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Click here for the full text of this decision FACTS:A Texas state court convicted David del Toro Jr. by guilty plea of injury to a child and sentenced him to 17 years of imprisonment. He did not appeal directly but petitioned the state for habeas relief, albeit unsuccessfully. The conviction stemmed from del Toro’s treatment of his 3-month-old daughter Alexyah. Del Toro gave two statements to police acknowledging that he held a blanket over her face for one to two minutes to stop her crying. When he removed the blanket he noticed that she was having trouble breathing, so he took her to the hospital. He told the hospital staff that he had put Alexyah down for a nap and went to sleep next to her. He said he was awakened by a phone call 30 minutes later and noticed that she was unresponsive and that her face was gray with labored breathing; he did not mention the blanket. Alexyah was found to have severe neurologic, cardiac and respiratory dysfunction with an unexplained cause. As a result of the respiratory failure, her brain was seriously damaged from lack of oxygen. Despite del Toro’s untruthful explanation, the medical staff suspected that the baby’s injury was not an accident, as evinced by several entries in Alexyah’s medical records. Some of the notations indicated that del Toro had another infant child who had died under similar circumstances. One doctor noted that the circumstances of Alexyah’s injuries and the family history were “very troubling and suggestive of infanticide.” After authorities charged del Toro, he hired attorney Dennis Jones to represent him. Jones did not retain an expert to review Alexyah’s medical records. At the hearing on del Toro’s petition for a new trial, Jones testified that he had hoped to hire an expert before trial but del Toro’s family could not afford it. Attorney John Tatum later took over as lead counsel and represented del Toro for four months. Tatum testified that he had reviewed the medical records and del Toro’s incriminating statements. He felt that he understood the medical records and had discussed with del Toro his plan to use the records to cross-examine the government’s expert witnesses regarding the records. Tatum did not hire an expert to review the records and testified that del Toro never asked him to do so. Approximately a week before trial, Tatum negotiated a plea agreement under which del Toro would receive a 20-year sentence; Tatum advised del Toro to accept the offer because of the strength of the evidence against him and because the maximum sentence if del Toro went to trial would have been 99 years. Del Toro hired Edward McFarland, another attorney, to give him a second opinion. McFarland spent about 90 minutes going over the file and reviewing the plea offer. He testified that he had offered to hire an expert to review the records but that del Toro’s family would have had to pay. Del Toro declined to hire an expert. McFarland also noted that, because del Toro’s other child had died under suspiciously similar circumstances, if the plea offer were rejected, the state intended to exhume the child for investigative purposes. McFarland negotiated the plea offer down to 17 years and advised del Toro to accept it, stating that if he turned it down, McFarland thought he would be convicted and face a sentence of at least 60 years. Fearful of the possibility of a long sentence, del Toro accepted the offer, pleaded guilty and was sentenced to 17 years of incarceration. After his conviction, del Toro hired new counsel, who in turn hired a medical expert, Dr. Lloyd White, to examine Alexyah’s medical records. In a letter from White and an affidavit made part of the record, White concluded that Alexyah’s medical records indicated that she had previous health problems that could have resulted in the symptoms she suffered when del Toro took her to the hospital and that her family history, including the death of her brother, who had demonstrated similar symptoms, and the infant deaths of three cousins, indicated a possible genetic predisposition to natural cardiorespiratory arrest. White concluded that “there is a reasonable medical probability that the injuries suffered by [Alexyah] were not caused by an action by [del Toro] or any other person.” White’s affidavit did not discuss del Toro’s statements that he held a blanket over Alexyah’s head; it stated that he based his conclusion only on a review of the records. In contrast, White’s letter mentioned del Toro’s statement to police but concluded that holding a blanket briefly over an infant’s face “per se would not necessarily cause injury.” It goes on, however, to state that White’s understanding is that del Toro later recanted his confession, claiming it was induced by coercion. After state courts denied his petition for habeas corpus, del Toro filed a federal habeas petition, which a federal district court denied, adopting the findings and conclusions of the magistrate judge. The district court issued a certificate of appealability solely on the issue of whether the court had erred by holding that del Toro’s trial attorneys were not constitutionally deficient for failing to conduct a reasonable investigation or make a reasonable decision not to investigate. HOLDING:Affirmed. To prove ineffective assistance of counsel, del Toro had to establish that: 1. his attorneys’ performance was deficient; and 2. that “the deficient performance actually prejudiced the defense to such an extent that there is a reasonable probability that, but for the attorney’s unprofessional errors, the result of the proceeding would have been different.” In evaluating whether an attorney’s conduct was deficient, the court stated that “[t]he proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Del Toro alleged that his counsel failed to investigate and discover potentially exculpatory evidence. The court stated that it need not evaluate whether del Toro was prejudiced by his counsel’s choice not to hire an expert, because the choice was reasonable under the circumstances and therefore constitutionally sufficient. A lawyer, the court stated, has a duty “to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” The court declared that if a client instructs his attorney not to hire an investigator or contact and interview witnesses, the client cannot later claim that the failure to do these things amounted to ineffective assistance. Although the trial judge had expressed reluctance to grant further continuances, del Toro could have made a persuasive case that his new attorney ought be afforded time to consult an expert about the medical records, particularly if del Toro believed that failure to do so on the part of his prior counsel had constituted severely deficient performance on their part. Instead, the court stated that del Toro declined McFarland’s offer, did not press for a continuance or a quick expert review, and chose to plead guilty. The court stated that it would not under such circumstances conclude that the attorneys’ failure to consult an expert resulted in constitutionally inadequate assistance. OPINION:Smith, J.; Jones, C.J., and Reavley and Smith, JJ.

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