Counsel Was Ineffective By Arguing Against A Lesser Included Instruction Based On A Misapprehension Of The Law

"[C]ourts may not indulge 'post hoc rationalization' for counsel's decision making that contradicts the available evidence of counsel's actions. . . ."  Thus, in Loughmiller v. Dickinson, (E.D. Cal. 9/2/2011, No: 2:09-cv-02094-JKS) defense counsel was deficient when he argued against a lesser included manslaughter instruction based on a misapprehension of the law. By doing so, counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Harringtonv. Richter, 562 U.S.____; 131 S. Ct. at 790 (2011) Accordingly, the Court of Appeal erred when it concluded that Loughmiller received effective assistance of counsel. Loughmiller, supra.

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