Can a defendant bring a claim of ineffective assistance of counsel against a prosecutor for prosecutorial misconduct?

California, United States of America


The following excerpt is from People v. Cohn, B233515 (Cal. App. 2013):

6. Cohn argues that, to the extent he has forfeited his prosecutorial misconduct claims, his trial counsel provided ineffective assistance of counsel by failing to object to the prosecutor's conduct in a timely manner. "'To prevail on a claim of ineffective assistance of counsel, defendant "must establish not only deficient performance, i.e., representation below an objective standard of reasonableness, but also resultant prejudice."' [Citation.] Prejudice occurs only if the record demonstrates 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.] 'When . . . the record sheds no light on why counsel acted or failed to act in the manner challenged, the reviewing court should not speculate as to counsel's reasons. . . . Because the appellate record ordinarily does not show the reasons for defense counsel's actions or omissions, a claim of ineffective assistance of counsel should generally be made in a petition for writ of habeas corpus, not on appeal.' [Citation]." (People v. Lucero (2000) 23 Cal.4th 692, 728-729.) In this case, Cohn does not discuss whether the record sheds light on why the counsel failed to object. Accordingly, we conclude that if Cohn wishes to pursue the ineffective assistance claim, he must do so in a habeas petition.

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