Kay Ellison v. United States

In Strickland v. Washington, 466 U.S. 668, 694 (1984), this Court delineated core aspects of the Constitutional right to the effective assistance of counsel. Under the paradigmatic test, the reviewing court is asked to evaluate whether “but for” counsel’s error, would the result have been different, essentially asking whether the error was so material as to deprive the defendant of a fair proceeding. Id. Subsequent to Strickland, this Court further recognized that the “but for” test becomes tenuously speculative when counsel’s error deprives the defendant of an entire proceeding. See Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000). Under those circumstances, the test is not centered on a projected, hypothetical outcome had counsel performed with the Constitutionallyprotected effectiveness but, rather, whether the defendant would have availed themselves of the proceeding foregone. This case presents a simple, important, but unresolved question: 1. Is the loss of the opportunity to present an affirmative case due to Constitutionally-deficient representation during trial the loss of a “proceeding” such that the process-based test for prejudice applies to Petitioner’s claim for habeas relief?