Post-Conviction Relief for Immigrants

(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).