Post-Conviction Relief for Immigrants

(A)  Deficient Performance.  A criminal defendant is deprived of effective assistance of counsel when the defense attorney fails to act in the manner expected of a reasonably competent attorney acting as a diligent advocate.[71]  Effective counsel “is counsel ‘reasonably likely to render, and rendering, reasonably effective assistance.’”[72]  Counsel’s advice must be “within the range of competence demanded of attorneys in criminal cases.”[73]  The accused must also show that “the omissions of defense counsel involved a critical issue and that the omissions cannot be explained on the basis of any knowledgeable choice of tactics.”[74]

            A multitude of circumstances can amount to ineffective assistance,[75] and a number of particular situations are described below.  Examples include the failure to advise the defendant of the wisdom of accepting a plea bargain that would result in a substantially reduced sentence.[76]  Failure of counsel to preserve an issue for appeal may constitute ineffective assistance of counsel,[77] as will counsel’s decision to abandon a forceful argument in favor of a reduced sentence.[78]  The Ninth Circuit granted habeas corpus relief to a state prisoner based on ineffective assistance of counsel, finding “constructive withdrawal from representation” where counsel was absent from virtually every important court proceeding, including sentencing, and failed to raise requested issues on appeal.[79]

            A denial of effective counsel can also occur where counsel is denied the tools s/he needs to do an adequate job.  Denial of necessary discovery is one area.  Denial of time to prepare is another.  A claim can also be raised where counsel is denied necessary expert assistance.[80]

            One common ground is counsel’s failure to investigate the mitigating fact that a given disposition will result in an immigration tragedy for the client and the client’s innocent family.  This mitigation could have been presented to the prosecution and court during plea bargaining, and prejudice can be shown where there is a reasonable probability that an immigration-harmless equivalent disposition would have resulted.[81]

[71] People v. Fosselman, 33 Cal.3d 572, 584 (1983); People v. Pope, supra, 23 Cal.3d 412.

[72] In re Saunders, 2 Cal.3d 1033, 1041 (1970) [emphasis in original]; see also People v. Pope, supra, 23 Cal.3d at pp. 423‑424.

[73] McMann v. Richardson, 397 U.S. 759, 771 (1970); Crotts v. Smith, 73 F.3d 861, 865 (9th Cir. 1996).

[74] People v. Farley, 90 Cal.App.3d 851, 153 Cal.Rptr. 695, 698 (1979) [emphasis in original]; see People v. Perez, 83 Cal.App.3d 718 (1978).

[75] For a comprehensive list of instances of ineffective assistance of counsel, see J. Liebman and R. Hertz, supra, n.3, § 11.2c (1998); L. Fassler, Ineffective Assistance of Counsel (1994).

[76] Boria v. Keane, 99 F.3d 492 (2d Cir. 1996).

[77] Smith v. Black, 904 F.2d 950, 980 (5th Cir. 1990), held: “[F]ailure to object properly or to preserve fundamental errors at trial may constitute ineffective assistance of counsel.”  Vela v. Estelle, 708 F.2d 954, 966 (5th Cir. 1983), held: “Vela was thrice prejudiced.  First, defense counsel allowed the prejudicial evidence of Brown’s good character to be introduced.  Second, by failing to object to it and ask for a curative instruction, counsel allowed the jury to consider it as if it had been material, probative evidence, relevant to the issue of Vela’s sentence.  Third, defense counsel’s failure to object waived the issue for consideration on direct appeal.”

[78] See Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (abandonment of forceful mitigating evidence at sentencing not a reasonable tactical decision). 

[79] Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000) (determining, pursuant to 28 U.S.C. § 2254(d), that the state court judgment was an unreasonable application of clearly established federal law).

[80] Starr v. Lockhart, 23 F.3d 1280 (9th Cir. 1994) (indigent petitioner denied expert needed to prove diminished capacity mitigating circumstance); Liles v. Saffle, 945 F.2d 333 (10th Cir. 1991), cert. denied, 502 U.S. 1066 (1992)(due process violated by denial of motion for psychiatric assistance); Smith v. McCormick, 914 F.2d 1153 (9th Cir. 1990) (trial judge violated rule of Ake v. Oklahoma, 470 U.S. 68 (1985), by denying request for defense expert and instead appointing court expert who would report directly to judge); Buttrum v. Black, 908 F.2d 695 (11th Cir. 1990) (trial court’s limited grant of psychiatric assistance deprived petitioner of psychiatric testing and testimony needed to present adequate defense at sentencing hearing).

[81] Visciotti v. Woodford, 288 F.3d 1097 (9th Cir. April 24, 2002) (ineffective assistance found where counsel failed to investigate and present mitigating evidence about appellant’s background).