Post-Conviction Relief for Immigrants

 

As the Supreme Court held in Strickland v. Washington,[89] counsel must, at a minimum, conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent his or her client.[90]  “There is nothing strategic or tactical about ignorance . . . .”[91]  Another decision stated: “It is hard to conceive how a criminal defendant is not prejudiced when his attorney wholly fails to investigate evidence that he was not at the scene of the crime and that another man was guilty of the crime with which he was charged.”[92]  The Supreme Court has recently reaffirmed this principle.[93]

 

As the court stated in Sanders v. Ratelle:[94]

 

[T]he failure to conduct a reasonable investigation constitutes deficient performance.  The Third Circuit has held that “[i]neffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision could be made.”  See U.S. v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).  A lawyer has a duty to “investigate what information . . . potential eye-witnesses possess[], even if he later decide[s] not to put them on the stand.”  Id. at 712.  See also Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th Cir. 1986) (“Neglect even to interview available witnesses to a crime simply cannot be ascribed to trial strategy and tactics.”; Birt v. Montgomery, 709 F.2d 690, 710 (7th Cir. 1983), cert. denied, 469 U.S. 874 (1984) (“Essential to effective representation . . . is the independent duty to investigate and prepare.”).

 

            Thus, the conviction is invalid where counsel fails to investigate the case in a competent manner, to the defendant’s prejudice.[95]  Counsel cannot be said to have made an informed tactical decision without conducting an adequate investigation.[96] 

 

            The failure to obtain the advice and assistance of an expert witness can amount to ineffective assistance of counsel under state and federal constitutions,[97] as can the failure to investigate and contact witnesses.[98]  Similarly, a plea is invalid if counsel fails to conduct the adequate factual investigation necessary to offer the defendant an informed recommendation concerning the plea.[99]  Counsel must investigate and present at sentencing available mitigating evidence, including expert medical evidence and evidence of social history.[100]

 

            Failure to investigate foreign mitigation may also constitute ineffective assistance.[101]

 

            California courts have made the same point:

 

            An informed tactical decision made by defense counsel does not constitute ineffective assistance of counsel. (In re Ibarra (1983) 34 Cal.3d 277, 284 [193 Cal.Rptr. 538, 666 P.2d 980].) As a corollary rule, “ineptitude or lack of industry” on the part of counsel falls well short of the mark.  (In re Saunders (1970) 2 Cal.3d 1033, 1042, fn. 7 [88 Cal.Rptr. 633, 472 P.2d 921].)  “‘[W]hile acknowledging the wide latitude and discretion necessarily vested in trial counsel in the area of tactics and strategy, we stress that the exercise of that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.’ [Citation.]”  (In re Hall (1981) 30 Cal.3d 408, 426 [179 Cal.Rptr. 223, 637 P.2d 690].)[102]

 

[89] Strickland v. Washington, 466 U.S. 668, 691 (1984).

[90] See also Hendricks v. Vasquez, 974 F.2d 1099, 1109 (9th Cir. 1992) [vacating conviction]; United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) (reversing conviction for failure to investigate a mental defense); Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (holding a failure to investigate “cannot be construed as a trial tactic” where counsel did not even bother to view relevant documents that were available); Karis v. Calderon, 283 F.3d 1117 (9th Cir. March 18, 2002) (prejudicial ineffective assistance found where counsel failed to investigate and present highly relevant information of abusive childhood; “reasonable probability” existed that jury would find information important in understanding root of petitioner’s criminal behavior culpability).

[91] Pineda v. Craven, 424 F.2d 369, 372 (9th Cir. 1970).

[92] Luna v. Cambra, 306 F.3d 954 (9th Cir. September 27, 2002) (failure to interview and subpoena two alibi witnesses and one exonerating witness was prejudicial ineffective assistance of counsel).

[93] Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003) (counsel’s failure to investigate background and present mitigating evidence of “unfortunate” life history at capital sentencing proceedings violated Sixth Amendment right to counsel).

[94] Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) (reversing conviction for defense counsel’s failure to interview defense witness).

[95] Mayes v. Gibson, 210 F.3d 1284 (10th Cir. 2000); Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000) (counsel deficient where total sentencing investigation took less than two hours, and consisted only of interviews with petitioner’s mother and estranged wife, and no attempt was made to compile social history); Avila v. Galaza, 297 F.3d 911 (9th Cir. July 22, 2002) (ineffective assistance found where counsel failed to investigate and introduce evidence which would have raised reasonable doubt as to defendant’s guilt); Jennings v. Woodford, 290 F.3d 1006 (9th Cir. May 10, 2002) (ineffective assistance of counsel found where counsel failed to discover and consider vast and easily obtainable information defendant’s fragile and failing mental health; excuse that counsel did not investigate mental defenses because he had settled on alibi defense was not informed tactical decision); Carter v. Bell, 218 F.3d 581 (6th Cir. 2000) (failure to conduct any investigation into petitioner’s family, social or psychological background constituted ineffective assistance; “The sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility.”); Riley v. Payne, 352 F.3d 1313 (9th Cir. 2003) (defense counsel’s failure to interview eyewitness constituted prejudicial ineffective assistance of counsel).

[96] See, e.g., Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (failure to present mitigating evidence at sentencing cannot be strategic, tactical decision where counsel fails to investigate); see also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) (failure to investigate cannot be construed as a trial tactic); Hale v. Gibson, 227 F.3d 1298 (10th Cir. 2000) (“before an attorney can insulate his behavior from review by claiming that a decision to forego mitigation evidence was strategic, ‘an attorney must have chosen not to present mitigating evidence after having investigated the defendant’s background, and that choice must have been reasonable under the circumstances.’”).

[97] See Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996), cert. denied, 117 S.Ct. 1329 (1997) (counsel held ineffective for not following up on criminologist’s report that tended to show semen and saliva samples taken from two rape victims probably did not belong to defendant); United States v. Tracing, 996 F.2d 1414 (2d Cir. 1993) (ineffective counsel found for failure to consult with handwriting expert); Sibs v. Lively, 970 F.2d 1575 (6th Cir. 1992) (ineffective counsel found for failure to hire forensic expert to examine physical evidence); but see Davis v. Woodford, 333 F.3d 982 (9th Cir. June 24, 2003) (no ineffective assistance found where defense expert  cautioned defense attorneys that he may offer possibly damaging information, and when pressed for time, counsel exercised appropriate professional judgment in choosing to put expert on stand rather than doing without an expert).

[98] Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999) (failure to interview witness that would have supported alibi defense); Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999); In re Hall, 30 Cal.3d 408, 426, 179 Cal.Rptr. 223, 637 P.2d 690 (1981) (failure to interview witnesses).

[99] Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994) (counsel spent only seven hours investigating the case, ignored a potentially fruitful lead that would have created substantial questions concerning the identity of the perpetrator, and failed to investigate defendant’s mental competence to enter the plea); Baxter v. Thomas, 45 F.3d 1501 (11th Cir. 1995), cert. denied, 516 U.S. 946 (1995) (failure to obtain school and hospital records which would have lead to evidence of psychiatric problems); Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995), cert. denied, 515 U.S. 1189 (1995); Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), cert. denied, 513 U.S. 1102 (1995).

[100] Williams (Terry) v. Taylor, 529 U.S. 362 (2000); Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000).

[101] E.g., State v. Riechmann, ___ So.2d ___ (Fla. Feb. 24, 2000) (trial counsel, who presented no mitigating evidence, performed deficiently in unreasonably failing to investigate potential witnesses in Germany, where defendant was from, who could have spoken to defendant’s positive character traits, personal history, and family background).

[102] Rose v. Superior Court (People), 81 Cal.App.4th 564, 571 (2000).