The right of a defendant in criminal proceedings to the effective assistance of counsel specifically applies to sentencing proceedings.[217]  Therefore, even if the conviction is valid, the sentencing may be vacated on grounds of ineffective assistance if counsel’s failure to investigate or pursue useful sentencing alternatives was not the result of any valid tactical decision and prejudice is shown.[218] 

            To demonstrate ineffective assistance of counsel, a petitioner must show both deficient performance and prejudice under Strickland v. Washington.[219]  In the sentencing context, prejudice is shown where the unreasonable deficient performance of counsel at the sentencing hearing results in any amount of increased jail time.[220]  There is no need to demonstrate that counsel’s poor performance led to a significant increase in the amount of time the defendant was ordered to serve; it is sufficient for prejudice to show it led to any increase at all in the length or severity of sentence imposed.[221]

 

Examples of deficient performance include:

[217] Darden v. Wainwright, 477 U.S. 168 (1986); Strickland v. Washington, 466 U.S. 668 (1984); In re Perez (1966) 65 Cal.2d 224, 229‑230, 53 Cal.Rptr. 414.

[218] See People v. Barocio (1989) 216 Cal.App.3d 99, 264 Cal.Rptr. 573 (failure to advise re the former judicial recommendation against deportation constituted ineffective assistance at sentencing stage); Janvier  v. United States, 793 F.2d 449 (2d Cir. 1986) (failure to seek judicial recommendation against deportation is ineffective assistance of counsel at sentencing stage).

[219] Strickland v. Washington, 466 U.S. 668 (1984) (right to effective assistance of counsel applies at sentence)

[220] See Glover v. United States, 530 U.S. 1261 (2000) (holding that any increase in sentence will suffice as prejudice to trigger reversal of sentence from ineffective counsel’s error or omission).   

[221] Ibid.

Seventh Circuit

POST CON RELIEF " SENTENCE " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " FAILURE TO OBTAIN AND REVIEW DOCUMENTS RELIED ON TO IMPOSE FEDERAL SENTENCE
United States v. Aviles-Solarzano, 623 F.3d 470, 474 (7th Cir. Oct. 13, 2010) (The lawyer's failure . . . to obtain a copy of the indictment may conceivably have been a breach of her professional obligations to her client. United States v. Davenport, 986 F.2d 1047, 1048, 1049-50 (7th Cir.1993); cf. United States v. Tucker, 603 F.3d 260, 266-67 (4th Cir.2010). If so, and if the summary is inaccurate and the inaccuracy material, the defendant may have a claim of ineffective assistance of counsel that he can raise in a post-conviction proceeding.).

Ninth Circuit

POST CON RELIEF " GROUNDS " INEFFECTIVE ASSISTANCE OF COUNSEL " SENTENCE " FAILURE TO INVESTIGATE AND PRESENT MITIGATING EVIDENCE
James v. Schriro, 659 F.3d 855 (9th Cir. Oct. 12, 2011) (prejudicial failure to investigate social history, mental state, and drug abuse required reversal of the sentence).