Tooby's California Post-Conviction Relief for Immigrants

(A)

Failure to investigate mitigating facts.  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.[222]  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.[223]

[222] Williams (Terry) v. Taylor, 529 U.S. 362 (2000)(effective counsel must investigate and present available mitigating evidence at sentencing, including evidence of social history); 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). 

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