The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, 104 S.Ct. 2052. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696, 104 S.Ct. 2052. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, ___ F.3d ___, ___, 2003 WL 253144, at *18 (2d Cir. 2003) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 113 (2d Cir. 2003).
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
b. Ineffective Assistance of Standby Counsel
In an appropriate case, a defendant who proceeds pro se may make out a claim that he received ineffective assistance of standby counsel. A defendant in a state criminal trial has the constitutional right to proceed without counsel if he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The exercise of this right entails the abandonment of some correlative rights associated with the constitutional assurance that the defendant will receive the effective aid of counsel. As the Faretta Court noted, "whatever else may or may not be open to him on appeal, a defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of `effective assistance of counsel.'" Id. at 834 n. 46, 95 S.Ct. 2525. While such sentiments are unexceptionable where a defendant has been solely responsible for his own defense, the Faretta footnote does not address the situation in which a defendant receives the assistance, with the trial court's benediction, of an attorney acting in a stand-by or advisory role. See McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (although a defendant has no constitutional right to "hybrid" representation, a trial court has discretion to permit such an arrangement).
Where a defendant is initially represented by counsel but subsequently requests to proceed pro se, he may allege that counsel was ineffective at least up to the point where the defendant began to represent himself. See, e.g., Hance v. Zant, 696 F.2d 940, 950 (11th Cir. 1983); Rodriguez v. State, 763 S.W.2d 893, 896 (Tex.Ct.App. 1988). In addition, where standby or advisory counsel assumes an advisory role or exercises a degree of control over a defendant's case, "his or her potential for ineffectiveness, though diminished by the defendant's primary role, is not completely eliminated." Ali v. United States, 581 A.2d 368, 379 (D.C. 1990); see also Hance v. Kemp, 258 Ga. 649, 373 S.E.2d 184, 185-86 (1988) (pro se defendant stated claim of ineffective counsel where he was told by the trial court that by electing to act as co-counsel he would not waive his right to later raise an ineffectiveness claim as to his attorney's performance). Counsel's competency may thus reasonably be challenged "within the limited scope of the duties assigned to or assumed by counsel." People v. Bloom, 48 Cal.3d 1194, 259 Cal.Rptr. 669, 774 P.2d 698, 718 (1989) (emphasis removed); see also Downey v. People, 25 P.3d 1200, 1204 (Colo. 2001) (en banc); State v. Bettney, 529 A.2d 1356, 1357 (Me. 1987) (per curiam). Pursuant to the Supreme Court's caution in Faretta, any claim of ineffectiveness of counsel must rely solely upon counsel's failures rather than on an alleged inadequacy in defendant's own representation of himself. See, e.g., People v. Doane, 200 Cal.App.3d 852, 246 Cal.Rptr. 366, 373 (1988).
Although it has yet to reach the matter, the court of appeals for the Second Circuit seems substantially in accord with these observations. As the court explained in United States v. Schmidt, "[p]erhaps in a case where standby counsel held that title in name only and, in fact, acted as the defendant's lawyer throughout the proceedings, we could consider a claim of ineffective assistance of standby counsel." 105 F.3d 82, 90 (2d Cir. 1997). Even those circuits most hostile to the idea of a claim of ineffective assistance of standby counsel refuse categorically to reject the possibility of such a claim succeeding. See United States v. Cochrane, 985 F.2d 1027, 1029 n. 1 (9th Cir. 1993) (per curiam) ("We need not decide if a pro se defendant may ever challenge the assistance of standby counsel whose assistance he has sought and received to conclude that the circumstances of this case do not warrant an exception to the rule articulated in Faretta."); United States v. Windsor, 981 F.2d 943, 947 (7th Cir. 1992) (expressing doubts that standby counsel can ever be considered constitutionally ineffective, but dismissing petitioner's claim on the ground that counsel's representation was, at any rate, not constitutionally deficient).
At the very least, it is clear that where the trial court has ordered counsel to act as an advisor for the defendant, has allowed standby counsel to argue and make motions on the defendant's behalf, has allowed standby counsel to proceed on legal matters outside of the presence of the defendant, and has encouraged the defendant to rely upon the legal advice proffered by his standby counsel, a petitioner is entitled to claim that he received constitutionally ineffective assistance from his standby counsel with respect to such court-sanctioned representation. See generally Anne Bowen Poulin, The Role of Standby Counsel in Criminal Cases: In the Twilight Zone of the Criminal Justice System, 75 N.Y.U. L.Rev. 676, 726 (2000) (acknowledging that courts have "difficulty accepting the proposition that a defendant who has no constitutional right to the assistance of standby counsel can complain if that assistance, granted by the trial court as a discretionary act, fails to meet some minimum standard," but arguing that such a claim is compelling particularly where the trial court encourages the pro se defendant to rely upon the advice of the standby counsel).
c. Ineffective Assistance of Appellate Counsel
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
d. Strategic Choices
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 69091, 104 S.Ct. 2052. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S.Ct. 2052. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, at 112 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
e. Exhaustion of Individual Claims of Ineffectiveness
Each substantially independent factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
2. Failure to Dispute Government's Variance from the