Tooby's California Post-Conviction Relief for Immigrants

(B)Failure to use all available means to achieve a lower sentence.   Counsel can be faulted for failing to present mitigating evidence that counsel may have discovered during the investigation stage.[224]   Likewise, counsel’s failure to object to a misapplication of the sentencing law or guideline scheme can amount to deficient performance.[225]  Counsel’s failure to use all available means to achieve a lower sentence will not be considered a tactical decision where counsel fails to conduct an adequate investigation of the law or applicable facts.[226]  

[224] 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).

[225] 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). 

[226] See United States v. Castro, 26 F.3d 557 (5th Cir. 1994)(counsel’s failure to request Judicial Recommendation Against Deportation 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).