ineffective assistance of counsel claim in Mississippi

2024“With respect to the overall performance of the attorney, ‘counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Carr, 873 So. 2d at 1003 (quoting Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)). ¶71.

2024Accordingly, “[t]he decision to object to a particular question . . . falls within the discretion of planning and developing a trial strategy.” Bennett, 933 So. 2d at 943 (¶36) 31 (citing Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)); see also Berry v. State, 882 So. 2d 157, 163 (¶20) (Miss. 2004) (holding “counsel’s choice whether to make certain objections falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim”).

2026In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court established a two-prong test that must be proved for an ineffective-assistance-of-counsel claim to be successful: First, the defendant must show that counsel’s performance was deficient.

2026To prove an ineffective-assistance- of-counsel claim, a defendant must demonstrate both prongs of the Strickland v. Washington test: “that the legal representation was deficient and that the deficient performance prejudiced the defense.” Cox v. State, 793 So. 2d 591, 600 (Miss. 2001) (citing Strickland v. Washington, 466 U.S. 668, 687 , 104 S. Ct. 2052 , 80 L.

2021Even so, we may “address the merits of an ineffective- assistance-of-counsel claim on direct appeal ‘if the record affirmatively shows ineffectiveness of constitutional dimensions.’” Id. (quoting Quinn v. State, 191 So. 3d 1227, 1234 (Miss. 2016)); see Taylor v. State, 167 So. 3d 1143, 1146 (Miss. 2015) (“we ‘may nevertheless reach the merits of the ineffectiveness issue where . . . the record affirmatively shows ineffectiveness of constitutional dimensions . . . .” (alterations in original) (quoting Read v. State, 430 So. 2d 832, 841 (Miss. 1983))).

2016“Where the record cannot support 'an ineffective-assistance-of-counsel claim on" direct appeal, the appropriate conclusion is to deny relief, preserving the defendants right to argue the same issue through a petition for [PCR].” Johnson, *790 196 So.3d at 975 (¶ 8); see also Read, 430 So.2d at 837 .

2016We thus recognize that “[r]eview on direct appeal of an ineffective- assistance-of-counsel claim is confined strictly to the record.” Id.

2016We thus recognize that “[rjeview on direct appeal of an ineffective-assistance-of-counsel claim is confined strictly to the record.” Id.

2025“With respect to the overall performance of the attorney, ‘counsel’s choice of whether or not to file certain motions, call witnesses, ask certain 24 questions, or make certain objections fall within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Douglas v. State, 378 So. 3d 361 , 378 (Miss. 2024) (internal quotation marks omitted) (quoting Carr v. State, 873 So. 2d 991, 1003 (Miss. 2004)). ¶65.

2025“With respect to the overall performance of the attorney, counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004) (internal quotation marks omitted). “[T]here is a strong presumption that counsel’s action[s] were consistent with a chosen trial strategy and was within the wide range of reasonable professional assistance.” Lomas v. State, 328 So. 3d 670 , 692 (¶63)

2024“Counsel’s choice of whether to call witnesses and ask certain questions falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Bell v. State, 879 So. 2d 423, 434 (Miss. 2004) (citing Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002)). 24 ¶59.

2023This Court has been clear that “counsel’s choice whether to make certain objections fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Bell v. State, 879 So. 2d 423, 440 (Miss. 2004) (citing Jackson, 815 So. 2d at 1200 ); see also Nix v. State, 8 So. 3d 141, 144 (Miss. 2009) (citing Bell, 879 So. 2d at 440 ; Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)). ¶20.

2023This Court will address the merits of an ineffective-assistance-of-counsel claim on direct appeal when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Id. at 1250-51 (¶35) (quoting Wilcher v. State, 863 So. 2d 776, 825 (¶171) (Miss. 2003)).

2021We address the merits of an ineffective- assistance-of-counsel claim on direct appeal “only in instances where ‘(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.’” Id. (quoting Collins v. State, 221 So. 3d 366, 372 (¶19) (Miss.

2003In order for Roby to prove the ineffective assistance of counsel claim, under Mississippi Code Annotated Section 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. "[H]e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different." Smith v. State, 434 So.2d 212, 219 (Miss.1983).

2003In order for Hargett to prove the ineffective assistance of counsel claim, under Miss.Code Ann. §§ 99-39-11(2) (Rev.2000), the allegation must be alleged with specificity. "[H]e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different." Smith v. State, 434 So.2d 212, 219 (Miss.1983).

2004In order to prevail on an ineffective assistance of counsel claim, "the post-conviction applicant to this Court must demonstrate with specificity and detail the elements of the claim." Woodward v. State, 635 So.2d 805, 808 (Miss.1993); Foster v. State, 687 So.2d at 1141 .

1999In order to prevail on an ineffective assistance of counsel claim, "the post-conviction applicant to this Court must demonstrate with specificity and detail the elements of the claim." Woodward, 635 So.2d at 808 ; Foster v. State, 687 So.2d 1124, 1141 (Miss.1996). 1.

2024Further, “where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant’s right to argue the same issue through a petition for post-conviction relief.” Brandon v. State, 109 So. 3d 128, 134 (¶23) (Miss. 2013) (citing Aguilar v. State, 847 So. 2d 871, 878 (¶17) (Miss.

2017"The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Wilcher v. State , 863 So.2d 719 , 761 (¶ 162) (Miss. 2003) (quoting Aguilar v. State , 847 So.2d 871 , 878 (¶ 17) (Miss.

2023We find that this constituted trial strategy on the part of defense counsel. “‘[C]ounsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Id. at 909 (internal quotation mark omitted) (quoting Powell v. State, 806 So. 2d 1069, 1077 (Miss. 2001). ¶24.

2022Moreover, “[w]ith respect to the overall performance of the attorney, ‘counsel’s choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy’ and cannot give rise to an ineffective assistance of counsel claim.” Powell v. State, 806 So. 2d 1069, 1077 (Miss. 2001) (quoting Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)). ¶37.

2025Furthermore, “[h]aving a trial strategy negates an ineffective assistance of counsel claim, regardless of counsel’s insufficiencies.” Hall v. State, 735 So. 2d 1124, 1127 (¶10) (Miss.

2022Furthermore, “[h]aving a trial strategy negates an ineffective assistance of counsel claim, regardless of counsel’s insufficiencies.” Hall v. 8 State, 735 So. 2d 1124, 1127 (¶10) (Miss.

2020However, an ineffective-assistance-of-counsel claim can be addressed on direct appeal when “(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Johnson v. State, 196 So. 3d 973, 975 (¶7) (Miss.

2020The supreme court has clarified that “[t]rial counsel’s decisions on whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Johnson, 196 So. 3d at 976 (¶11) (quoting Carr v. State, 873 So. 2d 991, 1003 (¶27) (Miss. 2004)) (other citation omitted). ¶28.

2025“This Court has been clear that ‘counsel’s choice whether to make certain objections fall within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Turner v. State, 366 So. 3d 855 , 861 (Miss. 2023) 12 (quoting Bell v. State, 879 So. 2d 423, 440 (Miss. 2004)).

2024“Counsel’s choice of whether to call witnesses and ask certain questions falls within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.” Bell v. State, 879 So. 2d 423, 434 (Miss. 2004) (citing Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002)). 24 ¶59.

2018To succeed on an ineffective-assistance-of-counsel claim, Lovett must meet both prongs of the test laid out in Strickland v. Washington , 466 U.S. 668 , 687, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), as adopted by the Mississippi Supreme Court in Stringer v. State , 454 So.2d 468 , 476-78 (Miss. 1984).

2017To succeed on an ineffective-assistance-of-counsel claim, Lomax must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-77 (Miss. 1984).

2023An ineffective assistance of counsel claim is typically analyzed under the two prongs of Strickland, which instructs that “[t]he test to be applied in cases involving alleged ineffectiveness of counsel is whether counsel’s over-all performance was (1) deficient and if so, (2) whether the deficient performance prejudiced the defense.” McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990) (citing Strickland, 466 U.S. at 687 ).

2007McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).

2022“However, an ineffective-assistance-of-counsel claim can be addressed on direct appeal when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make finding without consideration of the findings of fact of the trial judge.” Id.

2020In Ross v. State, 288 So. 3d 317 , 324 (¶29) (Miss. 2020), the supreme court articulated the circumstances under which an appellate court may consider an ineffective-assistance-of- counsel claim on direct appeal, as follows: “[G]enerally, ineffective-assistance-of-counsel claims are more appropriately brought during post-conviction proceedings.” Bell v. State, 202 So. 3d 1239 , 9 1242 (Miss. 2016) (internal quotation marks omitted) (quoting Dartez v. State, 177 So. 3d 420, 422-23 (Miss. 2015)).

2018To succeed on an ineffective-assistance-of-counsel claim, James must demonstrate, "(1) deficiency of counsel's performance (2) sufficient to constitute prejudice to the defense." Walker v. State , 703 So.2d 266 , 268 (Miss. 1997) (quoting Strickland v. Washington , 466 U.S. 668 , 687, 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) ).

2003Walker v. State, 703 So.2d 266 (¶ 8) (Miss.1997). ¶ 13.

2016Furthermore, it has long been held that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he must “show by a pre ponderance of the evidence (1) that counsel’s performance was deficient, and (2) but for the deficiencies," the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005)).

2016It is well settled that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he must “show by a preponderance of the evidence (1) that counsel’s performance was deficient, and (2) [that] but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.

2017Ct. App. 2007). "[C]ounsel's choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim." Id. (citation and quotation marks omitted). ¶ 18.

2013We have held that a defense attorney’s “choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy and will not stand as support for an ineffective assistance of counsel claim.” Id. at 1181-82 (¶ 22) (quoting Hancock v. State, 964 So.2d 1167, 1175 (¶ 18) (Miss.Ct.App.2007)).

2023See Wiley v. State, 750 So. 2d 1193, 1199 (Miss. 1999) (“In order to prevail on an ineffective assistance of counsel claim, ‘the post-conviction applicant to this Court must demonstrate with specificity and detail the elements of the claim.’”) (quoting Woodward v. State, 635 So. 2d 805, 808 (Miss. 1993); Perkins v. State, 487 So. 2d 791, 793 (Miss. 1986)). 157 ¶398.

2004In order to prevail on an ineffective assistance of counsel claim, "the post-conviction applicant to this Court must demonstrate with specificity and detail the elements of the claim." Woodward v. State, 635 So.2d 805, 808 (Miss.1993); Foster v. State, 687 So.2d at 1141 .

2016Moreover, under Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so *1131 serious as to deprive the defendant of a fair trial.” Finally, “[a] presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). ¶6.

2015Additionally, under Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), a mov-ant must demonstrate “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “a presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Bu rns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). ¶ 22.

2016Moreover, under Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), a defendant must show “that counsel’s errors were so *1131 serious as to deprive the defendant of a fair trial.” Finally, “[a] presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Burns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). ¶6.

2015Additionally, under Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), a mov-ant must demonstrate “that counsel’s errors were so serious as to deprive the defendant of a fair trial.” Finally, “a presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983 So.2d 331, 333-34 (¶ 11) (Miss.Ct.App.2007) (citing Bu rns v. State, 813 So.2d 668, 673 (¶ 14) (Miss.2001)). ¶ 22.

2016Furthermore, it has long been held that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he must “show by a pre ponderance of the evidence (1) that counsel’s performance was deficient, and (2) but for the deficiencies," the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.App.2005)).

2016It is well settled that in order for a defendant to prevail on an ineffective-assistance-of-counsel claim, he must “show by a preponderance of the evidence (1) that counsel’s performance was deficient, and (2) [that] but for the deficiencies, the trial court outcome would have been different.” Jones v. State, 976 So.2d 407, 410-11 (¶ 6) (Miss.Ct.App.2008) (quoting Ward v. State, 914 So.2d 332, 336 (¶ 12) (Miss.Ct.

2010Moreover, this Court has stated that “[wjith respect to the overall performance of the attorney, ‘counsel’s failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy1 and do[es] not give rise to an ineffective assistance of counsel claim.” Pruitt v. State, 807 So.2d 1236, 1240 (Miss.2002) (quoting Cole v. State, 666 So.2d 767, 777 (Miss.1995)).

2009All of Fraise’s contentions can be dismissed as trial strategy. “ ‘[C]ounsel’s failure to file certain motions, call certain witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy1 and do not give rise to an ineffective assistance of counsel claim.” Pruitt v. State, 807 So.2d 1236, 1240 (¶ 8) (Miss.2002).

2016The Neal Court continued, “The decision to ‘make certain objections fall[s] within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.’” Id. (quoting Spicer v. State, 973 So. 2d 184, 203 (Miss. 2007) (quoting Powell v. State, 806 So. 2d 1069, 1077 (Miss. 2001))). ¶17.

2016The Neal Court continued, “The decision to ‘make certain objections fall[s] within the ambit of trial strategy and cannot give rise to an ineffective assistance of counsel claim.’ ” Id. (quoting Spicer v. State, 973 So.2d 184,203 (Miss. 2007) (quoting Powell v. State, 806 So.2d 1069, 1077 (Miss. 2001))). ¶17.

2019This Court will “only consider an ineffective-assistance-of-counsel claim on direct appeal when: (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge.” Nelson v. State, 222 So. 3d 318, 322 (¶5) (Miss.

2019This Court will "only consider an ineffective-assistance-of-counsel claim on direct appeal when: (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Nelson v. State , 222 So.3d 318 , 322 (¶5) (Miss.

2011This Court has held that: “[T]he mere fact that the attorney did not file a motion for discovery is not sufficient to raise an ineffective assistance of counsel claim.” Graham v. State, 861 So.2d 1053, 1056 (¶ 16) (Miss.Ct.App.2003) (quoting Powell v. State, 536 So.2d 13, 16 (Miss.1988)).

2003In Powell v. State, 536 So.2d 13, 16 (Miss.1988), the court held that “the mere fact that the attorney did not file a motion for discovery is not sufficient to raise an ineffective assistance of counsel claim.” The Powell court determined that “ ‘the filing of pre-trial motions falls squarely within the ambit of trial strategy.’ ” This Court does not normally, and will not do so here, second guess counsel’s trial strategy.

2026While ordinarily brought in post- conviction proceedings, this Court will consider an ineffective-assistance-of-counsel claim “on direct appeal only where ‘[1] the record affirmatively shows ineffectiveness of constitutional dimensions, or [2] the parties stipulate that the record is adequate and the Court determines that findings of fact by a trial judge able to consider the demeanor of witnesses, etc., are not needed.’” Swinney v. State, 241 So. 3d 599, 613 (Miss. 2018) (quoting Bell v. 5 State, 202 So. 3d 1239, 1242 (Miss. 2016)).

2025“To succeed on an ineffective-assistance-of-counsel claim, the defendant must show that (1) his counsel’s performance was deficient, and (2) that this deficiency prejudiced his defense.” Bell v. State, 202 So. 3d 1239, 1242 (¶12) (Miss. 2016) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)).