The right of a defendant in criminal proceedings to the effective assistance of counsel specifically applies to sentencing proceedings.[216]  Therefore, even if the conviction is valid, the sentencing may be vacated on grounds of ineffective assistance if counsel’s failure to investigate or pursue useful sentencing alternatives was not the result of any valid tactical decision and prejudice is shown.[217] 

 

            To demonstrate ineffective assistance of counsel, a petitioner must show both deficient performance and prejudice under Strickland v. Washington.[218]  Whether counsel has violated the relevant ABA Standards has been held by the Supreme Court to be relevant in considering whether counsel’s action or inaction fell below the required standard of competence.[219]  In the sentencing context, prejudice is shown where the unreasonably deficient performance of counsel at the sentencing hearing results in any amount of increased jail time.[220]  There is no need to demonstrate that counsel’s poor performance led to a significant increase in the amount of time the defendant was ordered to serve; it is sufficient for prejudice to show it led to any increase at all in the length or severity of sentence imposed.[221]

[216] Darden v. Wainwright, 477 U.S. 168 (1986); Strickland v. Washington, 466 U.S. 668 (1984); In re Perez, 65 Cal.2d 224, 229‑230, 53 Cal.Rptr. 414 (1966).

[217] See People v. Barocio, 216 Cal.App.3d 99, 264 Cal.Rptr. 573 (1989) (failure to advise re the former judicial recommendation against deportation constituted ineffective assistance at sentencing stage); Janvier  v. United States, 793 F.2d 449 (2d Cir. 1986) (failure to seek judicial recommendation against deportation is ineffective assistance of counsel at sentencing stage).

[218] Strickland v. Washington, 466 U.S. 668 (1984) (right to effective assistance of counsel applies at sentence).

[219] Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003); Valdez v. Johnson, 93 F.Supp.2d 769 (S.D.Tex. 1999).

[220] See Glover v. United States, 530 U.S. 1261 (2000) (holding that any increase in sentence — even one day — will suffice as prejudice to trigger reversal of sentence from ineffective counsel’s error or omission).   

[221] Ibid.

Ninth Circuit

POST CONVICTION RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE - ORIGINAL COUNSEL CANNOT RAISE OWN INEFFECTIVENESS; EXCEPTION TO STATE STATUTE OF LIMITATIONS WHERE IT TAKES MORE TIME TO SEE IF IAC CLAIM EXISTS
Leavitt v. Arave, ___ F.3d ___ (9th Cir. June 14, 2004) (original counsel cannot raise own ineffectiveness; exception therefore exists to state post-conviction relief statute of limitations where more time is necessary for independent counsel to determine whether IAC claim exists).
http://caselaw.lp.findlaw.com/data2/circs/9th/0199008p.pdf