Lewicki v. Emerson

Defendant was found guilty in state court of attempt to commit robbery causing serious bodily injury and was sentenced to 65 years in prison as a habitual offender. The state courts affirmed the conviction and sentence and denied the defendant’s petition for collateral relief. A federal court, however, issued a conditional writ of habeas corpus after finding that defendant was denied the effective assistance of appellate counsel. The Seventh Circuit reversed, finding that the appellate court failed to establish both that counsel’s performance was deficient, and that defendant was prejudiced as is required by Strickland and that defendant could not establish the second prong so any error was harmless. (KIRSCH and LEE, concurring)