstated.  /5/

       A.  No Claim Of Ineffective Assistance Of Counsel Should

               Be

               Entertained Unless Serious Derelictions By Counsel Are

               Shown That Substantially Prejudiced The Defense

   A number of considerations pertaining to the nature and purposes of
an inquiry into counsel's performance at trial strongly suggest that
where counsel was unfettered by external restraints on his ability to
fulfill a lawyer's traditional role, a court may set aside a
conviction on the basis of assertedly ineffective assistance of
counsel only upon a showing of serious errors that substantially
prejudiced the accused or fundamentally undermined the fairness of the
proceedings.

   1.  As relevant here, the Sixth Amendment provides only that "the
accused shall enjoy the right * * * to have the Assistance of Counsel
for his defense." It does not state that whatever assistance of
counsel the accused receives must be "effective." That word instead
has been used by the courts to describe certain features of the right
to counsel as that right has evolved judicially over the years.

   The word "effective" has a number of different meanings in ordinary
usage, and it has been employed to describe somewhat different
concepts in Sixth Amendment doctrine.  Indeed, the nature of an
inquiry into a lawyer's performance may vary considerably depending
upon the meaning given to the term.  For example, if the word
"effective" were understood to mean "productive of results," /6/ then
an attorney's performance might be deemed "ineffective" whenever he
failed to secure an acquittal for his client.  But of course it never
has been suggested that the Sixth Amendment guarantees that the
defense put forward by counsel will succeed.

   Similarly, if the word were given certain other of its accepted
meanings -- e.g., "impressive," "cogent," "pleasing," or "satisfying"
/7/ -- the concept of "effective" counsel would suggest an attorney
who is especially articulate and forceful, has a commanding presence
in court, and possesses a personal demeanor that inspires the
confidence of his client and others.  But although these
characteristics surely are conducive to success in the legal
profession, the Sixth Amendment just as surely was not intended to
constitutionalize such vague and elusive elements of a lawyer's human
nature and professional style, any more than it was intended to
guarantee the development of a "meaningful relationship" between
attorney and client.  See Morris v. Slappy, No. 81-1095 (Apr. 20,
1983), slip op. 11-12.  Nor would it be practicable for a court
reliably to evaluate a lawyer's performance against such amorphous
standards.  Cf. id. at 12.

   Moreover, a view of "effective" assistance of counsel for Sixth
Amendment purposes that focused principally on the attributes of
counsel would improperly transform the Sixth Amendment inquiry from an
assessment of whether the accused received a fair trial in light of
the assistance counsel rendered to a more detached assessment of the
skills and performance of the lawyer in their own right -- as if the
purpose of the inquiry were to grade the lawyer's participation in an
advocacy seminar or to identify areas in which the lawyer might
benefit from personal or professional improvement.  Such an approach
would not comport with the respect due the criminal trial itself as
the "decisive and portentous event" (Wainwright v. Sykes, 433 U.S. 72,
90 (1977)).

   The trial of a criminal case concentrates society's resources at
one "time and place in order to decide, within the limits of human
fallibility, the question of guilt or innocence." Ibid.  "Every trial
presents a myriad of possible claims," and -- whether as a result of
trial strategy, ignorance, the pressures of trial, or other factors --
it is virtually inevitable that counsel in the normal course will
overlook or choose to omit certain claims while pursuing others.
Engle v. Isaac, 456 U.S. 107, 128-129 & n.34, 133-134 (1982).  The
Constitution therefore does not, and realistically could not, require
that defense counsel recognize and raise every potentially meritorious
claim on behalf of the accused.  Id. at 134;  Wainwright v. Sykes,
supra, 433 U.S. at 91;  Estelle v. Williams, 425 U.S. 501, 512-513
(1976);  id. at 514-515 (Powell, J., concurring);  cf. Jones v.
Barnes, No. 81-1794 (July 5, 1983);  United States v. Agurs, 427 U.S.
97, 102 n.5 (1976).  As the Court recently observed, "taking into
account the reality of the human fallibility of the participants,
there can be no such thing as an error-free, perfect trial." United
States v. Hasting, No. 81-1463 (May 23, 1983), slip op. 9.  Due regard
for the finality of a judgment of conviction in our imperfect
adversary system of criminal justice therefore "presupposes * * * that
the trial of a criminal defendant will not inevitably be followed by a
trial of his attorney's performance." Wainwright v. Sykes, supra, 433
U.S. at 114 n.13 (Brennan, J., dissenting).  Such a practice would
"detract() from the (criminal) trial's significance" (Engle v. Isaac,
supra, 456 U.S. at 128-129).  /8/ An examination into the performance
of counsel therefore is appropriate only upon allegations of specific,
serious errors in counsel's performance that assertedly detracted from
the trial's fairness.

   2.  There is, of course, a substantial public interest in assuring
that the attorneys who represent defendants in criminal prosecutions
are capable of providing adequate assistance.  Courts, legislatures,
the organized bar, and law schools have a variety of measures at their
disposal to address this issue -- such as requiring special
preparation or certification for members of the criminal defense bar,
mandatory participation in programs of continuing legal education,
formulation of professional standards to guide defense counsel, and
institution of disciplinary proceedings in situations in which an
attorney has acted unprofessionally or incompetently.  /9/

   The concern of a court considering the validity of a final judgment
of conviction in a criminal prosecution, however, is far narrower.
Its function is not to improve the level of performance of the defense
bar generally or even of the individual lawyer who appeared at trial
in the particular proceeding, but to determine whether the substantial
rights of the accused were violated.  If asserted defects in defense
counsel's performance did not have an "impact on the criminal
proceeding, * * * there is no basis for imposing a remedy in that
proceeding." United States v. Morrison, 449 U.S. 361, 365 (1981).  Cf.
United States v. Hasting, supra,) slip op. 6-8 & n.5.

   3.  It also must be stressed that there are a number of available
mechanisms other than the Sixth Amendment to remedy alleged defects in
a criminal trial.  Under Fed. R. Crim. P. 52(b), a court of appeals
may correct "(p)lain errors or defects affecting substantial rights"
even though they were not raised in the district court.  This rule
"was intended to afford a means for the prompt redress of miscarriages
of justice." United States v. Frady, 456 U.S. 152, 163 (1982)
(footnote omitted).  It permits a court of appeals to reverse a
conviction when a trial was "infected with error so 'plain' the trial
judge and prosecutor were derelict in countenancing it, even absent
the defendant's timely assistance in detecting it." Ibid.  Many truly
serious errors committed by counsel at trial that could result in a
miscarriage of justice may be corrected on appeal under this rule.

   Moreover, if evidence was not introduced at trial, a defendant may
move for a new trial under Fed. R. Crim. P. 33 on the basis of newly
discovered evidence.  /10/ And a person convicted of a federal or
state crime may present on collateral attack a claim that was not
raised at trial or on appeal if he establishes "cause" for that
default and substantial "prejudice" resulting from the error.  Engle
v. Isaac, supra;  United States v. Frady, supra.  The Court in Engle
v. Isaac stressed its confidence that "victims of a fundamental
miscarriage of justice will meet the cause-and-prejudice standard" and
that "fundamentally unjust incarceration" will be remedied as a
result.  456 U.S. at 134.  See also Wainwright v. Sykes, supra, 433
U.S. at 90-91.

   In view of these established mechanisms for correcting serious
errors in criminal proceedings, it presumably would not be necessary
in many cases for a court to entertain an independent claim of
ineffective assistance of counsel in order to remedy substantial
unfairness in the proceedings.  But if these established mechanisms
are not available in a particular case (perhaps because of a
procedural default), the defendant must, in order to obtain relief
under the Sixth Amendment on the ground that counsel's performance was
inadequate, demonstrate errors by counsel that are at least equally as
grave as the substantive errors that would warrant setting aside a
conviction under the "plain error" rule on direct appeal, granting a
motion for a new trial because newly discovered evidence probably
would have resulted in an acquittal, or finding "cause" and
"prejudice" sufficient to excuse a procedural default.  /11/ Otherwise
a convicted defendant whose substantive claim would be barred because
of a procedural default would be permitted -- indeed encouraged -- to
raise that claim indirectly by recasting it as an attack on his
lawyer's performance.  See, e.g., Cooper v. Fitzharris, 586 F.2d 1325,
1333 (9th Cir. 1978) (en banc).  /12/

   4.  The soundness of this conclusion is reinforced by a proper
respect for the integrity of the criminal justice system and the
performance of defense counsel who participate in that system.  By
admitting an attorney to the practice of law before it, a court has
determined that the attorney possesses the necessary qualifications
and competence to perform his duties.  And in providing for the
appointment of counsel to represent the accused -- in this case,
pursuant to a plan adopted under the Criminal Justice Act of 1964, 18
U.S.C. (& Supp. V) 3006A -- the court must be presumed to have
conscientiously performed its obligation to assure the availability of
adequate assistance of counsel for the defense.  See Polk County v.
Dodson, 454 U.S. 312, 322 (1981);  cf. Schweiker v. McClure, 456 U.S.
188, 197 n.11, 200 (1982);  Mathews v. Eldridge, 424 U.S. 319, 349
(1976).

   In addition, the lawyer for the accused in a criminal prosecution
is an officer of the court and is bound by ethical obligations of the
profession to assume responsibility only for cases that he is
competent to handle, to prepare adequately, and to represent his
client zealously and without neglect of the interests of his client.
See Model Code of Professional Responsibility DR 6-101(A), 7-101(A)
(1978);  /13/ Polk County, supra, 454 U.S. at 318, 321, 323.  Just as
it must be presumed that a judge will fulfill his obligation to be an
impartial decisionmaker (cf. Youngberg v. Romeo, 457 U.S. 307, 323
(1982);  Schweiker v. McClure, supra, 456 U.S. at 195;  United States
v. Morgan, 313 U.S. 409, 421 (1941)), a court that is asked to
consider a claim that counsel has failed to discharge his professional
responsibilities must "start with a presumption that he was conscious
of his duties to his clients and that he sought conscientiously to
discharge those duties." Matthews v. United States, 518 F.2d 1245,
1246 (7th Cir. 1975) (Stevens, J.).  See Michel v. Louisiana, 350 U.S.
91, 101 (1955);  Cuyler v. Sullivan, 446 U.S. 335, 346-347 (1980);
Washington v. Strickland, 693 F.2d 1243 (5th Cir. 1982) (en banc),
cert. granted, No. 82-1554 (June 6, 1983);  Tinlin v. Parratt, 680
F.2d 48, 50 (8th Cir. 1982).  A strong showing must be made to
overcome these presumptions.

   5.  For all of the foregoing reasons, we submit that reversal of a
criminal conviction because of asserted inadequacies in counsel's
representation is appropriate only if specifically identifiable errors
caused counsel's performance to depart substantially from what
reasonably may be expected of an ordinary fallible lawyer, and if
those errors were equivalent in their gravity to a denial of the
"Assistance of Counsel" to which the Sixth Amendment explicitly
refers.  This requires a showing that counsel's errors resulted in
substantial prejudice to the accused or otherwise fundamentally
undermined the fairness of the proceedings against him.  The Court's
decision in McMann v. Richardson, supra, supports this formulation.
See pages 31-32, 34, infra.  Moreover, as we explain below, the
structure and purposes of the Sixth Amendment and the origins and
development of the judicially fashioned concept of effective
assistance of counsel confirm that this is the appropriate nature of
the inquiry into the adequacy of the assistance rendered by counsel.

       B.  The Origins And Evolution Of The Right To "Effective"

               Assistance Of Counsel Confirm The Soundness Of

               Requiring

               A Showing Of Serious Error And Substantial Prejudice Or

               Unfairness

                  1.  The Explicit Textual Guarantee

   The Sixth Amendment guarantees a variety of rights to the accused
in a criminal prosecution:  to have a "speedy and public trial" and an
"impartial jury";  "to be informed of the nature and cause of the
accusation;  to be confronted with the witnesses against him;  (and)
to have compulsory process for obtaining witnesses in his favor * *
*." These rights are personal to the accused and "guarantee that a
criminal charge may be answered in a manner now considered fundamental
to the fair administration of American justice";  they
"constitutionalize() the right in an adversary criminal trial to make
a defense as we know it." Faretta v. California, 422 U.S. 806, 818
(1975).  The Sixth Amendment right of the accused to "have the
Assistance of Counsel for his defense" supplements this design.  It
permits the accused to receive advice concerning the nature of the
charges against him and the law and facts relevant to his case, and it
enables counsel, as the personal representative of the accused, to
present the accused's defense to the charges and to meet the case
presented by the professional prosecutor.  Id. at 820-821.

   As this Court has observed, "(t)here is considerable doubt that the
Sixth Amendment itself, as originally drafted by the Framers of the
Bill of Rights, contemplated any guarantee other than the right of an
accused in a criminal prosecution * * * to employ a lawyer to assist
in his defense." Scott v. Illinois, 440 U.S. 367, 370 (1979).  Cf.
Powell v. Alabama, supra, 287 U.S. at 68.  This narrow concept
obviously did not require any particular level of competence of
whatever lawyer the accused chose to hire.  That was essentially a
private matter between attorney and client.

   Over time, of course, the availability of the assistance of counsel
came to be viewed as an essential attribute of a fair trial, because
the accused ordinarily lacks the professional training and skill
necessary to present a defense.  /14/ Accordingly, this Court has held
that if an accused facing imprisonment upon conviction is financially
unable to retain counsel, the government must assure that an attorney
is appointed to assist him, unless he knowingly and intelligently
waives his right to counsel.  If counsel has not been furnished in
these circumstances, the conviction will be reversed without requiring
the convicted defendant to make a specific showing of what an attorney
would have done in the case or the prejudice that resulted from
counsel's absence.  /15/ The government's role in providing counsel is
limited, however.  Once appointed counsel has undertaken to represent
the accused, he assumes the role of a "personal counselor and
advocate." Polk County, supra, 454 U.S. at 318.  This is "essentially
a private function, traditionally filled by retained counsel" (id. at
319).  See also id. at 327 (Burger, C.J., concurring).

        2.  Use Of The Term "Effective" To Connote An Implicit

               Requirement That Counsel Be Free From External

               Restraints

   This Court has made clear, of course, that the mandate of the Sixth
Amendment that the accused have the assistance of counsel is not
automatically satisfied by the mere formal appointment of counsel.
See Cuyler v. Sullivan, supra, 446 U.S. at 334.  In Powell v. Alabama,
supra, the Court held that the duty to assign counsel "is not
discharged by an assignment at such time or under such circumstances
as to preclude the giving of effective aid in the preparation and
trial of the case." 287 U.S. at 71 (emphasis added).  The Court there
held that the defendants were not accorded the right to counsel in any
"substantial" or "real" sense because the trial court initially had
appointed all of the members of the local bar -- and therefore
effectively no lawyer at all -- to assist the defendants in advance of
trial, and no individual lawyer had assumed responsibility for the
case until a few moments prior to trial, when there remained no
opportunity for consultation or investigation.  Id. at 57-58, 71.
Although counsel thus was formally designated for the defendants, the
Court held that this was not the "effective appointment of counsel"
required by the Constitution (id. at 57, 58), and it accordingly
reversed the convictions without an inquiry into the specific actions
counsel might have taken if given an opportunity to consult and
prepare or whether the defendants were prejudiced by the constructive
denial of the assistance of counsel.

   The use of the term "effective" in connection with the right to
counsel finds its roots in these passages in Powell.  /16/ It is
evident, however, that the Court used the word "effective" to mean
"actual" or "capable of having its normal effect" /17/ -- i.e., to
stress that the trial court must make an appointment of counsel under
circumstances that permit counsel to render actual assistance that is
capable of having its normal effect in aiding the accused, as
distinguished from the sham or merely formal appointment in Powell
itself, which did not provide any realistic opportunity for the
defendants to benefit from an attorney's presence.  The focus of the
Court's concern thus was on removing an externally imposed restraint,
virtually total in its effect, on counsel's ability to perform in his
traditional role.  The Court did not use the word "effective" to
suggest a judicially fashioned standard of performance for an attorney
who was free of such state-imposed restraints.  Similarly, in Avery v.
Alabama, 308 U.S. 444 (1940), the Court, citing Powell, observed that
"the denial of opportunity for appointed counsel to confer, to consult
with the accused and to prepare his defense could convert the
appointment of counsel into a sham and nothing more than a formal
compliance with the Constitution's requirement that an accused be
given the assistance of counsel" (id. at 446) (emphasis added).  /18/

   The Court also has found a Sixth Amendment violation resulting from
other governmentally imposed restrictions on the ability of counsel to
function in his traditional role or to make reasonable tactical
judgments at trial.  See Geders v. United States, 425 U.S. 80 (1976)
(prohibition against consultation with defendant during overnight
recess);  Herring v. New York, 422 U.S. 853 (1975) (denial of right of
summation in nonjury trial);  Brooks v. Tennessee, 406 U.S. 605,
612-613 (1972) (requirement that defendant be first defense witness);
Ferguson v. Georgia, 365 U.S. 570, 593-596 (1961) (prohibition against
direct examination of defendant).  Because the defendants in these
cases were in effect entirely deprived of the assistance of counsel at
a critical point in the prosecution, the Court, as in Powell, set
aside the conviction without requiring any specific showing of how the
accused was injured as a result.

   A final category of cases in which the Court has found a denial of
the right to "effective" assistance of counsel consists of those in
which counsel had a conflict of interest that impaired his duty of
undivided loyalty to the accused.  In Glasser v. United States, 315
U.S. 60 (1942), the Court held that the defendant was denied his Sixth
Amendment "right to have the effective assistance of counsel" (id. at
76) when the trial court required his attorney simultaneously to
represent a co-defendant having conflicting interests, an arrangement
that adversely affected the attorney's representation of the defendant
(see id. at 72-75).  The Court explained that just as the failure of
the trial court in Powell to make "effective appointment of counsel"
for the defendants so offended concepts of a fair hearing as to
constitute a denial of due process, the assistance of counsel required
by the Sixth Amendment "contemplates that such assistance be
untrammeled and unimpaired by a court order requiring that (a) lawyer
shall simultaneously represent conflicting interests." 315 U.S. at 70.
 Thus, in Glasser, as in Powell, the concept of "effective" assistance
meant only freedom from externally imposed restraints on counsel's
ability to perform in his traditional role.  By equating the defect in
Glasser with the failure in Powell to make an "effective appointment
of counsel" (see 315 U.S. at 70), the Court viewed representation by a
lawyer who has a conflict of interest as essentially the equivalent of
no "Assistance of Counsel" at all within the contemplation of the
Sixth Amendment.  See also Von Moltke v. Gillies, 332 U.S. 708,
725-726 (1948) (opinion of Black, J.).  In view of this fundamental
defect, the Glasser Court set aside the conviction without inquiry
into the degree to which the defendant had been prejudiced as a
result, just as it had in Powell.  See 315 U.S. at 75-76.  Accord
Holloway v. Arkansas, 435 U.S. 475, 481-483, 489 (1978);  Cuyler v.
Sullivan, supra, at 348-350.  /19/

   Powell, Geders, Glasser, and the related cases discussed above
establish that the "Assistance of Counsel" guaranteed by the Sixth
Amendment is assistance unfettered by external restraints that might
materially impair the ability of counsel to carry out his traditional
role in the adversary system.  The Court has treated these cases as
the functional equivalent of a total denial of the right to counsel,
and it accordingly has reversed convictions where there have been
improper external restraints on counsel's performance without
requiring any specific showing of resulting prejudice, just as it did
in the case of the complete denial of counsel in Gideon.  /20/ Such
cases are, however, materially different from those in which it is
alleged simply that counsel blundered.

       3.  Use Of The Term "Effective" To Refer To The Nature Of

               Counsel's Performance Without Regard To External

               Restraints

   In recent years, the term "effective" has been employed by the
lower courts to refer not simply to assistance of counsel that is free
from improper external restraints, but rather to suggest a certain
level of competence or performance of defense counsel.  This Court has
not directly addressed the circumstances under which the effectiveness
of counsel's performance in this sense might furnish an independent
basis under the Constitution for setting aside a conviction.  However,
in McMann v. Richardson, 397 U.S. 759 (1970), the Court did consider
the quality of counsel's performance indirectly, insofar as it bore on
the ultimate issue in the case:  whether a guilty plea could be
collaterally attacked on the ground that it allegedly was motivated by
a prior coerced confession that the defendant feared might be used
against him if he elected to go to trial.  See 397 U.S. at 760, 769.
The Court held that the only way in which the defendant could attack
the validity of the guilty plea in such circumstances would be to show
that it was not knowingly and intelligently made, and it stated that
the plea would be regarded as not intelligently made only if the
defendant could show that he "was incompetently advised by his
attorney." 397 U.S. at 772.  The Court observed in this regard that
pleading guilty entails the inherent risk that the assessment of the
facts and law by a reasonably competent attorney with respect to the
admissibility of the confession might turn out to be mistaken.  Id. at
770, 771.  It therefore stressed that whether a plea was intelligently
made depends not on whether a court would retrospectively consider
counsel's advice to be right or wrong, "but on whether that advice was
within the range of competence demanded of attorneys in criminal
cases." Id. at 770.  /21/

   The McMann Court declined to furnish a more precise description of
the acceptable range of competence of defense counsel for purposes of
assessing the validity of a guilty plea, concluding that "the matter,
for the most part, should be left to the good sense and discretion of
the trial courts" (id. at 771).  But the Court emphasized that in
order to have his conviction set aside, the defendant must
"demonstrate gross error" (id. at 772) or "serious derelictions on the
part of counsel" (id. at 774).  The Court has reiterated the approach
in McMann in other guilty plea cases.  See Parker v. North Carolina,
397 U.S. 790, 797 (1970);  Tollett v. Henderson, 411 U.S. 258, 264,
266-268 (1973).

   Because the ultimate issue in McMann was whether the guilty plea
was intelligently made, not the adequacy of counsel's performance as
such, /22/ it is unclear to what extent McMann may be relied upon in
formulating standards for setting aside a conviction on the basis of
asserted inadequacies in counsel's performance standing alone.
However, the courts of appeals, in attempting over the last decade to
define the concept of ineffective assistance of counsel insofar as it
refers to the level of counsel's competence, have for the most part
sought guidance from the decision in McMann.

   With the exception of the Second Circuit, the courts of appeals
have ceased to articulate the test of ineffectiveness in terms of
whether counsel's assistance rendered the trial a "farce and mockery
of justice," /23/ and they instead have adopted formulations that echo
the "reasonable competence" or "range of competence" language in
McMann.  See Romero v. United States, No. 81-6463 (Oct. 12, 1982)
(White, J., dissenting from denial of certiorari).  But, again echoing
McMann, the decisions of the courts of appeals generally stress that
the defendant must show "gross" or "flagrant" error, "serious
derelictions," or some comparable degree of mistake.  /24/ The courts
of appeals also generally require a showing of prejudice, although
there is some disagreement about the formulation of the prejudice
element;  that is the principal issue before the Court in Strickland
v. Washington, cert. granted, No. 82-1554 (June 6, 1983).  /25/

   Because under the "reasonable competence" formulation the defendant
still must show "serious derelictions" and resulting prejudice, it is
not clear that the movement away from the "farce and mockery" language
actually has changed the outcome in any significant number of cases,
as the en banc Ninth and Tenth Circuits realized when they adopted a
new formulation.  See Dyer v. Crisp, 613 F.2d 275, 278, cert. denied,
445 U.S. 945 (1980);  Cooper v. Fitzharris, supra, 586 F.2d 1329.
Rather, as Judge Leventhal noted in his plurality opinion in Decoster,
the differing language in the opinions may be little more than a
"semantic merry-go-round." 624 F.2d at 206.

   In any event, faithfulness to the text of the Sixth Amendment
requires that before a conviction may be set aside because of asserted
inadequacies in counsel's performance, the errors must be equivalent
in their level of seriousness to an actual denial of the "Assistance
of Counsel," to which the Amendment explicitly refers.  As we have
explained above, this has been the Court's approach in the other areas
in which it has considered whether counsel's assistance was
"effective." In Powell v. Alabama, for example, the Court concluded
that although counsel had been formally assigned to represent the
accused, there was in substance no "Assistance of Counsel" rendered
because of the timing and circumstances of the appointment.  There
was, in other words, a constructive denial of the right to counsel.
See Decoster, supra, 624 F.2d at 222 (MacKinnon, J., concurring).  The
defect in the conflict of interest cases, such as Glasser v. United
States and Cuyler v. Sullivan, was analytically the same.

   So too, in McMann, advice of counsel that is so deficient that it
causes the client's guilty plea not even to be an intelligent act can
be viewed as equivalent in its gravity to an outright denial of the
"Assistance of Counsel." Moreover, because the ultimate question in
McMann was whether counsel's advice rendered the defendant's guilty
plea unintelligent, McMann supports the proposition that the primary
focus of the inquiry must be on the substantial rights of the accused,
rather than on the abilities and performance of the attorney in their
own right.

   The decision in McMann also is consistent with a requirement that
the defendant show that any errors committed by counsel had a likely
effect on the outcome of the prosecution or otherwise substantially
prejudiced him and that the ultimate concern should be with the
fairness of the proceedings.  A defendant whose conviction has been
shown to rest on a plea of guilty that was not intelligently made has
sufficiently demonstrated that the actions of counsel had a probable
effect on the outcome of the prosecution and substantially prejudiced
him.  The vacating of the judgment of conviction entered on the basis
of that plea therefore would be an appropriately tailored remedy to
remove the taint of counsel's incompetence.  Compare United States v.
Hastings, supra, slip op. 6-8;  United States v. Morrison, supra, 449
U.S. at 364-365.  And, finally, to preserve a conviction entered on
the basis of a guilty plea that was not intelligently made would be
"fundamentally unfair" to the accused, irrespective of whether
derelictions of counsel or something else caused the problem.

   There is, however, no need to determine in this case the precise
nature of the inquiry into whether a conviction must be set aside
because of asserted inadequacies in counsel's performance.  At a
minimum, McMann and the decisions of the lower courts require that the
defendant identify specific and serious derelictions in counsel's
performance and demonstrate some degree of prejudice as a result.
Yet, in the instant case, the court of appeals reversed respondent's
convictions on the ground of ineffective assistance of counsel without
identifying any errors committed by attorneys Colston and Rivas in
their representation of respondent, much less errors that caused their
performance to fall below "the range of competence demanded of
attorneys in criminal cases." Nor did the court demonstrate any
resulting prejudice or unfairness to respondent.  The court instead
simply "inferred" that counsel's assistance was constitutionally
inadequate based on the existence of certain "circumstances" that in
themselves are not measures of the adequacy of a lawyer's actual
performance.  As we now explain, these factors are wholly inadequate
to sustain respondent's burden of overcoming the presumption that his
attorneys rendered competent assistance.

       C.  The Circumstances Relied Upon By The Court Of Appeals

               Do Not Support Its Finding Of Ineffectiveness

           1.  There Was Adequate Time To Prepare For Trial

   In inferring that counsel rendered inadequate assistance, the court
of appeals placed substantial reliance on the fact that counsel had 25
days to prepare for trial, a period of time the court apparently
believed was insufficient.  See Pet. App. 4a.  The court's reliance on
this factor is flatly inconsistent with prior decisions of this Court,
including, most recently, Morris v. Slappy, supra.

   In Chambers v. Maroney, the defendant claimed that the appearance
on the day of his second trial of a Legal Aid Attorney other than the
one who represented him at his first trial was so belated that the
attorney could not have furnished effective assistance of counsel.
399 U.S. at 53-54.  The Court rejected this contention, noting that
the defendant's claim of prejudice resulting from the substitution of
counsel was "without substantial basis" and that the Court was "not
disposed to fashion a per se rule requiring reversal of every
conviction following tardy appointment of counsel" (id. at 54).  See
also Morris v. Slappy, supra, slip op. 9-10;  Mancusi v. Stubbs, 408
U.S. 204, 214 (1972).

   The substitution of counsel in this case a full 25 days prior to
trial cannot be said to have been "tardy," especially when compared
with the facts of Chambers v. Maroney;  and as in Chambers v. Maroney,
there was no finding by the courts below that respondent was at all
prejudiced by the timing of the substitution of counsel and trial.
Indeed, when Colston first was appointed to represent respondent, the
date of the trial was postponed in response to Colston's request for a
continuance.  Colston requested that a minimum of 30 additional days
be allowed prior to trial, but the court cut the continuance "a few
days short" so that the trial could begin on the first day of the
court's monthly docket (J.A. 35-36).  No objection was lodged against
this short reduction of the requested continuance, nor did respondent
or counsel subsequently ask for a further continuance on the ground
that inadequate time was available for trial preparation.

   The Court observed in Avery v. Alabama, supra, 308 U.S. at 446,
that "(s)ince the Constitution nowhere specifies any period which must
intervene between the required appointment of counsel and trial, the
fact, standing alone, that a continuance has been denied, does not
constitute denial of the constitutional right to assistance of
counsel." In Avery itself, moreover, the Court, in an unanimous
opinion by Justice Black, sustained a state murder conviction in which
the defendant was sentenced to death, even though the trial was held
only three days after arraignment and appointment of counsel and
despite the trial court's denial of counsel's request for a
continuance based on counsel's affidavits stating that they did not
have sufficient time to prepare for trial.  The Court noted that
counsel had performed their duties well and that there was no
indication that the attorneys could have done more had additional time
been granted.  308 U.S. at 450, 452.

   We may assume that the usual practice today would be to allow
counsel more preparation time than the three days permitted in Avery,
especially in a capital case.  /26/ Nevertheless, the decisions in
Avery and Chambers v. Maroney must foreclose any argument in this case
that the scheduling of the trial -- after the court granted all but a
few days of the requested continuance -- violated respondent's right
to the assistance of counsel, at least without a showing, entirely
absent here, of a clear abuse of discretion and substantial prejudice.
 /27/ Indeed, the Tenth Circuit itself previously has recognized these
principles in sustaining the denial of a continuance that was
requested in order to allow counsel adequate time to prepare.  United
States v. Gonzales-Palma, 645 F.2d 844 (10th Cir.), cert. denied, 454
U.S. 861 (1981) (defendant must show "clear abuse of discretion
resulting in manifest injustice");  United States v. Schwanke, 598
F.2d 575, 579 (10th Cir. 1979).

   Just this past Term, this Court again stressed that "(t)rial judges
necessarily require a great deal of latitude in scheduling trials,"
and that only an "unreasoning and arbitrary 'insistence upon
expeditiousness in the face of a justifiable request for delay,'
violates the right to the assistance of counsel." Morris v. Slappy,
supra, slip op. 9-10, quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964).  In the instant case, the trial court's accommodation of
respondent's request for a continuance and the court's trial schedule
was in no way "unreasoning and arbitrary." Furthermore, on the first
day of trial, Colston stated that he was "ready" to proceed (Tr. 3).
"In the face of the unequivocal and uncontradicted statement by a
responsible officer of the court that he was fully prepared and
'ready' for trial," it was entirely proper for the court to proceed.
Morris v. Slappy, supra, slip op. 10;  see also id. at 4 (Brennan, J.,
concurring in the result).

        2.  Counsel's Inexperience Did Not Justify A Finding Of

               Ineffectiveness

   The court of appeals also relied on the fact that attorney Colston
did not have prior experience -- at least substantial experience -- in
criminal trials.  Pet. App. 5a.  We do not dispute that inexperience
is a factor that in turn could contribute to a lawyer's rendering
inadequate assistance and that a trial court should assure itself that
the attorney assigned to represent a defendant is capable of doing so.
 /28/ "Nonetheless, in determining whether there has been effective
assistance, the primary focus must be on how well counsel performed in
the particular case, not on how much experience counsel had.  Counsel
may sometimes compensate for their lack of experience by unusual zeal
and industry.  Moreover, courts recognize that 'law school does not
endow the young lawyer with all of the skills, abilities and
"know-how" of the experienced advocate' and that the young attorney
'must gain experience somewhere, somehow, and sometime.'" Harris v.
Housewright, 697 F.2d 202, 205 (8th Cir. 1982) (citations and footnote
omitted), quoting Smotherman v. Beto, 276 F. Supp. 579, 589 (N.D. Tex.
1967).

   Accordingly, where counsel was inexperienced, the defendant
nevertheless is not entitled to relief unless he can show an "actual
adverse impact upon the fairness of the trial resulting from counsel's
lack of trial experience" or "specific omissions by counsel indicating
a lack of preparation and degree of skill reasonably required of
counsel in a criminal case." Daniels v. Maggio, 669 F.2d 1075, 1082
(5th Cir. 1982), cert denied, No. 81-6858 (Nov. 1, 1982).  /29/ The
court of appeals in this case made no finding that Colston's lack of
experience in criminal trials in turn caused his performance to fall
below the range of competence required of attorneys in criminal cases
or even that it caused him to commit any errors at all.  Indeed, as we
have recited in the Statement (see pages 6-7, supra), the trial judge
-- who, unlike the court of appeals, had an opportunity to observe
Colston and Rivas -- repeatedly praised their performance (J.A. 94-97,
104).  So did respondent (J.A. 94-95, 97), until the jury returned a
verdict of guilty (J.A. 97).

   The court of appeals also ignored the fact that Colston was
assisted by Rivas, who, according to an uncontradicted affidavit filed
by the government in the court of appeals, had extensive prior
experience in criminal cases (App. A, infra, 1a).  /30/ This indicates
that to the extent Colston might have believed it would be unwise for
him to handle respondent's defense by himself, he fulfilled his
ethical obligation by associating an experienced attorney with him in
the case.  See Model Code of Professional Responsibility DR
6-101(A)(1) (1978);  Project on Standards for Criminal Justice,
Standards Relating to Providing Defense Services Section 2.2 comment f
(Approved Draft 1968).

        3.  The Finding Of Ineffectiveness Was Not Justified By

               The

               Complexity Of The Case

   The court of appeals made no substantial effort to assess the
complexity of this case or the ability of Colston and Rivas to grasp
it in the time allowed.  The Court simply counted the number of
witnesses (17) and exhibits (50) in the case, and, on that basis,
found it to be "apparently" less complex than the trial involved in
its prior decision in United States v. King, supra, in which there had
been 200 witnesses and 5000 exhibits.  Pet App. 5a.  But the court did
not find the comparatively less complexity to be a reason for a
different result here, because, in the court's view, this case "was
not an ideal one for an aspiring criminal defense lawyer to cut his
teeth on," since "'(m) ail fraud cases tend to be factually and
legally complex.'" Pet. App. 5a, quoting United States v. Golub,
supra, 638 F.2d at 188.  This reasoning is wholly unsatisfactory.

   The question before the court of appeals was not whether this was
an "ideal" case for Colston to handle, but rather whether respondent
received constitutionally adequate legal assistance.  The court of
appeals pointed to nothing to suggest that he did not, and it also
overlooked the assistance that respondent and Colston received from
Rivas, who evidently was an experienced -- not "aspiring" -- criminal
defense lawyer, and who therefore presumably was capable of handling
cases that were not "ideal."

   Nor was it significant whether mail fraud cases generally "tend" to
be complex.  The offense of mail fraud broadly embraces any fraudulent
scheme or artifice -- regardless of complexity or simplicity --
coupled with use of the mails "for the purpose of executing such
scheme." 18 U.S.C. 1341.  See e.g., United States v. Maze, 414 U.S.
395, 400 (1974);  Pereira v. United States, 347 U.S. 1, 8 (1954).  The
relevant inquiry therefore was whether this case was too complex to be
prepared for trial within 25 days.  Plainly it was not.  As we have
explained in the Statement (see page 4, supra), the fraud established
by the government's evidence consisted of a relatively simple
check-kiting scheme involving a series of similar transactions.
Counsel apparently concluded that the only plausible defenses were to
disassociate respondent from the check writing or to dispel the
inference of fraudulent intent, and Colston pursued both of these
lines of defense.  No one has suggested the availability of any
markedly superior line of defense.  Moreover, neither the government's
case nor the defense presented to that case raised issues of unusual
complexity or required extensive experience in defending fraud cases.

          4.  The Gravity Of The Charges Does Not Justify The

               Finding

               Of Ineffectiveness

   The court of appeals observed that respondent faced a sentence of
up to 65 years' imprisonment and in fact was sentenced to a term of 25
years, as compared with the five-year sentence faced by the defendant
in King.  It is not apparent why the court of appeals believed that
this comparison of the two cases supported an "inference" of
ineffective assistance of counsel in the instant case.  Respondent
faced a maximum of 65 years imprisonment only because he was charged
with a course of conduct involving 13 separate counts of mail fraud,
each of which carried a maximum five-year sentence.  See 18 U.S.C.
1341.  Moreover, this Court has recognized that the difficulty of a
case and the need for the special skills of counsel are not
necessarily proportional to the severity of the potential sentence.
See Argersinger v. Hamlin, supra, 407 U.S. at 33-34, 36-37;  id. at 41
(Burger, C.J., concurring in the result);  id. at 47-48 (Powell, J.,
concurring in the result).

   It may well be that in common practice, a lawyer would -- and
should -- devote particular effort to a case in which the consequences
of conviction are severe.  But even if the Sixth Amendment could be
said to impose a somewhat more exacting standard of attorney
performance when the potential penalty is unusually severe -- a
principle that would be difficult to interpret and apply /31/ -- there
is no indication in this case that the efforts of Colston and Rivas
were not appropriately commensurate to the gravity of the offense.

       5.  The Location Of Witnesses Has Not Been Shown To Have

               Impaired The Effectiveness Of Respondent's Trial

               Counsel

   The final factor considered by the court of appeals was the
accessibility of witnesses to counsel.  Because this factor was not
considered in King, the court of appeals was unable to compare the two
cases on this point.  The court therefore simply observed:  "In
(respondent's) case no defense witnesses appeared, but the
government's witnesses came from four different states.  (Respondent)
lived in Florida and Georgia, his attorney in Oklahoma." Pet. App. 5a.
 This recitation -- the court's complete discussion of the point --
clearly lends no support to an inference of constitutionally
inadequate assistance.  There was no finding that Colston and Rivas in
fact were unable to confer with respondent and interview witnesses or
otherwise learn the substance of the information they possessed, or,
if Colston and Rivas were unable to do so, that respondent was
prejudiced as a result.

        D.  The Court Of Appeals Erred In Believing It Would Be

               Inappropriate To Require A Showing Of Specific Errors

               By

               Counsel

   The court of appeals acknowledged that respondent had not shown
that trial counsel had "failed to exercise 'the skill, judgment and
diligence of a reasonably competent defense attorney', which is how
the Sixth Amendment right to assistance of counsel is described in
(the Tenth) Circuit." Pet. App. 3a, quoting Dyer v. Crisp, supra, 613
F.2d at 278.  But it explained its decision to dispense with that
requirement here, and instead to "infer" inadequate assistance based
on the five factors discussed above, as follows (Pet. App. 3a):

      Cases after Dyer have established that when circumstances hamper
      a given lawyer's preparation of a defendant's case, the
      defendant need not show specified errors in the conduct of his
      defense in order to show ineffective assistance of counsel.  See
      United States v. King, 664 F.2d 1171, 1172-73 (10th Cir. 1981);
      United States v. Golub, 638 F.2d 185, 187 (10th Cir. 1980).
      This is an eminently reasonable rule, for there is no way an
      appellate court can say precisely how a given case would have
      been handled by a reasonably diligent and properly prepared
      lawyer.  The prejudice from lack of preparation and experience
      cannot be nicely weighed.

   The factual premises on which the court rested its analysis are
wholly unsubstantiated:  there simply has been no showing or finding
that Colston and Rivas's preparation of the case was at all "hampered"
by circumstances;  that there was a "lack of preparation" or (in light
of Rivas' apparent prior experience in criminal cases) a "lack of * *
* experience";  or that Colston and Rivas were not "reasonably
diligent and properly prepared lawyer(s)." There was, accordingly, no
reason on this record for the court to invoke a novel Sixth Amendment
rule that dispenses with a requirement that the defendant show
specific errors in counsel's performance and resulting prejudice.  See
Morris v. Slappy, supra, slip op. 12-13;  id. at 3 (Brennan, J.,
concurring in the result);  id. at 1 (Blackmun, J., concurring in the
judgment).

   In any event, the court of appeals' analysis would be gravely
flawed even if its factual premises were correct.  A factual
determination that circumstances did bring some temporal or other
pressures to bear on the attorneys in their preparation of the case
would not serve to distinguish this case from most criminal cases.  In
light of this reality, it is clear that "(n)ot every restriction on
counsel's time or opportunity to investigate or to consult with his
client or otherwise to prepare for trial violates a defendant's Sixth
Amendment right to counsel." Morris v. Slappy, supra, slip op. 9.  As
we have explained above (see pages 15, 27-28, 36-37, supra), only
where the timing or other circumstances of counsel's appointment were
such that an opportunity for consultation and preparation was
precluded, as in Powell v. Alabama, may a court set aside a conviction
without identifying specific errors by counsel and finding substantial
prejudice to the accused as a result.  Because this case in no way
resembles Powell v. Alabama with regard to the timing of the
appointment of counsel, the proper question in this case was not
whether Colston and Rivas's preparation of the case was "hampered,"
but whether the representation respondent ultimately received was
constitutionally adequate.

   Nor, contrary to the court of appeals' apparent belief (see Pet.
App. 3a), would it be inappropriate or unfair to require respondent to
make a showing that his lawyers' performance was outside the range of
competence demanded of attorneys in criminal cases.  If the basis of a
defendant's claim is that the lawyer who represented him did not
adequately prepare, he should be capable of demonstrating the nature
of counsel's omissions that resulted from the asserted lack of
preparation -- e.g., by identifying a witness who should have been,
but was not, interviewed and called to testify;  evidence that might
have been unearthed with greater diligence;  motions or objections
that would have been made by a more attentive lawyer;  or a basis for
impeaching government witnesses that might have been developed.  See
Morris v. Slappy, supra, slip op. 12-13 (Brennan, J., concurring in
the result).  This is information to which the defendant has or could
develop access.  Compare United States v. Valenzuela-Bernal, supra,
slip op. 11-13, 14.  If the defendant cannot make such a showing, then
the asserted lack of preparation cannot be said to have rendered
counsel's assistance "ineffective," because it could not be shown even
to have had an effect on the presentation of the defense.  /32/ The
District of Columbia Circuit stressed this point in its seminal en
banc decision in United States v. Decoster, supra.  There the court
rejected the dissenting judges' emphasis on specific duties of counsel
in the abstract and held instead that an asserted failure to
investigate -- a concrete example of a failure to prepare that was
shown there but was not found there -- must be considered in terms of
whether there was any resulting impact on the prospects for a
successful defense at trial.  624 F.2d at 208-213, 215-217 (plurality
opinion);  id. at 232-234, 244-245 (concurring opinion).  See also
Washington v. Strickland, supra, 693 F.2d at 1258-1262.

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   JOHN FICHTER DE PUE

      Attorney

   AUGUST 1983

   /1/ The court of appeals' opinion erroneously states that
respondent was indicted for mail fraud and unlawful use of a
fictitious name in violation of 1341 and 1342 (Pet. App. 1a),
apparently substituting 18 U.S.C. 1342 for 18 U.S.C. 2, the aiding and
abetting statute.  We made the same error in the certiorari petition
(Pet. 2).

   /2/ Cummings pleaded guilty to three counts of the indictment prior
to trial (J.A. 87), and the government agreed to dismiss the
indictment against Merritt if he testified truthfully at trial (J.A.
77-78).

   /3/ After the court accepted the verdict, it briefly discussed the
procedure regarding sentencing, observing that respondent could
address the court personally and that his "very able lawyers" could
speak for him as well (Tr. 603).

   /4/ On March 11, 1981, while the appeal was pending and more than
six months after the judgment of conviction was entered, respondent
filed a pro se motion for a new trial in which he alleged that he had
received ineffective assistance of counsel, principally because of
counsel's asserted failure to investigate certain matters.  The
district court denied the motion without reaching the merits because
the case was pending on appeal.  See Fed. R. Crim. P. 33.  The court
of appeals granted respondent's motion to file the new trial motion as
a supplement to the record on appeal (J.A. 7), but it did not rely on
any of the allegations or materials in the motion in holding that
respondent had received ineffective assistance of counsel.

   /5/ This disposition would not foreclose respondent from raising
more specific allegations of constitutionally inadequate assistance of
counsel in a collateral attack on his convictions under 28 U.S.C.
2255, if a concrete basis exists for such a claim.

   /6/ See Webster's Third New International Dictionary 724 (4th ed.
1976), definition 1a.

   /7/ See Webster's Third New International Dictionary 724 (4th ed.
1976), definitions 2c and d.

   /8/ Unduly intrusive scrutiny of defense strategy in the course of
considering a post-conviction claim of ineffective assistance of
counsel also could dampen the ardor of defense counsel and require a
potentially unseemly probing of the relationship and communications
between attorney and client, thereby undermining the sense of mutual
trust in criminal cases generally.  Cf. Polk County v. Dodson, 454
F.2d 312, 324 & n.17 (1981);  United States v. Decoster, 624 F.2d 196,
208-209 (D.C. Cir.) (en banc) (plurality opinion), cert. denied, 444
U.S. 944 (1979);  id. at 228-229 (MacKinnon, J., concurring).  "The
effect on the (defense bar) would be demoralizing.  And the interests
of the clients and the cause of justice would be poorly served."
Upjohn Co. v. United States, 449 U.S. 383, 398 (1981), quoting Hickman
v. Taylor, 329 U.S. 495, 510-511 (1947);  see also FTC v. Grolier,
Inc., No. 82-372 (June 6, 1983), slip op. 4-5.  Such inquiries also
could undermine the constitutionally required independence of defense
counsel (see Polk County, supra, 454 U.S. at 318-319, 321-322;
Estelle v. Williams, supra, 425 U.S. at 512) by inducing courts and
prosecutors to oversee and second-guess judgments by defense counsel
in order to protect the conviction from later attack on the basis of
ineffective assistance of counsel.  Decoster, supra, 624 F.2d at 208
(plurality opinion);  id. at 228-229 (MacKinnon, J., concurring);
Bines, Remedying Ineffective Representation in Criminal Cases:
Departures From Habeas Corpus, 59 Va. L. Rev. 927, 961 (1973).  See
also Schwarzer, Dealing With Incompetent Counsel -- The Trial Judge's
Role, 93 Harv. L. Rev. 633, 650 (1980);  but see id. at 651-665;
Note, A Functional Analysis of the Effective Assistance of Counsel, 80
Colum. L. Rev. 1053, 1069 (1980).

   /9/ See Burger, The Special Skills Of Advocacy:  Are Specialized
Training And Certification of Adovcates Essential To Our System Of
Justice?  42 Fordham L. Rev. 227 (1973).

   In Oklahoma, where respondent was tried, the State Supreme Court
has not hesitated to discipline attorneys for neglect of their duties
to their clients.  See, e.g., State ex rel. Oklahoma Bar Ass'n v.
Bell, 637 P.2d 1258 (1981);  State ex rel. Oklahoma Bar Ass'n v.
Peveto, 620 P.2d 392 (1980);  Oklahoma Bar Ass'n v. Denney, 617 P.2d
1351 (1980);  see also State ex rel. Oklahoma Bar Ass'n v. Raskin, 642
P.2d 262 (1982).  In addition, Rule 4(j), W.D. Okla. (effective Aug.
1, 1982) establishes a procedure for disciplining attorneys.

   /10/ Under established case law, in order to obtain a new trial on
the basis of newly discovered evidence, the defendant must show, inter
alia, that the evidence, if available at trial, probably would have
resulted in an acquittal (see United States v. Agurs, supra, 427 U.S.
at 111 & n.19) and that the evidence could not have been discovered in
the exercise of due diligence.  See generally 8 J. Moore, W. Taggart &
J. Wicker, Moore's Federal Practice Paragraph 33.03(1) (2d ed. 1982).
Although ordinarily a defendant must be bound by his attorney's
actions, if the attorney's failure to discover certain evidence was a
gross dereliction under all the circumstances, the defendant might
well be excused from the consequences of his attorney's lack of due
diligence, although he still would have to satisfy the other
requirements under the Rule.

   /11/ Because the errors complained of in this category of cases
result from the actions of independent counsel, not from governmental
actions of the court or prosecutor, there can be no claim that a
lesser showing would be appropriate because of a need to deter
unlawful governmental conduct or even because of governmental
participation in or responsibility for the conduct involved.  Compare
United States v. Agurs, supra, 427 U.S. at 111;  United States v.
Valenzuela-Bernal, No. 81-450 (July 2, 1982), slip op. 7, 10, 14-15;
id. at 2, 5 (O'Connor, J., concurring in the judgment).  See United
States v. Green, 680 F.2d 183, 188-189 (D.C. Cir. 1982), cert. denied,
No. 82-5552 (Feb. 22, 1983);  Decoster, supra, 624 F.2d at 214
(plurality opinion);  Washington v. Strickland, 693 F.2d 1243, 1260
(5th Cir. 1982), cert. granted, No. 82-1554 (June 6, 1983).

   /12/ This conclusion is consistent with the relationship between
attorney and client in a criminal case.  The Sixth Amendment "speaks
of the 'assistance' of counsel, and an assistant, however expert, is
still an assistant." Faretta v. California, 422 U.S. 806, 820 (1975).
When a defendant chooses to have a lawyer manage and present his case,
law and tradition may allocate to the counsel the power to make
binding decisions on all but such fundamental matters as whether to
plead guilty, waive a jury, testify, or take an appeal.  Id. at 860.
See Jones v. Barnes, No. 81-1794 (July 5, 1983), slip op. 8.  The
lawyer makes those decisions, however, not in his own right, but as
the representative of the accused;  the defense the lawyer presents
accordingly is, in contemplation of law, that of the accused
personally.  Faretta, supra, 422 U.S. at 820-821.  The defendant
therefore must be bound by his attorney's conduct of the trial "except
where 'the circumstances are exceptional'" (Wainwright v. Sykes,
supra, 433 U.S. at 91 n.14, quoting Henry v. Mississippi, 379 U.S.
443, 451 (1965);  see also Jones v. Barnes, supra, slip op. 5
(Brennan, J., dissenting)).  In the present setting, the defendant
must be bound unless the attorney's actions so depart from the range
of competence and standards of fairness that define the scope of the
agency relationship established by law between attorney and client in
criminal cases that they cannot justly be deemed the actions of the
defendant.  Compare McMann v. Richardson, supra (guilty plea may be
set aside where attorney's advice caused client's guilty plea not to
be intelligent), with Estelle v. Williams, supra, 425 U.S. at 512-513
& n.9;  id. at 514-515 & n.4 (Powell, J., concurring) (defendant bound
by attorney's failure to object to his being tried in prison clothes,
whether that failure resulted from a tactical choice, indifference, or
procedural default).  See also Engle v. Isaac, supra, 456 U.S. at 134.

   /13/ These Disciplinary Rules have been adopted by the Oklahoma
Supreme Court to govern the conduct of the members of the Bar of that
State (Okla. Stat. Ann. tit. 5, ch. 1 App. 3 (West Cum. Supp. 1982),
and they have been adopted and are enforceable as standards of conduct
for attorneys in the federal district court in which respondent was
convicted.  See note 9, supra.

   /14/ See, e.g., Johnson v. Zerbst, 304 U.S. 458, 462-463 (1938),
quoting Powell v. Alabama, supra, 287 U.S. at 68-69;  Gideon v.
Wainwright, 372 U.S. 335, 343-345 (1963);  Argersinger v. Hamlin, 407
U.S. 25, 31 (1972);  Faretta v. California, supra, 422 U.S. at
832-833;  United States v. Morrison, supra, 449 U.S. at 365.

   /15/ Johnson v. Zerbst, supra;  Gideon v. Wainwright, supra;  see
also Faretta v. California, supra, 422 U.S. at 832-835;  Argersinger
v. Hamlin, supra;  Scott v. Illinois, supra.

   /16/ See S. Krantz, Right to Counsel in Criminal Cases 166 (1976);
Decoster, supra, 624 F.2d at 201 n.13 (plurality opinion).

   /17/ See Webster's Third New International Dictionary 724 (4th ed.
1976), definitions 1b and 4.

   /18/ See also Reece v. Georgia, 350 U.S. 85, 90 (1955);  House v.
Mayo, 324 U.S. 42, 46 (1945);  White v. Ragen, 324 U.S. 760, 764
(1945);  Ex parte Hawk, 321 U.S. 114, 115-116 (1944);  cf. Chandler v.
Fretag, 348 U.S. 3, 9-10 (1954).  Compare Morris v. Slappy, supra,
slip op. 9-10;  Chambers v. Maroney, supra, 399 U.S. at 53.

   /19/ In Cuyler v. Sullivan, the Court rejected the contention that
there was no state action involved in the asserted conflict of
interest because the defendants had chosen to be represented by the
same retained counsel, concluding that "the failure of retained
counsel to provide adequate representation can render a trial so
fundamentally unfair as to violate the Fourteenth Amendment." 446 U.S.
at 343;  see also id. at 348.

   /20/ The court of appeals apparently believed that the instant case
falls in the same category as Powell, Geders, and Glasser, for it did
not require any showing that respondent's attorneys committed any
specific errors or was prejudiced as a result.  As we show below (see
pages 35-47, infra), this conclusion was wholly unwarranted.

   /21/ Compare Youngberg v. Romeo, supra, 457 U.S. at 323 (footnotes
omitted):  "the decision, if made by a professional, is presumptively
valid;  liability may be imposed only when the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate that
the person responsible actually did not base the decision on such a
judgment."

   /22/ Similarly, in Michel v. Louisiana, 350 U.S. 91, 100-101
(1955), the question whether the defendant received effective
assistance of counsel was relevant to the extent it bore on the
ultimate question whether the defendant had an adequate opportunity to
object to the composition of the grand jury.  See also Reece v.
Georgia, 350 U.S. 85, 90 (1955).

   /23/ "A lack of effective assistance of counsel must be of such a
kind as to shock the conscience of the Court and make the proceedings
a farce and mockery of justice." United States v. Wight, 176 F.2d 376,
379 (2d Cir. 1949), cert. denied, 338 U.S. 950 (1950).

   /24/ We have collected these cases from the federal courts of
appeals in Appendix B, infra, 3a-6a.

   /25/ The federal appellate cases concerning the prejudice issue are
collected in Appendix C, infra, 7a-10a.

   /26/ The Speedy Trial Act, as amended in 1979 (Pub. L. No. 96-43,
Section 2, 93 Stat. 327), provides that "(u)nless the defendant
consents in writing to the contrary, the trial shall not commence less
than thirty days from the date on which the defendant first appears
through counsel or expressly waives counsel and elects to proceed pro
se." 18 U.S.C. (Supp. V) 3161(c)(2).  The purpose of this provision is
to ensure the defendant a minimum amount of preparation time in even
the simplest case.  See A. Partridge, Legislative History of Title I
of the Speedy Trial Act of 1974, at 70-75 (Fed. Judicial Center 1980);
 United States v. Mers, 701 F.2d 1321, 1333 (11th Cir. 1983).

   This requirement was fully satisfied here.  Section 3161(c)(2)
"guarantee(s) to the criminal defendant the right to a delay of at
least 30 days between arraignment and trial".  United States v.
Wooten, 688 F.2d 941, 950-951 (4th Cir. 1982).  Respondent appeared
for arraignment with his retained counsel, Levine, on February 22,
1980, and his trial did not commence until July 14, 1980 -- almost
five months later.

   In addition to enacting the automatic 30-day trial preparation
provision in 1979, Congress recognized that additional preparation
time would be needed in some cases.  Congress therefore also amended
the Act (see Pub. L. No. 96-43, Section 5(c), 93 Stat. 328) to permit
an additional discretionary continuance "in the ends of justice" to
afford defense counsel "reasonable time necessary for effective
preparation." 18 U.S.C. (Supp. V) 3161(h)(8)(B)(iv).  This Section,
however, does not alter the principles that the grant or denial of a
continuance is a matter addressed to the sound discretion of the trial
court and that denial of a request for a continuance warrants reversal
only upon a showing of resulting prejudice.  See United States v.
Brooks, 697 F.2d 517, 522 (3d Cir. 1982);  United States v. Black, 684
F.2d 481, 485 (7th Cir.), cert. denied, No. 82-5600 (Nov. 29, 1982);
United States v. Aviles, 623 F.2d 1192, 1196 (7th Cir. 1980).

   /27/ See United States v. Rodriguez-Ramos, 704 F.2d 17 (1st Cir.
1983), petition for cert. pending, No. 82-1837;  United States v.
Wuagneux, 683 F.2d 1343, 1355-1356 (11st Cir. 1982), petition for
cert. pending, No. 82-1687;  United States v. McDonald, 672 F.2d 864
(11th Cir. 1982);  United States v. Badwan, 624 F.2d 1228, 1231 (4th
Cir. 1980), cert. denied, 449 U.S. 1124 (1981);  United States v.
Berkwitt, 619 F.2d 649, 659 (7th Cir. 1980).

   /28/ See Project on Standards for Criminal Justice, Standard
Relating to Providing Defense Service Section 2.2 and commentary at
27-29 (Approved Draft 1968).

   /29/ See also United States v. Badolato, 701 F.2d 915, 926 (11th
Cir. 1983);  United States v. Easter, 539 F.2d 663, 666 (8th Cir.
1976), cert. denied, 434 U.S. 844 (1977);  United States ex rel.
Williams v. Twomey, 510 F.2d 634, 638-639 (7th Cir.), cert. denied,
423 U.S. 876 (1975).

   /30/ The court of appeals' failure to consider the role of Rivas,
and the government's need to rely on an affidavit filed in the court
of appeals, highlight the inappropriateness of deciding a claim of
incompetent assistance of counsel on direct appeal, without the
benefit of an evidentiary record.  Resolution of a claim of
ineffective assistance of counsel often depends on the circumstances
of the particular case, including the facts known to the accused and
counsel as well as counsel's reasons for taking or not taking certain
actions.  An evidentiary record ordinarily would have to be developed
on these points before a court could conclude that counsel's
assistance had been ineffective.  (A court might more readily reject a
claim of ineffective assistance without a hearing, at least where no
substantial claim of prejudice is made.  See Chambers v. Maroney,
supra, 399 U.S. at 59).

   For this reason, other courts of appeals have recognized that
claims of ineffective assistance of counsel should be presented to the
district court in the first instance, either in a motion for a new
trial (if made within the time limits permitted by Fed. R. Crim. P.
33) or in a proceeding under 28 U.S.C. 2255.  See United States v.
Frankenberry, 696 F.2d 239, 242 (3d Cir. 1982), cert. denied, No.
82-6256 (June 27, 1983);  United States v. Badolato, supra, 701 F.2d
at 925;  United States v. Strum, 671 F.2d 749, 750-751 (3d Cir.),
cert. denied, No. 81-6689 (Oct. 4, 1982);  United States v. Lurz, 666
F.2d 69, 78 (4th Cir. 1981), cert. denied, 455 U.S. 1005 (1982);
United States v. Barham, 666 F.2d 521, 524 (5th Cir.), cert. denied,
456 U.S. 947 (1982);  United States v. Phillips, 664 F.2d 971 (5th
Cir. 1981), cert. denied, 457 U.S. 1136 (1982);  United States v.
Aulet, 618 F.2d 182, 185-186 (2d Cir. 1980);  United States v. Payton,
615 F.2d 922, 925 (1st Cir.), cert. denied, 446 U.S. 969 (1980);
United States v. Gray, 611 F.2d 194, 197 (7th Cir. 1979), cert.
denied, 446 U.S. 911 (1980).

   Because no evidentiary record had been developed in this case, the
court of appeals, if it was not prepared to reject respondent's
unsubstantiated claims altogether, should have declined to reach the
issue, without prejudice to respondent's raising it in a proceeding
under 28 U.S.C. 2255.  This clearly is a more appropriate procedure
when a claim of ineffective assistance of counsel is raised for the
first time on appeal than remanding to the district court for further
proceedings, as the Tenth Circuit did in United States v. Golub, 638
F.2d 185 (1980).  After proceedings on remand in Golub, the court of
appeals reversed its prior decision and reinstated the conviction (694
F.2d 207 (1982)), but in the meanwhile the finality of the conviction
had been delayed for more than two years.

   /31/ The Fifth Circuit, in rejecting the contention that a higher
standard for gauging competence should apply to capital cases or cases
in which the defendant is exposed to lengthy confinement, observed
that "(r)ecognition of a sliding scale for th(e) constitutional
standard (of ineffective assistance of counsel) would also suggest,
for example, that a defendant charged with aggravated assault would be
entitled to a more effective lawyer than one charged with simple
assault or public intoxication.  We decline to embark on such a
treacherous path." Washington v. Watkins, 655 F.2d 1346, 1357 n.18
(1981), cert. denied, 456 U.S. 949 (1982).  See also Washington v.
Strickland, supra, 693 F.2d at 1250 n.12;  cf. Avery v. Alabama,
supra.  While it is arguable that the qualitative difference in
potential penalty in capital cases supports a higher standard for
assessing the constitutional effectiveness of counsel's performance,
we doubt it is justifiable to extend any such principle to cases on
the basis of the length of the potential term of imprisonment that
could result from conviction.

   /32/ Of course, the defendant also would have to show that any
errors he did identify were "serious derelictions" and that he was
substantially prejudiced as a result.

   Appendix Omitted