Jason Assad v. Todd Wasmer, Warden, et al.

It is undisputed that the appellate brief filed by Mr. Assad’s attorney on direct appeal was so procedurally deficit as to preclude consideration of the merits of any issues and his convictions were summarily affirmed. Mr. Assad noted that under similar circumstances where a criminal defendant had been denied a direct appeal because of the deficiencies of the brief, a panel Eighth Circuit had affirmed the grant of a new direct appeal by the District Court for the Eastern District of Missouri and the Pennsylvania Supreme Court had granted a new direct appeal applying the standard set forth in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984). Mr. Assad’s case raises two important issues:

1. Did the Court of Appeals for the Eighth Circuit apply an incorrect standard by denying a Certificate of Appealability regarding the threshold no “reasonable jurist” inquiry contrary to this Court’s precedents Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759

2. and Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029 (2003) when there was on-point authority from a prior decision by the Eighth Circuit and recent decision by the Pennsylvania Supreme Court?

3. Does the Sixth Amendment made applicable to the states by the Fourteenth Amendments’ require that prejudice be presumed under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984) when counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing on direct appeal by only raising an issue that had not been preserved for appeal at the time of trial?