When evaluating a claim for ineffective assistance of counsel, may a court retroactively construct a strategic justification for a decision that the attorney has never articulated?

QUESTION PRESENTED When faced with a Sixth Amendment claim for ineffective assistance of counsel, a court must determine whether counsel’s performance “fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. 668, 688 (1984). In Strickland, this Court held that a “defendant must overcome [a] presumption that ** * the challenged action might be considered sound trial strategy.” Id. at 689 (quotation marks omitted). But the Court emphasized that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight.” Id. The federal courts disagree about how these principles apply when the record does not reveal the basis for an attorney’s decision. In its decision below, the Seventh Circuit held that it was appropriate for an Illinois state court to retroactively construct a “strategic rationale” that “counsel himself ha[d] not articulated.” The Fifth, Eighth, Tenth, and Eleventh Circuits have taken similar approaches. By contrast, the Second and Fourth Circuits have held that when an attorney has not articulated the rationale behind his or her decision, a court may not presume that it was based on strategy. The question presented is: When evaluating a claim for ineffective assistance of counsel, may a court retroactively construct a strategic justification for a decision that the attorney has never articulated? ii LIST OF PROCEEDINGS Direct Habeas Proceedings Below United States Court of Appeals for the Seventh Circuit No. 20-2786 Michael Meyers v. David Gomez, Date of Final Opinion: October 6, 2022 United States District Court Northern District of Illinois No. 17 C 5687 Michael Meyers, (N74364), Petitioner, v. Randy Pfister, Warden, Stateville Correctional Center, Respondent. Date of Final Opinion and Order: August 13, 2019 Illinois State Court Post-Conviction Proceedings Appellate Court of [linois, First Judicial District No. 1-14-2323 The People of the State of Illinois, Respondent Appellee, v. Michael Meyers, Date of Final Opinion: October 21, 2016 iii Circuit Court of Cook County No. 89-CR-27587(3) The People of the State of Illinois, Respondent, v. Michael Meyers, Petitioner. Date of Final Opinion: June 24, 2014 Illinois State Court Original Trial Court Proceedings Circuit Court of Cook County No. 90-27587 The People of the State of Illinois v. Kevin Young, et. al Date of Final Order: May 1, 1991 Appellate Court of [linois, First Judicial District Nos. 1-91-1519, 1-91-1522, 1-91-1778, 1-91-1848, 1-91-2087 and 1-92-0022 The People of the State of Illinois, Plaintiff-Appellee, v. Young, et. al, Date of Final Order: March 31, 1994