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Ineffective Assistance of Counsel- Deficient Performance and Prejudice

By: WISCONSIN LAW JOURNAL STAFF//June 10, 2024//

Ineffective Assistance of Counsel- Deficient Performance and Prejudice

By: WISCONSIN LAW JOURNAL STAFF//June 10, 2024//

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7th Circuit Court of Appeals

Case Name: David Lewicki v. Donald Emerson

Case No.: 23-3030

Officials: Easterbrook, Kirsch, and Lee, Circuit Judges.

Focus: Ineffective Assistance of Counsel- Deficient Performance and Prejudice

David Lewicki was implicated in a group’s attempt to rob Humberto Pelayo, which left Pelayo with permanent injuries. Despite Lewicki’s claims of innocence, asserting he had tried to shield Pelayo, the jury found him guilty of attempted robbery causing serious bodily harm, resulting in a 65-year prison sentence as a habitual offender. State courts upheld Lewicki’s conviction and sentence.

Seeking federal relief, Lewicki argued his appellate attorney had provided ineffective counsel by not raising a Sixth Amendment violation regarding his right to a speedy trial. The district court concurred, issuing a conditional writ of habeas corpus, citing Lewicki’s attorney’s failure to argue the speedy trial issue as deficient. However, the court didn’t find Indiana in violation of the Speedy Trial Clause but mandated either Lewicki’s release or a new appeal.

The Seventh Circuit held that granting relief based on ineffective assistance of counsel necessitates both deficient performance and prejudice, which hadn’t been demonstrated in Lewicki’s case. Despite a nearly three-year delay between charge and trial, Lewicki failed to prove prejudice from the delay. The court noted Lewicki’s attorney’s role in proposing multiple continuances and the absence of evidence loss or memory decay due to the delay. Moreover, the delay’s impact on Lewicki’s custody time related minimally to the delayed trial of the attempted robbery charge. Consequently, the court reversed the district court’s decision, affirming Lewicki’s conviction and sentence.

Reversed.

Decided 06/03/24

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