Counsel can be faulted for failing to present mitigating evidence discovered during the investigation stage.[255]   Likewise, counsel’s failure to object to a misapplication of the sentencing law or guideline scheme can amount to deficient performance.[256]  Counsel’s failure to use all available means to achieve a lower sentence will not be considered a tactical decision where counsel fails first to conduct an adequate investigation of the law or applicable facts.[257]  The Supreme Court, however, found such a claim insufficient to merit habeas relief.[258]

 

[255] Smith v. Stewart, 189 F.3d 1004 (9th Cir. 1999) (finding counsel ineffective for failure to investigate after remand of sentence and failure to present mitigating mental health evidence); Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (abandonment of forceful mitigating evidence at sentencing not a reasonable tactical decision); Visciotti v. Woodford, 288 F.3d 1097 (9th Cir. April 24, 2002) (ineffective assistance at sentencing found where counsel (1) failed to investigate and present mitigating evidence about appellant's background, (2) was unable to respond to aggravating evidence, and (3) undercut appellant’s case).

[256] United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996) (counsel’s failure to argue that six prior offenses were related and could not support career criminal sentencing could constitute prejudicial ineffective assistance of counsel). 

[257] Wiggins v. Smith, 123 S.Ct. 2527 (June 26, 2003) (sentence reversed for failure to conduct reasonable investigation into mitigating circumstances necessary to make informed decision on sentencing strategy); see United States v. Castro, 26 F.3d 557 (5th Cir. 1994) (counsel’s failure to request Judicial Recommendation Against Deportation (JRAD)  at sentencing is not strategic decision where counsel is not aware of its availability); see also United States v. Acklen, 47 F.3d 739, 743 (5th Cir. 1995) (counsel’s failure to note and appreciate the difference between “d-methamphetamine” and “l-methamphetamine,” and object to sentencing on that basis, could constitute prejudicial ineffective assistance of counsel).

[258]  Bell v. Cone, 535 U.S. 685 (May 28, 2002) (state court finding that defense counsel’s failure to present mitigating evidence at sentencing and waiver of closing argument did not amount to ineffective assistance was neither “contrary to” nor an “unreasonable application” of federal law under Strickland standard); see Hayes v. Woodford, 301 F.3d 1054 (9th Cir. August 26, 2002) (failure to investigate and present as mitigating evidence the defendant's mental health, family history, and chemical dependency not unreasonable and not ineffective assistance of counsel).

POST CON RELIEF - SENTENCE - GROUNDS - STATE CAN CONSTITUTIONALLY LIMIT INNOCENCE-RELATED EVIDENCE AT SENTENCING TO THAT PRESENTED AT THE GUILT TRIAL
Oregon v. Guzek, ___ U.S. ___ (Feb. 22, 2006) (Constitution does not prohibit a state from limiting innocence-related evidence a defendant can introduce at a sentencing proceeding to the evidence introduced at the original trial).
http://laws.lp.findlaw.com/us/000/04928.html

CRIMINAL DEFENSE - SENTENCE POST CON RELIEF - SENTENCE - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO INVESTIGATE OR ARGUE MITIGATION
Tennard v. Dretke, ___ U.S. ___, 124 S.Ct. 2562, 2570 (2004) (error to exclude mitigating evidence from sentencing proceeding on relevance grounds if it tends logically to prove or disprove some fact or circumstance which a factfinder could reasonably deem to have mitigating value).

First Circuit

POST CON RELIEF - SENTENCE - GROUNDS - FEDERAL SENTENCE NOT UNLAWFUL FOR FAILURE TO TAKE INTO ACCOUNT PENDING DEPORTATION OF DEFENDANT
United States v. Meran, ___ F.3d ___, 2006 WL 2615152 (1st Cir. Sept. 13, 2006) (per curiam) (federal sentence not unlawful for failure to take defendant's pending deportation into account).

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE " FAILURE TO INVESTIGATE OR PRESENT MITIGATION
Stankewitz v. Wong, 698 F.3d 1163 (9th Cir. Oct., __ 2012) (record shows substantial mitigating evidence that could have been presented with little or no risk of further aggravating the negative information the jury already knew of defendant).

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE " FAILURE TO OBTAIN AND USE MITIGATING EVIDENCE
Detrich v. Ryan, 677 F.3d 958 (9th Cir. May 2, 2012) (counsel's deficient performance prejudiced the defense, since there was a reasonable probability that the sentencing judge would have imposed a sentence less than death had sentencing counsel obtained and presented an expert evaluation of the defendant's neuropsychological functioning).

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO MITIGATE SENTENCE
Stanley v. Schriro, ___ F.3d ___, 2010 WL 186940 (9th Cir. Mar. 11, 2010) (reversing denial of habeas where trial counsel rendered ineffective assistance during the penalty phase of trial by failing to investigate and present readily available mitigating evidence and that failure was prejudicial).

POST CON RELIEF - GROUNDS - INEFFECTIVE COUNSEL - FAILURE TO MITIGATE
Frierson v. Woodford, ___ F.3d ___ (9th Cir. Sept. 14, 2006) (prejudicial ineffective assistance of counsel found in failing to investigate and present important mitigation evidence at the penalty phase of a trial, failing to review juvenile court records, and failing to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial). http://caselaw.lp.findlaw.com/data2/circs/9th/0499002p.pdf

POST CON RELIEF - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO PROVIDE ADEQUATE RECORDS TO EXPERT
Hovey v. Ayers, 458 F.3d 892 (9th Cir. 2006) (defense counsel was ineffective in failing to provide defense psychiatrist with records necessary for proper preparation of expert).

POST CON - GROUNDS - PLEA - SENTENCE - INEFFECTIVE COUNSEL - FAILURE TO INVESTIGATE CHILDHOOD ABUSE
Boyde v. Brown, __ F.3d __ (9th Cir. April 21, 2005) (death sentence vacated where counsel was ineffective since he failed to investigate mitigating childhood abuse).
http://caselaw.lp.findlaw.com/data2/circs/9th/0299008p.pdf

POST CON - SENTENCE - INEFFECTIVE SENTENCE - FAILURE TO INVESTIGATE MITIGATION
Boyde v. Brown, __ F.3d __ (9th Cir. April 5, 2005) (counsel rendered ineffective assistance when he failed to fully investigate and present evidence of`physical abuse of defendant and sexual abuse of his sisters, and failed to object to prosecution's inadmissible evidence).

POST CON RELIEF - FEDERAL - GROUNDS - INEFFECTIVE ASSISTANCE OF COUNSEL - FAILURE TO MITIGATE
Stankewitz v. Woodford, 365 F.3d 706 (9th Cir.), cert. den., 125 S. Ct. 517, 160 L. Ed. 2d 369 (2004) (evidentiary hearing required on claim of denial of effective assistance of counsel based on counsels failure to "investigate and introduce available, vital evidence of [defendants] childhood of abuse, poverty and institutionalization; his mental deficiencies amounting to borderline retardation; and his drug and alcohol abuse exacerbating his disturbed emotional state, particularly in the days leading up to the killing.").

Lower Courts of Ninth Circuit

POST CON RELIEF - WASHINGTON - SENTENCE REDUCTION
State v. Quintero-Morelos, 133 Wn. App. 591, 2006 Wash. App. LEXIS 1301 (Jun. 22, 2006) (trial court had discretion, under CrR 7.8, to grant a motion to vacate judgment imposing sentence of 365 days, in order to impose one of 364 days, to avoid aggravated felony mandatory deportation, on the basis of "excusable neglect . . . in obtaining a judgment . . . ." based on defense counsel's failure to inform the sentencing court of defendant's noncitizen status), distinguishing State v. Cortez, 73 Wn. App. 838, 871 P.2d 660 (1994).

CRIM DEF - ARGUMENT THAT IT'S OK TO TAKE FEDERAL IMMIGRATION CONSEQUENCES INTO ACCOUNT
A court does not circumvent federal law by vacating a deportable sentence, to impose a non-deportable equivalent sentence, when informed of the immigration consequences. State v. Quintero-Morelos, 133 Wn. App. 591, ___, 2006 Wash. App. LEXIS 1301 (June 22, 2006) ("We simply are not prepared to hold that a state sentencing judge exercising traditional sentencing discretionary authority runs afoul of the Supremacy Clause by imposing a sentence of one day less than a year to avoid the defendant's deportation by federal authorities. The judge here is not circumventing federal law. He is simply acknowledging the obvious; federal law has the potential to influence the actual punishment visited upon a criminal defendant in state court. E.g., State v. Jamison, 105 Wn. App. 572, 591, 20 P.3d 1010 (2001). State court judges often make decisions mindful of federal implications. See, e.g., In re Marriage of Glass, 67 Wn. App. 378, 391-392, 835 P.2d 1054 (1992) (considering adverse [federal] tax consequences when adjusting [state] maintenance award).").