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Jul 10, 2018 · By contrast, an allegation of ineffective assistance is a challenge to the validity of the trial process itself, something arising after trial. Accordingly, when ineffective assistance is alleged, the court will receive fresh evidence to establish the ground.[16] The Merits of the Motion
Jun 13, 2019 · The circuits disagree, however, as to what kinds of claims can be raised in a “newly discovered evidence” motion, and, assuming that such a motion is not limited to evidence going to the merits of the charges, as to the standard that must be met to obtain relief when the evidence concerns an asserted violation of the defendant’s rights.
- Paul Mogin
- 2019
Sep 16, 2021 · Proceeding instead under § 2255, Appellants ignore an important Eighth Circuit principle: “When newly discovered evidence is the ground for a § 2255 motion, the district court should apply the same substantive test which governs a motion for a new trial under Fed. R. Crim. P. 33 premised upon the same ground.” Lindhorst v.
appellate motion for remand based on newly discovered evidence. While there was a question of whether the state court adjudicated the claim on the merits in denying the remand, it was unnecessary to resolve the issue because petitioner was entitled to relief, even under the AEDPA standards.
- 208KB
- 28
(2) newly discovered evidence which by due diligence could not have been discovered in time for a MNT under 59(b) (evidence must have existed at the time of trial and it must be material and controlling as to induce a different result) ex: something accidentally not turned over in the DCF file and later discovered
States v. Martinez, 136 F.3d 972, 979 (4th Cir. 1998) ("A defendant can raise the claim of ineffective assistance of counsel in three ways: (1) in a motion for a new trial based on anything other than newly discovered evidence; (2) on direct appeal if and only if it conclusively appears
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Jun 7, 2021 · Previous decisions have found grounds for ineffective assistance when trial counsel decides upon the mode of trial without consulting their client. An accused should be allowed to make an informed election and the failure of counsel to advise a client about the potential options is a miscarriage of justice without the need to establish further prejudice: R. v. Stark , 2017 ONCA 148 .
