Hernandez: Eleventh Circuit Accepts Allegations of Bad Lawyering under Padilla v. Kentucky; Case Sent Back for an Evidentiary Hearing

The question of when a criminal defendant is entitled to a do-over because his lawyer failed to correctly advise him of the immigration consequences of a conviction in light of the Supreme Court’s decision in Padilla v. Kentucky is getting more attention from the federal appeals courts.  Today the Eleventh Circuit Court of Appeals decided the case of Rodolfo Hernandez v. United States, No. 13-10352 (decided Mar. 2, 2015).  In a brief, nine-page decision, the court concluded that Mr. Hernandez who made allegations about shoddy lawyering against his former attorney  should not have had his case summarily dismissed by a lower court; instead, the appeals court ruled, Mr. Hernandez should have been given a chance to build his case and climb what is almost always the very steep hill toward post conviction relief.

The story behind the alleged bad lawyering although pretty typical has some interesting twists.  Mr. Hernandez claimed that his former attorney did not give him correct legal advice about whether he would be deported back to Cuba — his home country —  if he pled guilty to a federal drug trafficking charge.  The lawyer had mixed opinions about the issue.  Because of the lack of diplomatic relations between the United States and Cuba it was not unusual for Cuban nationals convicted of crimes in the United States to remain in a sort of immigration limbo; technically subject to deportation but never actually being deported.  At one point, because of this unique situation, the lawyer asked the judge for his insight, but the judge refused to get involved.  Mr. Hernandez ultimately entered a plea — notably to every charge that was filed against him by the Government — and while he was serving time on his conviction received a letter from the Department of Homeland Security telling him that he may be subject to deportation.

The standard for proving a claim of ineffective assistance of counsel is a high one.  Even if a lawyer did give his client bad advice, the client, in order to secure post conviction relief, must still have to prove that the outcome of the proceedings would have been different “but for” counsel’s poor performance — the so-called prejudice test.  This is where most ineffective assistance claims run into trouble, as was the case with the Rasheed case, recently discussed in this blog.

But in a departure from how other appeals courts have ruled on the issue of prejudice — generally finding no prejudice because, among other reasons, there existed in the words of those courts overwhelming evidence of guilt —  the appeals court in this case sided with the defendant.  It did so because it accepted Mr. Hernandez’s claim that had he known about the risk of deportation that he, in fact, faced, he would not have pled guilty but instead would have opted  to fight the charges at trial.  Of course, had Mr. Hernandez  gone to trial and lost, he would have received a much stiffer penalty than the one he received following his guilty plea.  But to the court this trade off would have been a “rational” one for someone in Mr. Hernandez’s position whose main interest was avoiding deportation.

It will be interesting to see how the case unfolds now that Mr. Hernandez has been given the green-light to fully present his case to the trial judge.  I expect that this won’t be the last time we hear from the Eleventh Circuit on Mr. Hernandez’s plight, although I fear that the next time the Eleventh Circuit speaks on this matter, it will not be in Mr. Hernandez’s favor.

The decision in Hernandez v. United States, No. 13-10352 can be accessed here.

The Character of Man

Here is something from Mark Twain’s Autobiography which he wrote and dictated in bits and pieces over the course of many years, and completed in December 1909, four months shy of his death on April 21, 1910.  The piece is entitled The Character of Man, which was dictated by Twain on January 23, 1906.

The Character of Man

Concerning Man — he is too large a subject to be treated as a whole; so I will merely discuss a detail or two of him at this time.  I desire to contemplate him from this point of view — this premiss: that he was not made for any useful purpose, for the reason that he hasn’t served any; that he was most likely not even made intentionally; and that his working himself up out of the oyster bed to his present position was probably matter of surprise and regret to the Creator. **** For his history, in all climes, all ages and all circumstances, furnishes oceans and continents of proof that of all the creatures that were made he is the most detestable.  Of the entire brood, he is the only one — the solitary one — that possesses malice.  That is the basest of all instincts, passions, vices — the most hateful.  That one thing put him below the rats, the grubs, the trichinae.  He is the only creature that inflicts plain for sport, knowing it to be pain.  But if the cat knows she is inflicting pain when she plays with the frightened mouse, then we must make an exception here; we must grant that in one detail man is the moral peer of the cat.  All creatures kill — there seems to be no exception; but of the whole list, man is the only one that kills for fun; he is the only one that kills in malice, the only one that kills for revenge.  Also — in all the list he is the only creature that has a nasty mind.

Shall he be extolled for his noble qualities, for his gentleness, his sweetness, his amiability, his lovingness, his courage, his devotion, his patience, his fortitude, his prudence, the various charms and graces of his spirit?  The other animals share all these with him, yet are free from the blackness and rottennesses of his character.

****  There are certain sweet-smelling sugar-coated lies current in the world which all politic men have apparently tacitly conspired together to support and perpetuate.  One of these is, that there is such thing in the world as independence: independence of thought, independence of opinion, independence of action.  Another is, that the world loves to see independence — admires it, applauds it.  Another is, that there is such a thing in this world as toleration — in religion, in politics, and such matters; and with it trains that already mentioned auxiliary lie that toleration is admired, and applauded.  Out of these trunk-lies spring many branch ones: to wit, the lie that not all men are slaves; the lie that men are glad when other men succeed; glad when they prosper; glad to see them reach lofty heights; sorry to see them fall again.  And yet other branch-lies: to wit, that there is heroism in man; that he is not mainly made up of malice and treachery; that he is sometimes not a coward; that there is something about him that ought to be perpetuated — in heaven, or hell, or somewhere.  And these other branch-lies, to wit: that conscience, man’s moral medicine chest, is not only created by the Creator, but is put into man ready-charged with the right and only true and authentic correctives of conduct — and the duplicate chest, with the self-same correctness, unchanged, unmodified, distributed to all nations and all epochs.  And yet one other branch-lie, to wit, that I am I, and you are you; that we are units, individuals, and have natures of our own, instead of being that tail-end of a tape-worm eternity of ancestors extending in linked procession back — and back — and back — to our source in the monkeys, with this so-called individuality of ours a decayed and rancid mush of inherited instincts and teachings derived, atom by atom, stench by stench, from the entire line of that sorry column, and not so much new and original matter in it as you could balance on a needle point and examine under a microscope.  This makes well nigh fantastic the suggestion that there can be such a thing as a personal, original and responsible nature in a man, separable from that in him which is not original, and findable in such quantity as to enable the observer to say, This is a man, not a procession.

*****  Consider that first mentioned lie: that there is such a thing in the world as independence; that it exists in individuals, that it exists in bodies of men.  Surely if anything is proven, by whole oceans and continents of evidence, it is that the quality of independence was almost wholly left out of the human race.  The scattering exceptions to the rule only emphasize it, light it up, make it glare.  The whole population of New England meekly took their turns, for years, in standing up in the railway trains, without so much as a complaint above their breath, till at least these uncounted millions were able to produce exactly one single independent man, who stood to his rights and made the railroad give him a seat.  Statistics and the law of probabilities warrant the assumption that it will take New England forty years to breed his fellow.  There is a law, with a penalty attached, forbidding trains to occupy the Asylum street crossing more than five minutes at a time.  For years people and carriages used to wait there nightly as much as twenty minutes on a stretch while New England trains monopolized that crossing.  I used to hear men use vigorous language about that insolent wrong — but they waited, just the same.

We are discreet sheep; we wait to see how the drove is going; and then go with the drove.  We have two opinions: one private, which we are afraid to express; and another one — the one we use — which we force ourselves to wear to please Mrs. Grundy, until habit makes us comfortable in it, and the custom of defending it presently makes us love it, adore it, and forget how pitifully we came by it.  Look at it in politics.  Look at the candidates whom we loathe, one year, and are afraid to vote against the next; whom we cover with unimaginable filth, one year, and fall down on the public platform and worship, the next — and keep on doing it until the habitual shutting of our eyes to last year’s evidence brings us presently to a sincere and stupid loyalty — a snare invented by designing men for selfish purposes — and which turns voters into chattels, slaves, rabbits; and all the while, their masters, and they themselves are shouting rubbish about liberty, independence, freedom of opinion, freedom of speech, honestly unconscious of the fantastic contradiction; and forgetting or ignoring that their fathers and the churches shouted the same blasphemies a generation earlier when they were closing their doors against the hunted slave, beating his handful of humane defenders with Bible-texts and billies, and pocketing the insults and licking the shoes of his Southern master.

If we would learn what the human race really is, at bottom, we need only observe it in election times.  A Hartford clergyman met me in the street, and spoke of a new nominee — denounced the nomination, in strong, earnest words — words that were refreshing for their independence, their manliness.  He said, “I ought to be proud, perhaps, for this nominee is a relative of mine; on the contrary I am humiliated and disgusted; for I know him intimately — familiarly — and I know that he is an unscrupulous scoundrel, and always has been.”  You should have seen this clergyman preside at a political meeting forty days later; and urge, and plead, and gush — and you should have heard him paint the character of this same nominee.  You would have supposed he was describing the Cid, the Great-heart, and Sir Galahad, and Bayard the Spotless all rolled into one.  Was he sincere?  Yes — by that time; and therein lies the pathos of it all, the hopelessness of it all, when he perceives, by the general drift, that that is the popular thing to do.  Does he believe his lie yet?  Oh, probably not; he has no further use for it.  It was but a passing incident; he spared to it the moment that was its due, then hastened back to the serious business of his life.

And what a paltry poor lie is that one which teaches that independence of action and opinion is prized in men, admired, honored, rewarded.  When a man leaves a political party, he is treated as if the party owned him — as if he were its bond slave, as most party men plainly are — and had stolen himself, gone off with what was not his own.  And he is traduced, derided, despised, held up to public obloquy and loathing.  His character is remorselessly assassinated; no means, however vile, are spared to injure his property and his business.

The preacher who casts a vote for conscience’ sake, runs the risk of starving.  And is rightly served; for he has been teaching a falsity — that men respect and honor independence of thought and action.

Mr. Beecher may be charged with a crime, and his whole following will rise as one man, and stand by him to the bitter end; but who so poor to be his friend when he is charged with casting a vote for conscience’ sake?  Take the editor so charged — take — take anybody.

All the talk about tolerance, in anything or anywhere, is plainly a gentle lie.  It does not exist.  It is in no man’s heart; but it unconsciously and by moss-grown inherited habit, drivels and slobbers from all men’s lips.  Intolerance is everything for one’s self, and nothing for the other person.  The main-spring of man’s nature is just that — selfishness.

Let us skip the other lies, for brevity’s sake.  To consider them would prove nothing, except that man is what he is — loving toward his own, lovable, to his own, — his family, his friends — and otherwise the buzzing, busy, trivial enemy of his race — who tarries his little day, does his little dirt, commends himself to God, and then goes out into the darkness, to return no more, and send no messages back — selfish even in death.

In Front of Your Nose

In 1946 George Orwell wrote a piece called In Front of Your Nose in which he famously said that “[t]o see what is in front of one’s nose needs a constant struggle.”  This is so, Orwell thought, because people have a habit of  “ignoring facts which are obvious and unalterable, and which will have to be faced sooner or later.”  As Orwell explained:

[W]e are all capable of believing things which we know to be untrue, and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right.  Intellectually, it is possible to carry on this process for an indefinite time: the only check on it is that sooner or later a false belief bumps up against solid reality, usually on a battlefield.

We all know what it looks like when false beliefs bump up against solid reality on a battlefield.  Paris is but one example of that.  Others that come to mind are Ferguson and Hong Kong.  In Paris the false belief was that terrorist watch lists and “intelligence” were effective tools in keeping a check on disenchanted, frustrated and angry youths.  In Ferguson, it was that blacks would be content living  in poverty and ignominy for the rest of their lives, under a power structure dominated mostly by non-blacks.  And in Hong Kong, it was that everyone who wasn’t rich wouldn’t also like the chance to become rich or at least level the playing field for those who weren’t rich.

But little seems to change even when the battle between myth and fact makes it way from the sterile confines of the internet and the legislature on to the streets.  If anything, it is the status quo that has  prevailed in most places.  In Paris, as in the United States, post-September 11th, the talk, no doubt, is of bulking up the security state to further marginalize those who “hate the values of the freedom-loving West.  In Ferguson, blacks have gone back to living their miserable lives  hoping that they won’t end up like Michael Brown even though that may be a fate better than what is surely in store for most of them, being  poor and black in the United States.  And in Hong Kong the Chinese Communist party had its way with the protestors, giving not one inch to their demands and barely acknowledging their months-long existence.

It may be that we have not yet reached the battlefield to which Orwell referred in his essay.  That the events in Paris, Ferguson and Hong Kong are simply a preview of what is to come: more hardening up of positions, more violence, and more deaths.  But it may also be that none of what Orwell feared will ever come to pass.  Not because we will have finally come face to face with the brutal facts but because the governing class will have succeeded in eliminating all unpleasant facts; in fact, we are already halfway there given the current size of the surveillance apparatus.  That would be the scariest proposition of all.

Rasheed: Divided Fifth Circuit Panel Finds Counsel Ineffective Under Padilla But No Harm

Now that the Supreme Court has decided that Padilla cannot be applied retroactively, the lower courts are, as expected, trying to figure out what set of circumstances merits relief under Padilla — that is, when does a foreign national have a claim for ineffective assistance of counsel under the Sixth Amendment because his attorney did not give him the correct or any advice on the immigration consequences of pleading guilty to a criminal offense?

The Fifth Circuit Court of Appeals recently took up this issue in the case of United States v. Kayode, and, in a 2-1 decision, ruled against the petitioner, a federal prisoner who brought the appeal without the help of an attorney.  The majority concluded that while the petitioner might have, in fact, received ineffective assistance of counsel — the petitioner told the court among other things that his attorneys failed to tell him he would be subject to deportation once he pleaded guilty to the charges brought against him by the Government —  he did not show that his attorneys’ bad lawyering harmed him in any way.  The fact that the petitioner resided in the country for 30-plus years, while relevant to whether the petitioner would have opted for a chance to fight his criminal charges at trial rather than succumb to a plea — his victory at trial would have presumably saved him from deportation — was, by itself, not enough to show he had been harmed by his lawyers’ shoddy work.  Instead, the majority focused on what it believed was the strong case the Government had against the petitioner and the petitioner’s failure to rebut any of this with evidence of his own.

If this result seems unjust to you, you are not alone.  Judge Dennis dissented from the majority decision, accusing the majority of short-circuiting the petitioner’s case.  For one, Judge Dennis wondered, how could the petitioner have given the majority what it wanted when he was housed under lock-and-key for the duration of the appeal and prepared the entire appeal on his own without the help of an attorney?  It is also puzzling, although Judge Dennis doesn’t make mention of this in his dissent, that the petitioner won’t be given a do-over, which is really what these kinds of postconviction cases are all about, when he has already demonstrated to the satisfaction of the entire court the grossly incompetent lawyering he received up until he pleaded guilty.

The opinion in United States v. Rasheed Kayode, No. 12-20513 (5th Cir. decided Dec. 23, 2014), can be found here.

UPDATE (2/24/2015): I have since learned that the petitioner in this case, Rasheed Kayode, had asked the appeals court to reconsider its decision.  He is, surprisingly, still representing himself, and he prepared and filed his own petition for rehearing, which relies, exclusively, on Judge Dennis’s dissent, for the reasons why he should be given a rehearing.

The Other Side of the Wind

The following is a “reluctantly dissenting” opinion written by a federal appellate judge in a case  that concerned the voluntariness of incriminating statements made by a 19-year old to detectives in an interrogation room.  The opinion is notable most of all for its honesty and is worth a read for lawyers and laypersons alike.  It gives one faith that the cards are not always stacked against the down and out and that sometimes just results are the order of the day even if it means the law, at least as it is currently written, will not be followed to a “T”.

Chief Judge KOZINSKI, reluctantly dissenting:

This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for—and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love—or even understand—and perhaps not even most of them. I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam) (“[T]he inevitable consequence of [AEDPA] is that [federal] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”); see also Brown v. Payton, 544 U.S. 133, 148-49 (2005) (Breyer, J., concurring) (stating that even though he likely would have found a constitutional violation “[w]ere [he] a California state judge,” the state court’s denial of habeas relief was reasonable).

Under this unforgiving standard, Judge Murguia has the better of the argument. This is not a case where the state judges were confused about the law or overlooked key evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004). No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager. Another uneven contest that Sessoms was bound to lose.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. If the State of California can’t convict and sentence Sessoms without sharp police tactics, it doesn’t deserve to keep him behind bars for the rest of his life. I have seen far too many cases where police extract inculpatory statements from suspects they believe to be guilty, then stop looking for evidence, confident that the courts will uphold the interrogation, no matter how tainted. See, e.g., Milke v. Ryan, 711 F.3d 998, 1001-02 (9th Cir. 2013)Taylor,366 F.3d at 996-97. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 3-5 (2009); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 88-89 (2008). When courts bend over backwards to salvage evidence extracted by questionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence.

The state courts should have been far more vigilant in correcting and condemning the detectives’ improper conduct, particularly since it involved a naïve teenager who clearly tried very hard to invoke his constitutional right to have a lawyer present during questioning. The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

The case is Sessoms v. Grounds, No. 08-17790 (9th Cir. decided Sept. 22, 2014) (en band).  The full opinion can be downloaded here.

Removing the Barriers to Happiness

Linda Greenhouse, the Times’ former Supreme Court correspondent, recently wrote about the shifting views of the public on gay marriage and the prospect of the Supreme Court deciding once and for all whether  the Constitution confers a right on gays to marry.  In her piece, Greenhouse made the observation that where once it was taboo for one to come out in support of gay marriage, now that sentiment is almost  de rigueur.  In Greenhouse’s words:

Twenty years ago, even many well intentioned straight people found same-sex marriage a challenging concept to grasp, if they thought about it at all.  Today, it would take an act of will to ignore the fact that as barriers fall, the sum total of human happiness increases and any theoretical downside remains — as the states have found — impossible to articulate convincingly.

Greenhouse seemed to include herself among the “well intentioned straight people” for whom gay marriage was until recently an afterthought, which is admirable, if only because she tried to level with her intended audience, which most other writers today would never do.

But Greenhouse breaks no new ground in her piece.  She is mostly preaching to the choir when she reveals that even  “well-intentioned straight people” may have at one time denied gays the right to marry.  Discriminatory attitudes are not exclusive to born and bred bigots.  They are held by everyone, and can be shed by them.  But to say that one’s neighbor down the street in left-leaning Park Slope, Brooklyn, might have at one time disliked gays is to say nothing at all.

The more interesting question is what has caused the widespread shift in attitudes toward a greater acceptance of gays and their right to marry and why a similar shift hasn’t taken hold with respect to other groups and their ability to exercise fundamental rights.  Certainly lowering the “barriers” for the poor or even the middle class to affordable housing would increase the “sum total of human happiness”.  But why hasn’t such a change taken place, and with the kind of momentum and fanfare that has accompanied the gay marriage movement?

The answer perhaps lies in the fact that the process of conferring a right upon a group once denied to it to the exclusion of equally deserving groups is itself an exercise in discrimination.  The unspoken truth is that society is making a judgment that one group is more deserving or of greater worth than another.  Nothing has changed in the past few decades for gays or for the poor in terms of each group’s defining characteristics; if anything the destitution that has come to characterize the condition of being poor is even more pronounced today than it was ten, twenty years ago.  What has changed, however, is that the gay community has, as a whole, become more influential and affluent, even before it  started winning in the courts to solidify its status as an equal with heterosexuals.  It didn’t hurt that government officials pursued their anti-gay agenda with a kind of ferocity once reserved for blacks in the Jim Crow south.  Other groups that have not been able to remove the “barriers” to “happiness” that the gay marriage movement has been so effective in removing have failed in their efforts mostly because they remain an afterthought for most people.  The public might sympathize with their condition and their causes but by and large it will ignore these groups just as it once did with gays.

Recognizing that gays have a right to marry is a positive development.  But it shouldn’t be done in a kind of vacuum where the motivation for change is generated by the same kind of hysterics that prompted the government to ban gay marriage in the first place.  This is especially true for those who once rejected gay marriage as a fundamental right.  For  persons who fall into that category, and I imagine there are a lot of them,  it is just as important to figure out why they decided to switch positions.  The answer may not be a pleasant one but it is worth knowing nonetheless, if anything so that we can understand the true character of the society in which we live.

What White Flight Looks Like Today

Below is a letter/article I submitted to my local community paper for publication.  After some back and forth, the paper decided not to publish it, at least in its current form, for reasons that are not worth reciting here.  I have changed the location references but the rest of the article remains unchanged.

*****

My wife and I live in [Springfield], next to an eyesore that is one of the many newly constructed homes in the area. These new housing projects tend to share common characteristics like massive foundations (the one next to our house promotes itself with a sign that says “SIZE MATTERS!”), cheap construction and a confusion of styles (a Craftsman, bungalow townhouse with the vibe of a ski chalet). What often happens is a bulldozer swoops in and makes quick work of an older house – one that had no defects to speak of except perhaps for those that arose out of the developer’s post-purchase neglect. The house is demolished because it is considered too “old” and too small even though countless families have once called it home. It is replaced by a behemoth of a house that is built with blazing speed out of what looks like clapboard, and has an expected lifespan that is a fraction of what was once the standard for newly constructed homes in this area. But the family that ends up buying and moving into this new and “improved” house won’t know any of that. They will be told it is a state of the art home with the best amenities and “green” technology money can buy. There is nothing “green”, however, about demolishing a single-family house only to replace it with another single-family house that is twice and sometimes triple the size of its former self. The only thing “green” about such a process is in the massive sums of money that will change hands, and most of that will be going to only one or two individuals.

Not all new housing projects are objectionable. Some occupy once vacant lots or replace structures that are no longer habitable, and can longer be made so. Some are modest in scope and seek to improve the existing structure without ballooning its footprint and overall size to absurd proportions. But such projects are few and far between. Instead, what one sees in the area with increasing regularity are larger and larger houses that dwarf the 1,200 square foot house that was once a staple of [Springfield’s] housing stock. The houses now being built invariably cost upwards of half-a-million dollars thus making them prohibitively expensive for almost everyone except the rich. These are the same people who once fled the city to the suburbs only to realize that their distaste or fear of city life was no match for their frustration of having to crawl along the interstate at five miles an hour on a Friday afternoon. So they decided to import a piece of suburbia into the city.

And we are now forced to suffer the consequences. Many who have considered moving to [Springfield] are forced to look elsewhere, depriving [Springfield] of the diversity that is necessary for a vibrant community, not one that just cares about keeping “suspicious looking youths” off its streets. And for those who chose to stick around [Springfield] and brave the “white flight” that has, strangely enough, contributed to all this development craziness, all I can say is: my condolences. Your neighborhood is quickly becoming just another gated community.