Counsel Performance at Sentencing: Preparation, Strategy, and the Limits of Presumed Prejudice

Introduction

Baker v. Conway (2d Cir., April 3, 2025) arises from Sean Baker’s challenge to his New York second-degree murder sentence on the grounds that his court-appointed lawyer, Patrick Bruno, provided ineffective assistance during the sentencing stage. Baker, convicted under New York’s felony-murder statute for a robbery gone deadly, received a twenty-to-life term. He argued in state and federal proceedings that Bruno failed to review the presentence report, investigate his background, advise him about the benefits of speaking in allocution, and advocate for mitigation—violating his Sixth Amendment rights under Strickland v. Washington. On appeal from the denial of a § 2254 habeas petition, the Second Circuit affirmed, holding Bruno’s failures were deficient but that Baker failed to show a “reasonable probability” of a reduced sentence, and that Baker was not entitled to a Cronic presumption of prejudice.

Summary of the Judgment

The Second Circuit, applying the doubly deferential standards of the Antiterrorism and Effective Death Penalty Act (AEDPA), concluded:

Under Strickland, counsel’s performance was objectively unreasonable because Bruno did not discuss the presentence report with Baker, investigate his difficult childhood, explain allocution options, or argue for leniency.
On the prejudice prong, Baker could not show a “substantial likelihood” of a shorter sentence: the sentencing judge already imposed twenty-to-life (below the 25-to-life maximum), and later findings indicated no mitigation would have altered the outcome.
Baker’s request for a Cronic presumption of prejudice failed because he never fairly presented that theory to the state courts, and the circumstances did not fall within Cronic’s narrow categories.
The § 2254 petition was denied and the District Court judgment affirmed.

Analysis

Precedents Cited

The court relied on—and distinguished among—several key precedents:

Strickland v. Washington (466 U.S. 668, 1984): Established the two-pronged test for ineffective assistance: (1) deficient performance; (2) resulting prejudice.
United States v. Cronic (466 U.S. 648, 1984): Identified narrow situations where prejudice is presumed without specific proof, such as total failure of adversarial testing.
Gonzalez v. United States (2d Cir. 2013): Held that counsel’s failure to review a presentence report or seek a downward departure was a Strickland deficiency.
Bell v. Cone (535 U.S. 685, 2002): Reinforced that only a complete breakdown of adversarial process triggers Cronic’s presumption.
Knowles v. Mirzayance (556 U.S. 111, 2009) & Harrington v. Richter (562 U.S. 86, 2011): Defined the “doubly deferential” review in § 2254 cases under AEDPA and Strickland.

Legal Reasoning

1. Deficient Performance
Under Strickland, an attorney must make a “reasonable investigation” and prepare to advocate at sentencing. Bruno never reviewed or discussed the presentence report with Baker, did not gather or present mitigating background evidence, and made only a perfunctory statement in allocution. These omissions, as in Gonzalez, are not strategic when no reasonable investigation occurred; hence, counsel’s performance was objectively unreasonable.

2. Prejudice
Strickland prejudice requires a “reasonable probability” that, but for counsel’s errors, the sentence would have been lower. Although Baker argued that an allocution of remorse and background evidence could have swayed the judge, the sentencing court’s later findings (in the § 440.10 motion) that no mitigation existed, and the fact that the judge imposed a non-maximum term, undercut any showing of a “substantial” likelihood of a shorter sentence.

3. Limits of Cronic
Cronic allows presumed prejudice only where counsel completely fails to challenge the prosecution or is absent at a critical stage. Baker did not raise this argument before the state courts, nor did his case present a total denial of advocacy: Bruno appeared, made brief remarks, and negotiated a concurrent plea on a secondary charge. Thus, neither the state courts nor the Second Circuit erred by analyzing under Strickland alone.

Impact

Baker v. Conway reinforces several important principles:

Defense counsel must review and discuss presentence reports and potential mitigating evidence, especially in capital or life-term cases.
Strategic decisions at sentencing must follow reasonable investigation; failure to investigate is objectively unreasonable.
To invoke Cronic’s presumption, a petitioner must clearly present that theory in state court and show a total breakdown of advocacy.
Under AEDPA, federal courts give wide deference to state courts and defense counsel; mere errors at sentencing may be unreasonable but still fail to establish required prejudice.

Complex Concepts Simplified

Strickland Test: Lawyers must be competent (performance) and their mistakes must have affected the case outcome (prejudice).
Cronic Presumption: In rare instances—like no lawyer present or complete silence—courts assume prejudice without proof.
AEDPA Deference: When a state court rejects a federal claim, a habeas court must defer unless the state decision was unreasonable under Supreme Court law.
Allocution: The defendant’s chance to speak directly to the judge before sentencing, often to express remorse or mitigating facts.

Conclusion

Baker v. Conway clarifies that failure to prepare and advocate at sentencing is a Strickland deficiency—but that deficiency does not automatically translate into a new sentence unless the defendant shows a substantial likelihood of a different result. It also underscores the procedural necessity of presenting all legal theories (including Cronic) in state court and the strict standards of federal habeas review under AEDPA. As a guide for practitioners, this decision emphasizes thorough sentencing preparation, prompt presentation of appellate theories, and realistic expectations of federal relief.