NINTH CIRCUIT CAPITAL PUNISHMENT HANDBOOK - 2006
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Chapter 1: Capital Punishment Handbook: Constitutionality And Other General Considerations

        1.13 Ineffective Assistance Of Counsel
                1.13.1  Legal Standard
                1.13.2  Deficiency Of Counsel
                            1.13.2.1  Conflicts Of Interest
                            1.13.2.2  Deficiencies for Failure to Investigate and Prepare
                            1.13.2.3  Failure To Present Mitigating Evidence At Sentencing
                1.13.3  Ineffective Assistance Of Counsel: Prejudice
                            1.13.3.1  Presumed Prejudice
                            1.13.3.2  Prejudice Due To Failure To Investigate

A capital defendant may assert a violation of the Sixth Amendment guarantee of effective assistance of counsel based on counsel errors at both the guilt and sentencing phases of a capital trial and a violation of due process for ineffective assistance of counsel during subsequent appeals. According to Strickland v. Washington, 466 U.S. 668, 686 (1984), ineffective assistance of counsel exists when “counsel’s conduct so undermine[s] . . . the adversarial process that the trial cannot be relied on as having produced a just result.” To prevail on such a claim, a petitioner must make two showings: (1) the counsel’s performance was deficient, and (2) the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.

In Murray v. Giarratano, 492 U.S. 1 (1989), the Supreme Court held that the right to counsel does not attach to postconviction proceedings. Thus, there is no claim for ineffective assistance of state postconviction counsel. See infra § 6.3.2.1. This was codified in the 1996 habeas corpus reform in the Anti-Terrorism and Effective Death Penalty Act of 1996. See 28 USC 2254(i) (2000).

The Supreme Court has also held that a petitioner can waive the right to present Sixth Amendment claims on federal habeas review. In Stewart v. LaGrand (Walter), 526 U.S. 115 (1999), the Court affirmed the district court and Ninth Circuit’s determinations that petitioner waived his right to raise ineffective assistance of counsel claims when he chose to have trial counsel continue representation on federal collateral review and the district court required counsel to discuss all possible ineffective assistance claims with petitioner and file a status report with the court.

Stewart v. LaGrand (Walter), 526 U.S. 115 (1999) (per curiam) (holding petitioner waived Sixth Amendment claims on federal habeas review by knowingly choosing to have trial counsel continue representation).

Murray v. Giarratano, 492 U.S. 1 (1989) (holding state not constitutionally required to provide counsel for indigent death row inmates seeking state postconviction relief). 

Evitts v. Lucey, 469 U.S. 387 (1985) (holding where state provides a direct criminal appeal as of right, due process clause of Fourteenth Amendment guarantees criminal defendant effective assistance of counsel on first appeal as of right).

Strickland v. Washington, 466 U.S. 668 (1984) (establishing standard for Sixth Amendment claims of ineffective assistance of counsel).

LaGrand (Karl) v. Stewart, 133 F.3d 1253, 1271 (9th Cir.) (concluding district court did not err limiting evidentiary hearing to first prong of Strickland, since testimony directed at second Strickland prong irrelevant without proof of deficient performance), cert. denied, 525 U.S. 971 (1998).

Miller v. Keeney, 882 F.2d 1428 (9th Cir. 1989) (stating that review of claims of ineffective assistance of counsel will be according to standard set out for trial counsel in Strickland).

28 USC 2254(i) (2000) (stating “the ineffectiveness or incompetence of counsel during federal or state collateral postconviction proceedings shall not be a ground for relief in a proceeding arising under § 2254.”).

Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994) (discussing reasons for pervasive inadequacy of counsel for poor, including lack of functioning adversary system, lack of indigent defense programs, limited attorney compensation, role of judges, and minimal standard of legal representation tolerated in capital cases).

Ivan K. Fong, Note, Ineffective Assistance of Counsel at Capital Sentencing, 39 Stan. L. Rev. 461 (1987) (stating Strickland failed to ensure that capital defendants receive effective assistance of counsel at sentencing; arguing that failure to investigate and present mitigating evidence at sentencing constitutes denial of Sixth Amendment right to effective assistance of counsel).

Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U. L. Rev. 299 (1983) (stating standards for assessing effectiveness of counsel’s performance at penalty phase of capital trial inadequate and proposing new standards).

Bruce A. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 Iowa L. Rev. 433 (1993) (arguing for narrower construction of “counsel” under Sixth Amendment to encompass only attorneys qualified to wage adequate criminal defense).

Lissa Griffin, The Right to Effective Assistance of Appellate Counsel, 97 W. Va. L. Rev. 1 (1994) (addressing question of whether same standard for evaluating ineffective assistance of counsel should also be applied to evaluations of appellate counsel).

Gary Hengster, Attorneys for the Damned, 73 A.B.A. J. 56 (1987) (discussing obstacles faced by attorneys representing death row inmates, including quality of counsel, Strickland standard, and procedural defaults).

Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W. Va. L. Rev. 863 (1996) (arguing that congressional defunding of postconviction defender organizations in 1996 will lead to denial of death row inmates’ right to counsel).

John C. Jeffries, Jr., & William J. Stuntz, Ineffective Assistance and Procedural Default in Federal Habeas Corpus, 57 U. Chi. L. Rev. 679 (1990) (proposing reform of law governing federal collateral review of defaulted claims).

Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of Counsel, 13 Hastings Const. L.Q. 625 (1986) (discussing several Supreme Court decisions, including Strickland, as limitations on claims based on ineffective assistance of counsel; generally describing under-funding of agencies providing defense counsel to indigents as endangerment to Sixth Amendment guarantee of effective assistance of counsel).

Celestine Richards McConville, Protecting the Right to Effective Assistance of Capital Postconviction Counsel: The Scope of the Constitutional Obligation to Monitor Counsel Performance, 66 U. Pitt. L. Rev. 521 (2005) (arguing that the government must attempt to prevent counsel’s conduct from interfering with the capital inmate’s ability to have claims decided on the merits and suggesting that basic remedies include (1) a written or oral notification to counsel identifying the problem, followed by additional monitoring; (2) an extension of time; and (3) the removal and substitution of counsel).

Note, The Eighth Amendment and Ineffective Assistance of Counsel in Capital Trials, 107 Harv. L. Rev. 1923 (1994) (arguing that because of uniqueness of capital trials, Eighth Amendment requires a higher standard of effective assistance of counsel in death penalty cases).

Welsh S. White, Effective Assistance of Counsel in Capital Cases: The Evolving Standard of Care, 1993 U. Ill. L. Rev. 323 (1993) (assessing first prong of Strickland standard and stating capital defense attorney’s failure to take action–specifically, failure to seek and introduce mitigating evidence, to seek favorable plea bargain avoiding death sentence, and to try to establish relationship of trust with defendant–usually should be viewed as deficient representation).

To establish that an attorney’s performance was deficient, the defendant must show that counsel made errors so serious that the attorney was not functioning as “counsel” guaranteed the defendant by the Sixth Amendment. As the Court held in Strickland, a petitioner must overcome “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

Yarborough v. Gentry, 540 U.S. 1 (2003) (per curiam) (holding in noncapital habeas case that state appellate court's determination that trial defense counsel had not performed deficiently, for Sixth Amendment purposes, in failing to highlight all potentially exculpatory evidence in his closing argument, in highlighting defendant's bad character traits while arguing that these traits were irrelevant to issues before jury and in making only passive request that jurors reach verdict rather than demanding that they acquit, was not objectively unreasonable application of federal law, and did not warrant federal habeas relief; also holding that Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight; noting that the right to effective representation extends to closing arguments, but that tactical decisions in closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage). 

Bell v. Cone, 535 U.S. 685 (2002) (holding that attorney’s asserted ineffective assistance of counsel claim during sentencing phase of capital murder trial in which defendant was sentenced to death by failing to present mitigating evidence and waiving final argument were the type of errors subject to Strickland test; further holding that state court decision was not an unreasonable application of Strickland and that it was not objectively unreasonable for state court to deem counsel’s performance as involving tactical decisions about which competent lawyers might disagree where counsel’s final argument options were to plead for his client’s life and impress on jury other, less significant facts, knowing that it would give prosecutor chance to depict his client as heartless killer just before jury began deliberations or prevent prosecutor from arguing by waiving his own summation, and where counsel had tactical reasons for not calling witnesses during sentencing phase, including fear that prosecution might elicit testimony about defendant’s criminal history from witnesses; Justice Steven’s dissent addressing possibility that trial counsel, who began treatment for mental illness “a couple of years after trial,” was suffering from mental impairment at time of trial).

Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding that counsel is deficient failing to consult with a defendant about an appeal where either a rational defendant would want to appeal or where a defendant reasonably demonstrated to counsel an interest in appealing).

Lockhart v. Fretwell, 506 U.S. 364 (1993) (holding counsel’s failure to make objection based on case later overruled by Supreme Court did not constitute prejudicial ineffective assistance of counsel under Strickland).

Strickland v. Washington, 466 U.S. 668 (1984) (holding claimant must establish both that counsel’s performance was seriously deficient and that claimant as a result suffered prejudice in order to prevail on claim of ineffective assistance of counsel under Sixth Amendment).

Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002) (holding that habeas petitioner’s counsel rendered ineffective assistance by requesting an intoxication jury instruction and failing to request a diminished capacity instruction in light of the following facts: (1) Washington had long recognized a diminished capacity defense; (2) counsel theory was that defendant’s brain was kindled from chronic drug use and that he suffered from a seizure at the time of the murders that impaired his ability to premediate; and (3) there was evidence to support a finding that he was not intoxicated at the time of the murders; noting that only issue in dispute at guilt phase was premeditation), cert. denied, 539 U.S. 916 (2003).

Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002) (vacating conviction for murder and other crimes and remanding with instructions to district court to grant writ of habeas corpus unless state decided to retry petitioner and holding that there was ineffective assistance of counsel during guilt phase of trial in that counsel failed to discover and consider vast and easily obtainable information about petitioner’s fragile and failing mental health; also holding that ineffective assistance prejudiced petitioner by depriving him of opportunity to help his counsel make informed judgments as to his defense and potentially to have defense presented that would have negated mental state necessary for first degree murder conviction), cert. denied, 539 U.S. 958 (2003).

Phillips v. Woodford, 267 F.3d 966 (9th Cir. 2001) (holding that habeas petitioner asserted colorable claim that combined prejudicial effect of his counsel’s ineffective assistance in failing to present defense that victim was killed during “shoot-out” rather than presenting only his meritless alibi defense, and state’s presentation of false testimony regarding existence of plea agreement with its chief witness, required setting aside findings that rendered him eligible for death sentence and entitled him to evidentiary hearing on those two claims).

LaGrand (Karl) v. Stewart, 133 F.3d 1253 (9th Cir.) (holding state not estopped from challenging petitioner’s ineffective assistance of counsel claim notwithstanding attorney general submitted trial counsel’s affidavit in support of habeas claim to state bar; affirming district court’s denial of ineffective assistance challenging various trial strategies), cert. denied, 525 U.S. 971 (1998).

Bloom v. Calderon, 132 F.3d 1267 (9th Cir.) (holding that defense counsel’s failure to provide defendant’s experts with psychiatric information requested by experts, along with general lack of effort, was ineffective assistance), cert. denied, 523 U.S. 1145 (1997).

Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996) (holding counsel in a noncapital case ineffective for failing to follow up on criminalist’s report that semen sample taken from victim might not have come from defendant), cert. denied, 520 U.S. 1151 (1997).

Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (reversing district court finding of no ineffective assistance of counsel, holding instead that counsel’s choice not to have defendant’s mother and sister testify and to have defendant testify as alternative personality at penalty phase constitutes ineffective assistance), cert. denied, 513 U.S. 1120 (1995).

Lowry v. Lewis, 21 F.3d 344 (9th Cir. 1994) (finding no ineffective assistance of counsel for failing to file suppression motion where attorney researched and talked with attorneys who handled similar motions), cert. denied, 513 U.S. 1001 (1994).

Campbell v. Blodgett, 978 F.2d 1502, 1511–12 (9th Cir. 1992) (finding counsel not ineffective for allowing defendant to waive right to be present at jury empanelment where counsel testified that it was tactical decision in order to preserve good working relationship with defendant), reconsideration denied, 992 F.2d 984 (9th Cir. 1993). 

Harris v. Vasquez, 913 F.2d 606, 628 (9th Cir. 1990) (finding counsel not ineffective for failing to put on psychiatric-based defense that could have conflicted with alibi defense and mitigation based on petitioner’s remorse and abusive childhood).

Harris v. Pulley, 885 F.2d 1354, 1368 (9th Cir. 1988) (finding possibility that counsel’s failure to introduce abnormal EEG when later EEG result was normal was tactical decision and thus counsel’s conduct not deficient), cert. denied, 493 U.S. 1051 (1990).

Evans v. Lewis, 855 F.2d 631, 636–37 (9th Cir. 1988) (holding counsel’s failure to investigate possibility of petitioner’s mental problems could not be construed as trial tactic where counsel did not view available relevant documents).

Harding v. Lewis, 834 F.2d 853, 859 (9th Cir. 1987) (holding counsel’s recommendation to petitioner that he represent himself at trial in order to inject fundamental error is not per se prejudicial), cert. denied, 488 U.S. 871 (1988).

Woratzeck v. Ricketts, 820 F.2d 1450, 1455 (9th Cir. 1987) (holding trial counsel’s failure to request lesser-included offense instruction where defendant relied on alibi defense and trial counsel’s decision not to call witnesses who stated that they would have had to commit perjury to say anything good about defendant were trial strategies and did not constitute ineffective assistance of counsel), vacated on other grounds, 486 U.S. 1051 (1988).

Groseclose v. Bell, 120 F.3d 1161 (6th Cir. 1997) (granting writ where counsel failed to devise any defense theory, failed to subject the state’s case to any adversarial testing, including foregoing cross-examination of more than half of the state’s witnesses, failed to object to evidence, failed to present any defense witnesses, failed to make a closing argument, and failed to present meaningful mitigating evidence at penalty phase), cert. denied, 523 U.S. 1132 (1998).

Porter v. Singletary, 14 F.3d 554 (11th Cir.) (holding counsel made informed tactical decision not to introduce potentially mitigating family background evidence in order to avoid inclusion of damaging evidence of defendant’s prior criminal activity), cert. denied, 513 U.S. 1009 (1994).

Hance v. Zant, 981 F.2d 1180 (11th Cir.) (finding counsel not ineffective for presenting psychologist’s testimony of defendant’s poor chance of rehabilitation from mental illness where counsel had evaluated evidence from six to eight mental health experts and chosen psychologist was only one willing to testify as to defendant’s mental disorder), cert. denied, 510 U.S. 920 (1993).

Barnard v. Collins, 958 F.2d 634 (5th Cir. 1992) (finding counsel’s tactical decision not to present mitigating evidence concerning petitioner’s mental condition did not constitute ineffective assistance, absent showing that counsel would have reason to believe defendant suffered from mental defect at time of offense or trial), cert. denied, 506 U.S. 1057 (1993).

Smith v. Wainwright, 777 F.2d 609 (11th Cir. 1985) (requiring evidentiary hearing to determine reasonableness of counsel’s failure to challenge admissibility of defendant’s confessions where defendant was prejudiced by their admission), cert. denied, 477 U.S. 905 (1986).

A lawyer’s conflict of interest may amount to a denial of the effective assistance of counsel guaranteed by the Sixth Amendment. Under Cuyler v. Sullivan, 446 U.S. 335, 348 (1980), to establish a Sixth Amendment violation based on a conflict of interest, a defendant “who raised no objection at trial must demonstrate that an actual conflict . . . adversely affected his lawyer’s performance.” Once an actual conflict of interest is established prejudice is presumed. Although the Sixth Amendment does not impose an affirmative duty upon a state trial court to inquire into the propriety of multiple representation in every case, the Supreme Court, in Holloway v. Arkansas, 435 U.S. 475 (1978), required a state court to investigate timely objections to multiple representation.

In order to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest about which it knew or reasonably should have known, the Supreme Court held, in Mickens v. Taylor, 535 U.S. 162, reh’g denied, 535 U.S.1074 (2002), that a defendant must establish that a conflict of interest adversely affected his or her counsel’s performance. The Court held in Mickens that “actual conflict of interest” means precisely a conflict that affected counsel’s performance, as opposed to a mere theoretical division of loyalties. A determination concerning the adequacy of counsel and conflicts of interest is a mixed question of law and fact and thus is not entitled to the presumption of correctness afforded state court findings of fact under 28 USC 2254(e).

Mickens v. Taylor, 535 U.S. 162 (in case in which lead defense counsel had represented murder victim on criminal charges holding that to demonstrate Sixth Amendment violation where trial court failed to inquire into potential conflict of interest about which it knew or reasonably should have known, defendant had to establish that this conflict of interest adversely affected counsel’s performance; rejecting proposed “automatic reversal” rule whereby if trial judge neglected duty to inquire into attorney’s potential conflict of interest, defendant, to obtain reversal of judgment, need only show that lawyer was subject to conflict of interest), reh’g denied, 535 U.S. 1074 (2002).

Burger v. Kemp, 483 U.S. 776 (1987) (holding no conflict of interest where two partners were appointed to represent coindictees in respective trials even though partners cooperated with one another in planning and conduct of trial strategy; even single attorney representing codefendants not per se violative of Sixth Amendment; not every instance of multiple representation justifies presumption of prejudice; where actual conflict and adverse impact on representation exists, no need to show prejudice).

Cuyler v. Sullivan, 446 U.S. 335 (1980) (holding, although possibility of prejudice inheres in almost every instance of multiple representation, defendant must still establish actual conflict of interest that adversely affected counsel’s performance).

Holloway v. Arkansas, 435 U.S. 475 (1978) (requiring state trial courts to investigate timely objections to multiple representation; stating that simultaneous representation of codefendants is not “per se violative of constitutional guarantees of effective assistance of counsel”; defendant may waive right to assistance of counsel unhindered by conflicts of interest, citing Glasser v. United States, 315 U.S. 60, 70 (1942)).

Daniels v. Woodford, 428 F.3d 1181 (9th Cir. 2005) (holding that when trial court denied capital habeas petitioner’s motions for substitution of counsel, he was deprived of his Sixth Amendment right to conflict-free representation because there was a complete breakdown in communication between his trial counsel and him, the trial court did not conduct any inquiry into the conflict, and the motions to substitute were timely; also holding that petitioner was denied effective assistance of counsel due to: (1) the lack of communication and counsel’s ineffective efforts to overcome the impasse, and (2) counsel’s failure to conduct a thorough investigation into the petitioner’s mental illness and possible brain damage).

Campbell v. Rice, 408 F.3d 1166 (9th Cir.) (en banc) (holding in a noncapital case that the state court’s determination–that an assumed actual conflict of interest due to the fact that petitioner’s attorney was being prosecuted at the same time by the same district attorney’s office did not cause the attorney to render ineffective assistance–was not contrary to or an unreasonable application of clearly established federal law; also holding that any violation of petitioner’s due process rights when he was excluded from the inchambers conference where the trial court concluded that his attorney did not have a conflict was trial error subject to harmless error review and any error was harmless), cert. denied, 126 S. Ct. 735 (2005).

United States v. Baker, 256 F.3d 855 (9th Cir. 2001) (finding petitioner failed to demonstrate actual conflict where attorney pleaded guilty to federal fraud charges in New York, cooperated with authorities and received reduced sentence, while representing petitioner on his appeal in Los Angeles on unrelated drug charges).

Lockhart v. Terhune, 250 F.3d 1223 (9th Cir. 2001) (finding conflict of interest that adversely affected counsel’s ability to represent petitioner in murder trial where counsel also represented separate client who was implicated in earlier homicide petitioner also implicated in, and state’s case would have been significantly weaker if separate client had been implicated in first homicide; finding waiver inadequate to remedy conflict).

Bragg v. Galaza, 242 F.3d 1082 (9th Cir.) (finding no active representation of conflicting interest or actual adverse effect on performance where counsel agreed to represent petitioner’s cousin in unrelated offense but withdrew during petitioner’s trial after learning that cousin was possible witness/accomplice to petitioner’s murder charge), amended on denial of petition for reh’g, 253 F.3d 1150 (2001).

Delgado v. Lewis, 223 F.3d 976 (9th Cir. 2000) (presuming prejudice where petitioner  was represented at sentencing by co-defendant’s counsel and the representation was deficient because of a conflict of interest).

Rich v. Calderon, 187 F.3d 1064 (9th Cir. 1999) (finding no economic conflict of interest where petitioner submitted affidavit of appointed trial counsel discussing financial pressures), cert. denied, 528 U.S. 1092 (2000).

Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) (holding former defense counsel’s involvement as prosecutor in subsequent capital clemency hearing not conflict of interest because prisoner has no constitutional right to clemency).

United States v. Del Muro, 87 F.3d 1078 (9th Cir. 1996) (holding court created inherent conflict of interest by forcing trial counsel to prove own ineffectiveness at evidentiary hearing on motion for new trial).

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (finding no conflict of interest where counsel had only discussed literary rights agreement with defendant but had not actually entered into formal agreement; no conflict where counsel had offered to represent codefendant and key prosecution witness against defendant where defendant could not prove attorney-client relationship had adverse affect on attorney’s performance at trial), cert. denied, 516 U.S. 1142 (1996).

Garcia v. Bunnell, 33 F.3d 1193 (9th Cir. 1994) (holding no conflict of interest created by defense counsel’s acceptance of offer of employment in prosecutor’s office, to begin after end of defendant’s trial), cert. denied, 514 U.S. 1024 (1995).

Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) (finding attorneys representing defendant at first and second trial were faced with impermissible conflicts of interest that adversely affected defendant’s representation where first attorney initially represented defendant’s brother and advised him to take Fifth Amendment in defendant’s trial despite knowing brother’s confession and willingness to testify, and attorney in second trial pursued weaker defenses despite awareness of brother’s confession).

Fitzpatrick v. McCormick, 869 F.2d 1247, 1251–53 (9th Cir.) (finding direct conflict of interest where counsel previously represented petitioner’s codefendant and failed to present evidence that might have put uncertainty into minds of jury but would have implicated codefendant), cert. denied, 493 U.S. 872 (1989).

Ruffin v. Kemp, 767 F.2d 748 (11th Cir. 1985) (finding petitioner entitled to habeas relief due to actual conflict of interest that adversely affected attorney’s performance where appointed attorney representing codefendants attempted to work out plea bargain that would call for one defendant to testify against other).

Foxworth v. Wainwright, 516 F.2d 1072 (5th Cir. 1975) (finding conflict of interest where one defendant stood to gain significantly by counsel adducing probative arguments damaging to cause of codefendant also represented by counsel; in establishing ineffective assistance of counsel, it is sufficient to show plausible defense foreclosed because might have prejudiced other codefendants represented by same counsel; “irrelevant or merely hypothetical” conflicts of interest do not violate Sixth Amendment).

In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court reiterated the strong presumption of attorney competence established by Strickland v. Washington but established that where a counsel’s failure to investigate indicates a complete lack of trial preparation, such performance falls below the level of reasonable professional assistance and is thus constitutionally deficient.  

In Wiggins v. Smith, 539 U.S. 510 (2003), the Supreme Court emphasized that Strickland v. Washington does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing, nor require defense counsel to present mitigating evidence at sentencing in every case. The Wiggins court held that counsel’s decision not to expand their investigation beyond a presentence investigation and city department of social services report fell below prevailing professional standards since the standard practice in Maryland capital cases was to prepare a social history report.

Rompilla v. Beard, 125 S. Ct. 2456 (2005) (holding that even when a capital defendant’s family members and defendant himself have suggested that no mitigating evidence is available, counsel is required to make reasonable efforts to obtain and review material that counsel knows the prosecution will probably rely on as evidence of aggravation at the trial’s sentencing phase).

Wiggins v. Smith, 539 U.S. 510 (2003) (holding in case in which counsel attempted to justify limited investigation as reflecting a tactical judgment to pursue alternate strategy to focus of petitioner’s direct responsibility, that in evaluating an ineffective assistance of counsel claim, Supreme Court’s principal concern is not whether counsel should have presented a mitigation case but whether the investigation supporting the decision not to introduce mitigating evidence of petitioner’s background was itself reasonable; concluding that counsel did not conduct a reasonable investigation where the decision not to expand their investigation beyond a presentence investigation report and a city department of social services record fell short of the professional standards prevailing in Maryland in 1989 in that standard practice in capital cases at that time included preparation of a social history report and funds were available to retain a forensic social worker).

Williams (Terry) v. Taylor, 529 U.S. 362 (2000) (holding petitioner’s Strickland right to counsel was violated where trial counsel failed to conduct a thorough mitigation investigation of petitioner’s childhood for sentencing trial; holding that trial counsel’s Strickland violation was both “contrary to” and an “unreasonable application of” federal law, under § 2254(d)(1)).

Kimmelman v. Morrison, 477 U.S. 365 (1986) (finding counsel ineffective because failed to conduct pretrial discovery and thus unaware of search revealing interim evidence, and therefore failed to file timely suppression motion; adversarial testing process generally will not function properly unless counsel has done some investigation).

Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005) (en banc) (on remand from Supreme Court, en banc court reversed district court’s denial of pre-AEDPA habeas petition as to penalty phase and held that petitioner received ineffective assistance of counsel because his attorney “utterly failed” in his duty to investigate and develop potential mitigating evidence for presentation at penalty phase: he conducted no investigation of petitioner’s family and social history; he did not speak to petitioner’s family or friends; and his development of mental health defense was based solely on limited information developed at petitioner’s pre-trial competency examination, which was prepared for an entirely different purpose), petition for cert. filed. 74 U.S.L.W. (U.S. Jan. 17, 2006) (No. 05-903)

Boyde v. Brown, 404 F.3d 1159 (9th Cir.) (in a pre-AEDPA case, holding that as to the penalty phase of a capital trial, counsel was deficient in failing to investigate mitigating childhood abuse, in failing to introduce the evidence that his limited investigation did uncover as to the petitioner’s history of suffering violent physical abuse as well as the family history of sexual abuse that petitioner knew about growing up, and in failing to object to inadmissible aggravating evidence), amended on granting of petition for reh’g, 421 F.3d 1154 (9th Cir. 2005).

Allen v. Woodford, 395 F.3d 979 (9th Cir.) (holding that counsel’s failure to prepare for the penalty phase of a capital case until one week before it began, and his resulting failure to investigate thoroughly and present the petitioner’s mitigation case, was constitutionally deficient, but that, nonetheless, the evidence in mitigation, coupled with the potential mitigating evidence produced during the federal habeas proceedings, was insufficient to outweigh the overwhelming evidence in aggravation), cert. denied, 126 S. Ct. 134 (2005).

Beardslee v. Woodford, 358 F.3d 560 (9th Cir. 2004) (holding that counsel’s strategic decision to offer complete cooperation without investigating other potential mitigation strategies fell below constitutionally acceptable standards; holding, nevertheless, that petitioner could not show that counsel’s decision actually prejudiced his penalty phase trial under Strickland because: (1) full cooperation did not preclude a substantial case in mitigation; (2) district court did not err in finding that petitioner himself originated the cooperation tactic; (3) counsel’s decision to allow petitioner to testify about the prior homicide did not have a substantial effect on the verdict when petitioner had already admitted committing that crime; and (4) petitioner received new trial counsel, who conducted a reasonably thorough investigation).

Alcala v. Woodford, 334 F.3d 862 (9th Cir. 2003) (affirming in capital case a conditional grant of habeas petition, the court held that trial counsel’s failure to present alibi defense was plainly deficient and prejudiced petitioner; noting that trial counsel at evidentiary hearing could not recall why he failed to call alibi witness, who was identified as a potential trial witness, or present business records bearing on alibi defense).

Turner v. Calderon, 281 F.3d 851 (9th Cir. 2002) (remanding for evidentiary hearing to determine whether counsel was constitutionally ineffective for failure to investigate and present evidence of petitioner’s long-term drug use and his abusive and difficult childhood, which, if true, could have altered result of penalty phase of capital murder trial).

Caro v. Woodford, 280 F.3d 1247 (9th Cir. ) (holding that there was ineffective assistance of counsel at penalty phase where counsel was aware of petitioner’s extraordinary history of exposure to pesticides and toxic chemicals, yet counsel neither fully investigated this history nor informed experts who examined petitioner of those facts that were known to him, and counsel failed to seek out expert to assess damage done by this poisoning), cert. denied, 536 U.S. 951 (2002).

Silva v. Woodford, 279 F.3d 825 (9th Cir.) (granting writ of habeas corpus and holding that trial counsel was constitutionally ineffective during penalty phase of murder trial in failing to investigate defendant’s background and present potentially compelling mitigating evidence), cert. denied, 537 U.S. 942 (2002).

Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc) (holding that counsel was ineffective in penalty phase of trial in which petitioner was sentenced to death where he failed to conduct thorough investigation of petitioner’s background; noting that attorney did not associate co-counsel to assist although petitioner was entitled to second attorney in capital case, he billed only 40 hours in preparation for both phases of trial, he spent less than half of defense investigation budget authorized by county, he did not consult experts in endocrinology regarding petitioner’s diabetes or in toxicology regarding his substance abuse, nor did he obtain petitioner’s medical records; concluding that jury might not have imposed death sentence had mitigating evidence been presented).

Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2001) (holding that counsel’s performance at penalty phase of murder trial was deficient where counsel failed to investigate and present wealth of evidence concerning habeas petitioner’s troubled background and emotional problems).

Lambright v. Stewart, 241 F.3d 1201 (9th Cir. 2001) (remanding for evidentiary hearing to determine whether counsel was deficient for failure to investigate and present evidence of petitioner’s psychiatric condition and social history at sentencing), cert. denied, 534 U.S. 1188 (2002).

Bragg v. Galaza, 242 F.3d 1082 (9th Cir.) (finding no failure to investigate based on record; denying evidentiary hearing pursuant to 28 USC 2254(e) for failure to request an evidentiary hearing in state court), amended on denial of petition for reh’g, 253 F.3d 1150 (2001).

Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000) (finding no deficient performance–but rather strategy–in counsel asking jury to convict on first degree murder but not felony murder; finding no deficiencies in counsel’s death penalty defense), cert. denied, 534 U.S. 1036 (2001), reh’g and reh’g en banc denied, 276 F.3d 483. 

Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000) (finding ineffective assistance of counsel at capital penalty phase, which included failure to compile a social history of petitioner, failure to present evidence regarding petitioner’s PCP addiction, failure to present medical testimony, failure to present expert evidence regarding petitioner’s impaired mental condition at time of crime, and failure to investigate prior aggravating act of sodomy), cert. denied, 531 U.S. 1072 (2001).

Turner v. Duncan, 158 F.3d 449 (9th Cir. 1998) (finding ineffective assistance of counsel based on cumulative impact of error failing to investigate or prepare for trial). 

Babbitt v. Calderon, 151 F.3d 1170 (9th Cir. 1998) (finding trial counsel’s decision not to pursue additional investigation into defendant’s post-traumatic syndrome disorder at guilt and sanity trials reasonable where evidence largely cumulative; finding counsel’s investigatory efforts preparing for penalty trial and presentation of mitigating evidence reasonable), cert. denied, 525 U.S. 1159 (1999).

Coleman v. Calderon, 150 F.3d 1105 (9th Cir.) (finding deficient performance where trial counsel never read expert report which contained evidence favorable to defendant, but finding no prejudice in light of other evidence of guilt; finding no deficiency, under circumstances, in failing to investigate physical evidence and serology evidence, or failing to request a continuance), rev’d on other grounds, 525 U.S. 141 (1998).

Ortiz v. Stewart, 149 F.3d 923 (9th Cir. 1998) (affirming district court’s finding that counsel’s alleged failure to properly prepare for sentencing or to investigate information in presentence report not ineffective where petitioner failed to show what further preparation or investigation would have shown), cert. denied, 526 U.S. 1123 (1999).

Brown v. Myers, 137 F.3d 1154 (9th Cir. 1998) (finding trial counsel’s failure to investigate alibi claim or call alibi witnesses, coupled with sufficient inconsistencies in state’s case resulted in ineffective assistance of counsel).

Bonin v. Calderon, 59 F.3d 815 (9th Cir. 1995) (finding counsel’s failure to investigate defendant’s childhood did not amount to ineffective assistance), cert. denied, 516 U.S. 1051 (1996).

Siripongs v. Calderon, 35 F.3d 1308 (9th Cir. 1994) (holding petitioner entitled to evidentiary hearing due to colorable showing that counsel’s failure to pursue accomplice defense amounted to deficient performance at penalty phase), cert. denied, 513 U.S.1183 (1995), on appeal after remand, 133 F.3d 732 (9th Cir. 1998) (holding counsel was not ineffective).

Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) (finding ineffective assistance of counsel due to counsel’s failure to investigate purported confession of another suspect in the case, petitioner’s brother, despite suspect’s willingness to talk and counsel’s pursuit of mistaken identity defense without reference to other suspect, and other weaker defenses).

Collier v. Turpin, 177 F.3d 1184 (11th Cir. 1999) (granting relief from petitioner’s death sentence where trial counsel was ineffective for failing to adequately prepare and present evidence in mitigation of petitioner’s sentence for killing a police officer).

Dobbs v. Turpin, 142 F.3d 1383 (11th Cir. 1998) (holding counsel ineffective at petitioner’s capital sentencing proceeding for failing to investigate and present any mitigating evidence and for making an inadequate closing argument).

Austin v. Bell, 126 F.3d 843 (6th Cir. 1997) (finding ineffective assistance of counsel where attorney failed to investigate and present any evidence during capital penalty phase, even though petitioner’s friends and family were willing to testify), cert. denied, 523 U.S. 1079 (1998), and cert. denied, 523 U.S. 1088 (1998).

Glenn v. Tate, 71 F.3d 1204 (6th Cir. 1995) (holding counsel’s failure to investigate evidence of brain damage of mentally retarded petitioner to be ineffective assistance of counsel), cert. denied, 519 U.S. 910 (1996).

In Re Personal Restraint of Brett, 142 Wash. 2d 868, 16 P.3d 601 (2001) (holding trial counsel ineffective during both guilt and penalty phases of capital trial where counsel knew of petitioner’s mental and physical conditions yet did not locate proper records, experts, consultants or properly research mitigating evidence to maintain an adequate defense).

The Constitution requires that the sentencer consider any relevant mitigating evidence. Ineffective assistance of counsel under the Sixth Amendment may exist, therefore, when a defense counsel fails to adequately investigate and present such mitigating evidence.

Wiggins v. Smith, 539 U.S. 510 (2003) (holding that petitioner’s defense was prejudiced where mitigating evidence counsel failed to present and discover was powerful: petitioner experienced severe privation and abuse while in custody of his alcoholic mother and physical and sexual abuse while in foster care, was homeless, and had diminished mental capacities).

Bell v. Cone, 535 U.S. 685 (2002) (holding that attorney’s asserted ineffective assistance of counsel claim during sentencing phase of capital murder trial in which defendant was sentenced to death by failing to present mitigating evidence and waiving final argument were the type of errors subject to Strickland test; also holding that state court correctly identified Strickland principles as governing claim and that there was no merit to contention that state court’s adjudication was contrary to court’s clearly established law; further holding that state court decision was not an unreasonable application of Strickland and that it was not objectively unreasonable for state court to deem counsel’s performance as involving tactical decisions about which competent lawyers might disagree where counsel had tactical reasons for not calling witnesses during sentencing phase, including fear that prosecution might elicit testimony about defendant’s criminal history from witnesses; Justice Steven’s dissent addressing possibility that trial counsel, who began treatment for mental illness “a couple of years after trial,” was suffering from mental impairment at time of trial).

Burger v. Kemp, 483 U.S. 776 (1987) (holding counsel’s strategic choice not to introduce any mitigating evidence even after a less than complete investigation was supported by reasonable professional judgment when the evidence that could have been presented would not have been helpful in establishing mitigation).

Darden v. Wainwright, 477 U.S. 168, 185–87 (1986) (holding it is reasonable for counsel not to introduce any mitigating evidence and rely on plea for mercy when potential mitigating evidence would have been rebutted with extremely damaging evidence from state).

Summerlin v. Schriro, 427 F.3d 623 (9th Cir. 2005) (en banc) (on remand from Supreme Court, en banc court reversed district court’s denial of pre-AEDPA habeas petition as to penalty phase and held that counsel was ineffective in failing to present mitigating evidence; also holding that record did not support state’s argument that petitioner requested that mitigating evidence not be presented), petition for cert. filed, 74 U.S.L.W. (U.S. Jan. 17, 2006) (No. 05-903).

Douglas v. Woodford, 316 F.3d 1079 (9th Cir.) (holding that counsel was constitutionally ineffective in failing to investigate and present, at penalty phase of a capital murder trial, significant mitigating evidence regarding petitioner’s social history and mental health, including evidence of his difficult childhood and exposure to toxic solvents; finding that even though petitioner refused to submit to further psychological testing, counsel’s investigation of his mental health was deficient), cert. denied, 540 U.S. 810 (2003).

Karis v. Calderon, 283 F.3d 1117 (9th Cir. 2002) (holding that there was ineffective assistance of counsel at penalty phase of trial where counsel failed to investigate and present mitigating evidence of abuse petitioner witnessed and suffered as a child), cert. denied, 539 U.S. 958 (2003).

Caro v. Woodford, 280 F.3d 1247 (9th Cir.) (holding that there was ineffective assistance of counsel at penalty phase of trial where counsel was aware of petitioner’s extraordinary history of exposure to pesticides and toxic chemicals, yet counsel neither fully investigated this history nor informed experts who examined petitioner of those facts that were known to him, counsel failed to seek out expert to assess damage done by this poisoning, and counsel failed to present testimony at penalty phase of trial explaining effects of severe physical, emotional, and psychological abuse to which petitioner was subjected as a child), cert. denied, 536 U.S. 951 (2002).

Silva v. Woodford, 279 F.3d 825 (9th Cir.) (granting writ of habeas corpus and holding that trial counsel was constitutionally ineffective during penalty phase of murder trial in failing to investigate defendant’s background and present potentially compelling mitigating evidence; holding that counsel had a duty to seek out all available sources of mitigating evidence, including contacting family members even if they would not be called on to testify and that counsel was deficient in failing to inform defendant about consequences of not investigating), cert. denied, 537 U.S. 942 (2002).

Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc) (holding that counsel was ineffective in penalty phase of murder trial in which petitioner was sentenced to death where he did not present and explain to jury significant mitigating evidence; noting that counsel called only one witness, a psychologist, and failed to call endocrinologist to offer testimony regarding petitioner’s diabetes or toxicologist to testify regarding his substance abuse, nor did he call any friends or family members; applying test that court must weigh mitigating evidence against aggravating evidence and determine whether there was “a reasonable probability that, absent the errors, the sentencer–including an appellate court, to the extent it independently reweighs the evidence–would have concluded that the balance of aggravating and mitigating circumstances do not warrant death,” court concluded that petitioner was prejudiced by counsel’s deficient performance at penalty phase).

Ainsworth v. Woodford, 268 F.3d 868 (9th Cir. 2001) (holding that counsel’s performance at penalty phase of murder trial was deficient where counsel failed to investigate and present wealth of evidence concerning habeas petitioner’s emotional problems and troubled background including drug and alcohol abuse and suicide attempts, and failed to present to jury evidence of petitioner’s positive adjustment to prison life during his previous incarceration).

Wallace v. Stewart, 184 F.3d 1112 (9th Cir. 1999) (remanding to district court for evidentiary hearing to determine whether defense counsel ineffective at capital sentencing hearing, in light of Hendricks and affidavits submitted to district court revealing a depressive disorder and possibly organic brain damage).

Bean v. Calderon, 163 F.3d 1073 (9th Cir. 1998) (holding counsel ineffective at capital penalty hearing who failed to provide experts with necessary information, failed to have testing performed at request of experts, and put expert on stand without preparation or foundation, and where defendant presented evidence at habeas hearing that he suffered from post-traumatic stress disorder, was functionally mentally retarded, brain damaged from childhood experiences, unable to form intent and incompetent to stand trial), cert. denied, 528 U.S. 922 (1999).

Smith v. Stewart, 140 F.3d 1263 (9th Cir. 1998) (holding trial counsel ineffective by failing to offer any mitigating evidence or argument at capital sentencing, where presentence report indicated some mitigating evidence and counsel’s decision was not the result of tactical consideration), cert. denied, 525 U.S. 929 (1998).

Correll v. Stewart, 137 F.3d 1404 (9th Cir.) (holding petitioner presented colorable claim of ineffective assistance of counsel where there was almost complete absence of investigation, development, and presentation of mitigating evidence, including evidence of petitioner’s psychiatric history), cert. denied, 525 U.S. 984, and cert. denied, 525 U.S. 996 (1998).

Hendricks v. Calderon, 70 F.3d 1032 (9th Cir. 1995) (holding defense attorney’s decision to forego insanity plea in capital prosecution does not preclude obligation to explore mental impairment resulting from physical and mental abuse as mitigating evidence at sentencing), cert. denied, 517 U.S. 1111 (1996).

Claibourne v. Lewis, 64 F.3d 1373 (9th Cir. 1995) (holding counsel ineffective at penalty phase for failing to prepare and present case for mitigation; evidence of mental illness, and influence of co-defendant). 

Williams v. Calderon, 52 F.3d 1465 (9th Cir. 1995) (stating where mitigating evidence is presented at guilt trial and jury instructed to consider it at penalty phase, counsel is not necessarily ineffective for not presenting additional evidence at penalty phase), cert. denied, 516 U.S. 1124 (1996).

Wade v. Calderon, 29 F.3d 1312 (9th Cir. 1994) (holding counsel’s decision not to present testimony of defendant’s mother and sister was failure to present mitigating evidence constituting ineffective assistance of counsel), cert. denied, 513 U.S. 1120 (1995).

Paradis v. Arave, 20 F.3d 950 (9th Cir. 1994) (finding no ineffective assistance for failure to present mitigating evidence because counsel spent adequate time preparing for sentencing, competently responded to inaccuracies and ambiguities in presentence report, and presented testimony to establish defendant amenable to rehabilitation), cert. denied, 513 U.S. 1117 (1995).

Hamilton v. Vasquez, 17 F.3d 1149 (9th Cir.) (finding failure to argue to jury that it should consider lingering doubt about defendant’s guilt as mitigating factor not ineffective assistance because counsel could reasonably have concluded jury would not be persuaded by such an argument), cert. denied, 512 U.S. 1229 (1994).

Mak v. Blodgett, 970 F.2d 614 (9th Cir. 1992) (holding ineffective assistance where attorney presented no mitigating evidence despite fact that there was substantial available evidence concerning petitioner’s family background, good character, and cultural difficulties), cert. denied, 507 U.S. 951 (1993).

Deutscher v. Whitley, 884 F.2d 1152, 1159 (9th Cir. 1989) (finding ineffective assistance for failure to investigate and present any mitigating evidence of petitioner’s mental problems; since sole mitigating argument was that petitioner must have had some mental problem, counsel did not make a reasoned decision that the evidence would not be useful), vacated on other grounds, 500 U.S. 901 (1992).

Evans v. Lewis, 855 F.2d 631, 636 (9th Cir. 1988) (finding counsel’s failure to investigate defendant’s mental condition for purpose of establishing mitigating factor at sentencing phase was ineffective assistance where documents indicating defendant’s history of mental problems were available to counsel and review of totality of evidence established prejudice; since counsel presented no mitigating evidence, this failure to investigate cannot be construed as a trial tactic).

Campbell v. Kincheloe, 829 F.2d 1453, 1462-64 (9th Cir. 1987) (rejecting per se rule that counsel must present mitigating evidence at sentencing; counsel not ineffective for failing to present any mitigating evidence when it would have opened door to extremely damaging rebuttal evidence from state), cert. denied, 488 U.S. 948 (1988).

Duvall v. Reynolds, 139 F.3d 768 (10th Cir. 1998) (differentiating between failure to present evidence and failing to investigate, and allowing more latitude for the former), cert. denied, 525 U.S. 933 (1998).

Horton v. Zant, 941 F.2d 1449 (11th Cir. 1991) (holding defense counsel’s failure to present mitigating evidence at sentencing was ineffective assistance, particularly in light of fact that counsel attacked defendant’s character and separated himself from defendant), cert. denied, 503 U.S. 952 (1992).

Harris v. Dugger, 874 F.2d 756 (11th Cir.) (holding new sentencing required where each of two co-counsel testified that he believed his co-counsel had prepared for the sentencing phase, and mitigating evidence, although available, was not discovered or presented), cert. denied, 493 U.S. 1011 (1989).

People v. Snow, 30 Cal.4th 43, 65 P.3d 749, 132 Cal.Rptr.2d 271 (holding that trial court did not err in failing to appoint new defense counsel to argue to the jury on defendant's behalf during penalty phase of capital murder trial when defense counsel failed to present any mitigating evidence and then, refusing to explain why, waived argument, and defendant responded affirmatively when the court inquired whether he would accept substitute counsel where counsel's confidential declarations in the record on appeal raised a reasonable inference that defendant did not desire, and indeed would not permit, defense counsel to investigate or present any family background evidence in mitigation; also holding that the record on appeal was inadequate for resolution of the question of ineffective assistance of defense counsel and that question could only be resolved by means of a petition for a writ of habeas corpus), cert. denied, 540 U.S. 1076 (2003).

Jonathan P. Tomes, Damned if you Do, Damned if you Don’t: The Use of Litigation Experts in Death Penalty Litigation, 23 Am. J. Crim. L 359 (1997).

An error by counsel, even if professionally unreasonable, does not warrant setting aside the conviction if the error had no effect on the judgment. A defendant must establish prejudice resulting from the error. In Strickland, the Supreme Court held that prejudice requires a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” The Court in Strickland emphasized that the ultimate focus of an ineffective assistance of counsel inquiry “must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696.

In Lockhart v. Fretwell, 506 U.S. 364 (1993), the Supreme Court further clarified that to establish prejudice a defendant must show more than merely that the outcome would have been different absent the deficiency of counsel. The Court held that a trial is not unfair or unreliable unless counsel’s ineffectiveness deprived the defendant of a substantive or procedural right to which he was entitled by law. Lockhart. 506 U.S. at 372.

Roe v. Flores-Ortega, 528 U.S. 470 (2000) (holding prejudice established when counsel’s deficient performance deprives a defendant of an appeal that he otherwise would have taken).

Williams (Terry) v. Taylor, 529 U.S. 362, 391-95 (2000) (stating Lockhart’s fundamental fairness test not applicable inquiry when Strickland analysis shows deprivation of substantive or procedural right; holding that Lockhart’s fundamental fairness test is not an additional requirement to Strickland prejudice nor does Lockhart supplant prejudice under Strickland).

Lockhart v. Fretwell, 506 U.S. 364 (1993) (holding to show prejudice under Strickland, defendant must demonstrate more than different outcome caused by deficient counsel; unfairness or unreliability does not result unless counsel’s ineffectiveness deprives defendant of a substantive or procedural right entitled by law).

Cuyler v. Sullivan, 446 U.S. 335 (1980) (holding although possibility of prejudice inheres in almost every instance of multiple representation, defendant must still establish actual conflict of inter