Case Law Update: 2011-2014 Cumulative Edition

Holding: Where Defendant (Wife) was charged with murder of husband and State’s theory was she poisoned him orally with drug that he didn’t know he was taking, counsel was ineffective in failing to call an expert who would have testified that the taste of the drug could not be masked by food or drink; a psychiatrist in the case provided counsel with contact information for three such experts, but counsel failed to consult with any of them; the defense theory was that husband committed suicide.
Elmore v. Ozmint, 2011 WL 5843684 (4^th Cir. 2011):

Holding: Gross failure by trial lawyer to investigate the state’s forensic evidence was ineffective assistance of counsel.
U.S. v. Smith, 89 Crim. L. Rep. 244 (4^th Cir. 5/17/11):

Holding: Even though Defendant pleaded guilty, this did not waive a claim that there was a breakdown of communication so bad as to constitute constructive denial of counsel.
Tice v. Johnson, 2011 WL 1491063 (4^th Cir. 2011):

Holding: Where police resumed questioning Defendant only 13 minutes after he had invoked his right to silence, counsel was ineffective in failing to move to suppress his confession.
U.S. v. Urias-Marrafo, 94 Crim. L. Rep. 705, 2014 WL 805455 (5^th Cir. 2/28/14):
Holding: (1) Court must consider Padilla claim even if presented in motion to withdraw guilty plea, rather than in post-conviction collateral attack action, because a court should address Padilla claims sooner rather than later; and (2) even though guilty plea judge gave some warnings about immigration consequences, this did not cure counsel’s ineffectiveness in failing to warn of such consequences, because it is counsel’s duty, not the court’s, to give such warnings.
U.S. v. Pham, 93 Crim. L. Rep. 565 (5^th Cir. 7/8/13):

Holding: Where non-English speaking Defendant became distraught after he was sentenced and wanted to “do something about getting less time,” this should have put counsel on notice that Defendant wanted to appeal and counsel was ineffective in failing to file a notice of appeal; “a lay defendant, particularly one who speaks no English, [need not] incant the magic word ‘appeal’ to trigger counsel’s duty to advise him about one.”
U.S. v. Juarez, 2012 WL 592861 (5^th Cir. 2012):

Holding: Counsel’s failure to research the derivative citizenship defense before advising the defendant to plead guilty to the offense of lying about his United States citizenship satisfied the deficiency element of ineffective assistance of counsel.
U.S. v. Ross, 2012 WL 6734087 (6^th Cir. 2012):

Holding: Where record was unclear whether standby counsel had provided meaningful adversarial testing of Defendant’s competency, remand was required.; 6^th Amendment requires counsel at a competency hearing even where Defendant previously waived counsel.
Rayborn v. U.S., 2012 WL 2948171 (6^th Cir. 2012):

Holding: Counsel was ineffective for failing to conduct any re-direct examination of Defendant after he had testified to rehabilitate his cross-examination testimony, and denied Defendant his right to testify and present his version of events.
Campbell v. U.S., 2012 WL 2923492 (6^th Cir. 2012):

Holding: Even though Defendant waived some or all appellate rights, counsel was ineffective in failing to file notice of appeal upon Defendant’s request.
Foster v. Wolfenbarger, 2012 WL 2948523 (6^th Cir. 2012):

Holding: Even though counsel interviewed alibi witnesses over the phone for 15 or 20 minutes and found their information to be vague, counsel was ineffective in failing to perform any additional investigation such as ascertaining if other people could support the alibi defense.
Sowell v. Anderson, 2011 WL 5526381 (6^th Cir. 2011):

Holding: Failure to conduct thorough investigation of defendant’s childhood constituted ineffective assistance of counsel where the state was seeking the death penalty and reports on the record referenced defendant’s horrific childhood.
Foust v. Houk, 2011 WL 3715155 (6^th Cir. 2011):

Holding: Death penalty counsel ineffective in not obtaining records about client’s life history and failing to interview family members.
Goodwin v. Johnson, 2011 WL 181468 (6^th Cir. 2011):

Holding: Death penalty counsel ineffective in penalty phase in failing to present evidence of childhood abuse, alcoholic and drug using mother, sexual molestation and abandonment by both parents.
Newman v. Harrington, 2013 WL 4033898 (7^th Cir. 2013):

Holding: Counsel was ineffective in failing to investigate mentally retarded Defendant’s competency.
Hurlow v. U.S., 93 Crim. L. Rep. 670 (7^th Cir. 8/9/13):

Holding: Even though Defendant waived his right to pursue an ineffectiveness claim as part of his plea bargain, the waiver was not valid where he alleged that he entered the plea agreement on the basis of advice that fell below constitutional standards; here, Defendant alleged he would not have taken the plea deal but for counsel’s failure to recognize that there was a valid 4^th Amendment suppression issue; it is an attorney’s ineffectiveness with regard to the plea agreement as a whole, and not just the specific waiver provision at issue, that renders the waiver unenforceable.
Shaw v. Wilson, 93 Crim. L. Rep. 586 (7^th Cir. 7/24/13):

Holding: Even though state court postconviction court had suggested that claim that appellate counsel had failed to raise lacked merit, this was not entitled to deference in federal habeas because the relevant issue is not the state court’s determination of the merits of petitioner’s state law claim but the strength of that claim relative to the weaker claim that counsel chose to pursue; hence, the state court unreasonably applied federal law, and habeas relief is granted on claim of ineffective assistance of appellate counsel.
Stitts v. Wilson, 2013 WL 1501959 (7^th Cir. 2013):

Holding: State court unreasonably applied federal law in holding that counsel was not ineffective in limiting his investigation of Defendant’s alibi to Defendant’s father; at the time of the crime, Defendant was at a nightclub with many other witnesses.
Toliver v. Pollard, 2012 WL 3156310 (7^th Cir. 2012):

Holding: Counsel was ineffective in failing to investigate wife and cousin who would have testified that murder-Defendant tried to stop the shooter from shooting victim.
Gardner v. U.S., 2012 WL 1889316 (7^th Cir. 2012):

Holding: Counsel was ineffective for failing to move to suppress evidence found in a frisk of Defendant because counsel erroneously believed that the law prohibited him from doing so absent a confession from Defendant that he possessed the seized items; Defendant had a reasonable expectation of privacy in his person and clothing that would have supported a challenge to Officer’s patdown of him on grounds that Officer lacked reasonable suspicion to frisk him.
Plunk v. Hobbs, 2013 WL 3333101 (8^th Cir. 2013):

Holding: Counsel had an actual conflict of interest that adversely affected his performance where he represented Defendant and his girlfriend in drug case, and negotiated a “package deal” whereby girlfriend got probation in exchange for Defendant getting a 99-year sentence; counsel should have advised Defendant of the conflict of interest that prevented counsel from exploring more favorable plea options for Defendant.
U.S. v. Coutentos, 2011 WL 3477190 (8^th Cir. 2011):

Holding: Trial counsel ineffective in failing to assert statute of limitations defense to child pornography charge.
Vega v. Ryan, 94 Crim. L. Rep. 236, 735 F.3d 1093 (9^th Cir. 11/13/13):

Holding: Successor counsel in child sex case was ineffective in failing to familiarize himself with prior counsel’s file and investigate a Witness mentioned in prior counsel’s file to whom alleged victim had recanted; even though Defendant himself knew of this Witness, it is “illogical” to hold Defendant responsible for failure to tell counsel about the Witness.
Griffin v. Harrington, 93 Crim. L. Rep. 669 (9^th Cir. 8/16/13):

Holding: Habeas relief granted on claim that counsel was ineffective in failing to object to an important trial witnesses testifying without taking an oath.
Lambright v. Ryan, 92 Crim. L. Rep. 114 (9^th Cir. 10/17/12):

Holding: Since the waiver of attorney-client privilege that occurs when a Movant files an ineffectiveness claims is narrow, a court must enter a protective order stating the contours of the limited waiver before commencement of discovery and must strictly police the limits to discovery.
Miles v. Martel, 2012 WL 4490756 (9^th Cir. 2012):

Holding: Pretrial counsel’s failure to properly advise on applicable penalties under the three-strikes law, which caused Defendant to reject a more favorable plea offer, was ineffective.
U.S. v. Manzo, 2012 WL 113027 (9^th Cir. 2012):

Holding: Counsel provided ineffective assistance by not anticipating that drug manufacturing and distribution offenses would be grouped for sentencing purposes, the effect of which had a major impact on the calculation of discretionary Sentencing Guidelines.
James v. Schriro, 2011 WL 4820605 (9^th Cir. 2011):

Holding: Defendant was prejudiced by ineffective counsel at penalty phase of capital murder trial where counsel failed to conduct a basic investigation of defendant’s social history, mental health and drug abuse.
U.S. v. Bonilla, 88 Crim. L. Rep. 774, 2011 WL 833293 (9^th Cir. 3/11/11):

Holding: Even though Defendant knew it was possible he might be deported if he pleaded guilty, counsel was ineffective under Padilla in not advising of the virtual certainty of deportation.
U.S. v. Weeks, 2011 WL 3452053 (10^th Cir. 2011):
Holding: Evidentiary hearing required on postconviction claim that Defendant received ineffective counsel at guilty plea because he had a valid defense to securities fraud in that he lacked knowledge of the illegality of his actions.
Johnson v. Secretary, 2011 WL 2419885 (11^th Cir. 2011):

Holding: Death penalty counsel ineffective in failing to investigate bad childhood, abusive and alcoholic father, and family abandonment; counsel only interviewed Defendant about his background and waited to 11^th hour to prepare for penalty phase.
Ferrell v. Hall, 2011 WL 1811132 (11^th Cir. 2011):

Holding: Counsel was ineffective in failing to investigate mitigation where Defendant exhibited “red flags” of mental disorders, including facial tics, strange affect, obsessive religious beliefs, and odd behaviors; counsel failed to investigate and present abusive childhood, poverty and mental health as mitigation.


U.S. v. Bell, 2013 WL 765055 (D.C. Cir. 2013):

Holding: Counsel was ineffective for failing to advise client that he could receive a lower sentence under “safety valve” provision if he cooperated with Gov’t.
Kigozi v. U.S., 2012 WL 592805 (D.C. 2012):

Holding: Counsel was ineffective in not calling a drug expert who would have testified that shooting victim’s dying declaration identifying Defendant was not reliable since victim was under influence of drugs.
Krecht v. U.S., 2012 WL 640034 (S.D. Fla. 2012):

Holding: Trial counsel’s failure to advocate for safety valve relief from defendant’s sentence constituted ineffective assistance.
Rogers v. U.S., 2013 WL 2547852 (N.D. Iowa 2013):

Holding: Counsel’s decision to withdraw objection to sentence enhancement based on claim that bad checks did not constitute an “access device” was not based on diligent preparation and investigation, and was ineffective; if he had investigated, he would have found that the enhancement did not apply in Defendant’s case.
Escobedo v. Lund, 2013 WL 2420842 (N.D. Iowa 2013):

Holding: Trial counsel was ineffective in failing to object to replacement of a juror once deliberations had started, and Movant was prejudiced because there was a reasonable probability he would have obtained a mistrial if counsel had not failed to object.
Johnson v. U.S., 2012 WL 1836282 (N.D. Iowa 2012):

Holding: Counsel was ineffective in penalty phase in failing to provide drug expert witness with data regarding Defendant’s prior drug history.
Johnson v. U.S., 2012 WL 992109 (N.D. Iowa 2012):

Holding: Trial counsel’s failure to provide a psychiatric pharmacologist with date regarding the defendant’s drug history prejudiced the defendant, thereby constituting ineffective assistance.
Lopez v. Miller, 2013 WL 155015 (E.D. N.Y. 2013):

Holding: Counsel was ineffective failing to call Defendant’s mother-in-law and sister-in-law to corroborate his alibi.
Moore v. Keller, 2012 WL 6839929 (E.D. N.Y. 2012):

Holding: Counsel was ineffective in failing to retain an expert on eyewitness identification where misidentification was the sole defense, and expert could have testified on unreliability of cross-racial identification.
U.S. v. Matthews, 2014 WL 785589 (N.D. N.Y. 2014):

Holding: Even though counsel investigated some alibi information, counsel was ineffective in investigation of Defendant’s alibi where there was a wealth of information in the defense file that should have prompted further investigation into Defendant’s location.
U.S. v. Daugerdas, 2012 WL 2149238 (S.D. N.Y. 2012):

Holding: New trial warranted where juror failed to disclose that she was a suspended attorney who had multiple criminal convictions and was on probation at time of trial.
Wilbur v. City of Mount Vernon, 94 Crim. L. Rep. 338 (W.D. Wash. 12/4/13):

Holding: Cities’ Public Defender System resulted in systemic violation of 6^th Amendment right to effective counsel, because the system essentially resulted in a “meet and plead” system. Court orders creation of a “Public Defender Supervisor” to review case files and ensure attorneys are providing effective assistance.
Young v. Washington, 2010 WL 3767596 (W.D. Wash. 2010):

Holding: Counsel was ineffective in failing to call Defendant’s son who would have testified that he (son) shot the victim.
People v. Martinez, 93 Crim. L. Rep. 669 (Cal. 8/8/13):

Holding: Where Defendant claimed prejudice from his trial court’s failure to warn him about immigration consequences of his guilty plea, the test is whether he would have declined to take the plea if warned, not whether he ultimately would have obtained a different result (not guilty verdict).
Hagos v. People, 92 Crim. L. Rep. 189 (Colo. 11/5/12):

Holding: The “plain error” standard on direct appeal is not the same as the showing of prejudice required under Strickland, which is a lower “reasonable probability of a different outcome” standard; thus, while a jury instruction may not have been “plain error” on direct appeal, counsel can be ineffective for failing to object to the erroneous instruction.
H.P.T. v. Commissioner of Corrections, 2013 WL 6072992 (Conn. 2013):

Holding: Where counsel is found ineffective for failing to provide proper advice about a plea offer, remedy is to remand to trial court to consider whether it should vacate the convictions and accept the plea offer, leave the original convictions intact, or otherwise modify the conviction and sentence; trial court should nearly as possible place Petitioner in position he would have been absent ineffective assistance.
Gonzalez v. Commisioner of Corrections, 93 Crim. L. Rep. 239, 2013 WL 1895657 (Conn. 5/14/13):

Holding: Counsel was ineffective at arraignment where counsel filed to take steps that would have reduced time Defendant would ultimately serve on his sentence; arraignment was a “critical stage” of the proceedings to which right to effective counsel attached; counsel had failed to take action regarding a bond motion that would have resulted in Defendant receiving 73 days jail time credit for presentence incarceration.

Griffin v. State, 2013 WL 2096350 (Fla. 2013):

Holding: Counsel was ineffective in capital case in (1) having Defendant plead guilty based on unsubstantiated hunch that judge would not sentence Defendant to death; (2) failing to present evidence of drug use, family history of substance abuse and mental illness, history of depression and brain injury; (3) failing to obtain school and medical records, and (4) failing to rebut erroneous statements by State’s medical expert in penalty phase.
Hernandez v. State, 92 Crim. L. Rep. 272 (Fla. 11/21/12):

Holding: Even though the plea judge gave some information about deportation to alien-Defendant, counsel can still be ineffective under Padilla for failure to advise on immigration consequences since counsel has an obligation to give more clear advice than the general advice given by a judge.
Parker v. State, 2011 WL 5984446 (Fla. 2011):

Holding: Trial counsel was deficient at capital resentencing proceeding in stipulating to hearsay evidence, where there was no strategic reason to do so, though defendant was not prejudiced by the deficiency.
State v. Coleman, 89 Crim. L. Rep. 475 (Fla. 6/2/11):

Holding: Where counsel’s ineffectiveness led judge to override jury’s verdict of life and impose death, the remedy for the ineffective assistance is for the trial court to impose a sentence of life.
Booth v. State, 89 Crim. L. Rep. 646 (Idaho 6/29/11):

Holding: Where counsel erroneously told Defendant to take a plea because he would be subjected to a fixed life sentence if he went to trial (which was legally incorrect), the erroneous advice was ineffective.
State v. Fannon, 2011 WL 1900285 (Iowa 2011):

Holding: Prosecutor’s breach of plea agreement not to recommend consecutive sentences was not cured by the prosecutor’s withdrawal of his remarks, for purposes of determining if Defendant’s counsel was ineffective in failing to object to the breach or request appropriate relief.
State v. Stovall, 94 Crim. L. Rep. 280, 312 P.3d 1271 (Kan. 11/22/13):

Holding: Counsel had an actual conflict of interest that adversely affected her performance where counsel failed to pursue a theory on Defendant’s behalf that a former client of counsel actually committed the offense.
State v. Cheatham, 92 Crim. L. Rep. 492 (Kan. 1/25/13):

Holding: Flat fee in capital murder case created a conflict of interest and ineffective assistance of counsel.


State v. Galaviz, 2012 WL 6720627 (Kan. 2012):

Holding: Defendant has right to effective assistance of counsel in probation revocation proceedings as a matter of due process under 14^th Amendment.
In re Ontiberos, 2012 WL 3537845 (Kan. 2012):

Holding: Strickland test applies to claims of ineffective counsel in SVP proceedings.
Com. v. Pridham, 92 Crim. L. Rep. 124 (Ky. 10/25/12):

Holding: Counsel’s failure to advise Defendant that his guilty plea would make him ineligible for parole for 20 years under state’s “violent offender” law was ineffective; “We do not believe it unreasonable to expect of competent defense counsel an awareness of the violent offender statute and accurate advice concerning its effect on parole eligibility.”
Hollon v. Com., 88 Crim. L. Rep. 244 (Ky. 11/18/10):

Holding: Even though appellate counsel raised some claims on appeal, Defendant may still claim ineffective appellate counsel where counsel failed to raise other possibly winning claims.
Taylor v. State, 2012 WL 3629058 (Md. 2012):

Holding: Where attorney filed suit against client for failing to pay legal fees before a case is concluded, this raised a presumption of prejudice and conflict of interest, though not necessarily ineffective assistance.
Com. v. Clarke, 89 Crim. L. Rep. 589 (Mass. 6/17/11):

Holding: Padilla v. Kentucky’s holding that defense counsel has 6^th Amendment duty to advise noncitizens of immigration consequences is retroactive to cases on collateral review.
Hill v. State, 94 Crim. L. Rep. 554 (Miss. 2/6/14):
Holding: Even though there is no 6^th Amendment right to “standby” or “advisory” counsel, where the trial court appointed such counsel and then ordered her not to reveal a confidential informant to Defendant even though this would have helped the defense, the Defendant was deprived of his right to effective assistance of counsel, because the trial court blocked counsel from rendering effective help.
Grayson v. State, 93 Crim. L. Rep. 157 (Miss. 4/18/13):

Holding: Mississippi recognizes right to effective assistance of counsel in postconviction death penalty cases (but finds was harmless here); “Because this Court has recognized that PCR proceedings are a critical stage of the death-penalty appeal process at the state level, today we make clear that PCR petitioners who are under sentence of death have a right to the effective assistance of PCR counsel”; petitioner had alleged that appointed PCR’s counsel large caseload prohibited him from investigating case.


Davis v. State, 2012 WL 1538303 (Miss. 2012):

Holding: The failure of counsel for a capital murder defendant to conduct a reasonable, independent investigation to seek out readily available mitigation witnesses, facts, and evidence for the sentencing phase, and instead solely relying on witnesses suggested by the defendant, was not a matter of trial strategy and constituted ineffective assistance of counsel.
State v. Hess, 89 Crim. L. Rep. 719, 2011 WL 2899090 (N.J. 7/21/11):