Post-Conviction Relief for Immigrants

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).