When he discovered his oversight, Mr. Patton advised Mr. Bernardi to hire another lawyer to file a motion claiming ineffective counsel, and agreed to testify to the error.
If the lawyer fails to do that, the client has a claim for ineffective counsel under the Sixth Amendment.
But both LaGrand and Avena indicate that the availability of a claim of ineffective assistance of counsel is not an adequate remedy for an Article 36 violation.
In the end, the court turned down Mr. Emmett's appeal, which had been based on a claim of ineffective counsel.
Hence, if the State provides some other effective remedy, for example, review for prejudice through a claim of ineffective assistance of counsel, then the Convention would not forbid application of ordinary procedural default rules.
While it was pending, the Supreme Court made a ruling in a different case that, for the first time, allowed a federal court to consider a claim of ineffective assistance of counsel.
But the federal appeals court ruling "would create significant unfairness," he said, in any system like Texas' that "does not offer most defendants a meaningful opportunity to present a claim of ineffective assistance of trial counsel" in an appeal.
At the very least, if defense attorneys failed to challenge Hayne's credibility at trial, it seems like their client would have a decent claim of ineffective assistance of counsel.
The court also denied Bustillo's claim of ineffective assistance of counsel, ruling that his belated claim that counsel should have informed him of his Vienna Convention rights was barred by the applicable statute of limitations and also meritless under Strickland v. Washington, 466 U. S. 668 (1984).
In 2012, in Martinez v. Ryan, the Court made a groundbreaking ruling that, in a case like this one, in which an inmate is seeking relief under a federal writ of habeas corpus, a federal court can allow the inmate to pursue a claim of ineffective counsel if the lawyer representing him on appeal in state court failed to make that claim.
