Crimes of Moral Turpitude

(B)

Remedy for Ineffective Assistance.  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.[198]  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.[199]  In the alternative, the defendant should be given a fresh sentencing hearing with all possibilities open that were open at the time of the original sentencing. 

It is important for counsel to offer the criminal court a ground of invalidity of the original conviction or sentence that is separate from the goal of obtaining an opportunity to receive a timely JRAD.[200]

[198] See Riggs v. Fairman, 399 F.3d 1179 (9th Cir. Mar. 7, 2005) (where plaintiff was denied effective assistance of counsel, the district court did not err in ordering the parties to return to the pre-error stage of the criminal proceeding); Edwards v. INS, 393 F.3d 299 (2d Cir. Dec. 17, 2004) (court granted equitable nunc pro tunc relief by allowing noncitizen to apply for INA § 212(c) relief as if he were applying at the time his removal order became administratively final, which was before he had served five actual years in custody and thereby became disqualified for this relief; court did not reach question of whether statute compelled this result or whether five-year sentence bar was analogous to a statute of limitations which could be equitably tolled); 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, to allow timely filing); Castaneda-Delgado v. INS, 525 F.2d 1295 (7th Cir. 1975); Batanic v. INS, 12 F.3d 662 (7th Cir. 1993).

[199] United States v. Fernandez, 2000 WL 1716436 (S.D.N.Y. 2000) (unpublished).

[200] See United States v. Parrino, 212 F.2d 919 (2d Cir.), cert. den., 348 U.S. 840 (1954) (dissenting opinion); United States v. Sambro, 454 F.2d 918, 924-27 (D.C. Cir. 1971) (dissenting opinion).