SCOW accepts state’s petition on COA’s new trial grant for IAC in Len Bias case
State v. Samuel R. Osornio, 2024AP2368-CR, petition for review of a published court of appeals decision, granted 5/20/26; case activity
This is a Len Bias case in which the COA granted a new trial on the basis that Osornio showed there was at least a reasonable probability that he would not have been convicted of reckless homicide if the jury had been properly instructed from the start. SCOW will determine the burden of proof and whether COA diluted the reasonable probability standard for the prejudice prong of Osornio’s ineffective assistance of counsel claim.
In a published decision, COA held that Osornio’s trial counsel was ineffective for not requesting that the jury be instructed as to the the lesser-included offense. The state’s PFR presents the following issue for review:
Did Osornio prove that trial counsel’s failure to request the lesser-included offense instruction before the jury began deliberating created a reasonable probability of a different result at his trial?
As the state explains, the only dispute in this case is as to the prejudice prong of the IAC test. In its argument, the state contends that the court of appeals inverted the burden of proof and diluted the reasonable probability standard. Specifically, the state argues that the two legal errors the COA committed two legal errors in evaluating prejudice were “flipp[ing] the burden of proof from Osornio to the State” and “reduc[ing] a ‘reasonable probability’ to anything that is more than ‘conceivable.'”