What is the test for establishing that prior counsel was ineffective during the penalty phase of a capital trial?

California, United States of America


The following excerpt is from In re Reno, S124660 (Cal. 2012):

necessarily suggest prior counsel was constitutionally ineffective, for we presume such unraised claims exist in all cases. For example, because the range of permissible mitigating evidence admissible in the penalty phase of a capital trial is "virtually unlimited" (People v. Dunkle (2005) 36 Cal.4th 861, 916), the mere fact that new counsel has discovered some background information concerning a defendant's family, educational, scholastic or medical history that was not presented to the jury at trial in mitigation of penalty is insufficient, standing alone, to demonstrate prior counsel's actions fell below the standard of professional competence. Even if we could conclude prior counsel knew, or should have known, of such information, counsel's decision regarding which issues to raise and how vigorously to investigate them given time and funding restraints " 'falls within the wide range of reasonable professional assistance' " (People v. Lewis (2001) 25 Cal.4th 610, 674, quoting Strickland v. Washington, supra, 466 U.S. at p. 689) and is entitled to great deference. In short, the omission of a claim, whether tactical or inadvertent, does not of itself demonstrate ineffectiveness unless it was objectively unreasonable, meaning that the omitted claim was one that any reasonably competent counsel would have brought. Even if the omission of a claim was objectively unreasonable, a petitioner must further show that the claim entitles him or her to relief. Absent such a showing supported by specific facts, repeated and continual filings based on the justification that one's prior attorney was ineffective are, in the end, infinitely reductive and thus untenable.

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