Category Archives: Criminal Law

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.

UPDATE (4/17/15): On March 2, 2015, the Fifth Circuit denied Mr. Kayode’s petition for a rehearing by the panel and by the en band court.

Judge Martin and the Eleventh Circuit

The Eleventh Circuit Court of Appeals has issued some noteworthy decisions in the last few weeks concerning the rights of foreign nationals in both criminal and civil proceedings.  One case, Gupta v. McGahey, No. 11-1420, concerned the right of an immigrant to sue immigration officers for civil rights violations; the Eleventh Circuit ultimately decided he had no such right.  Another case,  United States v. Garza-Mendez, No. 12-13643, involved an effort by an immigrant to reduce his sentence for a federal conviction of unlawful entry by obtaining a “clarification” order from a state court judge for a prior domestic violence conviction which had been used by federal prosecutors to enhance his sentence; the Eleventh Circuit turned aside this effort, as did the lower court, finding that the order was just a belated effort by the immigrant party to influence the outcome of his federal case.  In the last case, Donawa v. U.S. Att’y General, No. 12-13526, a foreign national of Antigua tried to avoid deportation by arguing that two prior Florida convictions for drug-related offenses which immigration authorities had used to initiate deportations proceedings against him were not deportable offenses; the Eleventh Circuit agreed in part and sent the case back to the immigration judge for a second look.

In each of these three cases, Judge Martin ended up on the side of the immigrant.  She was alone in that regard in two of the cases where she issued strong dissents and took her colleagues to task for what she believed was their “astonishing” and “cursory” legal reasoning.  As someone who spent most of her legal career prosecuting individuals, one might find Judge Martin’s positions surprising.  But one’s past experience is not always a reliable predictor of future action.  In fact, the two sometimes have no discernible correlation; Obama is a good example of that.

It will be interesting to see how Judge Martin develops as a jurist and to what extent she is able to influence other members of the Eleventh Circuit, or instead  alienates them.  If the court’s recent decisions are any indication, Judge Wilson has signaled that he too may be prepared to speak out when his colleagues reach an unjust result.

A National Survey on Collateral Consequences of Criminal Convictions

Homepage for the Project’s website

In a notable project and much-needed initiative, the Department of Justice and the American Bar Association have joined forces to create a comprehensive yet user-friendly database of collateral consequences of criminal convictions for the domestic United States.  Called the National Inventory of the Collateral Consequences of Conviction, the project, according to its creators:

[W]ill make it possible for criminal and civil lawyers to determine which collateral consequences are triggered by particular categories of offenses, for affected individuals to understand the limits of their rights and opportunities, and for lawmakers and policy advocates to understand the full measure of a jurisdiction’s sanctions and disqualifications.

It is no surprise that in describing the genesis of the project, the ABA and DOJ made express mention of Padilla and its proposition “that when a person considering a guilty plea is unaware of severe consequences that will inexorably follow, this raises questions of fairness and implicates the constitutional right to effective assistance of counsel.”

For all its benefits, the project is still a work in progress and those who access its website might well encounter a dearth of information for certain states — Georgia being one of them.  Going forward, and knowing that the list of collateral consequences is ever growing, I would like the project’s creators and staff to consider adding a blog to the website which would be updated every time a new collateral consequence is added to the project’s database.

Akinsade: Strickland Prejudice Survives District Court Admonishment

A helpful reader has reminded me that fans of Padilla retroactivity may want to know about the recent decision issued by the Fourth Circuit Court of Appeals in Akinsade v. United States, No. 09-7554.  Akinsade involved a Nigerian immigrant who sought coram nobis relief based on the failure of his counsel to correctly advise him on the immigration consequences of a plea to embezzlement.  The lawyer advised Akinsade that he could not be deported based on a plea to this charge, when, in fact, he could have been.  No dispute that this was ineffective assistance.  The controversy, however, had to do with whether the district court cured the prejudice which flowed from the attorney’s misadvice during its plea colloquy with Akinsade.  The Fourth Circuit answered in the negative, and in doing so, granted Akinsade coram nobis relief.

There are a few things to note about the Akinsade decision.  First, in finding that the District Court did not “cure” the prejudice which arose from counsel’s misadvice, the Fourth Circuit was careful to emphasize the different constitutional rights underpinning a guilty plea proceeding and the effective assistance of counsel in a criminal matter.  As the Fourth Circuit put it:

Our decision today does not change the role of or impose any new obligations on the district court in Rule 11 proceedings. A district court’s duty to ensure a knowing and voluntary plea arises from the Fifth Amendment’s guarantee of due process and thus affords defendants a right distinct from the Sixth Amendment right to effective assistance of counsel. While we have recognized the inter-relationship between the two amendments in the context of guilty pleas, see United States v. Smith, 640 F.3d 580, 582 (4th Cir. 2011), we have never suggested that the sufficient protection of one right automatically corrects any constitutional deficiency of the other. Indeed, the Supreme Court has rejected a very similar argument. See Missouri v. Frye, 566 U.S. ___ (2012) (slip op., at 5) (explaining that the Court in Padilla, 130 S. Ct. 1473 (2010),rejected the state’s argument that a knowing and voluntary plea supersedes defense counsel’s affirmative misadvice on deportation consequences). As a result, we in no way suggest that in performing its role during the proceeding, a district court needs to be “clairvoyant” or must “guess” about whether a defendant has been misinformed regarding a particular consequence of a plea. When, as here, the claim raised is that of ineffective assistance of counsel, the overall focus must be on the prejudice arising from counsel‘s deficient performance. If a district court’s admonishment so happens to correct the deficient performance then there is no prejudice; however, if there is no correction, then our scrutiny is not directed toward the district court but appropriately to the constitutional offender.

Second, the Fourth Circuit expressly declined to rule on the issue of whether Padilla applied retroactively to the petitioner’s claim since the Government acknowledged that the misadvice provided by counsel was constitutionally deficient.  In essence, this is not so much a Padilla case as it is a Strickland case.  Which lends some support to the notion that Padilla did not create a new rule for retroactivity purposes.

Third, the finding of prejudice by the Fourth Circuit is significant in that the court looked beyond the so-called likelihood of success at trial to the defendant’s desire to contest the Government’s case because of the severity of the consequences which might befall him should he be convicted.  As the Fourth Circuit put it:

Akinsade still must show that the misadvice is a “but for” cause of his entering the guilty plea. Under the prejudice prong of Strickland, “[t]he potential strength of the state’s case must inform our analysis, inasmuch as a reasonable defendant would surely take it into account.” Ostrander v. Green, 46 F.3d 347, 356 (4th Cir. 1995)(citing Hill, 474 U.S. at 59-60overruled on other grounds by O’Dell v. Netherland, 95 F.3d 1214 (4th Cir. 1996) (en banc). Applying this standard, we have held that counsel’s affirmative misadvice on collateral consequences to a guilty plea was prejudicial where the prosecution’s evidence “proved to be more than enough” for a guilty verdict but was “hardly invincible on its face.” Ostrander, 46 F.3d at 356. We have further found prejudice where the defendant, whose counsel misinformed him of deportation consequences, had significant familial ties to the United States and thus would reasonably risk going to trial instead of pleading guilty and facing certain deportation. United States v. Gajendragadkar, No. 97-7267, 1998 WL 352866, at *2 (4th Cir. June 3, 1998). In Gajendragadkar we reasoned that “[a]lthough a trial would present the risk of deportation, it would provide [the defendant] the opportunity to contest the Government’s evidence, or failing that, to challenge the Government’s estimate loss.” Id.

The decision can be downloaded here.

No Longer the New Gideon

After the Supreme Court announced its decisions in the Frye and Lafler cases, the news media, if I recall correctly, promptly declared it the dawn of a new era — one that meant significant new protections for the criminal defendant.  Some even went so far as to call the decisions in Frye and Lafler the “new Gideon”.

Not so says the Eleventh Circuit, at least when it comes to new rule, retroactivity.  In In re: Michael Perez, No. 12-12240, the Eleventh Circuit rejected the notion that Frye and Lafler (ineffective assistance applies to plea bargaining) announced “new rules” within the meaning of Teague’s retroactivity framework, and held, instead, that the decisions were “merely an application of the Sixth Amendment’s right to counsel, as defined in Strickland, to a specific factual context.”  The court’s rejection of “new rule” status for Frye and Lafler makes it harder for one to argue that these decisions revolutionized the practice of criminal defense.  And, it adds weight to the argument that no such revolution took hold when the Supreme Court announced a similar, Strickland-based decision in Padilla v. Kentucky.  Simply put, if Frye and Lafler did not announce a new rule under Teague, Padilla, surely, could not have done so.

It will be interesting to see if a similar Circuit-split develops with respect to the retroactive effect of Frye and Lafler, and how such rulings might affect the present controversy over Padilla retroactivity.  Might the Supreme Court take note of the Eleventh Circuit’s ruling in Perez in deciding Chaidez?  Perhaps.  Especially if asked to by counsel.

The opinion in In re: Michael Perez can be downloaded here.

Memorial Day 2012 Padilla Retroactivity Update

I hope everyone is having a nice and meaningful Memorial Day.  I believe I have some serious catching up to do in the Padilla retroactivity department for which I apologize.

First off, the Fifth Circuit U.S. Court of Appeals recently issued a decision which addressed the issue of whether Padilla can be applied retroactively.  The case is United States v. Amer and the Fifth Circuit held that Padilla cannot be applied retroactively because it is a “new” rule under Teague.  A few things to note about this decision.  First, the Fifth Circuit prefaced its opinion by acknowledging that the issue of Padilla retroactivity is currently pending before the Supreme Court vis-a-vis the Chaidez case.  Amer, slip op. at 2-3 (“We look forward to likely resolution of this question by the Supreme Court, however, in the interim, we join the Seventh and Tenth Circuits in holding that Padilla announced a ‘new’ rule within the meaning of Teague”).  This, coupled with the brevity of the Fifth Circuit’s opinion in Amer — the opinion is all but six pages — signals, to me at least, that the Fifth Circuit’s decision in Amer is less the product of a court seeking to answer a thorny legal question than it is an effort by the court to fortify the Padilla non-retroactivity contingent so as to sway the Supreme Court itself in whatever ruling it makes in the Chaidez case.  It is also interesting to note that although the district court ruled in favor of the petitioner it did so on an issue that was different from the one that was addressed and answered by the Fifth Court, at least from how the Fifth Circuit summarized the lower court’s decision (I have yet to read it).  Is this perhaps another indication of judicial overreaching by the Fifth Circuit?

In any event, the decision in Amer can be downloaded here.

In other Padilla retroactivity news, the Supreme Court of Florida recently heard oral arguments in its own Padilla retroactivity case, Hernandez v. State.  You can watch a webcast of the arguments here.  The Court has also made available the transcript of the oral argument, which can be downloaded here.

Lastly, the Social Science Research Network or SSRN has published a few articles  concerning Padilla; one pertains to Padilla’s on-the-ground relevance and utility for the criminal defense attorney, the other, to Padilla’s applicability under the Teague’s watershed exception to non retroactivity.

The Race Begins… Cert. Granted in Chaidez

As several helpful readers have pointed out, the U.S. Supreme Court granted cert. today in Chaidez.  According to the Court, the question for which cert.  was granted in Chaidez is as follows:

In Padilla v. Kentucky, 130 S. Ct. 1473 (2010), this Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. The question presented is whether Padilla applies to persons whose convictions became final before its announcement.

The actual statement from the Court setting forth the above question can be downloaded here.  SCOTUS blog has this to say about today’s grant of cert. in Chaidez.