Criminal Defense of Immigrants


§ 2.33 4. During Sentencing

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During the sentence hearing, as well, counsel should be prepared to protect the client’s interest.  “Where the court has the authority to do so, counsel should request specific orders or recommendations from the court . . . against deportation of the defendant.”[45]


                These standards give concrete definition to the conduct required of competent criminal counsel, and have a persuasive effect on the courts deciding issues relating to the effectiveness of counsel.  For example, the United States Supreme Court relied on the ABA Standards in holding counsel ineffective for failing to examine a court file in preparation for sentencing: “[W]e long have referred [to these ABA Standards] as ‘guides to determining what is reasonable.’ “ Wiggins v. Smith, 539 U.S., at 524, 123 S.Ct. 2527 (quoting Strickland v. Washington, 466 U.S., at 688, 104 S.Ct. 2052), and the Commonwealth has come up with no reason to think the quoted standard impertinent here.”[46]


                The Ninth Circuit has said, with respect to the effect of state bar disciplinary rules on claims of ineffective counsel:

The [Supreme] Court has yet to “define with greater precision the weight to be given to recognized canons of ethics, the standards established by the state in statutes or professional codes, and the Sixth Amendment” in defining the proper scope of and limits on attorney conduct for Strickland purposes. It has, however, suggested that when “virtually all of [those] sources speak with one voice” as to what constitutes reasonable attorney performance, departure from ethical canons and ABA guidelines “make[s] out a deprivation of the Sixth Amendment right to counsel.” McClure, 323 F.3d at 1242 (quoting Nix v. Whiteside, 475 U.S. 157, 165- 66, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986)).[47]

We therefore need to be governed by these standards in our daily work.


[45] National Legal Aid and Defender’s Ass’n, Performance Guidelines for Criminal Defense Representation, Guideline 8.7(e).

[46] Rompilla v. Beard, 545 U.S. 374, 387 (June 20, 2005).

[47] Washington v. Lampert, 422 F.3d 864, 872 (9th Cir. Sept. 6, 2005)(a plea agreement waiving the right to file a federal habeas petition is unenforceable with respect to an IAC claim that challenges the voluntariness of the waiver).