Tooby's California Post-Conviction Relief for Immigrants

(C)

Remedy.  When ineffective assistance of counsel results in prejudice against a client, the proper remedy is to place the client in the same position s/he would have occupied at the time the error occurred under the law as it existed at that time.[77]  See § 10.40, infra.  Thus, the proper remedy for ineffective assistance of counsel at sentencing is to give the defendant the sentence s/he would likely have received absent counsel’s error.[78] 

[77] See Castillo-Perez v. INS, 212 F.3d 518 (9th Cir. 2000)(where counsel was ineffective for failing to file a suspension application due in 1994, before the stop-time rule of NACARA came into effect in 1997, the proper remedy required use of the deadline in effect in 1994 when the ineffectiveness occurred); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[78] United States v. Fernandez, 2000 WL 1716436 (S.D.N.Y. 2000)(unpublished).