Cumulative Attorney Deficiencies Not Found to be IAC

If one is convicted of a crime that had some difficulties for the prosecutor, defendants are often eager to claim ineffective assistance of counsel for defense counsel’s performance.  Defendant will claim his or her constitutional right to counsel, which includes a right to effective counsel, under the Sixth Amendment was violated. 

Orlando Lopez was convicted in California of multiple crimes resulting from a shooting at a June 18, 2011, backyard barbeque.  Eight days prior to the shooting, there was a fight at a high school graduation ceremony involving Orlando Lopez’s brother and a group that called themselves the “Avenue Boys.”  Orlando’s brother injured one of the “Avenue Boys” in the eye.

Tensions remained high at the time of the backyard barbeque a week later.  Members of the Avenue Boys came to the barbeque, which was at the home of Orlando’s brother. 

A further shooting took place and Orlando was convicted of one count of first-degree murder, five counts of attempted murder, six counts of assault with a firearm, two counts of mayhem and one count of discharging a firearm at an occupied building.

The judge sentenced Mr. Lopez to 311 years to life in state prison.  Mr. Lopez then appealed his murder conviction to the California Court of Appeal, which reversed the conviction under People v. Chiu (2014) 325 P3d 972 (felony murder and implied malice requirements) and ordered that the sentence on mayhem be stayed, but otherwise affirmed the remaining judgment.

Mr. Lopez also filed a petition for writ of habeas corpus with the California Court of Appeal, raising issues of ineffective assistance of counsel.  While the petition was denied, one justice dissented, stating that Lopez had articulated a prima facie case for trial counsel’s failure to present testimony from a firearms expert regarding firearms acoustics.  Lopez then appealed to the California Supreme Court, which denied the petition summarily.

Lopez then filed a federal petition for a writ of habeas corpus under 28 U.S.C. § 2254 with the United States District Court for the Northern District of California, which denied the petition.  Lopez then appealed to the U.S. Court of Appeals for the Ninth Circuit in San Francisco in Orlando Lopez v. Trent Allen, Acting Warden of Salinas Valley State Prison.

Lopez argued his Sixth Amendment right to effective counsel was violated based on: (1) trial counsel’s failure to consult and introduce the expert testimony of a firearms and firearms acoustics expert; (2) trial counsel’s failure to introduce expert testimony on the behavior of a chronic methamphetamine user; (3) trial counsel’s failure to impeach Stone and Sergeant Clements with Stone’s prior inconsistent statements; (4) trial counsel’s failure to introduce evidence of the respective heights of those involved in the shooting; (5) trial counsel’s failure to request a jury instruction on the need to corroborate accomplice testimony; and (6) the aggregate failure to attempt any of the foregoing actions during his representation. 

The cumulative effect of individual deficiencies is recognized as a possible argument of IAC, even when any one of the deficiencies alone may not constitute IAC.  Parle v. Runnels (9th Cir., 2017) 505 F. 3d 922, 927; see also Fairbank v. Ayers (9th Cir., 2011) 650 F. 3d 1243, 1257 (the elements of Strickland can be satisfied through an accumulation of multiple instances of deficient performance).

The Ninth Circuit began its analysis by noting that in Strickland v. Washington (1984) 466 U.S. 668, the U.S. Supreme Court defined the “benchmark for judging any claim of ineffectiveness” of counsel as “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result.”  Id. at 686.

To prevail on a claim of ineffective assistance of counsel, petitioner must establish that his counsel’s performance was constitutionally deficient and that the deficiency prejudiced the defense. Id. at 687.  The appellate court then noted that the federal habeas petition is highly deferential to state courts and that a petition at the federal level should only be granted to correct “extreme malfunctions in the state criminal justice systems.”  Green v. Fisher (2011) 565 U.S. 34, 38.

 

Turning then to Mr. Lopez’s claims, the Ninth Circuit explained that an attorney’s complete failure to investigate and offer evidence in support of defense theories may be constitutionally deficient.  See Hendrickson v. Calderon (9th Cir. 1995) 70 F.3d 1032, 1040.  However, an attorney is not required to offer evidence that is unnecessary or redundant.  See Bonin v. California (9th Cir. 1995) 59 F.3d 815, 837-838.

Finally, the Ninth  Circuit then evaluated the California courts’ determination that there was not IAC.  The Ninth Circuit found that reasonable jurists could conclude that there was no reasonable probability that the proceedings’ outcome would have been different if an expert in firearms acoustics, for example, had testified.  Therefore, the Ninth Circuit affirmed California’s finding that there was no IAC.

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