Defense counsel always has the obligation to investigate the case in general, and attempt to discover mitigating facts of whatever sort that can be used to try to obtain a better plea-bargain and smaller sentence.[250]  At least one court has held counsel to a higher standard of reasonableness where it is counsel’s failure to produce and argue evidence of mental illness at sentencing that is at issue.[251]

 

Defense counsel’s failure to investigate and present mitigating evidence at the sentencing hearing results in ineffective assistance where prejudice is shown.[252]  Counsel must learn of all available sentencing alternatives “which may be of assistance in a plan for meeting the needs of the defendant.  Such preparation should also include familiarization with the practical consequences of different sentences . . . .”[253]  Failure to do so can constitute ineffective assistance, where prejudice is shown.

 

A defendant can claim ineffective assistance of counsel when counsel fails to investigate the mitigating facts of what will happen to the defendant's poor innocent family when he is deported, and for failure to use those mitigating facts to persuade the court to give a shorter sentence.[254]

 

[250] Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000) (effective counsel must investigate and present available mitigating evidence at sentencing, including evidence of social history); Karis v. Calderon, 283 F.3d 1117 (9th Cir. March 18, 2002) (prejudicial ineffective assistance 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); Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000); Hendricks v. Calderon, 64 F.3d 1340 (9th Cir. 1995) (failure to investigate mental health evidence); 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); Jennings v. Woodford, 290 F.3d 1006 (9th Cir. May 10, 2002) (ineffective assistance of counsel 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).

[251] See Stephens v. Kemp, 846 F.2d 642, 653 (11th Cir. 1988).

[252] Jones v. Thigpen, 788 F.2d 1101, 1103 (5th Cir. 1986) (failure to present evidence of youth and mental retardation held reversible ineffective assistance of counsel); West v. United States, 994 F.2d 510 (8th Cir. 1993) (ineffective counsel could be shown if petitioner could prove counsel repeatedly instructed the defendant to be silent while reviewing the presentence report and failed to object to all mistakes of fact identified by the defendant); Blanco v. Singletary, 943 F.2d 1477 (11th Cir. 1991), cert. denied, 112 S.Ct. 2282 (1992) (ineffective counsel found where counsel failed to investigate or present evidence of difficult childhood and mental problems); Thomas v. Kemp, 796 F.2d 1322 (11th Cir.), cert. denied, 479 U.S. 996 (1986) (ineffective counsel found for failure to attempt to obtain possible mitigating evidence from family or acquaintances of defendant).

[253] ABA Standards Relating to Sentencing Alternatives and Procedures § 5.3(f)(i)(1968).

[254] 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); Glover v. United States, 531 U.S. 198, 205, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001) (a reasonable probability defendant would have received a sentence even one day shorter in length is sufficient to establish prejudice from ineffective assistance of counsel at sentencing).

Third Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO INVESTIGATE MITIGATING EVIDENCE
Outten v. Kearney, 464 F.3d 401 (3rd Cir. 2006) (trial counsel failed to conduct reasonably competent investigation into the potential mitigation).

Sixth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO INVESTIGATE MITIGATING EVIDENCE
Williams v. Anderson, 460 F.3d 789 (6th Cir. 2006) (counsel failed to conduct any mitigation investigation or present any mitigation evidence the court).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO INVESTIGATE MITIGATING EVIDENCE
Poindexter v. Mitchell, 454 F.3d 564 (6th Cir. 2006) (counsel failed to conduct a thorough investigation or presentation of defendants social history or available mitigation).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO INVESTIGATE MITIGATING EVIDENCE
Dickerson v. Bagley, 453 F.3d 690 (6th Cir. 2006) (counsel failed to investigate and present mitigating evidence).

Ninth Circuit

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO INVESTIGATE - FAILURE TO REVIEW IMPORTANT RECORDS
Frierson v. Woodford, 463 F.3d 982 (9th Cir. 2006) (defendant was prejudiced by ineffective assistance of counsel which resulted from counsels failure to review important records).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - ABA STANDARDS FOR CRIMINAL JUSTICE - FAILURE TO INVESTIGATE OR PRESENT MITIGATING EVIDENCE
Correll v. Ryan, 465 F.3d 1006 (9th Cir. 2006) (defense counsels failure to investigate or present mitigation at penalty phase required reversal of death sentence, despite personal knowledge of several mitigating factors).