(B)  Prejudice.  To establish prejudice, the defense must show a reasonable probability of a different outcome, i.e., less than a preponderance, but a probability sufficient to undermine confidence in the result.[82]  Prejudice will be presumed, however, where the defendant is denied counsel at a critical stage of the proceedings,[83] where there is an actual conflict of interest between the defendant and his attorney,[84] or where counsel “entirely fails to subject the prosecution’s case to meaningful adversarial testing.”[85]

 

            In the case of a guilty plea, federal law indicates that the question is not whether there would have been a different outcome after a trial, but whether the petitioner, if correctly advised, would have entered the plea or other waiver.  The United States Supreme Court has made this clear: “[T]he defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”[86] 

[82] Strickland v. Washington, supra; Greene v. Henry, 302 F.3d 1067 (9th Cir. September 11, 2002) (grant of habeas on ineffective assistance of counsel claim improper where evidence which petitioner claims counsel should have presented did not contradict prosecution evidence).

[83] Geders v. United States, 425 U.S. 80 (1976).

[84] Cuyler v. Sullivan, 446 U.S. 335 (1980).

[85] United States v. Cronic, 466 U.S. 648, 658 (1984).

[86] Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370 (1985); O’Tuel v. Osborne, 706 F.2d 498, 501 (4th Cir. 1983); Strader v. Garrison, 611 F.2d 61 (4th Cir. 1979).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"FAILURE TO COMMUNICATE WRITTEN PLEA OFFER
Missouri v. Frye, 132 S.Ct. 1399 (Mar. 21. 2012) (defense counsel has the duty to communicate to the defendant formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused, and counsel was deficient in failing to communicate to defendant prosecutor's written plea offer before it expired).

POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PLEA BARGAINING
Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012) (defendant received ineffective assistance of counsel during plea bargaining, in rejecting an offer of a 51-to-85-month sentence, because counsel misadvised him that the prosecution would be unable to establish intent to murder, prejudice can be shown by establishing a reasonable probability the defendant and the trial court would have accepted the more favorable guilty plea absent counsels error). NOTE: The majority cites Padilla's floodgates discussion in defending the point that "Courts have recognized claims of this sort for over 30 years" without creating undo chaos. By "this sort," they mean Strickland claims about rejected pleas, which have a little bit more of a pedigree than non-advisal Padilla claims. This is another case with an application of Strickland that the dissent claims is novel. This language is strong confirmation that the Court understands Padilla's floodgates discussion as assuming its radioactivity as a mere application of Strickland and not a new rule. Thanks to Dan Kesselbrenner and Isaac Wheeler.

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - ABA GUIDELINES
Bobby v. Van Hook,130 U.S. 13, 175 L.Ed.2d 255 (Nov. 9, 2009) (per curiam) (limiting application of the ABA Guidelines in capital cases as the basis for determining effective assistance of trial counsel during sentencing phase, and finding the Sixth Circuit erred in relying exclusively on the 2003 ABA Guidelines as the standard by which to evaluate counsel's performance in a case tried in the 1980s, eighteen years before the 2003 edition of the Guidelines was published); compare Wiggins v. Smith, 539 U.S. 510 (2003).

The Sixth Circuit also erred by treating "the ABAs 2003 Guidelines not merely as evidence of what reasonably diligent attorneys would do, but as inexorable commands with which all capital defense counsel must fully comply." The opinion cites Strickland, which in 1984 discussed the 1980 ABA Guidelines, and notes that decision "stressed, however, that American Bar Association standards and the like are only guidelines to what reasonableness means, not its definition." The decision distinguishes Wiggins v. Smith, 539 U.S. 510 (2003), the first case that relied upon the 2003 ABA Guidelines to find trial counsel was ineffective in failing to present adequate mitigating evidence at the penalty phase; and Rompilla v. Beard, 545 U.S. 374 (2005), by noting that in Wiggins trial counsel failed to act on "potentially powerful mitigating evidence [that] stared them in the face" and in Rompilla the mitigating evidence was "apparent from documents any reasonable attorney would have obtained." There is also a very opaque footnote about the "less categorical use of the [ABA] Guidelines to evaluate post-2003 representation."

In current cases, these "guides" must still be referred to as the prevailing norm of professional conduct, but for cases prior to 2003, they cannot be assumed to be the bar. The concurrence by Justice Alito is even worse. He emphasizes that "the opinion in no way suggests that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (2003 Guidelines or ABA Guidelines) have special relevance in determining whether an attorney's performance meets the standard required by the Sixth Amendment. The ABA is a venerable organization with a history of service to the bar, but it is, after all, a private group with limited membership. . . . I see no reason why the ABA Guidelines should be given a privileged position in making that determination." Thanks to John Lanahan.

BIA

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL -- TIMELINESS - RIGHT TO MAKE BELATED APPLICATION WHERE GOVERNMENT CAUSED DELAY CAUSING TIME LIMIT TO EXPIRE
Matter of A, 9 I. & N. Dec. 302 (BIA 1961) ("when the alien is prevented from exercising a right granted him within a statutory period by unexplained or unnecessary administrative delay, or carelessness in handling his application, or in failing to inform him of his right, he will not be barred from asserting his rights or be deprived of the right.")

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - APPELLATE COUNSEL HAS NO DUTY TO RAISE EVERY NONFRIVOLOUS ISSUE REQUESTED BY THE DEFENDANT
Jones v. Barnes, 463 U.S. 745, 754 (1983) (appellate counsel has no duty to raise every nonfrivolous issue requested by the appellant).

Fifth Circuit

POST-CON - INEFFECTIVE ASSISTANCE OF COUNSEL
Draughon v. Dretke, __ F.3d __, 2005 WL 2404154 (5th Cir. Sep. 30, 2005) (counsel provided ineffective assistance at both the guilt and sentencing phases of trial).
http://caselaw.lp.findlaw.com/data2/circs/5th/0470043cv0p.pdf

Sixth Circuit

POST CON RELIEF " REVIEW " CREDIBILITY DETERMINATION REMOVAL PROCEEDINGS " EVIDENCE
Pola v. United States, ___ F.3d ___, 2015 WL 690312 (6th Cir. Feb. 19, 2015) (fact that court characterizes petitioners affidavit as self-serving " standing alone " is an insufficient basis on which to sustain an adverse credibility determination). The court stated: But an affidavit is not incredible just because the asserted facts favor the affiant. See, e.g., Valentine, 488 F.3d at 334 (holding that the district court abused its discretion by denying the petitioner an evidentiary hearing when the petitioner had provided a factual narrative of events that was not blatantly incredible); Smith v. United States, 348 F.3d 545, 551, 554 (6th Cir. 2004) (finding that the district court abused its discretion when it denied the petitioner an evidentiary hearing because he had only submitted self-serving testimony that he would have pleaded guilty had his attorney advised him of the sentencing exposure). (Id. at ___.)

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " NO CLAIM WHEN REPRESENTING ONESELF
Cook v. Ryan, 688 F.3d 598 (9th Cir. Jul. 27, 2012) (United States Supreme Court decision in Martinez v. Ryan, regarding ineffective assistance of counsel, does not apply to this case given defendant's decision to represent himself during his trial and at sentencing).

POST CON RELIEF - HABEAS - PLEA - INEFFECTIVE ASSISTANCE OF COUNSEL
Womack v. Del Papa, ___ F.3d ___, 2007 WL 2296781 (9th Cir. Aug. 13, 2007) (habeas denied over claim that petitioner entered an Alford guilty plea to several crimes that was not knowing, voluntary and intelligent because he was deprived of effective assistance of counsel).

AGGRAVATED FELONY - COV - CRIMINAL CONTEXT
United States v. Tzep-Mejia, __ F.3d __, 2006 WL 2361701 (9th Cir. Aug. 15, 2006) (where sentence following prosecution for illegal re-entry was imposed without reference to the United States Sentencing Guidelines, the reviewing court does not need to determine whether prior criminal offense was a "crime of violence" for sentencing guidelines purposes, since the guidelines did not play a part in determining the sentence).

POST CON RELIEF - COUNSEL - INEFFECTIVE ASSISTANCE - FAILURE TO PREPARE WITNESS
Hovey v. Woodward, ___ F.3d ___ (9th Cir. August 11, 2006)(counsel's failure to investigate defendant's mental condition at the time of offense and to adequately prepare expert witness sufficiently undermined confidence in verdict so as to require reversal of sentence, where counsel failed to provide crucial psychiatric records to testifying expert, and failed to give him information regarding an unrelated offense, which made the expert look "ill-prepared and foolish.").

POST CON - COUNSEL - INEFFECTIVE ASSISTANCE - EFFECT ON GUILTY PLEA
Weaver v. Palmateer, __ F.3d __ (9th Cir. July 17, 2006) ("In assessing prejudice [from allegedly ineffective assistance], we do not ask what a defendant might have done had he benefited from clairvoyant counsel;" telling defendant that while he technically could receive probation but probably would not was prudent advice. (Cf, Iaea v. Sunn, 800 F.2d 861, 863-65 (9th Cir. 1986) [ineffective assistance where attorney grossly mischaracterized probable sentence by suggesting, on several occasions, that defendant had "a good chance" of receiving probation and that the chance of an extended sentence was "almost zero," and yet defendant received life sentence]).

POST CON RELIEF - GROUNDS - PLEA - INEFFECTIVE ASSISTANCE
Hoffman v. Arave, ___ F.3d ___ (9th Cir. Jul. 5, 2006) (affirming in part and reversing in part habeas petition based on ineffective assistance of counsel during pre-trial plea bargaining and during the guilt phase of his murder trial). http://caselaw.lp.findlaw.com/data2/circs/9th/0290004p.pdf

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - REMEDY - RETURN TO PRE-ERROR STAGE OF PROCEEDINGS
Riggs v. Fairman, ___ F.3d ___ (9th Cir. March 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding).
http://caselaw.lp.findlaw.com/data2/circs/9th/0255185p.pdf

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - INVALID GUILTY PLEA
Lambert v. Blodgett, ___ F.3d ___ (9th Cir. Dec. 28, 2004) (reversing order vacating guilty plea on grounds of ineffective assistance of counsel and lack of knowing, voluntary and intelligent plea, where district court erred in disregarding Washington state courts factual findings and conclusions of law).
http://caselaw.lp.findlaw.com/data2/circs/9th/0335081p.pdf

HABEAS CORPUS - FEDERAL - INEFFECTIVE ASSISTANCE NOT PREJUDICIAL
Allen v. Woodford, 366 F.3d 823 (9th Cir. May 6, 2004) ("[Petitioner's] representation at the penalty phase of his trial fell below an objective standard of reasonableness. Trial counsel admits he did nothing to prepare for the penalty phase until after the guilty verdicts were rendered, and even then, in what little time was available, he failed sufficiently to investigate and adequately present available mitigating evidence.")

POST CON RELIEF - GROUNDS - IAC - REMEDY
Macias-Ramos v. Schiltgen, ___ F.3d ___, 2004 U.S. App. LEXIS 1531 (9th Cir. Jan. 30, 2004) (UNPUBLISHED) (BIA violated due process by waiting six years, until after law had changed to respondent’s detriment, to review Immigration Judge’s originally erroneous finding that expunged misdemeanor weapons conviction constituted conviction for immigration purposes).      The BIA must generally apply the law in place at the time the BIA conducts its review. Ortiz v. INS, 179 F.3d 1148, 1156 (9th Cir. 1999). However, that rule is not absolute where the error effectively denied the noncitizen a meaningful hearing under the law existing when the hearing was held. See, e.g., Guadalupe-Cruz v. INS, 240 F.3d 1209, 1212, 250 F.3d 1271 (9th Cir. 2001) (BIA's failure to correct IJ's error was defect requiring application of law in effect at time of initial hearing); Roman v. INS, 233 F.3d 1027, 1032-33 (7th Cir. 2000) (procedural defect resulting in the loss of an opportunity for statutory relief requires remand for a hearing under former law); Castillo-Perez v. INS., 212 F.3d 518, 528 (9th Cir. 2000) (ineffective assistance of counsel before IJ required remand for application of law existing at the time of original hearing). Where the BIA’s failure to timely remedy an IJ's error denies respondent the benefit of the law in effect at the time of the original hearing, the only meaningful remedy is to give the respondent a hearing under the law that would have applied, had the BIA not delayed his appeal. Guadalupe-Cruz, 240 F.3d at 1212.

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL
United States v. Griffy, 895 F.2d 561, 562 (9th Cir. Feb. 1, 1990) (indigent appellant entitled to counsel who acts as an active advocate).

Lower Courts of Ninth Circuit

POST-CON - INEFFECTIVE ASSISTANCE AT PRELIMINARY HEARING
People v. Carter, __ Cal.4th __ (Cal. Aug, 15, 2005) ("Irregularities in pretrial commitment proceedings require reversal on appeal only where defendant shows he was deprived of a fair trial or otherwise suffered prejudice as a result. (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.).").

Tenth Circuit

POST CON RELIEF - FEDERAL - FAILURE TO OBJECT IN COURT BELOW RESULTS IN APPELLATE REVIEW FOR PLAIN ERROR - ISSUE PRESERVATION
United States v. Algarate-Valencia, 550 F.3d 1238 (10th Cir. Dec. 30, 2008) ("counsel did not object to the limited time he had been given, so we review the judge's time restriction for plain error. See United States v. McComb, 519 F.3d 1049, 1054 (10th Cir.2007) ("Because [the defendant] made no contemporaneous objection to the reasonableness of the district court's sentencing procedures ... we may review his appeal on this score only for the presence of plain error."). Plain error exists when "there is (1) error, (2) that is plain, (3) which affects substantial rights, and (4) which seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. An error only affects substantial rights when it is prejudicial, meaning that there is "a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Gonzalez-Huerta, 403 F.3d 727, 733 (10th Cir.2005) (quotations omitted).").

Lower Courts of Tenth Circuit

POST CON - NEW MEXICO CASE CITATION
State v. Paredez, ___ N.M. ___, 2004 N.M. LEXIS 495 (2004) (a criminal defendant's attorney has "an affirmative duty to determine [the client's] immigration status and provide him with specific advice regarding the impact a guilty plea would have on his immigration status.").

Other

ARTICLE"POST CON RELIEF"GROUNDS"INEFFECTIVE ASSISTANCE OF COUNSEL"PLEA BARGAINING ERROR"PREJUDICE
Where Ineffective Assistance of Counsel Results in Rejection of a Plea Bargain, Followed by Trial, Prejudice is Shown by Establishing that The Plea Would Have Been Entered and the Conviction or the Sentence Would Have Been More Lenient By Norton Tooby The Supreme Court established a prejudice standard where ineffective assistance of counsel during plea bargaining results in rejection of a plea offer, followed by a jury trial, conviction, and sentence over three times longer. In Lafler v. Cooper, 132 S.Ct. 1376 (Mar. 21, 2012), the defendant received ineffective assistance of counsel during plea bargaining, where he rejected a plea offer of a 51-to-85-month sentence, because his attorney misadvised him that the prosecution would be unable to establish intent to murder at trial because the victim had been shot below the waist. He therefore went to trial, was convicted on all counts, and received a mandatory minimum 185-to-360-month sentence. The Government conceded counsels advice with respect to the plea offer fell below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable to the States through the Fourteenth Amendment. (Id. at 1383.) The courts decision, therefore, focused on how to apply Stricklands prejudice test where ineffective assistance results in a rejection of the plea offer and the defendant is convicted at the ensuing trial. (Id. at 1384.) Prejudice Standard To establish Strickland prejudice in the context of a plea bargaining error, the defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the outcome of the plea process would have been different with competent advice. (Id. at 1384.) This standard is different in different contexts. [W]hen evaluating the petitioners claim that ineffective assistance led to the improvident acceptance of a guilty plea, the Court required the petitioner to show that there is a reasonable probability that, but for counsels errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial. (Id. at 1384-85, quoting Hill v. Lockhart, 474 U. S. 52, 59 (1985). In the present case, the claim of error was the reverse, leading to the following formulation of prejudice: In contrast to Hill, here the ineffective advice led not to an offers acceptance but to its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged. In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offers terms would have been less severe than under the judgment and sentence that in fact were imposed. (Id. at 1385.) In rejecting the government argument that the right to effective counsel protects only the right to a fair trial, the court stated: The Sixth Amendment, however, is not so narrow in its reach. Cf. Frye, ante, at 11 (holding that a defendant can show prejudice under Strickland even absent a showing that the deficient performance precluded him from going to trial). The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed simply to protect the trial, even though counsels absence [in these stages] may derogate from the accuseds right to a fair trial. [Citation omitted.] The constitutional guarantee applies to pretrial critical stages that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsels advice. This is consistent, too, with the rule that defendants have a right to effective assistance of counsel on appeal, even though that cannot in any way be characterized as part of the trial. [Citations omitted.] The precedents also establish that there exists a right to counsel during sentencing . . . . Even though sentencing does not concern the defendants guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland prejudice because any amount of [additional] jail time has Sixth Amendment significance. Glover, supra, at 203. (Id. at 1385-86.) The Court, moreover, has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial cured the particular error at issue. (Id. at 1386.) The courts reasoning was very forceful, in rejecting the claim that a fair trial automatically cures plea bargaining error: In the instant case respondent went to trial rather than accept a plea deal, and it is conceded this was the result of ineffective assistance during the plea negotiation process. Respondent received a more severe sentence at trial, one 3 times more severe than he likely would have received by pleading guilty. Far from curing the error, the trial caused the injury from the error. Even if the trial itself is free from constitutional flaw, the defendant who goes to trial instead of taking a more favorable plea may be prejudiced from either a conviction on more serious counts or the imposition of a more severe sentence. (Id. at 1386.) The court stated the prejudice standard where an error led to the rejection of a plea offer as follows: If a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence. (Id. at 1387.) The court recognized the realities of the criminal justice system, instead of sterile doctrine: [C]riminal justice today is for the most part a system of pleas, not a system of trials. Ninety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas. [Citation omitted.] As explained in Frye, the right to adequate assistance of counsel cannot be defined or enforced without taking account of the central role plea bargaining plays in securing convictions and determining sentences. (Id. at 1388.) The Remedy The court then addressed the general question of the appropriate remedy where ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence[:] Sixth Amendment remedies should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests. United States v. Morrison, 449 U. S. 361, 364 (1981). Thus, a remedy must neutralize the taint of a constitutional violation, id., at 365, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. See Mechanik, 475 U. S., at 72 (The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences). (Id. at 1388-89.) The court looked more specifically at prejudice from erroneously rejecting a plea bargain, and receiving a longer sentence: The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsels errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between. In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judges sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed. (Id. at 1389.) Giving the court discretion to impose a sentence greater than the sentence dictated by the erroneously lost plea bargain seems to undercut the goal of placing the defendant in the position he or she would have occupied absent the error, and it is not apparent how granting this discretion avoids unnecessarily infringing on competing interests. The court went on to describe two factors that may inform the courts exercise of discretion to fashion an appropriate remedy: First, a court may take account of a defendants earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial. (Id. at 1381-82.) The court rejected floodgates arguments, pointing out that the government has cried Wolf before, but no wolf materialized. (Id. at 1389-90.) But this floodgates discussion clearly implies the courts view that this decision should apply retroactively, similarly to Padilla. In the present case, all parties conceded counsel rendered deficient performance, and the defendant established that but for counsels deficient performance there is a reasonable probability he and the trial court would have accepted the guilty plea. The standard for ineffective assistance under Strickland has thus been satisfied. (Id. at 1391.) The court prescribed the following remedy: As a remedy, the District Court ordered specific performance of the original plea agreement. The correct remedy in these circumstances, however, is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3) (2011) (If there is a plea agreement and its terms provide for the defendants plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement). Todays decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case. (Id. at 1391.) The courts thinking on the prejudice standard is excellent, but the remedy adopted"throwing everything open to the discretion of the court, instead of placing the defendant in the same position he or she would have occupied absent the error, may often be inadequate to remedy the constitutional violation.

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - ABA STANDARDS ARE RELEVANT TO A FINDING OF DEFICIENT PERFORMANCE Rompilla v. Beard, ___ U.S. ___, 2005 WL
1421390 (June 20, 2005) (defense counsel's failure to examine file on defendant's prior conviction for rape and assault at sentencing phase of capital murder trial fell below the level of reasonable performance, and such failure was prejudicial to defendant, warranting habeas relief on grounds of ineffective assistance of counsel, placing reliance on ABA Standards, which stated: "It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty." 1 ABA Standards for Criminal Justice 4-4.1 (2d ed. 1982 Supp.). The Court stated: ""[W]e long have referred [to these ABA Standards] as 'guides to determining what is reasonable.' " Wiggins v. Smith, 539 U.S., at 524, 123 S.Ct. 2527 (quoting Strickland v. Washington, 466 U.S., at 688, 104 S.Ct. 2052), and the Commonwealth has come up with no reason to think the quoted standard impertinent here." (Id. at 2466)).

POST CON RELIEF - GROUNDS - COUNSEL - ADVICE CONCERNING IMMIGRATION CONSEQUENCES
Brian Bates, Law of the Land: Good Ideas Gone Bad: Plea Bargains and Resident Aliens, 66 Tex. B. J. 878 (November, 2003).

POST CON RELIEF - GROUNDS - COUNSEL - IMMIGRATION CONSEQUENCES CRIMINAL DEFENSE - INTRODUCTION
Lory Diana Rosenberg, Preventative Lawyering: How Defense Counsel can Defend Immigrants Rights, 27 The Champion 43 (Nat'l Ass'n of Criminal Defense Lawyers, March, 2003).

POST CON RELIEF - GROUNDS - COUNSEL - ADVICE CONCERNING IMMIGRATION CONSEQUENCES
Gabriel J. Chin & Richard W. Holmes, Jr., Effective Assistance of Counsel and the Consequences of Guilty Pleas, 87 Cornell L. Rev. 697 (2002).

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL
David M. Siegel, "My Reputation or Your Liberty (Or Your Life): The Ethical Obligations of Criminal Defense Counsel in Postconviction Proceedings," 23 Journal of the Legal Profession 85 (1999).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - CALIFORNIA - FAILURE TO COMMUNICATE PROSECUTION'S OFFER TO DEFENDANT
Ineffective counsel can occur where defense counsel failed to convey to the defendant. A plea offer made by the prosecution. It can also arise counsel failed to advise the defendant properly regarding whether to accept a plea offer. (In re Alvernaz (1997) 2 Cal.4th 924, 935 n. 5.)

The ABA STANDARDS state: "Defense counsel should promptly communicate and explain to the accused all significant plea proposals made by the prosecutor." (ABA STANDARDS FOR CRIMINAL JUSTICE: THE DEFENSE FUNCTION (3d ed. 1992), Standard 4-6-2(b), p. 206 [Plea Discussions].) The Commentary to this Standard explains: [T]he lawyer has the duty to communicate fully to the client the substance of the [plea] discussions. . . . [T]he client should be given sufficient information to participate intelligently in the decision whether to accept or reject a plea proposal. It is important that the accused be informed both of the existence and the content of proposals made by the prosecutor; the accused, not the lawyer, has the right to decide whether to accept or reject a prosecution proposal, even when the proposal is one that the lawyer would not approve." (Id. at 208.)

POST CON RELIEF - GROUNDS - FEDERAL - INEFFECTIVE COUNSEL - DEFICIENT PERFORMANCE - DUTY TO CONVEY OFFER
Erroneous advice surrounding the guilty plea can deprive the defendant of the right to make a well-informed decision about whether to accept a favorable plea offer, and can therefore amount to prejudicial ineffective assistance. United States v. Day, 285 F.3d 1167 (9th Cir. 2002) (relief granted where counsel wrongly informed client that he could only argue sentencing entrapment to mitigate punishment if he contested his guilt at trial).

Counsel also may render ineffective assistance by failing to recommend whether to accept a plea offer. While there is no per se rule that effective counsel must recommend whether or not to accept a plea offer, counsel should make an independent examination of the case and offer an informed opinion as to what plea should be entered. Purdy v. United States, 208 F.3d 41 (2d Cir. 2000); Von Moltke v. Gillies, 332 U.S. 708, 721 (1948); see also Boria v. Keane, 99 F.3d 492 (2d Cir. 1996)(conviction vacated for failure to express opinion defendant should accept offer, citing 1992 Model Code of Profl Responsibility, EC 7-7, requiring counsel to "advise [the] client fully on whether a particular plea to a charge appears to be desirable").

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " CRITICAL STAGES OF THE PROCEEDING
The right to effective assistance of counsel applies at every critical stage of the prosecution, including guilty pleas, not merely at trial. Mempa v. Rhay, 389 U.S. 128, 134 (1967); White v. Maryland, 373 U.S. 59, 60 (1963). A guilty plea . . . is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, and the right to confront ones accusers. While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is itself a conviction, and the high stakes for the defendant require the utmost solicitude. Florida v. Nixon, 543 U.S. 175, 187 (2004) (citations omitted) (emphasis added). The Supreme Court has held that the Sixth Amendment guarantees effective assistance of counsel at sentence. Mempa v. Rhay, 389 U.S. 128, 137 (1967); see Glover v. United States, 531 U.S. 198, 203-204 (2001)(non-capital sentencing).