Crace v. Herzog, ___ F.3d ___, 2015 WL 4773456 (9th Cir. Aug. 14, 2015) (affirming grant of habeas corpus relief where Washington Supreme Court's rejection of petitioners claim under Strickland v. Washington was an unreasonable application of clearly established federal law under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and petitioner's claim of ineffective assistance of counsel warranted relief, since trial counsel was deficient for failing to request a jury instruction on unlawful display of a weapon, a lesser included offense of second degree assault).

The court explained:

Rather, [t]he assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. Id.

The Washington Supreme Court's decisions in Grier and in this case overextended the foregoing principle. That principle forbids a reviewing court from finding prejudice by speculating that, if the defendant is permitted to roll the dice again, the jury might convict on a lesser included offense merely as a means of jury nullification, without regard for whether that verdict is consistent with the evidence. But it does not require a court to presume"as the Washington Supreme Court did"that, because a jury convicted the defendant of a particular offense at trial, the jury could not have convicted the defendant on a lesser included offense based upon evidence that was consistent with the elements of both. To think that a jury, if presented with the option, might have convicted on a lesser included offense is not to suggest that the jury would have ignored its instructions. On the contrary, it would be perfectly consistent with those instructions for the jury to conclude that the evidence presented was a better fit for the lesser included offense. The Washington Supreme Court thus was wrong to assume that, because there was sufficient evidence to support the original verdict, the jury necessarily would have reached the same verdict even if instructed on an additional lesser included offense.

As the Supreme Court has recognized in a related context, a jury presented with only two options"convicting on a single charged offense or acquitting the defendant altogether"is likely to resolve its doubts in favor of conviction even if it has reservations about one of the elements of the charged offense, on the thinking that the defendant is plainly guilty of some offense. Keeble v. United States, 412 U.S. 205, 212"13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (construing the Major Crimes Act of 1885 not to preclude lesser-included-offense instructions, in order to avoid constitutional concerns); see also Hopper v. Evans, 456 U.S. 605, 611, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). It is therefore perfectly plausible that a jury that convicted on a particular offense at trial did so despite doubts about the proof of that offense"doubts that, with the availability of a third option, could have led it to convict on a lesser included offense. See Keeble, 412 U.S. at 213, 93 S.Ct. 1993. Making this observation does not require us to speculate that the jury would have acted lawless[ly] if instructed on an additional, lesser included offense or to question the validity of the actual verdict. Rather, it merely involves acknowledging that the jury could rationally have found conviction on a lesser included offense to be the verdict best supported by the evidence. See id.

(Id. at ___.)

This discussion has application when considering whether the defendant suffered prejudice from ineffective assistance of counsel during plea bargaining, where defense counsels deficient performance consisted in failing to present the prosecution with an equivalent alternative disposition that would have avoided adverse immigration consequences. The court may well find prejudice inheres in the loss of the opportunity for the prosecution to conclude that under all of the circumstances of the case, the unpresented alternative represented a better fit, even if the offense of conviction was appropriate.